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Chapter 1 Introduction
Wills o Intestacy o Limits on testamentary freedom o Execution of wills Statute of Wills o Revocation o Construction o Will contests you must have standing Undue influence Duress Lack of capacity o Non-testamentary transfers Probate v. non-probate property (Testamentary substitutes) Trusts - an arrangement by which legal title is held by the trustee while beneficial title is held by the beneficiary o Constructive trust o Future Interests o Rule against perpetuities 1-2.1: Codicil - supplement to a will, either adding to, taking from or altering provisions that confirm the will in whole or in part by republication ____________________________________________________________________________________

Section 1: The Living and the Dead

Testamentary Freedom Shapira v. Union National Bank Son will not receive inheritance unless he marries a Jewish girl within 7 years of his fathers death. The state is not restricting his marriage, they are enforcing the testators restriction upon a sons inheritance. There is no natural law on inheritance and no constitutional right to receive property. A partial restraint on marriage which imposes only reasonable restrictions is valid. 3-3.5 Conditions Qualifying Disposition condition must be valid (i.e. cant be against public policy: if the condition is found contrary to public policy, it is ignored and it would be treated as if he satisfied the condition. o Divorce o Committing a Crime o Celibacy o Fornication inter rorem clause: where testator anticipates a contest, can say anyone who contests this will is disinherited ____________________________________________________________________________________ Slayers rule: when a homicide is felonious and intentional, the killer cannot profit from the death. NY Rule (Riggs v. Palmer) slayer does not inherit by will or by intestacy from the slain person. o No difference from murder to involuntary manslaughter. o The only exception is when a person is adjudged insane or acting in self defense and is not criminally responsible

2 MD Rule: if murder, rule applies. If manslaughter must look to see - if voluntary, rule applies; if involuntary rule does not apply. o A criminal acquittal is not res judicata on the civil case

Ford v. Ford Pearl murdered her mother. Mother died testate, Pearl as beneficiary. Pearls son George seeks to get the property as the alternative beneficiary named in the will. Constructive Trust: Sends title of property to the person who would have taken had the wrongful conduct not occurred. Lathem v. Father Divine pg. 452 o Lady left will saying everything to Father D. FD kills her before she can change her will but they set up a constructive trust saying that FD is the trustee for xyz. ____________________________________________________________________________________

Section II: The Role of the Lawyer and the Lawyer-Client Relationship
Hotz v. Minyard Mr. Minyard created a will - Greenville dealership to Tommy and the remainder of the estate to be divided between Tommy and a trust for Judy. Second will created later that day which gave the dealership to Tommy outright. Judy was led to believe that the first will was intact. B/c the will is ambulatory, you can keep it secret from the other family members Barcelo v. Elliot Facts: Gma wanted the lawyer to create an inter vivos trust for her use during her lifetime and upon her death her residue would go to her children. Attorney mistakes: 1. He never got the trustee to sign the trust so it was never created 2. He drafted the will to provide that the trust would end at the time of the testators trust. Since there is no trust the money has to pass by intestacy. 3. He failed to fund the trust which also caused it never to be created. Reasoning: An attorney who negligently drafts a will or trust agreement has no duty of care to persons intended to benefit under them because the attorney never represented the intended beneficiaries. A majority of states have relaxed the border NY is in the minority Viscardi v. Lerner SCOTUS pg. 38 firmly established privity requirement. The beneficiaries have no cause of action b/c they were never in privity. ____________________________________________________________________________________

Section III Probate and Non-Probate Transfers

When there is a will, or not; if the person has property that needs title change, then you have to have probate the property. Probate property All property belonging to the decedent at death which has not been disposed of by a lifetime arrangement. Acted on by will or by intestacy

3 Testamentary substitutes arrangements other than by will or by intestacy that allow the D to keep the property with full use until. NOT PROBATE PROPERTY Joint Bank Account o D never put any of the money in the bank account, then it is up to the spouse to prove. On exam Totten trust Joint tenancy Gifts causa mortis 5-1.1-A(b)(1) D is on his deathbed, D had full use of his property until his death and then gave it away before death, so it does not become part of the estate Payable on death accounts Revocable inter vivos trusts Pensions US savings bonds Hypo D owned various things upon his death 100,000 in Citibank in his own name - Probate 1,000 shares of ABC in his own name - Probate 5,000 worth of jewelry - Probate 10,000 in cash in the back yard - Probate 50,000 on deposit in a joint bank account with a right of survivorship. The co-depositor was his son. the money passes to the son by the arrangement with the bank the will nor intestacy doesnt operate on that money- testamentary substitute 100,000 in the bank under a Totten Trust Account a bank account where you indicate who will receive the money upon your death testamentary substitute Home owned jointly with his brother right of survivorship is assumed testamentary substitute Gruen v. Gruen The step-mother claims that the gift was testamentary in nature and invalid b/c it does not meet the formalities of a will (part of the probate estate) Issue: Is the inter vivos gift valid if the donor has reserved a life estate in the gift and the donee has never had physical possession of the gift? To make a valid inter vivos gift there must be: o Intent on the part of the donor to make a present transfer; o Delivery of the gift (actual or constructive); o And acceptance by the donee The proponent of a gift has the burden of proving these things by clear and convincing evidence. Inter vivos gift v. Gift by will o Irrevocable present transfer of ownership v. valid only if it is stated in the will o With a true inter vivos gift, will never be considered as part of the probate estate Franklin v. Anna National Bank The exception, not the rule There is a signature card for the account & says the funds are owned by the signors as joint tenants with the right of survivorship. No right of survivorship o The letters to the bank to make Enola the other person on the account show Franks intent to be able to transact business should he lose his sight, not to make a gift and proves that he viewed it as his own. Cora never used the money nor deposited any money into the account

Chapter 2 Intestate Succession

Should go to his lineal hers and the spouse, then to collateral relatives In-laws dont inherit, step children dont inherit. EPTL 4-1.1(a) If a decedent is survived by: A spouse and issue, fifty thousand dollars and one-half of the residue to the spouse, and the balance thereof to the issue by representation. (2) A spouse and no issue, the whole to the spouse. (3) Issue and no spouse, the whole to the issue, by representation. (4) One or both parents, and no spouse and no issue, the whole to the surviving parent or parents. (5) Issue of parents, and no spouse, issue or parent, the whole to the issue of the parents, by representation. 1410 SCPA not everyone can go around contesting wills _____________________________________________________________________________________

Section III The Share of Lineal Descendents

1-2.16 Representation/per capita - each person in their generation takes a share in their own right. ____________________________________________________________________________________

Section IV The Share of Ancestors and Collateral Heirs

Estate of Locke Issue: Are 5th degree relatives allowed to share in the estate of a decedent? Facts: G died intestate with no surviving children, spouse, parents, or grandparents. There are two first cousins (4th degree removed) on the maternal grandparent side, and four first cousins once-removed (5th degree removed) on her paternal grandparent side. Reasoning: The estate property is divided in half which the statute unambiguously provides for ____________________________________________________________________________________

Section V Defining the Modern Family

Adoption Estates of Donnelly Facts: John had a daughter and then died before she was a year old. The wife remarried and her new husband adopted the daughter. Reasoning: The granddaughter cannot take under the intestacy scheme because of the legislative intent. It is clear that they intended to sever all ties with the former family, providing a clean slate. Dissent: It wasnt the mothers intention to sever all ties from the paternal family This doesnt really make sense in this situation b/c this is a family adoption and if the court were to follow the statute blindly then the daughter wouldnt be able to take from the mother either In NY the child would take under 4-1.1(d) an adopted child is treated according to the domestic relations law

Estate of Brittin Facts: Estelle had William and when he was 3 married Stephen. They had a daughter together, Mary Ann. Then E died and S legally adopted W and an adult adoption. Then William passed away leaving behind 5 children. Stephen died intestate and Mary was appointed administrator and sole heir of the estate Holding: The children are heirs. Reasoning: The statute places the adopted child and the natural child in equivalent positions, as with natural children, the children of the adoptee become the natural grandchildren. There is a certain bias against adult adoptions Davis v. Neilson note case Man had a trust set up for him by his mother that would pass along to his children when he turned 40. he was mad at his children and started adopting random people to cut down on his childrens inheritance. The court did not let this fly and said that they didnt take under the trust. They would take from his estate under intestacy Bean v. Ford Facts: Bean lived with the Fords for 18 years. First the mother died, then the sister, then the father so he was the last one left. When the father died, 3 obscure relatives came out of the woodwork claiming to be the sole heirs of his estate. Bean filed a statement of interest under equitable adoption. Reasoning: Cal. law does not recognize an estoppel arising merely from the existence of a familial relationship. There needed to be an intent to adopt, the state cant look at the overall relationship b/c it would blur the lines too much and this is an area that needs bright line rules. Why doesnt he come in under 6454? There was no legal barrier to prevent the adoption Equitable adoption useful only in heirship proceedings; available in limited situations of intestacy. Must meet the clear and convincing standard Justifications for equitable adoption: Specific performance of the promise to adopt Estoppel the persons estate is estopped from claiming that the child is not an heir of the decedent Hattie ONeil note case The aunt who passed her around was not someone who had the legal capability of surrendering her to the Cooks custody or for adoption Non-Marital Children 4-1.2 (2) (paternity) Inheritance by non-marital children A non-marital child is the legitimate child of his father so that he and his issue inherit from his father and his paternal kindred if: (A) a court has, during the lifetime of the father, made an order of filiation declaring paternity or the mother and father have executed an acknowledgment of paternity

7 (B) the father of the child has signed an instrument acknowledging paternity, provided that (i) such instrument is acknowledged in the form required (ii) such instrument is filed within sixty days from the making thereof with the putitive fathers registry and (iii) the department of social services shall, within seven days of the filing of the instrument, send written notice by registered mail to the mother (C) paternity has been established by clear and convincing evidence, which may include, but is not limited to: (i) a genetic marker test, or (ii) The father openly and notoriously acknowledged the child as his own, (D) permits used of blood genetic markers but the father must have been alive.

