Law Student Outlines Selected by
Prof. George Mentz
Our
Lawyers and Legal Team
About
Our Law Practice
Million
Dollar Verdicts
Rights
of the Injured
Lawyer
Louisiana Home
Click
To Contact Our Legal Team
Trusts and Estates: An outdated but interesting review
of the UPC
“As an attorney, you must not forget about equity. You
may have to go to cases where equity was not enough and
then distinguish that case from yours… If you have facts
that clearly point that the black letter law should not
apply. Find the black letter law, find the facts, and then
arrive at a result. At times an equitable result will take
place”
Suggestions for the exam=
1. Cardinal Rule= get to the intent of the testator and
abide by it if it is legal and not against public policy
2. Know the UPC for the exam
3. Know the Components of a Will and how the UPC handles
them
The uniform probate code (UPC) is used as a starting point
for transferring assets. The states will adopt it in its
entirety or with amendments. Policy of the UPC intestate
procedures is to make sure that the descendants of the decedent
get something. The UPC is pro intent and not pro-procedure
with the intention of honoring the intent of the testator
Generally when someone dies there is a probate procedure
in the statute. The probate procedure is used to transfer
assets to those who are in the will or are the heirs or
decedents.
American courts are unique as they do not make the losing
party pay for the lawsuit, so any defense of a will or such
procedure will ultimately come out of the disputed estate
Civil Law countries require an authenticated will , which
is executed before a quasi-judicial officer called a notary…
it is not the only way to make a will valid in those nations…
it is costly and so it is not used that much… but when it
is, it is difficult to set aside for want of capacity.
Pension plans both private and government have grown to
a 2 trillion dollar asset… the beauty behind them is that
they won’t leave the holders without because the assets
are pooled together with other investors… but there won’t
be anything left to inherit either.
Being able to transmit property at death is another right
associated with property rights but…
Things may not always be freely transferable. It is not
a constitutionally protected right. Getting money from an
inheritance is not a constitutionally protected right.
Property passing by will or intestacy is going to be probated
and it is costly, it is public, and it is time consuming…
because of that people want to try avoid having property
pass through probate… one way is to have things pass by
trust
A person dying testate devises real property to devisees
and bequeaths personal property to legatees… wills take
care of both of these types of property… This is different
than an intestate situation… we say real property descends
to heirs and personal property is distributed to next of
kin… today heirs and next of kin is determined by statute.
A state action is needed to facilitate it or restrict
it. A state statute can facilitate or restrict transfers
of estates but they can only go so far. Up until 1980, it
was though that the states could do whatever they wanted
to do via legislation. Transfers that have to give a certain
% to the children have been found to be constitutional.
It should be noted that every county has a court that
manages the estates of decedents. A person dying testate
(with a will) = devises real property to devisees and bequeaths
personal property to legatees.
There are two possible taxes in this country that may
have to be paid when a person dies and transfers his estate:
1. Federal Estate Tax= paid to the IRS and is due on estates
that exceed 1 million dollars (net). This figure includes
probate and non-probate assets (401k plan…). The 1 million
dollar figure will be increasing to 3.5 million dollars.
2. State Tax= also known also known as an inheritance tax.
This is a maybe tax that is paid to the state. It is a maybe
tax in the in the sense that not all of the states will
have it.
o Less than ½ percent will have to worry about paying the
federal estate tax, so what is the point of the fed estate
tax? = It is not intended as a revenue maker (our hesitancy
as a nation to make this a revenue maker shows our desire
not to abolish inheritance through taxing). It is designed
to tax the type of money that has not had the opportunity
to truly be taxed. This type of wealth is located in stocks
and things that appreciated significantly. This type of
wealth can be transmitted without taxing. An example is
transferring wealth to one’s spouse…that is not taxable.
The fed estates tax stands as a way to limit these types
of transfers. Another control on this is to set mandatory
percentages to make people give a certain amount of their
estate to their children and spouse.
Probate and Process:
o For a testate situation, the person in charge of disposing
of the estate is the executor and in an intestate situation
the person is known as the administrator. In a lot of jurisdictions,
both persons are known as the personal representatives.
(This will be on the test)
o Formal probate proceedings= is more expensive and will
help resolve a pending dispute over a will, an asset, payment
of liabilities…= it lets people go in front of the judge
and get their chance to be heard. It should be noted that
small estates are not going to want to use this avenue because
it is costly to implement. A good attorney will explain
probate vs. non-probate assets to his clients.
o Probate procedures: can be easy or difficult or easy.
