Issue: Distribute estate under the 3 intestacy systems

- English per stirpes [note: English per stirpes + Modern per stirpes are always identical if there is a
survivor at the children level + only different if no surviving child exists]

o Under the English per stirpes system, the property is divided at the level of Ts children,
regardless of whether or not there are surviving children.
o Any surviving grandchildren of Ts predeceased children will take their parents share.
o Spouses [wives/husbands] and domestic partners of Ts heirs will not take any portion
of Ts estate since they do not qualify as Ts issue.
o If a predeceased child leaves no children, that predeceased childs share will be
redistributed in equal shares among all the other childrens shares.
Modern per stirpes
o Under the modern per stirpes system, the property is initially divided at the first level
where there is a living descendant. [In this case, the generation of Ts children, because
[child X] is a survivor.] Each survivor and each predeceased person with issue at that
generation gets a share.
If a predeceased person at that level has no issue, his/her share is redistributed
among the survivors.
If predeceased person at this level does have issue, his/her issue will step in
through representation to receive [their parents/(or grandparents)] share.
o As with English per stirpes, spouses [wives/husbands] and domestic partners of Ts
heirs will not take any portion of Ts estate since they do not qualify as Ts issue.
o Note to self: could end up the same as under the English per stirpes system
UPC
o Under the UPC system, the property is initially divided at the first level where there is a
living descendant, (same as the modern per stirpes system.) [Here, that is the level of
Ts children (/grandchildren)].
o However, under the UPC, unclaimed shares are pooled and dropped down to the next
level where they get distributed equally among survivors at that level.

Issue: Whether a valid trust was created

- For a valid trust to be created, a settlor must have the intent to create a trust, specific property
to be held in the trust (res), and beneficiaries who can enforce the trust must be identified or
identifiable at the time they are entitled to take. A trust can be created by written document or
expressed orally. And a trust cannot fail for want of a trustee; when a trustee declines to serve
or no trustee is named, the court will just appoint one. The purpose of a trust can be anything so
long as it is not illegal, against public policy, or tortious.
o Here, T [manifested/did not manifest] the intent to create a trust through [e.g. the note
he left with the suitcase].
o Here, [the suitcase of $100k] (res) was the transfer of ownership to hold for the benefit
of [beneficiary]
o Here, a beneficiary [was/was not] identified.
Note: Beneficiaries must be identifiable but need not necessarily be named so
long as the status or class is reasonably identifiable.
o Here, the trusts purpose[e.g. to fund a childs college education][is/is not] valid.

Issue: Whether trustee breached his/her fiduciary duties

- Trustees owe fiduciary duties to trust beneficiaries. The settlor can authorize the trustees
powers as long as they are not illegal, tortious, or contrary to public policy. A trustee has any
power the settlor gives plus any powers necessary and appropriate to maintain and manage the
trust. A trustee also has fiduciary duties [including the duties of loyalty, prudence, to make
accounts, keep beneficiaries informed, to diversify assets, impartiality, and to supervise] and is
required act in the best interests of the trust beneficiaries. If a trustee breaches his/her duty, the
trusts beneficiaries can recover from the trustee personally (the trustee is personally liable). In
the event of a breach of loyalty, the trustee must pay any actual and collateral damages
resulting from the breach (Janes).
- Trustees cannot borrow money from the trust unless the court or settlor authorizes the
transaction; doing so would be a breach of the duty of loyalty. The trustees intentions for
borrowing money from the trust do not matter, nor would it matter if the trustee paid back the
loan at an above market interest rate.
o That a trustee borrows money from a trust without settlor or court approval alone makes
him liable for breach.
o If the trust beneficiaries can show that any damages flowed from the trustees action,
the trustee must pay accordingly.
- Trustees cannot use money from the trust for unauthorized purposes.
- Trustees cannot commingle personal funds with the trusts assets.
- If a trustee engages in self-dealing, then he/she has breached his/her duty of loyalty. A trustee
cannot partake in any transaction with the trust where the trustee is on the other side of the deal,
as there exists a clear conflict of interest (In re Rothko, 2 trustees for a painters estate engaged
in self-dealing and the 3rd breached duty of loyalty by not preventing and acceding to his coexecutors self-dealing actions).
o Here, the trustee violated this duty when [he hired his own law firm to resolve the
dispute.]. The trustee received a collateral benefit [e.g. he took a portion of the firms
profits or brought in new business] from the transaction.
o It does not matter if the trustee made a self-interested deal that was below market, as he
will still be liable for violating his/her duty of loyalty.
o Thus, the beneficiaries can recover any actual and collateral damages that flowed from
the self-dealing transaction.
- For the most part, the trustee has a duty to invest and diversify money put in a trust fund.
Issue: Can a trustee be removed?
- A trustee can only be removed for good cause, such as serious dishonesty or a breach of
trust/fiduciary duties. A trustee will not be removed simply because a beneficiary does not like
the trustee.
o Here, the beneficiaries [will/will not] win on their claims for breach of duty and thus
[will/will not] have good cause to petition the court for trustees removal.