Wingate v. Estate of Ryan Facts: Her whole life the daughter thought her father was one man and then came to find out that her father was really another man who had just died. They got an order to test for paternity and it was positive. Reasoning: The statute of limitations imposed by the Parentage Act was not meant to apply to the Probate code and its statute of limitations. They are independent statutes designed to establish different primary rights Using the 23 year limit, would create a statute of repose that would begin at the birth of a potential heir, rather than the death of the decedent. It was the intent of the statute to make it easier, not harder, to establish heirship for persons born out of wedlock. ____________________________________________________________________________________ Impact of Modern Reproductive Technology Woodward v. Commissioner of Social Security Facts: The husband died and she got pregnant and gave birth to twins 2 years after his death. She tried to file for Social Security benefits but count not get them b/c the children were not considered natural children of the decedent. Reasoning: There is nothing in the statutes or intestacy law that limits the class of posthumous children to those in utero at the time of the decedents death. NY does limit it to children in utero at the time of death. Is there a statute? 5-3.2? is this case even applicable? There is no clear rule so the court looks to 3 important interests: (test) 1. The best interest of the children 2. The states interest in the orderly administration of estates Under the intestacy statute, posthumously conceived children must obtain a judgment of paternity to be able to inherit. Modern technologies make it much easier to do this. 3. The reproductive rights of the genetic parent The genetic donor must clearly and unequivocally consent not only to posthumous reproduction but also to the support of any resulting child. o The fact of genetic relation is not, in itself, enough. ____________________________________________________________________________________

Section VI Simultaneous Death

If a couple dies at the same time how do you dispose of the property?

8 Most states have a statute that say each one will be deemed to have survived the other and each ones property will pass to their issue NY 2-1.6 says that if the spouses die within 120 hours of each other then it will be treated as if they died at the same time.

Estate of Villwock Rule: The Simultaneous Death Act does not apply if the couple died minutes apart, they must die at the same time. Facts: Roy and June were in a car crash. They were both taken by ambulance to the hospital. Roy was declared dead at 8:34, June was declared dead at 8:23 but Roy was really dead in the ambulance, and June was conscious until the hospital. Roys will left everything to June with no contingencies, and Junes will left everything to her family under specific bequests. _____________________________________________________________________________________

Section VII Disclaimer (Renunciation)

Estate of Baird Facts: James married Susan and assaulted her so badly that she was permanently disabled. J renounced any interest he had in his mothers intestacy estate. Pyhllis died intestate and his kids came in to declare the renunciation valid. If the renunciation is declared valid, all of the money would go to his sister. If the renunciation is invalid, the money would go into James bankruptcy account and then in turn to Susan. Reasoning: Renunciation under a will is ok, not under intestacy. Under intestacy there is no interest created until the person dies. When James executed the instrument he did not yet have an interest in his mothers estate to disclaim. In NY James could have disclaimed his interest. Can elect to renounce distributive share under 4-1.1 2-1.11 renunciation statute 2-1.5 Advancements and their adjustment (a) An advancement is an irrevocable gift intended by the donor as an anticipatory distribution in complete or partial satisfaction of the interest of the donee in the donor's estate, either in intestacy or as beneficiary under an existing will. (b) Must be a writing contemporaneously signed by the donor evidencing his intention that the gift be treated as an advancement, or by the donee acknowledging that such was the intention.

Chapter 3 Protection of the Family

The Share of the Surviving Spouse
5-1.1A Elective Share a portion of an estate which the surviving spouse of the decedent may choose to claim in place of what they were left in the decedents will NY does not look to the time of the marriage. No distinction if marriage is 2 days long or 50 years long. D cannot disinherit spouse by leaving spouse zero in the will. Spouse is entitled to elective share and the elective share formula is in 5-1.1-A(a)(2) o If Net Estate is greater than 150,000. ES is 1/3 of estate. o If NEESP is < 50,000, the spouse gets it all o If the NEESP is in between 50,000 and 150,000 then the spouse gets 50,000 D cannot accomplish disinheritance by reducing the PE to zero and engaging in testamentary substitutes, like Sullivan v. Burkin. NY 5-1.1-A(a)(1) NEESP includes any testament substitutes. Spouse is accountable for what the spouse received under the will, by intestacy, and by T.S. o Amount spouse can collect = Net Elective Share o 5-1.1-A(a)(4)ES WSG(Will) WSG (intestacy) WSG (T.S.) o 1/3(NEESP) what the spouse already got from the other sources, then you get what the spouse can extract further from the estate T cannot effectively require the executor to do something that is considered waste 5-1.2 (a) you would be disqualified as a surviving spouse if (1) A final decree or judgment of divorce, (2) The marriage was void as incestuous or bigamous (3) The spouse had procured outside of this state a final decree or judgment of divorce (4) A final decree or judgment of separation (5) The spouse abandoned the deceased spouse, and such abandonment continued until the time of death. (6) A spouse who, having the duty to support the other spouse, failed or refused to provide for such spouse though he or she had the means or ability to do so. Have a prenuptial agreement that waives any claim to these things Estate of Goick Facts: B and M filed for divorce but there was never a final order. Then M died and B moved to dismiss the divorce action. Ms family objected claiming that they were divorced. Issue 1. Ms mother has standing b/c she is a creditor. As such she is next in line to serve as PR Issue 2. The divorce was never final b/c there was no written agreement/final order. The status as spouse was not terminated. ____________________________________________________________________________________

10 Format to follow if there is a problem on the exam where you have to figure out who gets what under the will and intestacy and what the elective share would be 1. figure out the probate estate and the testamentary substitutes 2. use PE to pay out property passing under the will. 3. If money remains there is an intestacy problem = I 4. Use 4-1.1(a) to distribute I 5. Now you can determine what the spouse got. WSG = spouses share under will plus spouses share of intestate property plus testamentary substitutes for spouse. 6. figure out what the NEESP is by adding the PE and TS and figure out the elective share which is 1/3 of that. 7. elective share minus WSG = net elective share (amount the spouse can elect) Sullivan v. Burkin Facts: Mary is opting for an elective share of her husbands estate. During his lifetime he set up a trust for himself with himself as trustee. Upon his passing the trust was to pass to G and H. Ernest died testate and specifically excluded his wife and grandson. PE of 15,000, and trust of 85,000 in real property. Reasoning: The rule the court will now favor would treat the estate of the deceased of an inter vivos trust created during the marriage by the deceased over which he or she alone had the power of appointment, exercisable by deed or by will. You look not only to the PE but to other testamentary devices ____________________________________________________________________________________

Section III Modern Elective Share Statutes

5-1.1-A(e) Waiver of right of election Person can agree to take less or nothing from persons estate. The waiver can either be before or during the marriage, only one person can elect, or both. In NY there is no duty to inform. The waiver is effective even if the spouse did not know the full extent of the property and isnt void unless there is fraud. o Failure to inform is not fraud. Homestead exemption - Often times a portion of property is set aside, some stuff is skimmed off the top and given directly to the children EPTL 5-3.1 Exemption for the benefit of family No homestead in NY (a) If a person dies, leaving a surviving spouse or children under the age of twentyone years, the following items of property are not assets of the estate but vest in, and shall be set off to such surviving spouse _____________________________________________________________________________________

Section IV Other Protections for the Surviving Spouse

Pre-marital will that makes no provision for the spouse NY doesnt need something separate for this b/c we have the elective share statute Prestie v. Prestie Facts: Marie and WR were married, then divorced but stayed friends. He amended the trust to grant Marie a life estate in the condo. Then they remarried and WR passed away 9 months later. Procedure: Marie is coming in to declare a on half intestate succession of the estate on the ground that WRs will is revoked as to her because of their marriage which happened after he wrote the will. Reasoning:

11 When there is a marriage after the will, the will to that person is revoked. The only thing to rebut the presumption of revocation is a marriage contract which there is not one here. It didnt contain a provision providing for her or expressing an intention to not provide for her. An amendment to the trust that provides for the spouse is not permissible to rebut the presumption of a wills revocation. _____________________________________________________________________________________

Section VI Protection of Children: Permitted Child Statutes

Pretermitted Heir When a person has children that they dont know about The best way to do it is to say I leave each of them a dollar Or you could say that you disinherit your children NY you dont even have to mention them, they are disinherited EPTL 5-3.2 After-born child - deals only with children born after the execution of a will. (a) Whenever a testator has a child born after the execution of a last will, and dies leaving the after-born child unprovided for by any settlement, and neither provided for nor in any way mentioned in the will, every such child shall succeed to a portion of the testator's estate as herein provided: (1) If the testator has one or more children living when he executes his last will, and: (A) No provision is made therein for any such child, an after-born child is not entitled to share in the testator's estate. (B) Provision is made therein for one or more of such children, an after-born child is entitled to share in the testator's estate, as follows: (b) average child share limited to the provision made for the living children A----B----Will executed----C------T dies A = 20,000 B = 40,000 W = 240,000 Under NY statute we dont interfere with what W got. Take the money that would have gone to A and B and divide it up 3 ways. 40,000 + 20,000 = 60,000 / 3 = 20,000. A and B contribute ratably to the other share. 1/3 from A and 2/3 from B