In Louisiana, they are considered difficult. Most estates
can be handled without this procedure. Even though 95% of
estates can be handled without this type of procedure, that
other 5%can be really troublesome, especially because it
is easy to change the dispersal of goods. It should be noted
that property passing by intestacy or will goes through
probate. Property passing by other means (like a trust)
does not. It is a lot easier to not go through probate if
you can help it.
o Informal probate proceedings (ex-parte probate) UPC 3-301=
tells you how informal probate procedures are to work
o According to the UPC if a will is not formally or informally
probated within 3 years, it can not be and it is presumed
to an intestate situation.
o once the estate is open, the personal representative is
in place/ and he has the letters of administration=he can
do what he wants without court approval. Informal probate
proceeding usually deal with smaller estates. People are
usually in agreement. It is easier than formal proceedings
until someone has a problem (a person who has an interest)
and requests to make the proceeding formal (which most states
allow to happen).
o Primary Jurisdiction= This is the place where the decedent
was domiciled. This is where all of the personal property
is moved to and governed. It should be noted that this also
applies to out of state accounts and other taxable out of
state assets. The domicile state gets to tax those types
of assets.
o Ancillary Jurisdiction= this is the place where the property
is located when it is located out of the domicile state
of the decedent. When it comes to handling this part of
an estate the procedure used is called the ancillary probate
procedure. There is also a mini-procedure for the real property
located in an ancillary jurisdiction. The idea in this type
of estate situation is to turn all of the out of state property
into non-probate property because it is expensive to have
all of those probate procedures going on. Generally you
are going to want to avoid opening up ancillary estates.
o The Federal code has to be dealt with in every state
and has nothing to do with the probate procedure.
o In Louisiana= you still have to go through probate even
though it practices succession.
o The executor has the duty to pay expenses and debts of
the deceased (including burial fees). Mortgages are passed
to the heir and not to the executor. Not naming an executor
or successor can be a problem if you are not survived by
the person you are trying to leave your stuff to.
o The prof guarantees that a surviving spouse will get
remarried if they have kids they are still trying to raise.
o Every jurisdiction has a child protection devise built
in but some are a little too protective
o There are a number of jurisdictions that practice informal
probate and require the testator to say in a will that the
probate should be distributed informally.
o Most people (parent) are not able to name someone that
will take care of the kids if both of them were to die at
the same time. You want them to talk to a person that is
ready, willing, and able to take those kids. Once the naming
of the guardian takes place, it is very enforceable and
that person will generally get the kids unless something
really incredible happens.
o The original will is deposited into the registry of the
court and held perhaps forever by the court clerk.
Probate Property:
1. If you need title changes by the court= probate property.
Generally real property, sometimes cars, stocks, bank accounts,
and jewelry qualify as this type of an asset. Probate proceedings
are held in limited jurisdiction probate courts except in
Louisiana where the probate proceedings are held in general
courts.
2. When this happens the first step is to appoint a personal
representative to wind up the affairs of the decedent… his
duties will be to inventory the assets of the decedent,
to manage the assets during administration, to receive and
pay the claims of creditors and tax collectors, and to distribute
remaining assets to those entitled… When there is a will
being used and it names this person, this person is known
as an executor…when the person is not named in the will…
he is known as an administrator.
3. The person listed above is appointed by (although named
in the will at times), under the control of, and accountable
to the probate court.
4. These were the actual class notes on this matter…For
a testate situation, the person in charge of disposing of
the estate is the executor and in an intestate situation
the person is known as the administrator. In a lot of jurisdictions,
both persons are known as the personal representatives.
(This will be on the test)
5. In this country each county has jurisdiction over administration
of decedent’s estates… the name of the court (the probate
court) will vary from state to state
6. Creditors have a relatively short period of time to make
good on their claims of an estate as compared to a much
longer time for things like revocable trusts
7. Wills are public documents where as intervivos trusts
can be kept private
8. Something that goes through probate will have the option
of coming into substantial compliance… non probate assets
like insurance policies will not have this option because
the insurance company has a right to know who it is going
to pay benefits out to (majority rule)… so UPC 2-804 has
not been adopted by the majority of the states
Probate Process:
3. There is no important distinction among the jurisdictions.
Each has a unique way of doing things. There are very detailed
books on the matter though.
4. According to the UPC, formal probate proceedings are
judicial determinations after notice to interested parties
has been given. Also, any interested party can demand formal
probate…this formal process may be used to probate a will,
to block an informal proceeding, or to secure a declaratory
judgment of intestacy… these formal proceedings become final
judgments if not appealed.
5. The time line for challenging a will is a jurisdictional
study. If everything is done as it should be and the statutory
time passes, then the probate becomes final even if evidence
to the contrary is discovered.
6. Creditors may file claims against the estate of the decedent
for debts not paid. They are going to have to do this is
the time allowed by statute… these are known as (non-claim
statutes). These statutes will have one of two effects…
they bar claims not made within a relatively short period
of time after the probate proceedings have started (2-6
months) or whether or not the probate claims have commenced
claims not made within (1-5) years of the death of the decedent…
For the short term statute… creditors receive notice via
publication but the Supreme Court has held that if the where
a bout of the creditor is reasonably ascertainable that
they receive actual notice before the SOL actually starts
to run but the (1-5) year statue requires no such actual
notice before the SOL starts to run
7. In many states… the administration of the estate by the
e representative is supervised by the court… this supervision
can be costly and time consuming… in a state like this the
court must approve the inventory and appraisal, payment
of debts, family allowance, granting options on real estate,
sale of the real estate, borrowing of funds and mortgaging
of property, leasing of property, proration of federal estate
tax, personal representative’s commissions, attorney’s fees,
preliminary and final distributions, and discharge of the
personal rep… In other states, this supervision is not necessary
unless minors are involved.