Issue: Whether an oral promise created a valid will or contract to devise property.
- While the law of contract has evolved overtime to allow third-party beneficiaries enforce their
rights under a will, these types of contracts to make a will or to devise property are subject to
the statute of frauds. The SoF requires such contracts to be written to be enforceable.
o Here, there [was not/was] writing expressing that T promised to devise [name the
property, e.g. the store] to [name the beneficiary].
- Some states, like California, will allow oral contracts to make a will and devise property if the
beneficiary can prove the substance of the agreement through evidence.
o Here, however, the only evidence of the promise is [the beneficiarys] testimony, who is
an interested person, so a court will likely not find this contract valid.
Issue: Whether an Omitted Child Statute entitles an Omitted Child to a share of the estate.
- Every state besides Louisiana allows parents to omit children from their will intentionally.
Louisiana forces an elective share for children who are mentally infirm or disabled as well as
for children under 23 y/o unless theres just cause to disinherit them.

Under Louisianas rule, parents have just cause to disinherit their children if their child ever
actually struck the parent, the child is guilty towards a parent of cruel treatment, crime, or
grievous injury, or if a child thats attained age of the majority failed to communicate with the
parent for 2+ yrs w/o just cause. The cause for disinheriting the child also must have existed at
the time of the wills execution.

o Here, child was [clearly omitted intentionally from will/possibly omitted from will
unintentionally].
Omitted Child Statutes protect children from being unintentionally omitted from their parents
will. These statutes only apply to children who are born or adopted after the execution of a will.
Assuming [childs name] does qualify, under UPC 2-303, he would receive his intestate share
if theres no other child or, if there is another child, an equal share to that kid.
o Here, [child] [would/would not] have a strong argument that he should get an elective
share due to unintentional omission.
If substantially all of the estate is left to the omitted childs surviving parent, then the child
cannot take his intestate share.
o Here, T [left/did not leave] the estate to [childs] other surviving parent, so he
[cannot/can] take his intestate share under the Omitted Child Statute.

Issue: Bequests to step-children Omitted child statute applicable? Answer: almost always
no.
- Stepparent Dies
o In all states but MO, double-inheritance is not allowed. If the child can still inherit from
both biological parents, then [he/she] cannot inherit from a stepparent.
o Consequently, in the UPC and most states, the stepchild cannot inherit from a stepparent
unless [he/she] is adopted.
o If a stepchild has been adopted by their stepparent, then that stepchild can inherit from
the step[mother/father] but not their biological [mother/father].

Issue: Whether an Omitted Spouse can inherit from the estate

- An omitted spouse can seek protection/provision via federal and state laws (like ERISA), which
aim to provide support for surviving spouses and through claiming an outright elective share
of the marital property. When a spouse is omitted from a will, a rebuttable presumption arises
that the testator accidentally disinherited the spouse.
o Presumption can be rebutted by: evidence specifically demonstrating that testator
provided for spouse outside the will and intended that provision to be in lieu of will
inheritance. To rebut the presumption, this evidence must demonstrate a desire that this
specific spouse was disinherited.
In many states, like Nevada, that a spouse is otherwise provided for apart from
the will alone is insufficient to rebut the presumption of accidental
disinheritance. Thus, in these jurisdictions, even if the spouse is provided for
elsewise, [he/she] still can elect to claim an elective share unless a contrary
intention has been expressly stated referencing this specific spouse. (Prestie)
However, the UPC allows broader evidence to be considered to rebut this
presumption.
o Also note: spouses can waive any interest in each others estate by signing a pre-nup,
which would render omitted spouse statues inapplicable.
- 8 states apply the community property approach, which grants each spouse a 50% interest in
each community asset (aka all earnings and acquisitions during the marriage). So, when one
spouse dies, the other spouse keeps [his/her] half of the community property and the other half
gets probated per the deceased spouses wishes. Community property is any propert that is
acquired during the marriage as a result of the labor and effort of either spouse.
- All other states (majority rule) apply the separate property approach, which says that upon
the death of a spouse, the surviving spouse has a right to claim an elective share of the
deceased spouses property, regardless of the terms of the deceased spouses will. Historically
(and under the UPC), the surviving spouse was limited to 1/3 of the deceased spouses
probate estate (not just marital property). Nowadays, however, many states have increased
surviving spouses elective share to if there are no issue. [Separate property is any property
acquired by either spouse before marriage or during marriage by gift, descent, or devise. Under
a separate property regime, [the $ and stock] would fall into her probate estate.]
o The elective share doctrine applies regardless of length of marriage.
o Elective share can include both probate AND non-probate assets.
o As a general rule and as codified in the UPC, only the surviving spouse can claim the
elective share (so no surviving spouses heirs, estate, creditors, etc.).
Incompetent surviving spouses must still make the election, but can have a
fiduciary/guardian determine whether exercising the elective share is in the
surviving spouses best interests.
o A minority of states deny elective shares to surviving spouses who abandoned the
deceased spouse.