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Chapter 4 Wills
Section 1 Execution of Wills
EPTL 3-2.1 Formalities A valid will must: (a)(1) Signed at the end of the document o Doesnt matter if its a nickname, stage name, initial etc. if the person is on his death bed and cant grip a pen a person can help him write it. (a)(2) You cant give legal effect to matter that follows the signature Must have testamentary intent. If a will is stapled and signed in proper form, inference of testamentary intent. o Integration all of the pages of the will were present at the execution of the will. Staple the will (prima facie evidence) and have the testator sign every page (a)(4) Signed by two witnesses, they dont have to be in his presence but they have to hear him acknowledge his signature. leaves 30 days from the time of execution to get witnesses signed Witnesses have two functions o Authentication Hear him acknowledge his signature, or witness it. o Publication (a)(3) the testator must declare to the witnesses that this is his will SCPA 1404 (witnesses to be examined), 1405 (when court may dispense with testimony of witnesses) you only need 2 witnesses. the court can dispense with the testimony of one of the witnesses what happens if both of the witnesses are unavailable o handwriting of the testator o other evidence What happens if the witnesses forget? o 1405(3) the will can still be proven by the testimony of the other witness o Collins both of the witnesses forget you cant saY the will fails just because they had forgotten 1406 Proof of will by self proving affidavit supply the testimony of the witnesses and can be used in court in lieu of their actual testimony. o Can be gotten at any time by the testator or even after the testators death by the executor Nothing in the statute that says that the witness has to be over 18, it only says that the person must be able to testify 3-2.2 Holographic and nuncupative wills

14 (a)(1) Oral will only available in extreme circumstances (a)(2), (b)(1) Totally in the handwriting of the testator only available to certain people (in the armed forces, a person who serves with an armed force, a mariner while at sea) Wills written with no attestation 3-3.2: Witness beneficiary forfeits gift to the witness, designed to prevent fraud Lets say a friend is a witness and is left under the will, then his interest is taken away. If a son is a witness and is provided for under the will his interest is taken away but he can still receive either under the will or by intestacy, whichever is less. o They take away the motive to lie by taking away the disposition Formalities serve many purposes: 1. Protective Function by having the witness observe, they are able to testify that there is no forgery or fraud or undue influence 2. Ritual Function- bringing the person into the lawyers office shows that the person wanted to make the instrument 3. Evidentiary function better proof that the terms of the will are what the testator wanted 4. Channeling Function since the testator is deceased, he channels his behavior by using the format of creating a will Morris v. West Reasoning: for a will and codicil to be effective the testator has to be in the same room and see the witnesses sign the will. In a case like this where the will disposes of assets in a strange way (ie. Not to family members but to friends), the court and jury is more likely to find that it is not valid Estate of Hall Facts: Jim had an original will and then 13 years later he and his wife Betty created a joint will in draft that was to serve as the will until a final copy was sent to them. They both signed the will and the attorney notarized it but there were no witnesses. Jim told Betty to tear up the original will, which she did. Reasoning: When a will is not properly witnessed, MCA 72-2-523 offers an alternative that a document may still be treated as a will if the proponent of the document establishes by clear and convincing evidence that the decedent intended the document to be the decedents will Substantial compliance doctrine if the will is close but not all the way there. o Test: proponent establishes by CCE that the will substantially complies with the Wills Act formalities We look to the purposes of the act (ritual, evidentiary, protective, channeling) Example: if you signed somewhere other than the bottom. In re alleged will of Ranney A will could be admitted to probate even though the witness signed the attached self-proving affidavit, but not the will itself Zhao v. Wong Issue: whether a piece of paper that said All Tai-Kin Wongs Xi Zhao my best half can be construed to be a holographic will

15 Reasoning: A holographic will is one in the testators handwriting. It must be signed, dated and evidence testamentary intent. No particular words are required. Here there is no donative word. Not give, bequeath, will or wantonly an arrow which doesnt even have a definitive meaning in the common usage or a particular meaning to Wong. ____________________________________________________________________________________

Section II What Constitutes the Will?

3 doctrines 1. Integration a. Only the pages at the execution ceremony are valid. Initialing each page helps the presumption of integration 2. Incorporation by reference a. The document refers to another writing b. Very tricky b/c once a will is executed the only way to change it is to have another execution ceremony c. Three requirements: i. Referred to as in existence ii. It must be in existence at the time of the will execution iii. Must be so carefully described as to be identifiable iv. NY - must be executed 3. Acts of independent significance a. Will: 1,000 to each person employed by me at my death b. EX the contents of my safety deposit box to my cousin Norman. The contents of the box has its own significance and would be given legal effect c. document has independent existence whether or not you died or had a will i. records okay, not a note in safety deposit box NY - an unexecuted writing cannot be included by incorporation by reference into a will. EPTL 3-4.6(b)(1) Codicil to a revoked will incorporates the will into the codicil Will 1 properly executed and then revoked Will 2 expressly revokes will 1 Codicil to will 1 properly executed The first will becomes part of the codicil and it now governs ____________________________________________________________________________________ B. Integration and Incorporation By Reference Estate of Norton Holding: The six pages do not constitute a legally valid will because of the lack of witness signatures. The Codicil is valid, but fails to adequately identify the attached 6 pages so as to effectuate a valid incorporation by reference. Reasoning: To be incorporated by reference, the codicil - must describe the will and identify with such particularity as to designate and clearly show Must apply Watson test: o Reliable evidence that the 6 pgs were in existence before the codicil was written o Clear and distinct reference in the codicil itself to provide full assurance that the 6 pages were intended to be incorporated in the testamentary wishes of the decedent. Fails b/c there is not adequate evidence from the codicil Integration: if the codicil had been stapled to the will at the time of its execution then there probably wouldnt have been a problem.

16 Clark v. Greenhalge Facts: Helen wrote a will in 1977 and maintained that the executor should dispose of her property as she had laid out in a memo in a notebook. She updated the list again after the execution of the will and her nurses witnessed this. Particularly an oil painting was to go to her friend Clark. Holding: the notebook was incorporated by reference into the terms of the will Reasoning: A properly executed will may incorporate by reference any document or paper if it was in existence at the time of the execution of the will, and is identified by clear and satisfactory proof as the paper referred to therein. If it werent for the codicil, the 1980 memo would not be incorporated by reference because it wasnt in existence at the time of the will _____________________________________________________________________________________

C. Facts of Independent Significance

Extrinsic to the will. Auto to my nephew, she goes and buys a new one. She bought the new car for reasons other then just giving it to her nephew when she dies. If it is a writing, it is usually no good because you have to read it into the will

One of the important doctrines of FIS is the pour-over trust EPTL 3-3.7 a testator may by will dispose of any or all of the PE so long as the trust has already been created and executed in the manner provided prior to or contemporaneously with the creation of the will In Re Tiplers Will Facts: D added a holographic codicil to her will that if her husband should predecease her, her property should be distributed in accordance with her husbands will, (to his family) which was not yet created. He predeceased her and the enforcement was challenged in court by her heirs Reasoning: heirs argued for a codicil to be valid the material provisions must be in the testators handwriting. (her husbands will it is not valid b/c his will is not her handwriting.) The TC said that there could not be incorporation by reference b/c the Hs will was not created yet but there could be relief under the doctrine of independent significance. The doctrine is satisfied b/c Hs will had an independent significance of distributing his estate and was not written with the intention of distributing Ws estate

________________________________________________________________________ Section III Construction Problems Created by the Time Gap Between Will Execution and Death
Three basic problems: 1. Abatement 13-1.3 not enough money to satisfy debt, expenses, and make all of the dispositions under the will. General dispositions are those affected; Intestacy is the first to go, Then general dispositions; Then demonstrative; Then specific bequests 2. Ademption specific item bequeathed is no longer in probate estate. The testator could put a provision for this, but most dont. Specific dispositions are those affected 3. Lapse when a person who is named in the will predeceases the testator Dispositions: (EPTL) - 1-2.17 Specific disposition of a testators property. Ex. M gold watch, my account in Citibank

17 1-2.8 General - not amounting to specific, demonstrative, or residuary. Payable from general estate assets. - An amount of money, 100k. 100 shares of stock can be seen here b/c it could be an instruction to the executor to go an buy it. If it says MY 100 shares of IBM then that is specific - 1-2.3 Demonstrative payable from a preferred source, but if the source is insufficient, then from general estate assets. - Ex 50,000 payable first from Citibank account, but if insufficient, then from general assets (most wills are not this complete) ____________________________________________________________________________________ Abatement In Re Estate of Potter Facts: Potter left her daughter her house and directed that an equal amount from her inter vivos trust be given to her son and the residuary of the trust to be distributed equally to the children. There was not enough money in the trust to make it equal so the son wants the proceeds of the house to be shared with him. Reasoning: Fla. 12.08 says that if funds are insufficient, then general legacies abate pro rata, and then specific legacies The will and trust should be construed together. But the house was a specific bequest and the residuary of the trust was a general devise and should not be combined. Are the profits from the house divided? Exoneration when you bequeath a home that has an existing mortgage, does the estate pay the rest or does the devisee have to pay? EPTL 3-3.6 encumbrances are not chargeable against the estate unless specifically stated in the will. The beneficiary will have to pay off the encumbrance _____________________________________________________________________________________ Ademption When something is specifically devised in a will and then the testator either sells or gives away the bequest. The property is said to adeem and the devisee is entitled to nothing. In some jurisdictions the executor will have to use the estate funds to buy the thing that is bequeathed, but in common law jurisdiction they dont get anything. Arguments to combat Ademption: Call the disposition demonstrative or general Characterizing a change in form, not substance Date of death construction McGee v. McGee Facts: D bequeathed in her will 20k to her friend (general disposition) and all shares of stock in Texaco and all monies on deposit in any bank anywhere do be split into shares and for her grandchildren. Her son, in an effort to avoid estate tax, took all of the money from her accounts and bought bonds. Reasoning: Since the bequest to the GC was specific and that money is no longer in any account, under Ademption, they are left with nothing because the specific bequest was no longer in existence. . The change effected by Richard was substantial, there is no language in the will concerning bond investments. The change was substance not form NY Exceptions to Ademption: -