8. Under the UPC the court supervision (but can be requested)
is not necessary and so the representative has broad powers
like the trustee in dealing with the estate property and
may collect assets, sell property, invest in other assets,
pay creditors, continue any business of the decedent, and
distribute the estate without court approval.
9. Either way via court approval or not, the personal rep
is supposed to deal with the estate as quickly as possible…
10. Once the personal rep’s action is judicially approved…
the rep is relieved from liability or in the alternative
the SOL ran and now the rep is off the hook. The rep is
not discharged of his fiduciary duties until the court grants
such a discharge.
11. The original will is kept in the court house indefinitely
12. All you need is “I give”
13. The functions of probate=
a. Provides evidence of transfer of title to the new owners
by a probated will or decree of intestate succession
b. It protects creditors by requiring payment of debts
c. It distributes the decedent’s property to those intended
after the creditor’s are paid
1. To do a probate, you should first probate the will or
letters of administration where the decedent was domiciled
at the time of death (primary/domiciliary jurisdiction)…
if real property is located another jurisdiction… ancillary
administration in the jurisdiction is required… this ancillary
process can be expensive because the state may require that
a resident be appointed personal representative along with
a local attorney… they will be paid from the assets located
in that jurisdiction…it should also be noted the domiciliary
representative/ attorney will also be paid from that asset
as well.
2. Each state is going to have their own procedure stating
how the letters come to be (for both an executor or administrator)…
these letters authorize that person to act on behalf of
that estate.
3. Most state are not going to permit ex-parte proceedings
but most states will require prior notice to interested
parties before the appointment of a personal representative
or probate of a will. At the hearing… if a will is to be
probated, it must be proved by the testimony or affidavits
of the witnesses… this probate procedure can be heard in
front of a probate judge or a clerk
4. It should be noted that a and c are done through a non-probate
process and b in terms of paying the creditors (the decedent
can’t get out of it)
5. You can do a little probate and a little non-probate
6. In an intestate situation, the first thing to do is to
figure out who the executor is (for a testate situation=this
is already known). The executor’s duties are=
7. Probate cost comes from… mainly court fees, commission
of the personal rep., attorney’s fees, and sometimes the
guardian’s and appraiser’s ad litem’s fees. In most states,
the personal rep’s fees are set by statute
8. Federal Estate taxes begin on estates of 675,000 in the
year 2000… this figure rises to 1,000,000 in the year 2006
with tax rates from 37-55%.
9. If the attorney is to serve as the personal rep and the
attorney, he must have written acknowledgement of the testator
otherwise he will only get half of the statutory rep fee
and a reasonable legal fee (and not his normal fee if higher)…
note that the fees for the attorneys can be affected by
the complexity of the case and lowered if there is no real
property.
10. Probate can be avoided… if testator transfers all of
his property during his lifetime to joint tenancy or into
a revocable/irrevocable trust or by contract as mentioned
above in non-probate assets… but the more property one owns…
the harder it will be for him to totally dispose of it through
non-probate means
11. A will is a great backup for all of those assets that
are not taken care of by intervivos non-probate methods…
there are also ways to dispose of such willed property without
having to go to probate… this occurs with many items such
as furniture or personal effects…ownership will be assumed…
but with items that require documents… it may be a little
harder and the person who wishes to have that item may need
to obtain some official recognition of their rights to have
that particular item (a car is a good example). Also note
that in community property states= property acquired with
spouse’s earnings is community property unless the spouses
have changed it into another form of ownership.
12. Common statutes among the states are rules that allow
non-probate of small assets like small bank accounts, wage
claims, or transfers of automobile titles. They will have
to provide an affidavit for the car and will have to fill
out the right paper work for all of the aforementioned things.
There are similar things for small estate amounts… when
the estate does not exceed a certain amount in certain jurisdictions…
the heirs are allowed to come and collect the property…
it does not yet give them title… but with a lot of assets
this is really the equivalent of getting title to it.
13. The Uniform Probate code authorizes universal succession
as an alternative to probate administration
Closing an Estate:
1. Simply follow the rules in your jurisdiction “generally”
2. You need to have paid/taken care of the creditors
3. You need proof that the inheritance state tax has been
paid if it is do
4. You need to petition the court requesting a judgment
that the estate is closed, personal representation has been
dismissed, and assets distributed.
5. It should be noted that most of the question you may
have about the probate process in your jurisdiction can
probably be answered by the local probate rules.
Is probate really necessary? =
1. most wealth is transferred non-probate (today) but in
most jurisdictions there is a probate procedure
2. Probate procedure can be time consuming and expensive.
3. The executor’s fee is usually a % of the estate
4. The attorneys handle their fees in a variety of ways.
The old way was by a % of the probate estate, another way
is by negotiation with the administrator= usually in terms
of hourly pay, but a lump some with a provision for hourly
pay later on is also ok. The last way is just full of problems
in its implementation though. It should be noted that when
an attorney is hired, that debt is high on the list of debts
to pay from the estate.