Issue: Ts will contains provision allowing him/her to dispose of property items in a list that
he/she may change in the future.
- A slim majority of states allow a testator to reserve the power to make and then continue
revising a list of bequests of tangible personal property without additional testamentary
formalities, even if the separate written list is prepared after the execution of the testators will.
If the jurisdiction applies the modern trend/UPC approach, then this list can probably be given
effect as a tangible personal property list.
o UPC 2-513 disposes of Wills Act formalities for such lists, as long as the will expressly
states such an intent. Essentially, the UPC rule on tangible personal property lists
modifies the incorporation by reference requirement that the document be in existence
at the time the will is executed as long as the document only disposes of the testators
tangible personal property.
o The exact requirements vary by jurisdiction, but the UPC requires that the writing/list
be signed (note: California waives the signature requirement) and that it describes the
items and beneficiaries with reasonable certainty to be given effect.
- Only tangible personal property may be on the list, so no cash can be on it.
o If list also includes $ could argue that all writing in the list is incorporated by
reference, but if document was not in existence when will was executed, then will lose
on this argument.
If codicil re-dates the will & the list was in existence at the time that will was redated incorporation by reference could apply
- However, some stateslike Californiaimpose stricter limitations on what can be on that list.
For instance, California only allows the value of each item to be $5k or less and the total
property passed through the list cannot exceed $10k.
Issue: Will has provision distributing property based on separate document that defines the
eligible recipients too generally, creating ambiguity (also see issue for extrinsic evidence)
- A will can incorporate by reference a document in existence at the time the will is executed, but
not after. [Here, the list/letter/collection/payroll roster/ etc. seems to [have/have not] been in
existence when the will was executed [in year, e.g. 2009].
- [This list/payroll roster/collection/etc.] is subject to changes [e.g. as testator collects more art
as employees come and go] apart from the will [e.g. for testators own enjoyment].
Because such changes are not done to manipulate the testamentary distribution, they are acts of
independent significance.
- Under the Doctrine of Independent Significance, if the beneficiary or property designations
are identified by acts or events that have a lifetime motive and significance apart from their
effect on the will, the gift is upheld. In other words, acts of independent significance are those
events that occur between the wills execution and testators death that are not related to
testamentary distribution.
- Here, [the executor] will argue that the will reads at the time of death.
- However, [person wanting to be included in class receiving something] will argue that the plain
language of the will should include him because [insert argument/reasons, e.g. the will does
not specify something].