18 3-4.5 The beneficiary is to receive some property. It is destroyed but there is insurance on the car. The insurance money goes to who would have gotten the car. But if the proceeds were paid out to the testator and he dies a few months later, then the devisee gets nothing _____________________________________________________________________________________ Lapse EPTL 3-3.3 Anti-lapse statute (a)(2) Whenever a testamentary disposition is made to the issue or brother or sister of the testator, and such beneficiary dies during the lifetime of the testator leaving issue, the disposition does not lapse, but vests in such surviving issue, by representation. o Unless the will says otherwise

Estate of Rehwinkel Facts: L left all of his property to whoever was living at the time of his death and had a list of people who should share. Niece Helen died one month before L. Her son is coming in to be declared as an heir. Holding: the anti-lapse statute does not apply because there is clear language in the will that the intent of the testator was to preclude application of the statute. Reasoning: The son argued that the statute should apply b/c Leo provided for every branch of the family and that if he knew that Helen was going to die, he also would have provided for him. The court says that the language is clear that the only people who take are those alive at the time of Leos death, precluding the anti-lapse statute from coming into effect Estate of Ulrikson Facts: B left 1,000 each to nine nieces and nephews of her predeceased brother and sister. The residuary of her estate was left to her two remaining siblings. They both predecease, brother left two issue. They want the anti-lapse statute to be applied so that only they split the estate. The other nieces and nephews say that the estate should pass through intestacy and that they should have an equal share. Holding: The anti-lapse statute is applicable; the sons get the residue. Reasoning: the state prefers testacy over intestacy and the statute will be applied unless a contrary intention is indicated by the will. Prof. doesnt think this is fair b/c it is clear from the intent of the testator that she wanted to treat all the nieces and nephews the same ____________________________________________________________________________________

IV Construction Problems More Generally

Reading the Will as a Whole Matter of Marine Midland Bank, N.A. Facts: The testator left a will that said the residuary of a trust would go to the children of his brother, Leo. Leo had two children, Jacqueline and Daniel. Daniel predeceased and his kids want the word children to be construed broadly (like the word Issue) to include them, the grandchildren. Holding: the words are to be given their ordinary and natural meaning. Reasoning: The word child will never include grandchild unless the will as a whole shows unmistakable intent.

19 Here it is clear that first he wanted to provide for his widow, then his brothers, then if they were not alive, to his brothers children. The only possible occasion justifying a more inclusive meaning would be to avoid failure of the estate. That is not the situation here. _____________________________________________________________________________________ Using Extrinsic Evidence If there is no patent or latent ambiguity, then a court wont let in extrinsic evidence to contradict the express terms 1. Is the Will Ambiguous? If ambiguous then extrinsic evidence, if the will is clear then no. Estate of Carroll Facts: residuary of their estate would pass on to their spouse, residuary to my nieces and nephews. The wife passed and when the husband died her family came in to get part of the estate. It would have been clear if they said our nephews and nieces. Holding: The words nieces and nephews will be construed to only mean the children of ones siblings. Reasoning: A testators intention must be determined by the will itself, and not by attempting to guess at what the testator could have meant. No contrary intent is expressed anywhere in the will, no ambiguity exists regarding the meaning of nieces and nephews. Therefore the testimony about testators intent is inadmissible. Patent ambiguity clear from face of will. The tendency is not to admit extrinsic evidence b/c there is too much likelihood of false Latent ambiguity The face of the will seems clear but the executor cannot do what is described. Only becomes apparent when will applied to certain set of facts Ex. My seven room house on Oak Street but they dont own a house on oak street More likely to look to extrinsic evidence, but not all ambiguities can be cleared by this 2. Testators Circumstances and Behavior Estate of Gibbs Facts: G and W had provisions in their wills that 1% to be given to Robert J. Krause. Gibbs worked with Robert W. for 30 years and did not know a Robert J Holding: The court looked to outside sources to determine the intent of the testator in this case where there was a mistake of name and address. Reasoning: It is traditional doctrine that wills should not be reformed even in the case of demonstrable mistake, unless there is ambiguity in the terms of the will where extrinsic evidence could be allowed in. The details of identification, which are highly susceptible to mistake, should not be accorded such sanctity as to frustrate an otherwise clearly demonstrable will. 3. Testators Unattested Statements Britt v. Upchurch Facts: Walter and Ada. Walters will gave a life estate to his wife and a remainder interest in the property to his daughter Blanche. The residuary of his property would go to his wife. He owned lot 36 and 37. Adas daughter, is coming in to claim that the adjoining lot is part of the residuary estate.

20 Reasoning: the general rule in NC: when there is a latent ambiguity, extrinsic evidence may be admitted to help identify the person or thing to which the will refers. It is not admissible to alter or affect the construction of the will. Declarations of intent by a testator are not admissible. Words or actions of a testator are admissible when they are to show what the testator thought a certain word meant, not their testamentary intent. ____________________________________________________________________________________

C. Correcting Mistakes
Generally if a problem is the result of fraud there will be a remedy If it is a mistake, the court is unwilling to change it o Mistake in factum a mistake in the nature of facts in the writing o Mistake in the inducement a person would not have signed if they had known what the will said.

Gifford v. Dyer Facts: Ts only son was presumed to be dead. She wrote a will that he was excluded from, leaving small amounts to his children and the residuary of the estate to her brother-in-law and her two nephews Reasoning: this was not a mistake, and even if it was it must appear on the face of the will The court finds that she would have made the same will even if he was alive The state is requiring the will to say what the mistake is, and say what you would have done had you not have had that mistake belief. Not really helpful b/c most people dont do this. Knupp v. D.C. Facts: Attorney drafted a will: residuary to the person specified in the eighth paragraph, but the 8th doesnt designate anyone. The testator had made several wills and each had left the residue to Knupp. Reasoning: general rule: testators intent is the guiding principle. However, ambiguity must be present to warrant the introduction of extrinsic evidence; And when it is allowed it can only be admitted to explain something in the will that is already written, not to add something that isnt there. The court will not add in his name. There is no language in the will that could lead a court to infer that the testator intended Knupp to be the recipient of the residual estate. _____________________________________________________________________________________ V. Revocation of Wills 3-4.1Revocation (a)(2) - Revocation by Physical Act (a)(1)(A,B) - Revocation by Subsequent Written Will 3-4.6(a) (b) - Revival and Dependent Relative Revocation by another document or destroying will itself (must have intent to revoke) o another can destroy for you but you must give permission and have intent to destroy o contestant can give secondary evidence of unintentional revocation There is a rebuttable presumption that if a will cannot be found, it was destroyed by the testator Intent is necessary, but not enough. Writing null and void on will is insufficient o It would have been enough if the words of the will were physically obscured (written over the words) o A court could order a constructive trust to avoid frustrating Ts intent. 3-4.6: Revocation of a later will - does not revive the earlier will; need a codicil reviving the will or the old will needs to be reexecuted with same or new witnesses

21 ____________________________________________________________________________________ A. Revocation by Physical Act 3-4.1(a)(2) burning, tearing, cutting, mutilation, cancellation or obliteration. There must be some act as to the writing (crossing out) or the physical paper. (a)(1) there is no partial revocation by physical act o say only the first paragraph was crossed out this is not an effective revocation 2 things could happen: The whole will is probated The whole will is not probated SCPA 1407 - A will can be probated even though we dont have any will left, if we can establish that: o It has not been revoked; o There was due execution; and o Proof of contents. Matter of Collins both of the witnesses forgot T had crossed out some provisions and put in new numbers, ct. said no revocation by partial First Interstate Bank of Oregon v. Henson-Hammer Facts: Original will could not be found, but there was a copy. Upon his death his estate was to go into a trust where the daughter would get income for life; the rest to her children when she died. She is only heir. Holding: General rule: there is a presumption that a missing will was destroyed by the testator with the intention that it be revoked. Can be overcome with clear and convincing evidence that that is not what happened. Reasoning: The presumption depends on the control that the decedent possessed over the repository and whether others had access to it. ___________________________________________________________________________________ B. Revocation by Subsequent Written Will 3-4.1 a will or any part thereof may be revoked by: o another will; or o a writing clearly indicating an intent of revocation; or o provisions inconsistent with those of the previous will 3-1.4 If there is a divorce any part of the will with the spouse in it will be considered to be revoked What happens if you have two wills and they are inconsistent? Revocation by implication Will 1 200k to mother Gold watch to sister Stocks to brother My automobile to my nephew Will 2 100k to mother Gold watch to niece Remainder to ASPCA Courts dont like to find implied revocation

22 Gifts of money are considered cumulative if wills dont revoke each other then they add up on each other The watch will go to the niece revoked by implication Stocks go to the ASPCA revoked by implication Car will go to the nephew there is no direct revocation

Wolfes Will Facts: T created 2 wills within two weeks. The person included in the 1st but excluded in the 2nd brought the suit to have the 1st will be declared valid as well. Reasoning: A will may be revoked by a subsequent instrument executed solely for that purpose; or by a subsequent will containing a revoking clause; or provisions inconsistent with those of the previous will But the mere fact that a second will was made, does not create a presumption that it revokes or is inconsistent with one of prior date In the second will there are no words which import a disposition of real property; there is no residuary clause, or clause of revocation; the courts do not favor the revocation of wills by implication. _____________________________________________________________________________________

D. Revival and Dependent Relative Revocation 3-4.6(a) - A revocation of a later will does not, of itself, revive a revoked will. o 1989 will o 1992 will revokes prior wills o 1992 will - you destroy it, the 1989 will is good Not in NY There hasnt been a case where there is enough evidence to revive the previous will 3-4.6(b) revival of a revoked will. Addition of a properly executed codicil which refers to a previous will, revives the old will o 1989 will o 1992 will revokes 89 will o 2002 codicil to the 1989 will revives it. It leapfrogs over the 1992 will Savings doctrine Second Best doctrine Dependent Relative Revocation has not been on the NY Bar yet. Allows the court to correct a mistake of law or fact. o You write will #1. Write will 2 revoking #1. For some reason 2 fails; the court can use this doctrine to have #1 probated. Idea is that this is better then intestacy. Doctrine of presumed intent if the T revokes a will b/c he is suffering from a mistaken belief as to the law or fact, the act of revocation is said to be dependent on the testators belief and can be ignored. Carter v. First United Methodist Church of Albany Facts: T had a 1963 will, she spoke repeatedly to her attorney about changing the will and took it upon herself to cross some of the provisions out and write some other things in.