5. It is possible for the attorney to serve both executor
and attorney function= but some jurisdictions will not allow
this unless it is expressly stated
6. Every state has a small probate procedure. They can be
done through an affidavit or a small probate procedure.
This type of probate procedure is much simpler.
Barring Creditors:
2. All states permit a creditor to file a proof of claim
with the estate. This is an easy procedure but a lot of
creditors don’t do it. Even if they do it right, it does
not automatically mean that they will get their money back.
The estate may challenge their claim to the money.
3. If the creditors do not file on time= there are ways
to handle it= they can file a short time after the probate
starts or else be barred. They might be able to file a longer
time after the decedent dies or else be barred from collection.
This depends on the jurisdiction that you are in.
o Restatement of Property= Donative Transfers section 6.2=
As long as a restraint to induce a person to marry is valid
if and only if under the circumstances the restraint does
not unreasonably limit the opportunity to marry... the motive
or the purpose of the testator is irrelevant.
o Courts are reluctant to affect family matters by enforcing
a will provision with constraints on collection. For example
“I will give half of my estate to my daughter if she does
not talk to her brother for 35 years”
o Courts will not honor wills to destroy an asset after
death. The justification of this is that it will affect
other people.
Wills:
Wills get rid of property acquired even after he execution
of the will
A typical statement that starts a will is that this is my
final will and testament making other such prior wills invalid
By getting married in most jurisdictions, the pretermitted
spouse status gets enabled… this means that the new spouse
will get the pretermitted share in the event that a will
does not change this over… it should be noted that the majority
of states hold the claim of a 3rd party bene over the pretermitted
right of the 2nd wife
Most jurisdictions also have a pretermitted share provision
for children that are born after the will is made UPC 2-302
This could apply to trusts as well… but if a provision is
too speculative like “friends” the courts will not be able
to enforce it
The Cardinal Rule of the Will’s Act= is to get to the intent
of the testator
Devisee Predeceasing (on test)=
1. If a devisee (person that receives something in a will
from decedent) predeceases the decedent… the property passed
will go back into the decedent’s estate when there is no
issue of the devisee… this is known as lapsing
2. the UPC 6-101 has a provision handling this
3. The UPC is silent as to whether a named POD needs to
survive the decedent to not have a lapse (under the Will’s
Act this thing would lapse)… if there are issues… they will
inherit the POD… it should be noted that if this was close
relative… the issue of the relative would be substituted
in place of the bene UPC 2-706.
Redoing estate planning process... if you can’t find a will…
it is presumed revoked… intestate procedures will apply…
as for trusts, no… they must be done in accord with the
trust instrument or the trust code to revoke… why the trust
owns things and so there needs to be rules in how to modify
or revoke (Pilafas Case)… if there is no specific way to
revoke… any reasonable evidence will be accepted
A power to revoke an inter-vivos trust created by the decedent
can be done by a will (if the trust so provides)
A power of appointment given to the decedent over a trust
created by another person can be done by a will of the decedent
Types of Wills:
Pour Over Will=
1. this is when a trust is already set up for someone with
only certain assets and then the remainder of the assets
are set to that bene (as trustee) through the will to hold
by the terms of the already existing intervivos trust set
up
2. this is a useful device when someone wants to set up
a trust to dispose of some assets now and then dispose of
other assets later under that management of trust later
3. incorporation by reference and independent significance
are 2 doctrines that are used to justify these things
4. Assets are poured over into the trust from the will provisions
and are subject to that trust and are considered additional
assets to that trust… this comes from the doctrine of Independent
Significance
5. UPC 2-511 deals with the Testamentary Additions to Trusts
6. UTA (Uniform Testamentary Additions to Trusts Act)validates
pour over of probate assets into an inter-vivos trust only
if the instrument is executed (signed) before, concurrently
or after the execution of the will… The uniform act also
does not require that some of the property be transferred
to the trust during the lifetime of the testator like Independent
Significance… what this means is that assets can be put
into the trust after death… these trust are amendable after
death… The purpose of this is to allow the testator to create
something with the same function as an intervivos trust
7. These types of wills can effect their underlying trust
in the event of a divorce/annulment because the presumption
is that the will won’t include the ex-spouse.
Holographic=
1. needs a date, entirely done handwriting, and signed by
the testator
Joint Will= this is one will for the husband and the wife…
never sign it… never use it… it has turned out to be a difficult
idea
Mutual Will=
1. signed by a husband and wife… it is the execution of
a mutual will (a contract) where the surviving spouse can
not change the will when the other dies…
2. UPC 2-514 deals with this…
3. How do you make something like this but still give the
spouse the freedom to dispose of their things… one way is
to make the kids the executor)
4. The mutuality of will says there is no presumption of
revocability… this is on the exam… it would not be fair
if you don’t allow the surviving spouse to use the money
as they see fit
Holographic Wills=
1. If a state permits a holographic will… then witnesses
are not needed when the will is entirely in the handwriting
of the testator
2. States that allow these types of rules really hold people
to a strict guideline on them.