Issue: Will has provision that defines property to be distributed too generally, creating ambiguity
(also see issue for extrinsic evidence)
- T left a devise to [insert devisee name] in her will that was described as [insert ambiguously
defined property, e.g. my primary residence]. The issue is whether the devise can be
sufficiently identified such that it can be probated.
- If scope of property devised is unclear Since the gift is not clearly defined, the court can
use the acts of independent significance doctrine to identify [all the relevant
pieces/property] in the estate at the time of death. Assuming that the testators actions of [e.g.
buying/selling artwork] had no testamentary significance and was done for other reasons [e.g.
such as her own enjoyment], the [person wanting to receive the property] should get the [the
property].
- If sold devised property but replaced with similar property in future The acts of
independent significance doctrine [will probably/may/will probably not] uphold the devising
provision. Under this doctrine, if the beneficiary or property designations are identified by acts
or events that have a lifetime motive and significance apart from testamentary distribution, the
devise is upheld as valid.
o Here, [person wanting to receive the property] will argue that Ts [e.g. buying and
selling of the home] was not done for purposes of testamentary distribution, but rather
[e.g. to find a better home, for his/her own enjoyment.].
o Here, [person who holds the residuary] will conversely argue that when [the property]
was sold, it was adeemed and [person wanting to receive the property] is therefore
entitled to nothing.
o I believe that in writing the will, T [intended/did not intend] to devise [e.g. that specific
home or whatever home she owned at death] to [person wanting to receive the
property]. Ts acts [were/were not] completely independent of the devise, and therefore
the [property] should go to [person wanting to receive the gift/the residuary].
- Here, the court will also construe the terms of the gift using plain meaning and only include
[e.g. paintings which are in fact Picassos]. But [person wanting to receive the property] can
introduce extrinsic evidence under the personal usage exception evinces the testators true
intent that he/she receive [e.g. the other paintings too.].
Issue: Whether the court will use strictly plain meaning or also extrinsic evidence to interpret
language (e.g. my friend)
- If a will has a clear plain meeting, a court will not typically bring in extrinsic evidence.
However, when ambiguities existparticularly latent ambiguitiesextrinsic evidence can be
used to make something clear.
o Latent ambiguities include:
Equivocation- when a description in a will fits 2 or more external objects well
Personal Usage- if T always referred to someone/something in an idiosyncratic
manner, evidence is admissible to show that T meant someone/something other
than the person/thing with the legal name
No Exact Fit- extrinsic evidence can be admitted to show an intent for a devise
when no person or thing meets the exact description expressed in the will
Language used as an identifier and not a true condition (e.g. my friend A)
can bring in evidence to show changed circumstances (e.g. no longer
friends), but the devise will likely still be valid.
6

Issue: Was a valid will created?

- For a will to be valid, it must comply with certain requirements and formalities.
o First, the testator must have capacity to create the will. To meet the capacity
requirements, the testator must have reached the age of majority, competent to
recognize the natural objects of his/her bounty (i.e. the people whom he wishes to give
gifts), and have a present intent to create a testamentary document. [Assuming T is over
18, he/she seems to meet the capacity requirements.]
o Although the requirements of an attested will vary from jurisdiction to jurisdiction, the
basic requirements are that an attested will: be in writing, signed by the testator (or in
the testators name by someone else in the testators conscious presence by the testators
direction), and witnessed by at least two people whom have signed within a reasonable
amount of time after witnessing the testator sign the will. The UPC allows notarization
to substitute the witness requirement.
o Under the traditional strict compliance approach, the wills execution must comply
100% with the Wills Act formalities or else the will gets invalidated. However, theres
been a modern shift away from strict compliance and so wills can be upheld in modern
jurisdictions through curative doctrines, discussed below.
The witnesses must sign in the presence of the testator (described below) and
should sign after the testator, not before the testator. (Groffman). There are three
different approaches for determining presence for witnesses:
(1) If the jurisdiction applies the line of sight test, the testator must be able to
see the witness if he/she were to look.
(2) If the jurisdiction applies the conscious presence test, the testatorthrough
sight, hearing, or general consciousness of eventsmust be able to
comprehend that the witness is in the act of signing.
(3) If the jurisdiction applies UPC, the witness essentially just needs some
evidence that this was how the testator intended his will to be. As long as its
a continual and fluid process, in a UPC state, thats enough. The UPC
basically gets ride of the presence requirement.
The signature requirement is typically lax on what constitutes a signature. A
signature must be present, however, a mark or something written is typically
sufficient to serve as the signature and meet this requirement if the testator
intended it to be his/her signature.
If signature is an issue:
o Here, [person seeking probate of will] will argue that [writing her
name on the document] was sufficient to meet the signature
requirement. However, [other person challenging probate] will
argue that [it was insufficient] and [it was not on the bottom of
the will, aka not subscribed].
Some states have a subscription requirement, which requires the
signature to be at the end of the will.
o Problematic signature? The Harmless Error rule can be used to
dispense of the Signature Requirement in NJ.
Other argument to probate will w/o signature =
Substantial Compliance
7

Intent must show that the testator wanted this document to serve as the
document illustrating his/her testamentary wishes. Consequently, the testator
must have reviewed and assented to it. (Macool).

Will procedure/steps set forth on pg. 168

Issue: Was the will properly witnessed?