23 Reasoning: General Rule: the burden is on a person attacking a paper offered for probate as a will to sustain the grounds of his attack. But, where a will has been canceled or obliterated in a material part, a presumption of revocation arises, and the burden is on the propounder to show that no revocation was intended. If the canceling of the old will and the making of the new one were parts of the same scheme, so as to be dependent on it, if the new will was not made, the old will, though canceled, should be given effect, if its contents can be ascertained in any legal way Pg 373 Problem #1 1995 all property to his daughter 2000 - to his daughter and to his son 2005 goes to lawyers office and tears up the 2000 will in favor of the 1995. this was not a valid termination of a will, the 2000 is in effect, better then intestacy second best

Chapter 5 Contesting the Will

Grounds for contest: gather all the ways the will can be contested 3-4.1 - Defects in formalities 3-4.1 - Revocation Defects in the testator and/or the circumstances o Capacity Insane Delusion o Undue Influence o Fraud Tortious interference Must have standing and grounds for contest Heir at law under intestacy statute 4-1.1(a)(1) Adversely affected by the admission of the will to probate SCPA 1410 SCPA 1403 When someone produces a will for probate others who might contest the will, will be served with process. Heirs at law People who were beneficiaries under other wills 3-3.5(b) In terrorem clause Probable cause is irrelevant o Or, no-contest clause if you contest the will, you dont take anything under the will. o If you successfully contest the will, then you defeat it and the clause doesnt matter _____________________________________________________________________________________

24

Section 1 Testamentary Capacity

3-1.1 Must be of sound mind and memory: sufficient brain power to know what his assets are or can remember who would normally be the recipients of his bounty (but doesnt have to give to those people) o Presumption of capacity: anyone 18 years old or over Incapacitating factors do not mean that a person lacks testamentary capacity Conventional test: T must know generally and without prompting: o Nature of the act T has to be aware of what hes doing o Nature and extent of his property o The natural objects of his bounty - relatives o Hold all 3 ideas in his head at once o Form an orderly plan for disposition of the property (magic words) If a T is able to do all these things and leaves everything to a stranger, a court is usually more conventional and juries dont like to give to strangers.

Insane Delusion wrong belief that no reasonable person would have. o It has to affect the will. The fact that someone has and insane delusion is not enough in itself if it does not affect the will. o Hargroves will T wrote a will and disinherited his kids. He had delusion that they werent his. He had a lot of evidence that his wife was not faithful, including her telling him that she cheated. The belief had support, so not an insane delusion. If testator was incompetent at the time he wrote a will Then he is not crazy anymore and he executes a codicil to the will then both are valid. NY statute? Barnes v. Marshall Facts: T executed a will shortly before he died and left his estate to various relatives and many religious, charitable and fraternal organizations. The daughter came in to revoke on the basis that T was not of sound mind and did not have the capacity to create the will. She offered many witnesses and had a large number of exhibits that the T was not in his right mind. Reasoning: will is defeated Dougherty v. Rubenstein Facts: Son was disinherited by his father in favor of his fathers 3 sisters. He claims that his father was not of sound mind and disinherited him b/c he thought Jay stole his money. After his breakdown, the father was ok except for the delusion that Jay had stolen his money. Holding: Not an insane delusion An insane delusion is defined as a false belief for which there is no reasonable foundation and the testators mind is not open to permanent correction through argument or evidence. Gonsalves v. Superior Court Facts: T came to the lawyer and asked her to write a will for her. T seemed lucid and sane. T disinherited her niece and nephew in favor of a friend who was taking care of her through cancer. Attorney recorded her will as well as wrote it. Holding: The attorney is not responsible to a third party for determining a testators capacity. Reasoning: Even if T lacked capacity, the attorney is not liable for those who are disinherited by the will of a testator who lacked testamentary capacity. 1. The disinherited beneficiary has a remedy, she may contest the probate of the will _____________________________________________________________________________________

25

Section 2 Undue Influence

The burden of establishing UI is on the opponent of the will initially Presumption of undue influence if: i. confidential relationship; or ii. suspicious circumstances If the burden is raised the do 5 part test: Person susceptible of being influenced by the influencer An opportunity to exercise the UI Desire to UI Actual exercise of the UI Resulting benefit to the influencer rests on circumstantial evidence Haynes v. First National State Bank of New Jersey Facts: T was very close to one daughter. The daughter died and her sons moved away. T, at 84 moved in with her other daughter and her family. They were greedy and made her change her will, when her regular attorney wasnt moving fast enough; they used their own attorney to make alterations to her will. Reasoning: Generally there is a presumption of competency. To raise a presumption of UI there must be: 1. Confidential Relationship 2. Suspicious Circumstances a. Here there is enough evidence to create a presumption so the case must go back to be tried. Will of Moses Facts: Moses started dating a much younger attorney who also represented her. Another attorney wrote the will. H did not personally participate in the will. Reasoning: The personal relationship warrants a presumption of undue influence The fact that he was not physically present at the execution of the will is not enough to over come the presumption of UI ____________________________________________________________________________________

Section 3 Fraud
Fraud in the factum - False representation about the facts in the will. Fraud in the inducement - As to extrinsic facts that causes the testator to make or revoke a particular will There will always be a remedy for fraud courts will use a constructive trust. 6 Part test: (all must be present) o False statement o Know to be false by the speaker o Must be material / relevant o Made with the intention to defraud o The testator must be deceived o Testator acts on the statement

Problem pg. 450 John left all of his property to daughter Ruth, There was a son, but did not want to have a relationship with the son.

26 Mother died and Ruth was upset b/c will said half to Ruth and half to Charlie but it was only 1,500. C got 12k in non-probate assets. Ruth tells dad and dad writes a will that excludes Charlie. C contests the will on the grounds of fraud The court let the will stand o Not convinced that the testator was deceived; nor was the statement false. _____________________________________________________________________________________

Section 4 Tortious Interference with Inheritance

Peralta v. Peralta Facts: son and daughter conspired to have mom transfer all property to them and codicil leaving other D out of will. Holding: She can sue in civil court. Reasoning: the tort is interference with a prospective inheritance. 5 elements: 1. The existence of an expectancy is not a definite right. Like a child, they can expect to inherit from their parents, but they can be disinherited. 2. A reasonable certainty that the expectancy would have been realized, but for the interference 3. Intentional interference with that expectancy 4. Tortious conduct involved with interference, such as fraud, duress, or undue influence, and 5. Damages A tortious interference action will not lie when probate proceedings are available to address the disposition of disputed assets and can otherwise provide adequate relief. In a situation where the estate has been depleted so that there could be no remedy in probate, proceeding in a civil court is appropriate

27

Chapter 7 Trusts
Arrangement whereby something that seems inseparable (titled by property) is divided into two parts: legal title (held by trustee) and equitable/beneficial title (belongs to beneficiary) and receives benefits Section 1 Creation of Trusts Express trust must have: Identifiable beneficiaries Intent to create a trust did they intend to impose a legal obligation If there is language of command- attempt to create a trust If a trust fails the property goes back to the testators estate on resulting trust theory If not, then it is a gift and is not fightable Trust property corpus In terms of a private trust it has to be funded when the trust begins 3-3.7 - In pour over an unfunded trust is authorized Transfer of the trust property Declaration of trust 7-1.17 -Must be in writing Oral trusts are not enforceable

28 Characters of Trusts One person may be settler, trustee and beneficiary as long as there is a residuary clause The Merger Doctrine: a person cannot be the sole trustee and the sole beneficiary. If that happens and the roles merge, the trust terminates. Kinds of trusts Formal Express Trusts - created by settlor Testamentary trust (private or charitable) created by will Ex. $50,000 to trustee, income to spouse for life, remainder to children Inter vivos trust (private or charitable) while living, goes by deed of trust $50,000 to trustee, income to me for life Charitable get special privileges Constructive Trusts equitable device when title to property is found in someone who ought not have it, said to be constructive trustee; intended to remedy wrong Resulting Trusts used to send property back where it came from (used for many circumstances). If fails, goes back to estate of resulting trust (like too much $ in trust for Fido or books for a library, goes back to estate). If trust fails bc cant be performed (charity closes its doors) goes back to estate through RT. Purchase Money Resulting Trust (p.528-bottom) abolished in NY EPTL 7-1.3 Person gives $ to another to buy in anothers name Used as a way of defrauding creditors, and presumed fraudulent o 7-1.5 Income trust is automatically spendthrift ___________________________________________________________________________________ 2. The Need for Identifiable Beneficiaries Moss v. Axford Facts: Caroline had a paragraph in her will that the residuary of her estate should go to H, who should give it to whomever he deemed most worthy, making him the sole judge. Her sisters claim that the devise was invalid b/c H was given too much discretion. Holding: The trust is valid, the beneficiary is clear enough Reasoning: The Ts intent is manifest and the language is mandatory in effect H did not have unrestrained discretion, he had to give it to the person who had given her the best care in her declining years. He was bound to exercise good faith in the determination ____________________________________________________________________________________ Trust Formation: 1. Capacity 2. Intent to Create a Trust: The Precatory Language Problem To create a private express trust, a settlor must express an intent to impose an enforceable duty on the trustee. Precatory words words that are not clear if they create a legal duty or merely a request of how they would like something done/distributed o May not fail altogether; but may be outright gift instead of a trust Most interesting b/c if in will, might not be sure what settlor meant o Ex: $50,000 to brother Bob, I wish, but do not require, that he use this to care for our mother (OUTRIGHT GIFT)