3. Most states have not embraced these types of will because
they don’t require going through the formalities of the
regular wills… that is one of the reasons why guidelines
are so strict in states that do permit them
4. UPC 2-503 deals with this as well
5. It should be noted that in holographic will is extremely
important… the courts are going out on a limb as it is and
if there is any doubt as to the intent… whether the intent
is convey or not… if the intent can’t be made out then the
court are not going to be comfortable probating it
6. In order to probate one of these types of wills… it is
necessary to eliminate the typed matter on the face of the
holographic on the ground that it is immaterial (because
of the modification) or that there is not intent to incorporate
the typed matter
7. Holographic will need to make sense apart from the typewritten
words… other wise you can’t get rid of the type written
words
8. Some concerns with these are:
Is it a testamentary writing,
Does it comply with the wills act
It is really the intent of the testator
Statutory Will Forms=
1. these are those fill- in the blank will formats
2. these wills must be signed and attested to in the same
manner as any attested will
Conditional Wills=
1. One thing to consider when looking at these types of
will is whether or not the piece of paper is to refer to
only one particular event (like not making back from a trip)
or death.
2. Generally the presumption is that the person intends
to do____ when they die instead of only when a certain thing
like not coming back from a trip happens
Dead Hand:
1. This is when the will of the decedent continues to be
implemented after his death. This type of action is enforced
in this country unless it violates constitutional rights
or public policy. A person has the right limit what is passed
to family. There are limitations to what the law will enforce
though.
2. Once a person does that, then those limitations will
be set in stone and won’t be changed with the changing facts
(even if it could fairly be said that in retrospect that
the writer never wanted that).
3. It should be noted that wishy-washy language can be molded
to intent but if it is not wishy-washy, it won’t budge,
it is etched in stone. A trust falls into the legally allowed
limitation placed on the passing of an estate.
4. The professor agrees with this type of limitation and
not with the ones that are more intrusive.
5. The Shapira Case: financial restrictions placed on estate
passing have been accepted by the courts where as other
limitations are not accepted. In this case, the court decided
that the plaintiff was not really being forced into anything.
The court felt that they were not restricting his marital
or religious practices; they were only restricting his financial
gain if he did not meet the conditions of the will. A provision
prohibiting him from getting married would be contrary to
public policy and held void. The courts will try to honor
the intention of the deceased within the limitations of
the law.
6. Restatement 2nd of Property “Donative Transfers” section
6.2 says that restraints on marriage to marry inside the
faith are considered valid unless they become too restrictive.
It should be noted that the restrictive degree will depend
on the particular case and that the intentions of the decedent
are not a factor to consider.
7. Restatement 2nd of Property Donative transfers section
7.1. Other types of restrictions that serve to disrupt a
family are not enforced by the court. An example would be
a provision that encourages a divorce.
8. Restatement of Trusts 3rd section 29= invalidates trusts
that contrary to public policy. It frowns on restrictions
of marriage, religious freedom, disrupting family relationships,
and choices of careers but it will balance the factors
Components of Wills:
Look for the intent of the testator and if you don’t see
any fraud or undue influence… follow through with the dispensing
powers (integration, republication, and incorporation)
Integration of wills=
1. dealing with sentencing and numbering and what needs
to be included
2. writing on the will in a non-destructive manner
3. basically this says that all papers that are intended
to be part of a will and are present @ the time of execution
will be considered part of the will
4. papers being stapled together and the continuity of the
language from page to page… helps the courts figure out
what was supposed to be included… it is recommended to have
the testator sign or initial each numbered page of the will
and to type the entire will in the same font
Republication by Codicil=
1. When the codicil is made it has the effect of republishing
a will
2. When a typed will does not make it… a codicil that is
all handwritten, has a date on it, is in accord with intentions
of testator, and is valid by clear and convincing evidence
will allow the will to take affect by the majority of jurisdictions…
so a defective will followed up by a valid codicil can make
the will not defective
3. A codicil is considered a will and as such must be held
to the standards for a will in the state where it is made
(especially in a Republication)
4. A codicil must also meet the qualifications of the Will’s
Act… really a codicil is a will in itself and depending
on the jurisdiction… you may need 2 witnesses to sign or
in states accepting holographic wills… the requirements
for that
5. A codicil supplements a will and not replaces it… it
sort of becomes a will in and of itself (even though it
republishes the will)
6. you can revive a 1st will by adding a codicil to it
7. Note that this updating function does not happen automatically…
it must be done in accord with the intent of the testator
8. This doctrine can only republicate a previously properly
executed will… a codicil can’t republish an instrument that
was never properly executed in the first place
9. Codicils can make a will that was not legal on the first
go… legal on the 2nd turn if they were done right prior
to codicil
10. A codicil must be testamentary in character
11. A codicil needs to be written by the testator, dated,
and signed by the testator… even if written on the same
piece off paper as the type written will… it will not be
invalidated
12. holographic codicil=
Incorporation by reference=
1. Not recognized in Lousiana
2. Handled by UPC 2-510 “Incorporation by reference”
3. stuff referenced does not have to be witnessed… there
may be no date on that reference thing
4. can’t be done unless the reference was in existence when
the will was made… but if it does not get in on time look
for a codicil that will republish and look to see if it
substantially complies or gets in under UPC 2-503
5. things that are not included by reference @ the time
of the execution of he will… will go by the terms of the
will or by intestacy
6. The reference material need not be witnessed o be included
in the will by reference… but it must be in existence when
the incorporation by reference was made
7. the reference needs to be specific enough to be recognized
Execution of Wills=
1. The courts need proof that the statements used were intended
to enact a transfer
2. … if the primary purpose of the will is to determine
the intent of the testator… are you going to require that
every little requirement is met even if no one is complaining…
or are you going to guide yourself according to the intent
of the testator regardless of the procedure.