- Most states require that there be at least two witnesses (ideally there would be more or at least 2
disinterested witnesses to avoid any applicable purging statutes). [Witnesses also must be at
least the age of the majority (18) if not the case, could use clear and convincing evidence
that in substantial compliance with formalities + this was intent of testator for substantial
compliance doctrine to remedy this; harmless error rule will correct merely if T intended
document to be his will]
- The witnesses must sign in the presence of the testator and should sign after the testator. There
are three different approaches for determining presence for witnesses:
1. If the jurisdiction applies the line of sight test, the testator must be able to see the witness if
he/she were to look.
2. If the jurisdiction applies the conscious presence test, the testatorthrough sight, hearing,
or general consciousness of eventsmust be able to comprehend that the witness is in the
act of signing.
3. If the jurisdiction applies UPC, the witness essentially just needs some evidence that this
was how the testator intended his will to be. As long as its a continual and fluid process, in
a UPC state, thats enough. The UPC basically gets ride of the presence requirement.
- At common law, interested witnesses would void the will entirely, but under the UPC and the
modern approach, this is not the case. Nowadays, half the states have purging statutes, which
say that that if a witness is interested (aka the witness would get something under the will that
benefits him/herself more than he/she would get in intestacy) AND the will is challenged such
that the interested witness must testify, the witness loses something from his/her bequest. In the
vast majority of states with purging statutes, the witness will only lose any excess benefit
received under the will (so theyll get what they would have received intestate). Some states,
like NC, do purge witnesses of all benefits however. In fact, NCs statute is so harsh that when
an interested witness has to testify about the wills validity, it causes both the witness and
his/her direct family members to lose all their benefits under the will.
o If an interested witnesss benefit it purged under the will, the will still remains valid.
Issue: Will was improperly witnessedis it enforceable?
- Where clear and convincing evidences establishes the testators intent that the document be the
testators will, it may be irrelevant that the will had not been properly witnessed (In re Estate of
Hall). Assuming it applies in the relevant jurisdiction, the Substantial Compliance Doctrine
permits a will to be probated anyways if clear and convincing evidence shows that the
document was intended to be the decedents will and the purposes (evidentiary, cautionary,
protective, challenging, ritual, prospective) of the Wills Act formalities are reached.
- The mistake may also be irrelevant if the Harmless Error Rule statutorily applies (note: the
UPC 2-503 applies the Harmless Error Rule. CA, MT, UT, CO, SD, MI, OH, VA, & NJmost
of which are UPC statesare the only states that apply the Harmless Error Rule). The
Harmless Error rule is easier to meet and thus is arguably a better doctrine than the Substantial
Compliance Doctrine since it merely requires proving with clear & convincing evidence that
the decedent intended the document to be his will (by demonstrating that that the decedent
actually reviewed the will AND assented to it (Macool)).

Issue: Is this [e.g. written note/letter] enforceable as a holographic will?

- Only slightly over half the states recognize holographic wills; some are reluctant to do so
because theyre concerned about issues flowing from the absence of witness requirements.
Assuming this is a jurisdiction that recognizes holographic wills, [the court must deal with
e.g. two issues: whether the holographic will is valid given failure to meet the X requirement
and the latent ambiguity in the request to [X for $]]
- The same capacity requirements apply to a holographic will as a formal will; the testator must
have reached the age of majority, competent to recognize the natural objects of his/her bounty,
and have a present intent to create a will. [Assuming T is over 18, he/she seems to meet the
capacity requirements.]
- A holographic will must be written, in the testators handwriting (generally this applies to at
least the material provisions; some jurisdictions may require the holographic will be entirely in
the testators handwriting to be upheld while other states may apply the UPC approach of only
requiring that the material provisions of the will be in the testators handwriting), and signed by
the testator. The testator also must have intended for the document to be probated as his/her
will. Some states require that holographic wills be dated as well, although the UPC does not
require this.
o Here, [T] [[probably] created/did not create] a valid holographic will.
1. The instrument [was/was not] written. [if not written then oral, which is
invalid.]
Note: you cannot dispense of writing requirement (even under Harmless
Error Rule) except for rare exception for oral will extreme situation
& knows hes about to die & tells it to two people. Can be upheld as a
valid will if witnesses sign an affidavit.
2. It [was/was not] in the testators handwriting.
Note: courts are split on how to treat fill-in-the-blank form wills. UPC
will enforce such wills + find theres testamentary intent, but the
Gonzalez court did not.
3. It [was/was not] signed by the testator.
Note: Harmless Error Rule can be used to dispense of signature
requirement in NJ
4. The testator [did/did not] intend that the document constitute his/her last will
and testament.
Note: Words such as save this letter/keep this support a finding of
testamentary intent. (Kimmels Estate).
5. It [was/was not] dated. (* Note: date requirement only applies in a few states).
o If any of these requirements are not adhered to [e.g. Although T met the other
requirements for a holographic will, he/she failed to sign the will.], the court may
apply several curative doctrines depending on the jurisdiction. Such doctrines include
the Substantial Compliance Doctrine and the Harmless Error Rule.
Here, however, such curative doctrines are unlikely to apply (as is the case
with holographic wills generally) [dispel of the signature requirement, dispel
of the X requirement, etc.], because there are [no witnesses to attest nor a
notary].
9