29 o Ex: $50,000 to brother Bob, I require that he use this to care for our mother (LEGAL OBLIGATION TO USE MONEYTRUSTEE OF TESTAMENTARY TRUST) o Ex: $50,000 to brother Bob, I hope/wish he will(in the middle) precatory language Providing for Mans Best Friend EPTL 7-8.1. May leave $ in designated trust, name person in charge of enforcing. When animal dies, back to estate or through provision. Court may reduce if excessive. Trust can only last until animal dies or 21 years. Spicer v. Wright Facts: T had a holographic will that named her sister to be the residuary taker and said that Anne should distribute the property as already agreed b/t us. Intent to create a trust? if it does, it fails for indefiniteness and a resulting trust arises in favor of Meade; if not, Anne takes the entire estate in fee simple Holding: No trust created, all to Anne Reasoning: Precatory words are prima facie construed to create a trust when they are directed to an executor; but no trust is created by precatory language directed to a legatee unless there is testamentary intent to impose a legal obligation upon him to make a particular disposition of property. There is no testamentary intent to impose a legal obligation. Levin v. Fisch Facts: Ts sister v. Ts children in the will the T wrote a residuary clause that left all of her property to her two kids and also made a provision for her sister in the form of 2,400/yr. until she dies or remarries. The children claim that because she used the word, Desire, it is precatory and not mandatory Reasoning: When determining whether a word is precatory or mandatory, the court will look to the expressed intent of the testator. Here the words were a positive directive and imposed an obligation on appellants Courts think that when speak to children, wish or desire is a command o *always something like this on exam ____________________________________________________________________________________ Trust Property Brainard v. Commissioner created trust with profits of stock trading that will happen (in future); Expectancy of profits not enough (should have put a little $ in there to begin with and then not taxed) b/c no $ to begin with, not trust, taxed Trust Formalities What do we need in order to create a trust? In NY, no need to worry about it, b/c trusts must be in writing and signed by settlor Goodman v. Goodman Facts: Clive owned a tavern; he transferred it to his mother who sold it and put the proceeds in her bank account. The children claim that he gave it to her to hold in trust for their benefit Reasoning: Clive intended M to hold the property in trust for the children. Based on the testimony of his ex-wife and children. This was not repudiated when each child turned 18, b/c it was Cs intent for them to get the money when they were mature, not upon reaching majority.

30 Evidence mother may have made oral promise to T. Moms promise not enforceable, but could imposed constructive trust through detrimental reliance, b/c T might have conveyed or dealt with differently, so uses equitable remedy. ___________________________________________________________________________________ Section 2 Using Trusts as an Estate Planning Tool Avoiding Probate Without the use of Trusts Totten Trust EPTL 7-5.2 a bank account trust with a named beneficiary Revocable during the settlors life and he may use the funds for his own benefit. Upon his death the trust becomes irrevocable and is the exclusive property of the beneficiary. Does not go to probate, Can be added to the Elective Share in NY Pros/cons o Beneficiary gets access immediately with ID and death certificate. o Does not avoid taxes o It is clear what his intent was o No testamentary formalities Green v. Green Facts: Green had 3 children from a previous marriage. He married W2 who also had a prior daughter. G set up that upon his death the money from his 8 bank accounts would go into trusts for the kids. W claims that the trust accounts are not valid and should fail b/c not Ts intent or if it was it should be in will. Reasoning: These are valid Totten Trusts The settlor may be the beneficiary, but not necessary for validity In NY, less problems b/c TTs are Testamentary Substitutes come back into estate for Elective Share. EPTL 7-1.4 trust may only be created for lawful purpose; if created for unlawful purpose, will fail. Old case: son would get $ if married with consent of brother and sister. Ct said failed bc sister and brother would get property if didnt consent, no incentive to approve.
__________________________________________________________________________________________

2. Avoiding Probate Through the use of Revocable Inter Vivos Trusts Advantages of an inter vivos trust: Avoid probate Provide for unified administration of probate and non-probate assets. Life insurance, bank accounts etc Plan for capacity More privacy term are not a matter of public record, wills are. A trust is irrevocable, unless it is specifically stated that it is not Valid non-testamentary transfer Pour over will EPTL 3-3.7 Pour-over - NY is hostile to incorporation by reference of other documents into the will - put all net assets into this inter vivos trust no good because trusts are not executed according to the statute of wills

31 o allowed to pour over to prior trust or the trust of anyone else provided it cannot be amended thereafter or the amendment is acknowledged in writing like a codicil NOT a simple notarization o Authorizes pouring property into a trust that is not yet funded Before we had statutes on this the court relied on 2 theories: o Incorporation by reference problem that it could not be changed or amended o Act of independent legal significance the trust stood on its own and wasnt attached to the will

Clymer v. Mayo Facts: W changed her life insurance and retirement so that the beneficiaries would be the trustees The residue was to pour over into a revocable inter vivos trust, payable as income to H. The trust was not funded at the time of creation. H and W divorced and she died with her will and trust in tact. Her parents (heirs at law) claim that there is no valid pour-over b/c there was no valid trust Holding: Affirmed, the trust was valid Reasoning: Pour-over trusts are valid A devise made to the trustee established by the testator including funded or unfunded life insurance trust if: o The trust is identified in the will; and o The terms of the trust are set forth in a written instrument executed before or concurrently with the execution of the testators will Heaps v. Heaps Facts: H and W1 executed revocable living trusts with both spouses acting as their own trustees. It became irrevocable on either of their deaths, and it would split into two trusts; 1. family trust that held the maximum amount of assets that could pass free of estate tax; and 2. marital trust for the remainder. This was funded with their home. Their home was now owned by the trust, they sold the home and took back the note and a deed of trust. W dies and the trust became irrevocable. H married again and they created another living trust and H quitclaimed his home from the old trust to the new trust Reasoning: He converted the trust property when putting the home into the first trust, it didnt belong to him anymore _____________________________________________________________________________________ C. Building Flexibility Into the Estate Plan: Support Trusts and Discretionary Trusts Two goals in a protective trust Preventing the B from alienating his interest Keeping creditors away from the assets Support trust trustee is given the power to invade the principal for the benefit of the B Creditors cannot reach this unless it is a support obligation (landlord, child support are actionable) Discretionary trust The T has discretion to pay income and to invade the principal for the benefit of the B The B cant alienate b/c he cant anticipate any disbursement Even if it says sole discretion, the T cant refuse some requests You cant force the trustee to a creditor, but the T also cant give any money to the B Sprinkling trust Sprinkle among a group of people

32 Blended trust More than 1 B and they and an undivided interest, none of them can alienate and none of the creditors can reach the property Wells v. Sanford Facts: Son created a trust for his incapacitated mother, to be held in trust for benefit of my mother for as long as she lives. Support trust. Testator dies and the mother is still alive and the trustees wants to sell her property. Her other children come in to have the T sell the trust property. Holding: The trust property should be sold Reasoning: Presumption unless there is something that states otherwise, the testator intended the beneficiary to be supported from estate income or from sale of the corpus The intention of the testator is derived from the 4 corners of the will and words are construed and their ordinary sense Marsman v. Nasca Facts: W creates trust with 1/3 of her estate to be held in trust for her H. its a discretionary trust in the Ts sole discretion. The standard is for the Hs comfort, support and maintenance. Cappy wanted money and the lawyer asked for a request in writing, and Cappy never asks again. Sally and Cappy agree that Sally will take over the house and reserve a life estate for Cappy. Cappys new wife is distressed and tries to claim a constructive trust Reasoning: Farr abused his discretion by not making any dispositions of capital to Cappy Ct says they cant take the house away from Sallys H, but they can give Cappys estate money from the trust that would have been distributed to Cappy if it had been distributed properly. _____________________________________________________________________________________ D. Protecting Beneficiaries from Creditors Wilcox v. Gentry Facts: G had created several trusts. 1/5 went to a trust for Isabel. T had discretion. I is sued by W for fraud and has a judgment against her. Her creditors want to get the judgment from her trust. The trustee wont give them the money and he cannot be forced to. Reasoning: If T is going to make any payments to Isabel, the creditors can take it The court says that the trust cannot disburse any money without having it reached by the judgment. They can just let it sit there, but if they touch it, so can creditors Spendthrift Trusts NY 7-1.5 income trusts is automatically spendthrift, unless the S provides otherwise. Most effective in protecting the B from creditors and preventing the B from alienating the property Beneficiary cannot assign away interest B is not allowed to receive income ahead of time B can convey away his right to receive the excess income over 10,000, but only to his family 7-3.4 excess income is available to creditors Scheffel v. Krueger Facts: NH statute authorized the spendthrift trust to take effect. P had been sexually assaulted by the beneficiary and he put pics on the internet. She gets a tort judgment against him for 500k. He has no property but the money in the trust. The trust was limited by a spendthrift restriction. He was receiving