3. Executing wills… is going to be different from state
to state. The probate codes are a little different in each
state.
4. These ceremonial requirements have a way of impressing
the seriousness of what this event represents
5. Having the formal requirements also protects the testator
from undue influence or other forms of imposition
6. Why do we require wills to be in writing and why do we
require witnesses… to permit people to rely on oral assertions
are just not good enough and these measures that we have
protect a tradition, give a safe harbor, evidentiary protection…
7. Duplicate original wills…there should only be one original
will… and it should be kept by an attorney (not solicited)…
obviously there are going to be photo-copies
8. The Wills act=
? you two witnesses to the signing of your will… both have
to be there to either see the signing or see the testator
acknowledge that the signature is his… the signature must
come at the end or at the foot of the will.
? Some concerns in the Wills Act:
Does the signature meet the requirements… courts have determined
that the signature does not have to be your whole name and
in one case someone wrote father one time and the court
did not have a problem with that
People write wills to occasion an event that could be seen
as death… when the particular event does not happen like
not coming back from a trip but then someone later dies…
the courts are comfortable saying that death is what the
person meant when they said if they did not come back from
the trip…
9. After the will is written it needs to be signed in the
presence of the lawyer who wrote it… otherwise it could
be malpractice… the will needs to be notarized.
10. Qualifications of valid will are dealt with in the UPC
2-502.
11. If witnesses do not actually see the signing of a will
it will still be okay for them to have the testator acknowledge
the will…Even if there is no contest that a will is the
intent, there is no dispute to the testator signing or the
witnesses signing… the witnesses need to attest to the will
being signed or that a witness saw the testator acknowledge
that it was his signature…all parties don’t have to be there
as long as both witnesses attest or have acknowledged by
the testator that it was his signature on the will. (this
is the feeling in most of the jurisdictions)
12. A will should not be witnessed by those who stand to
be beneficiaries or spouses of a beneficiary… If an attorney
does not advise his client to this in some way, he could
be held liable for its faulty execution to beneficiaries
of the will.
13. In states (a minority) that require a witness to actually
see the signing of the will… the line of sight test only
require that if the witness decided to see the will signing
that he would able to do so if he were to look… an exception
is made for blind people
14. In states that require the conscious presence test…
the witness is considered in the presence of the testator
signing when he can see it, hear it, has general conscious
of the event
15. Note that 8 and 9 are superceded by those states that
follow the UPC in that the UPC allows for the signing to
actually take place without the witnesses if the signature
is acknowledged
16. Codiciles of Wills= they are additions to wills…
17. Witnesses to a will must be disinterested for the execution
of the will for it to be valid… Without 2 disinterested
witnesses involved any amount going to one witness (who
is interested) will be void… One exception to that is if
an interested witness would receive something in the event
that the will could not be executed… in that kind of a case
he will inherit only that which he would have received if
the will could not be executed. The purpose for such a rule
is to protect the testator from undue influence or fraud
at the moment of execution… A witness can’t disclaim after
the execution of the will.
18. Disclaimers… are treated as if they had pre-deceased
the testator and the disclaimer shall relate back to the
date of the creation of the interest
19. The UPC deals with this as well… The UPC looks to the
witnesses as not going to check the competency of the testator
but they are to simply there to prove the signing or acknowledgement
of the will on the day in question.
20. A witness to a will finishes his job when the will
is executed.
21. The recommended method of executing a will is in a graph
as well
22. Permitting the probating of a will before a testator
dies…You have to notify all of the people who are considered
in the will…and they participate in these proceedings.
Equity in the Execution of wills=
2. Courts will try to amend wills to meet the intention
of the testator but they can only go so far before they
make the provisions protecting wills invalid… so courts
will correct the mistakes in will only to a certain point
3. The UPC deals with this in UPC 2-503.
4. Additionally, courts will enforce the probate of a will
when it substantially complies with the formalities unless
a statute is offended by it
5. There are two ways to apply equity… the dispensing power
=if a court of equity determines the testator' itent… it
can dispense with just about anything as long as it has
clear and convincing evidence (very liberal view”minority”)
= this allowed by the UPC. The other test is the substantial
compliance test “the near miss test”… a concept that has
grown under the common law as opposed to statutes… if the
court can determine the intent of the testator and the testator
substantially complied with the statute the court will honor
the will…this one is statutorily or common law part of most
states… but look to see if your state follows this.