Issue: Testator switched will with spouse/signed wrong will

- The Substantial Compliance Doctrine & Harmless Error Rule can enable the will to go to
probate (In re Snide), assuming theres no danger of fraud and that probating the will better
accords with the testators intent, as demonstrated by clear and convincing evidence. While
some courts might hold otherwise and apply strict interpretation (Pavlinko), the modern trend
has been away from strict interpretation.
Issue: Beneficiary died before will was executed or beneficiary organization ceased to exist prior to
the will being executed, or the beneficiary/devisee is a pet or some other ineligible taker. What
happens to the devise?
- The devise is void. (Estate of Russell, court holds devise leaving half of estate to dog is void)
Issue: Beneficiary dies prior to (predeceases) testator.
- If the devise was specific (e.g. a watch) or general (e.g. $10,000), then the devise falls into the
residue.
- If the devise was for the residuary, then the heirs of the testator take by intestacy
- If only part of the residuary lapses (e.g. only one of the residuary beneficiaries predeceases
testator while other residuary beneficiaries survive), the majority rule is that the surviving
residuary beneficiaries split the residuary (adopted by the UPC). The minority rule follows the
common law no-residue-of-a-residue rule, which would have the lapsed residuary share pass by
intestacy to the testators heirs rather than to the remaining residuary devisees (In re Estate of
Russell).
- If devise is a class gift and one member of the class predeceases the testator, the surviving
members of the class simply divide the gift among the surviving class members.
- If the predeceased beneficiary is a blood relative of the testator and leaves a lineal descendant
who can fill his/her shoes, that lineal descendant may be able to sub in for the predeceased
devisee and take the gift. This would only occur if an anti-lapse statute has been triggered.
o Even if someone is related by marriage, they cannot take under an anti-lapse statute
because anti-lapse statutes only apply to persons related by blood.
- If conditional gift
o Majority Rule is that words of survivorship (e.g. if he survives me) override antilapse statutes (b/c it shows an intent that anti-lapse statute not apply).
o Minority Rule is codified in UPC and says that words of survivorship are insufficient
evidence of intent and cannot override the anti-lapse statute.
o Anti-Lapse statutes are merely default rules, so if you dont like your states, you can
draft your own
E.g. conditional gifts can contract/get you around having to apply an anti-lapse
statute
o Check future interest property chart

10

Issue: Is it a class gift?

- A class gift is not fixed (if anything suggests that the shares are fixed and wont vary, then it is
not a class gift). A class gift does not give names.
- Where the number of beneficiaries to a gift is certain and the share each will receive is certain
and not dependent upon the number of survivors in an alleged class, then it is not a class gift,
but rather a gift to individuals. (Dawson).
- If it is a class gift & a member of the class predeceases testators the surviving class members
divide the bequest among themselves.
- RAP Issue: [rule: the interest must vest within the lives in being plus 21 years]
o Where there is a class gift that is vested as to some members but not as to others, the
general rule is that if the gift violates the RAP for even one class member, it is void as
to the whole class.
If deceased person bestow gifs to his/her children NOT a RAP violation
because the interest must vest, if at all, during their lifetimes since all of the
decedents children are alive at the time the trust is created (a dead person cant
bear new children in the future).
If gift is bestowed onto the children of a living person YES this violates RAO
since the alive-person could still have another child.
Issue: Devised property is missing from testators estate or is no longer owned by testator at the
time of testators death
- When a specific bequest for an item the testator used to own, such as [name item of property,
e.g. watch, house/residence, or painting; note: cannot be a general bequest (so cant be $)
and cant be residuary], is no longer there at the time of testators death, the principle of
ademption applies.
- Under the identity theory, if an item is specifically devised to a beneficiary and that item is in
not in the testators estate at testators time of death, the beneficiary receives nothing. However,
under the intent theory (adopted by the UPC), if the beneficiary can prove by extrinsic
evidence that the testator never actually intended to deprive the beneficiary of his/her
inheritance, then the beneficiary may be entitled to a replacement or cash value.
o E.g. The [name the missing property; e.g. the painting/house/residence] is missing
from the estate not because the testator wanted to manipulate testamentary distribution,
but rather because [it was part of a collection so she swapped and traded for her own
enjoyment; she wanted a better car/house]. Because such changes are not done to
manipulate the testamentary distribution, but rather for the aforementioned reasons,
such as [state reasons, e.g. personal enjoyment or to find a better place to live], they
are acts of independent significance.
- Under the Doctrine of Independent Significance, if the beneficiary or property designations
are identified by acts or events that have a lifetime motive and significance apart from their
effect on the will, the gift is upheld. In other words, acts of independent significance are those
events that occur between the wills execution and testators death that are not related to
testamentary distribution.
- Here, [the executor] will argue that the will reads at the time of death.
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However, [person wanting to be included in class receiving something] will argue that the plain
language of the will should include him because [insert argument/reasons, e.g. the will does
not specify something].
Here, the determination of what [beneficiary] receives will turn on the intent of the testator.
o If testator voluntarily disposes of the property by giving it away to someone else as a
gift court will probably not find that testator intended for beneficiary to collect a
replacement or cash value under the will. Instead, the beneficiary will likely receive
nothing.
o What the beneficiary receives when the specific devise to them is missing turns on the
question of whether the testator actually intended for the beneficiary to receive that
specific bequest (in which case, beneficiary gets nothing) or something of equal
economic value (in which case, beneficiary gets replacement or cash value).