33 principal and income on a quarterly basis. P claims that it is against public policy not to give them the money. Reasoning: Here there is a statute and the court cannot create a tort creditor exception. Here there are only 2 exceptions: o Self settlor exception o For trusts that violate the fraudulent conveyance law Bacardi v. White Facts: trust contained spendthrift provision. Alimony was assessed against L for 2,000/mo. until she remarried or until one of them died. He had not paid 14,000 plus attorneys fees, got a judgment and wants to enforce it to garnish the trust, what she is owed and the future payments. Reasoning: We usually honor spendthrift provisions but If there is a competing public policy interest then the spendthrift provision will be set aside and the garnishment is effective. ____________________________________________________________________________________ Section 3 Modification or Termination 7-1.9 Revocation of Trusts: beneficially interested A. By Direction of the Trust Settlor Connecticut General Life Insurance Co. v. First National Bank of Minneapolis Facts: J got a life insurance policy in 1965 will and trust in 1967. The trust was not funded in any way except by the insurance policy. The first wife and 3 children were the beneficiaries. J divorces W1 and marries W2. He then executes what says will and purported to cancel any previous wills or trust agreements. He gave it to his wife and then he died Holding: The trust is not revoked Reasoning: The trust was upheld as non-testamentary. The clause in the trust stated that the only way to revoke the trust is to execute a written document to the trustees. ___________________________________________________________________________________ B. By Consent Termination of trusts: All beneficiaries must agree to terminate All objectives must have been accomplished Two Issues 1. Consent of Beneficiaries (not just one, but all) a. In example above, spouse and friend could both try together b. New Example: T Will: $500,000 to Trustee, income to spouse for life, remainder to those children of mine surviving S (problem: dont know who they will be!) c. Compounding problem: T Will: $500,000 to Trustee, income to spouse for life, income to children for life, remainder to grandchildren. (Trustee must oppose because grandchild not identified could bring suit) 2. Claflin Doctrine Satisfaction of Objectives a. Claflin v. Claflin fathers will: $10,000 payable to son at age 21, $10,000 at age 25, and remainder at age 30. Son is 23, seeks to terminate trust, get all now. No problem with consent, not a spendthrift trust.

34 b. Ct says you might be able to, but settlor has a purpose. If a material purpose of the settlor has yet to be fulfilled, ct. will not order the trustee to disperse it, but if trustee does not oppose, okay 7-1.9 and case law you dont need their consent if you cant identify them Adams v. Link Facts: Trust to two non-relative women: income from the trust in quarterly installments. Upon the last ones death, the rest of the trust would go to a charity. The parties all came to an agreement and decided how the residue of the estate would be divided. The trustees refused. Reasoning: the fundamental effect of the compromise agreement would be to terminate the trust. To terminate a trust, three conditions precedent must occur: 1. The parties in interest unite in seeking the termination; 2. That every reasonable ultimate purpose of the trusts creation and existence has been met; and 3. That no fair or lawful restriction imposed by the testator will be nullified or disturbed by such a result. American National Bank of Cheyenne v. Miller Facts: S doesnt want to terminate, all the B want to terminate. S was to receive all income for life; when she dies her D and son in law were to receive 200/mo for life; then divide into equal shares to their children. S died, D died. All three children reached the age of 35. Reasoning: There arent any other possible beneficiaries. There is a per capita representation and no right of survivorship. Grant assigned his right to 200/mo to his children thus is was no longer possible to accomplish the Ss purpose in creating that trust _____________________________________________________________________________________ Section 4 Charitable Trusts Trust, the performance of which will, accomplish a substantial amount of social good. Public EPTL 8 If a trust is charitable, it gets special privileges: o Exempt against rule against perpetuities o Tax advantages o 8-1.1(a): exempt from rule requiring definite beneficiaries o 8-1.1(b): Incorporation by reference o 8-1.1(c)(1): Use of cy pres doctrine o 8-1.1(c)(2) AG enforces o 8-1.1(e): Income can be accumulated o 8-1.2(e): May continue for such time as may be necessary to accomplish its purposes o 8-1.5: Authorizes trust for cemetery purposes ____________________________________________________________________________________ B. Charitable Purposes Shenandoah Valley National Bank of Winchester v. Taylor Facts: T died and left a trust to distribute the income, in equal parts to children in a certain school in the 1st, 2nd, and 3rd grades before Easter and Christmas. First cousins are arguing that the trust is not charitable therefore it violates the rule against perpetuities. Holding: The trust is not charitable, it is an express private trust Reasoning: Must look to testators intent.

35 Charitable purposes include: o The relief of poverty o The advancement of education o The advancement of religion o The promotion of health o Governmental or municipal purposes, and o Other purposes the accomplishment of which is beneficial to the community ____________________________________________________________________________________ C. Standing Attorney General Beneficiaries and former beneficiaries Donors _____________________________________________________________________________________ D. Cy Pres Doctrine Permits a court to implant a Ts intent and save a gift to a charity by substituting beneficiaries when the named charitable beneficiary is unable to take the gift. In order for the doctrine to apply, several conditions must be met: o The gift must be to a charitable organization for a charitable purpose o It must be impossible, impracticable or illegal to carry it out o It must appear that the donor had a general charitable intent The court must look for another agent, as nearly like the other one as possible The doctrine should not be applied if the testator: o Has manifested a specific charitable intent; o Has anticipated possible failure of the trust; OR o Has made an alternate disposition of the property if the charitable gift should fail Estate of Crenshaw Facts: C bequeathed the bulk of his estate to the Salvation Army and Marymount College. The college closed after C died but they have their own educational trust. Fort Hays is also a college and want to use Cy Pres to get the money on the ground that giving the money to them would be like giving it to the other college. TC says the money wont go to them. Reasoning: in Kansas lapsed or void trusts become residuary and are distributed by the residuary provision in a will if there is one. (Salvation army would get the money) The court is willing to use Cy Pres to give the money to the Marymount educational trust Estate of Wilson Facts: Wilson wanted the money from his trust to go to 5 young men who had the highest grades in certain areas. Civil rights action brought to block this b/c of the gender specificity. Surrogates court found that this was not a problem. In the second case it is men again who are beneficiaries, and the board of education are the trustees. The TC replaces the public trustee for a private one. The appellate court says no; that in itself is state action and cannot be allowed. Reasoning: Wilson is ok, get rid of the superintendent of the school Johnson is ok, just get rid of the public trustee The court is resolving administrative problems with the trust A charitable trust gets special privileges

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Chapter 8 Powers of Appointment

EPTL Article 10 *very minor if at all on test Allow a person who creates a future interest to allow someone else to fill in the blank on who is supposed to receive property when it vests.

Section 1 Terminology and Classification

A. The Parties to a Power of Appointment - Donor- the person who creates the power of appointment - Donee the person who exercises the power, who actually decided how the property should be distributed - Appointees the people to whom the property is distributed to - Objects of the power or class of permissible appointees the class of people eligible to receive the appointive property - Takers in default the people who would take in the absence of exercise, whether or not they are named in the instrument creating power B. Scope of the Power EPTL 10-3.2 1. General Powers and Special Powers - General Power -The donor gives the donee complete freedom to choose the beneficiaries of the appointive property. Donee can appoint to herself or her estate. These are taxable - Special Power - The donor is directed to give the property to specific beneficiaries. Ex. To power to appoint among my children 2. Exclusive and Non-Exclusive Powers - Exclusive Power o The donee is able to exclude who they want to from the class of permissible appointees he may exclude some of those children or up to 100% for one child - Non-Exclusive o When the donor explicitly requires the donee to appoint some assets to each member of the class o A power that enables the donee of the power, acting in a non-fiduciary capacity, to designate the recipients of beneficial ownership interests in the appointive property

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Chapter 9 Classification and Construction of Future Interests

1. Classification of Future Interests

38 Article 6 of the EPTL 6-3.2 kinds of future estates (a) (1) property that goes back to grantor o Possibility of reverter To A so long as not used as a tavern o Right of Reentry To A for life but if he uses it as a tavern, S can reenter and reacquire the property o Reversion To A for life, remainder to S (a)(2) property that vests in another person. Remainder: Indefeasibly vested remainders ex to spouse to life, remainder to X no RAP. Vested Remainders Subject to Open (divestment) to A for life, remainder to As children (there are 2 now but A could still have more) the class that gets the benefit cannot be measuring lives. Must look at them as a class, not individually. A can be the measuring life Vested Remainders Subject to Complete Divestment- to A for life, remainder to B but if B doesnt survive A, to C. (not on exam) Contingent Remainders (Remainder subject to condition precedent) To A for life, remainder to B if B survives A there is always a possibility of RAP being violated b/c the interest doesnt vest until the condition is satisfied. Here A or B could be the measuring life b/c either of their deaths close the interest ____________________________________________________________________________________

2. Future Interests in the Grantor

Mahrenholz v. County Board of School Trustees Facts: the land goes back to grantor if not used as a school. The heir of the grantor sold his future interest in the land. If it is a possibility of reverter, then this transfer was ok. If it was right of reentry, it was not. Reasoning: based on the language of the will, the use of the word only is a limitation within the granting clause, rather than a full grant subject to a condition. The sons conveyance was not enough, he would have had to do something (right of reentry) Webb v. Underhill Facts: Action to partition real property rests upon whether the beneficiaries remainder interest is contingent or vested. H left a provision in his will leaving all his property to his wife until she dies or remarries. Remainder to be split equally to the other 4 children. If they dont survive him their share to their children. Wife, 2 children, and predeceased childs wife are P. 1 child opposes. TC found that the children and grands interest is contingent upon them surviving W. it is not a vested interest. They do not have standing to bring the case. The court read this as if it said to child if he survives W, to issue of child if he does not that said it was contingent upon something happening Reasoning: When a life estate is followed by two alternative remainder interests, and the vesting of the second depends upon the failure of the first, and the same contingency decides which one of the two alternative remainders shall take effect in possession, both interests are alternative contingent remainders. _____________________________________________________________________________________

2. Construction of Future Interests: Gifts to Individuals

EX: To A for life, remainder to As children payable at age 21.