6. Is there a requirement to have both witnesses witness
at the same time??? No the majority of jurisdictions allow
witnesses to sign at different times… the dispensing test
would be made and the near miss rule would be satisfied
as well.
7. Most jurisdictions do not require privity… to allow for
the beneficiaries to sue the solicitor…
8. We have witnesses…to simply see the testator sign the
document… there are two different line of sight = not actually
seeing the event but could if so desired
9. conscience presence= “general consciousness of the events”
10. The order of signing… it makes sense that the testator
sign first and then the witnesses… but when you are in a
hurry… this can sometimes happen… than the witnesses may
sign first… jurisdictions are naturally split on this because
it can be interpreted all kinds of ways
11. The signature= generally all you need the signature…
you don’t need the whole name… you just need their regular
signature…what if the hands are so shaky all the testator
can do is sign with an “X”… go to the jurisdictional laws
covering such matters and then…it comes up because sometimes
old people can’t use their hands as well… every jurisdiction
will permit an “X” but the question is will there need to
be anything else that needs to be included with that “X”…
A signature can be just about anything…Some jurisdictions
will allow for testator to have assistance if he has requested
such assistance… A rubber stamp will not be allowed probably
according to the prof
12. Additions after the signature… almost all probate codes
require that the testator sign at the end of the will…so
if something is put in after the signature… they will be
ignored unless you are in a state that allows holographic
wills… these are will that are dated in the handwriting
of the testator and are signed… so on a will like that if
there is something added…and it is in the testator’s handwriting
and he signs the additional matter. Follow this when making
an addition or a holographic will…have the testator date
it, personally write it and then sign it in their own handwriting
(all of it)… and it will be honored in all of the states.
Self Proving Affidavits and Attestation Clauses=
1. Attestation clauses facilitate probate by providing “prima-facie
evidence” that the testator voluntarily signed the will
in the presence of the witnesses… They also allow the will
to be probated when the witness forgets the circumstance
of the will’s execution or dies before the testator. The
witnesses with attestation clauses… the witness expresses
the present intent to act as a witness.
2. Self Proving Affidavits are sworn statements by the eyewitnesses
that the will has been duly executed. It performs virtually
all of the functions of an attestation clause except it
has the further effect of permitting probate without requiring
the appearance of either witness. Witnesses in these are
swearing that the will has already been witnessed
3. Will can be made self proving simultaneously with or
after the execution of the will.
4. It should be noted that attestation requirements serve
the function… of preventing undue influence and fraud while
offering a streamlining process to will probate
Revocation of Wills=
1. Wills are subject to both modifications and revocations
during the lifetime of the testator
2. All states permit the revocation of a will in 2 ways:
A subsequent writing executed with testamentary formalities
A physical act such as destroying, obliterating, or burning
a will + intent (majority opinion)… note that destruction
and intent have to come from the testator… then get rid
of it (the presumption of revocation will be on your side)
3. The UPC deals with this in UPC 2-507
4. An oral revocation without more is not an effective revocation
5. A subsequent will revokes the previous one by inconsistency…
the first will is to be considered revoked if the testator
intends it to replace rather than supplement the old will…
the presumption of intent to replace will be made when the
new will disposes of the entire estate… If the new will
does not totally dispose of the estate it is not presumed
to replace the old will but it is presumed to be a supplement
(a codicil)
6. UPC 2-507-b-d deals with this although it is not in the
book
7. In cases where the revocation of a will is called into
question… just because someone (other than testator) has
the opportunity to destroy a will does not mean that the
revocation of the will be called into question… there needs
to be more to call the revocation into question
8. When there is no statute dealing with this… a destroyed
will (without the consent of the testator) or a will not
destroyed according to such statute (but with consent of
the testator)… will be admitted to probate if it s contents
are proved… a lost will can be proved by a copy or by a
secretary that drafted it or by other clear and convincing
piece of evidence
9. If writing on a will does not mutilate it (like marks,
lines, writing over, or cross outs would) they will not
be of the type to revoke the will. So writing on a blank
portion of it will not have the effect of revoking it. Writing
on the back or on a separate piece of paper will not in
and of itself revoke a will… UPC 2-507 deals with this
10. Opportunity = just because someone has the opportunity
to revoke the will does not mean that there is a presumption
of non-revocation… a will that was lost and if it can be
shown that it was not destroyed or revocated… a copy will
suffice to allow it to go to probate
11. there is a common law presumption that a testator destroyed
the will with the intent to of revocation when the will
was last seen in his possession and now can’t be found after
his death
12. An attorney needs to advise a client as how to revoke
a will
13. Writing on the back of the will and signed as a revocation
and the same thing on the codicil… The intent to revoke
is there but you need destruction… since the words do not
destroy the will until they are written over the wording
of the will for some jurisdictions (some courts feel that
revocation by writing on the will needs to be written over
the word of the will)… jurisdictions like this feel that
writing on the will not over the words is the equivalent
of writing on a separate piece of paper… Note that this
is from a case in the book and one of the concerns was that
the writing was not totally in the handwriting of the testator
and so the words were not given the effect of a new and
separate will “Holographic” which would have revoked in
its own way.