Issue: Cash bequest goes down/up in value

- Because cash is not subject to ademption, the beneficiary would receive full value of whatever
bequest was for.
Issue: Will contains a no contest clause (e.g. If anyone complains, they lose everything they got
and get nothing under the will)
- No contests clauses will almost certainly not be enforced by the court. These are disfavored
because they discourage people with valid concerns and claims from challenging the will
(Lipper).
Issue: Power of Appointment (e.g. all other items should be divided among my children as my
executor sees fit) Valid?
- The testator granted the executor of his/her estate the power [e.g. distribute the remaining
paintings to Ts children as he saw fit]. So, here, the testator gave the executor a [non-general
POA/general power POA] to distribute to [a limited group of people, excluding
himself/whomever he wants, making the property taxable to the donee with the POA]. The
executor would have the ultimate discretion in allocating [the property, e.g. the paintings].
- A power of appointment (POA) is an informal way of authorizing someone to distribute your
property. No fiduciary duties are owed in POA and having a POA does not give you any
ownership rights in the property. Rather, the person who has the POA just has the ability to
distribute the trust property/decide where it goes.
Issue: Person with power of appointment dies prior to exercising the power of appointment
- If someone has a general power of appointment but fails to exercise it, the property lapses into
estate (so the property goes to the estate) unless person with power of appointment expressly
says she/he didnt want to exercise it and then it follows the testamentary plan of whomever
created his/her power of appointment
- If a donee fails to exercise a specific/non-general power of appointment (which imposes a
restriction on whom you can give the property to that you have the POA over), then assuming
the beneficiaries are identifiable and limited, the power to allocate the property goes to them.

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Issue: Is it a gift or and advancement?

- When a person gives an inter vivos transfer, it is presumed not to be an advancement and is
thought to be independent of the testamentary estate, unless the transferor or recipient puts in
writing that the payment is an advancement.
o Here, [recipient] [was/was not] told that the transferor expected to be repaid before
death or [recipient] would have to settle it with the estate.
o If testator intended the transfer to be an advancement and not a gift, the arrangement
must be in writing for the court to treat it as an advancement.
It is possible a court might circumvent the writing requirement and provide an
equitable remedy such as a constructive trust.
- If a transfer is an advancement, then the advancement would be added to the probate estate,
youd divide the probate estate up with that advancement added to the estate, and then [the
recipient] would get his/her share of the residue minus the amount of the advancement.
Issue: Whether crossing out and/or writing on will (or otherwise acting) revokes a will
- A will may be modified, revoked, or revived by the testator up until he/she dies as long as the
testator satisfied the capacity and execution/formality requirements associated with revocation.
o The same capacity requirements apply to a holographic will as a formal will; the
testator must have reached the age of majority, competent to recognize the natural
objects of his/her bounty, and have a present intent to [revoke/modify/create] the will.
[Assuming T is over 18, he/she seems to meet the capacity requirements.]
o The testator may revoke a will in whole or in part by act (such as tearing burning, or
obliterating the will either partially or completely) or by executing a subsequent writing
with testamentary formalities. Verbal revocations are invalid. Many states require that if
revoking a will by act, the testator must deface, erase, or otherwise mark the actual
written portions of the testamentary instrument; words on the back of the document or
in the margins will not cancel the will or codicil in these states (Thompson v. Royall).
Conversely, the UPC does not require that the act touch any words.
- Partial Revocation? - Here, [crossing out words] is a partial revocation that validly revokes
the bequest of [state the money/property being devised] to [beneficiary]
o Here, attempting to [change the amount devised by writing on the will] fails to satisfy
the execution requirements and is therefore not valid.
- To revoke a will by subsequent writing, the testator must satisfy execution and capacity
requirements if the subsequent writing is another testamentary instrument.
- There is also the possibility that DRR would apply. DRR applies when a revocation would not
have been made but for the mistaken belief of a subsequent instruments validity. For DRR to
apply here, it would need to be shown that the revocation was only because [of the assumed gift
to X; state the mistake (assumption that the subsequent will was properly executed)].