39 o Court have held that this means that it does not require survivorship to that age. It is vested. To A for life remainder to those of As children who reach the age of 21 o Implies a condition of survivorship

A. Should we Imply a Condition of Survival? Uchtorff v. Hanson Facts: A set provisions for a trust fund that was set up for him by his father. He stated that if the son should survive him, he appoints the trust to him as an indefeasibly vested interest. A died then the son died. The wife lived much longer then upon her death the widow of the son came in to claim the trust property. She claims it is hers b/c the son left her everything in her will. The TC son was not entitled to the trust unless the son survived the mother. Holding: Reversed, judgment for the widow. Reasoning: the language is unambiguous that the interest vested in the son when A died. The only condition appears to be that S survive the F. Common law courts developed a presumption in favor of early vesting because: Vested interests are alienable The Rule against Perpetuities invalidates future interests if they do not vest within the Rules period Vested remainders accelerated into possession upon premature termination of preceding estates; contingent remainders do not Vested remainders were not subject to the common law rule that contingent remainders were destructible - a now defunct law. Dont worry about this B. Express Conditions of Survival What if you put in a condition of survivorship? To when do you have to survive? It would depend on language of survivorship Matter of Kroos Facts: H left all of his property as a life estate to his wife; upon her death all of the property should be split among his two children. If any of the children should predecease the property should go to their lineal descendants. The D died and then the mother died. D had no children. TC found that the interest was vested at the testators death, subject to be divested only in the event of her predeceasing her mother leaving descendants, that it passed under her will and that her husband as executor was entitled to bring action. Appellate court found that the will imposed upon each of the remaindermen a condition that she survive the life beneficiary. D having died without children before the mother, that condition was not met. Reasoning: courts favor a vested interest The language in the will indicates that the life estate was for the wife and then it would go to the children absolutely and forever. Had the will stopped at that point there would be no question that the remainder was vested. Since that is so, additional language will not be see as cutting down the estate Its an absolute interest with a condition subsequent and the CS did not occur. ____________________________________________________________________________________

3. Construction of Class Gifts

40 Ex: Will: 50k to my child 20k to my grandchildren At Ts death you see how many grandchildren are there and you distribute. You dont wait and see if more grandchildren are born Will: 50k to trustee, income to spouse for life. Remainder to our children for life, remainder to grandchildren, payable at age 21 The class will close when the life estates are done and the first grandchild turns 21 Lump Sum class gift Class closes when first class member takes possession; OR When no more people can be born into the class Per capita class gift 50 k to each child of Eliza This class closes at testators death you have to know how many shares to put aside for the proper administration of the estate _____________________________________________________________________________________ A. Increase in Class Membership In Re Evans Estate Facts: 50k to be set up in trust and divided equally for his grandchildren. Upon reaching majority age they would get the income from the trust and upon reaching 30, they would get the principal. At the time of Ts death there were 6 grandchildren. After he died but before the oldest was 30, there were 3 more grandchildren Reasoning: A gift may be so made that the class may either increase or decrease after the death of the testator until the arrival of the fixed upon point of time or the happening of a specified event. Once the corpus begins to be distributed, then the window is closed and any grandchildren born thereafter are not a member of the class. ____________________________________________________________________________________ B. Decrease in Class Membership: Survivorship Again Problem Usry v. Farr Facts: Us will provided successive life estates in his lands, first to his W, then to their children, with the remainder to his grandchildren. U had 3 children, all died. There are four children from one of Us sons and 3 great grand children from Us grandchild. Each claims to have an interest. GGC claim that the interest vested upon Us death and that since their father was alive, they get his interest. GC claim that the interest vested when the last land tenant died and that they are the only takers. Holding: the remainder vested at the time of Us death, and not at the death of the life tenant. Reasoning: are we going to impose a survivorship position? It vests at Us death. Hoyts children were entitled to share b/c Hoyt was alive when U died

Chapter 10 The Rule Against Perpetuities

41 EPTL article 9 An interest must vest, if at all, within a life in being at the creation of the interest plus 21 years Analysis: 1. Who is alive at the creation of the interest? (the lives in being) 2. Does the interest vest within 21 years of the death of such person? EX: To A for life, to As children for life. Remainder to As grandchildren. Violation At the time T dies A is alive but A is capable of having more children. So his children cannot be a measuring line It is capable for GC to be born to A more then 21 years after A dies To spouse then to our children; remainder to our GC Ok b/c children are used as the measuring line and _____________________________________________________________________________________

Section 2 The Rules Operation

Present interests and future interests that vest in the grantor are vested at creation and cannot violate the rule

EPTL 9-1.1(b) No interest is valid unless it must vest or fail within a life in being at creation of the interest plus 21 years A. Which Interests are Subject to the Rule? 1. Present Interests Blackacre to A for life, remainder to As surviving children. The interest vests in A immediately so it cannot violate 300k in trust, income to A for life, then principal to As children interest is vested in A. o If the trust beneficiary has no right to income or principal until a condition is satisfied, then the interest is not vested B. Applying the Rule: Vesting and Measuring Lives 1. When Will an Interest Vest? 3. Interests can Vest Before They Become Possessory 4. Lives in Being: Choosing Measuring Lives 5. Twenty One Years Example 6 pg 868 If youre testing something look at each future interest Income to A for life, then to As children for so long As life can be used as a measuring rod valid Interest to As children at As death is also valid b/c it vests at As death The interest in the grand children b/c we cannot use A as a measuring life b/c it is possible that a grandchild could be born more then 21 years after A dies. As children cannot be measuring lives Example 7

42 This is ok b/c the interest vests at As death even though the interest doesnt become possessory until the last of As children die

Example 8 We use all of the children as measuring lives Example 10 To my youngest grandchild will vest at the end of the lives of the last of the testators children Problems pg 876 To a for life remainder to the first child of A to o Reaches the age of 18 A can be the measuring life , if there are no children of A it will fail on As death o Reaches the age of 40 A children cannot be the measuring lives and the children cannot be the measuring lives either o Graduates from college T to A for life remainder to the first child of mine who graduates college fine T: income to sister for life, then to sisters children for life remainder to my brothers children o (a) Lets assume that the brother is alive at Ts death fine o (b) Then to brother if he is alive we know during the brothers live we will know if he dies before the last of sisters children or if he dies o (c) to those of brothers children alive at the death of sisters children this is not valid because we cant use sister as the measuring life b/c its . brother cant be the measuring life b/c you have to guarantee that the interest will vest within 21 years from the brothers death we cant use Ss children as measuring lives b/c its possible that some of them were not born yet o (e) my oldest surviving grandchildren
Vesting different from rule or individuals of future interests Income to A for life, remainder to As children interest in As children (vested subject to open bc no contingency like surviving to a certain age) BUT for rule, not considered a vested interest in the class, vesting closes only when no more children can come into class, doesnt vest until no more children can be born (As death). Q: What is the future interest: vests when each child born, but for purposes of rule, when inability to have more children, if more than 21 years and could still have children, fails. Class gifts: all or nothing

___________________________________________________________________________________

Section 3 Recurring Problems

A. When Does the Perpetuities Period Start to Run? Revocable and Irrevocable Inter Vivos Trusts Cook v. Horn Facts: T created a revocable inter vivos insurance trust with the bank as trustee. Trust: income payable to wife for life, on her death, the principal to be divided to as many shares as children living, or if there are predeceased children to their issue. The income of the share to the living child was payable to him for life, and upon their death the principal to go to their issue older then 21, if younger then to be held in trust until 21. Did the trust take effect at the time it was executed or at the death of the settlor? Reasoning:

43 RULE: When the settlor of an inter vivos trust has absolute power to change the terms, there is no need to include that time in determining whether the RAP is violated; - There is no trying up of property at this point. A revocable trust doesnt begin to run until the Ss death ____________________________________________________________________________________ B. Remote Possibilities EPTL 9-1.2 NY has remediating provisions Rules of construction which prevent some of the difficulties To A for life then to As children for life, remainder to As grandchildren who reach age 21 under common law this fails b/c of the possibility of A having more children cannot use As children as measuring life b/c the class was not closed and 9-1.3(e) there is a presumption in NY that a male under the age of 14 and a women over 55 cannot produce children. Problem pg 883 trust income to my children until the red socks win the world series: o then to my then living nieces and nephews- cant use them as a measuring rod b/c the class is not closed. In NY they could b/c of the presumption o to my now living nephews and nieces is invalid. o To my now living N and N who are also alive when the red sox win valid b/c we can use their lives as the measuring rod 1. The Fertile Octogenarian 2. The Precocious Toddler 3. The Unborn Widow NOT ON EXAM Dickerson v. Union National Bank 9-1.2(c) resolves this with assumption person is alive at time will created. 4. The Slothful Executor This amount to be paid after my estate is probated. Problem b/c could take more than 21 years for estate to be closed. - NY solves with EPTL 9-1.3(c) T assumed to happen within 21 years. _____________________________________________________________________________________

Section 4 Class Gifts

A. The General Rule
All or Nothing

Leake v. Robinson Facts: Excessive Age Contingency problem also. T created trust for benefit of favored grandson and then provided
for his issue, but if died without issue, to his brother (25 years) and sisters (25 years or married before with parents consent). As to siblings, contingent remainder would be okay, bc will reach 25 within lifetime. Problem: 2 more brothers born after T dies, before W dies and 1 sister born after W dies. Not alive at time of T death, so not measuring lives, but 25 > 21. Interest fails bc class not closed at Ts death.

44