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Issue: Will is missingnow what?

- The first issue is whether revocation by presumption applies. Revocation by presumption
provides that where a will in last in the testators possession and cannot be found following
[his/her] death, a presumption arises that the testator destroyed the document with the intent to
revoke it.
- Where duplicates of the will exist, some jurisdictions apply revocation by presumption only if
none of the duplicate originals can be found.
- If the duplicate of the original found is the one that was last in the testators possession
revocation by presumption does not apply & testator is said to have died intestate (unless
theres evidence that the testator directed [his/her] attorney to destroy the original will with the
intent to revoke it.
Issue: Did the codicil validly modify the will?
- To be a valid codicil capable of modifying a will, the codicil must abide by the same execution
requirements as a valid will (almost always must be in writing, have the testators signature,
two witnesses, intent that this be a will/modify a will, and meet capacity requirements).
- A codicil is a testamentary that supplements (instead of replaces) an earlier will. Additionally,
to the extent that there are any inconsistencies between the will and the codicil, the codicil
supersedes the will.
- Under republication by codicil, a codicil is presumed to re-execute, re-publish, & re-date the
original will.
o Re-dating the original will could enable a list of personal property executed after
original will to be included via incorporation by reference.
Issue: Was will revived?
- The majority rule is that upon revocation of will #2, will #1 is revived if the testator so
intends.
- Under the UPC, if a will that revoked an earlier will is later revoked, both wills remain
revoked.
- Under the UPC, if a will that partly revoked an earlier will is later revoked, the earlier will is
revived.
- A minority of states have a rule that says a will cannot be revived unless re-executed with
testamentary formalities (e.g. testator must re-sign old will) or republished by being referred to
in a later duly-executed will
Issue: Form Willvalid?
- The UPC and a majority of states specifically allow form wills by statute. Either the material
portions of the form will must be in the testators handwriting or the form must comply with
formal will execution requirements to be valid.
General rule: beneficiary takes property subject to encumbrances (e.g. beneficiary has to pay off
existing loans/mortgages/etc)

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Joint tenancy = not able to go to probate (so not part of the probated estate)

Things that Cant be Probated/Not Part of the Probated Estate

Joint Tenancy with Rights of Survivorship
o Note: you cant disinherit other people your in a joint-tenancy with
o The essence of a joint tenancy is the right of survivorship, which means that when
one joint tenant dies, his or her interest is extinguished, and the shares of the remaining
joint tenants are recalculated. B/c the decedents interest is extinguished, no property
interest passes to the other joint tenants. The property is non-probate property and since
the decedent died, the other joint tenant [say persons name] now owns the [name the
property, e.g. Greenacre] alone.
Life Insurance Policy (unless its payable to testators estate)
Multi-Party Bank Accounts
Joint Bank Accounts
o Note: if joint bank accounts are made as a gift or with a gift-like purpose, creditors can
get at it
Payable on Death (P.O.D) Account
o Note: creditors can access P.O.D Accounts
o Bypasses the need for probate, but not creditors + can be changed up until death of
testator
Convenience Account
Tenants by the Entirety
Retirement Plans
Dividing Probated Estate via Intestacy
- Add up the value of the probate-able estate and divide according to guidelines
If testator is known to possess will & then it cant be found, rebuttable presumption decedent revoked
it. You can revoke this presumption, but in some jxd, you need preponderance that the decedent didnt
do anything to revoke it. (Harrison v. Bird)
Incorporation by Reference: A document that is in existence when a will or codicil is executed may
be incorporated by reference is the language of the will manifests this intent and sufficiently describes
the writing such that it can be identified.
KNOW STEP CHILDREN AND INLAWS STUFF (CB 89)
-

Can apply DRR when purging statutes would rob a clearly-intended beneficiary of their interest
(LaCroix v. Senecal, NC case).
Words of Limitation (20)some states have read or in to A or her heirs + and in to A and her
heirs as sufficient to prevent lapses

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Abatement Order: creditors take from estate whatevers owed. Order of people in which creditors can
claim assets = (1) residuary; (2) general devises; (3) specific devises on pro-rata basis.
- If probate estate is exhausted and theres a revocable/testamentary trust (of non-probate assets),
then the creditors can take from that trust

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