14. Partial revocation by physical… when you partially revoke
a will that reduces or cuts off someone’s will you could
be cutting someone off through intestate proceedings…now
later a will is found but the partial revocation is in the
form of crossing out someone’s name (cutting that person
out of that will)… it did not follow the guidelines of revocation
and there is a move to prevent people from benefiting from
non-conforming (with statute) revocation. The prof thinks
that under 2-507… this type of partial revocation would
be considered consistent with revocations
15. Revocations of copies are not considered revocations…
but if a person believed that they were destroying the original…
the courts may extend some equity and make a constructive
trust or something of similar resolve
Challenging Wills=
1. There are more will contests in this country because
the civil tradition in other countries the child and the
spouse are forced to have something. In Louisiana, we have
forced heir ship to some degree. In some states and in some
civil countries there is the requirement of having a notary
who examines the sanity of the person making a will… Having
this can prevent future challenges to the will later on.
2. In the US everyone pays their own court/attorney fees
and so an amount will come out of the estate to defend and
the loser of the dispute will not have to pay for the proceedings.
Requiring the loser to pay…in other countries can act as
a barrier to challenges to wills
3. A lawyer who writes a will and is in the will from a
request is already in trouble, could be in trouble… If you
write a will that is not normal…this could automatically
be a problem in many jurisdictions…Regardless…you are likely
going to have to prove that this was not a result of undue
influence…the prof suggests that if someone wants to include
you that they use a different lawyer…and if you ask someone
else don’t choose a friend who also a lawyer…otherwise you
are going to have ethical problems involved.
4. The prof would have a letter written in someone’s own
handwriting to back the provision in an unusual will by
the testator…don’t write it at their behest.
5. You represent family when you do estate planning as long
as there is no problems… then when there is a problem… you
represent the testator…
6. Can the lawyer name himself as an executor… that is questionable
depending on the circumstances of the case… The lawyer can
name himself as an executor/trustee and have his firm do
all of the work… thus getting paid twice… this will be okay
as long as the attorney knows the rules but it should be
written n the will.
7. Name of executor is binding in the will but naming the
attorney is not binding
8. The executor can go and hire his own lawyer unless it
is written into the will (this depends on the jurisdiction
9. When the will is properly executed… but there is a shadow
of fraud/
10. Unexecuted wills= this is when people can’t make up
there minds as to how to leave things and they stay in limbo.
11. Expectancies= are not property rights… and there is
no ability to use that expectancy in any commercial way…
it can’t be used as security to get loans
12. The UPC looks to the witnesses as not going to check
the competency of the testator but they are to simply there
to prove the signing or acknowledgement of the will on the
day in question.
13. Separate and apart is the attestation clause that you
want to use not the other one allowed by 2-504-b
14. Substantial compliance is gradually becoming art of
the common law as courts of equity are reaching out to determine
the testator’s intent… this tends to bail lawyers out of
trouble for malpractice
15. If a will is proper in one state then it can be probated
in all of the states… if an individual is domiciled in one
state but has property in other states you are going to
have to probate in all of those states… or you could put
them into an LLC… which means it is personal property and
is not subject to probate in those other states… big savings
for your client… nice freakin’ work.
Dependent Relative Revocation and Revival:
The Doctrine of Relative Revocation=
1. The doctrine of dependent relative revocation… when a
revocation is based on some facts that he believed were
true and it was but for this belief he would not have revoked…then
the revocation will not be given effect… the usual case
is where the testator makes a new will that he believes
to be affective and so revokes the old will… it then later
turns out that the new will is not effective and so the
old one will be given effect… the court needs to find that
if the testator had known the truth… he would not have destroyed
the will… then they will negate the revocation and give
the old will effect
2. If there is evidence that the testator intended the revocation
to be absolute anyway… then this doctrine won’t apply to
the old will
3. The prof mentioned these… With rare exceptions, courts
have held that DRR applies only:
Where there is an alternative plan of disposition that fails
(evidence must be sufficient to show this) or
Where the mistake is recited in the terms of the revoking
instrument or
Possibly, is established by clear and convincing evidence
It should be noted that the alternative plan of disposition
is usually in the form of another will (either duly or defectively
executed)… by limiting the doctrine... the type of evidence
that can be looked @ is narrowed
4. The mere fact that the testator intended to make a new
will or made one which failed of effect (will not alone
in every case) prevent a cancellation or obliteration of
a will from operating as a revocation.
5. If it is clear that that cancellation and the making
of the new will were parts of one scheme (and the revocation
of the old will was so related to the making of the new
as to be dependent on it) then if the new will (be not made,
or invalid) the old will (though cancelled) should be given
effect (if its contents can be ascertained in any legal
way.
6. you are going to need proof like the destroyed or revoked
will… this doctrine tries to honor the testator’s presumed
intentions
7. But if the old will is once revoked (if the act of revocation
is completed (like it was burned or other thing that is
clear to the intention of revocation though it be not totally
destroyed/obliterated)… then the fact that the testator
intended to make a new will or did make an ineffective will
means nothing. Basically… it mans that evidence that the
testator intended to make a new will or made an ineffective
one only may show intention to revoke to old one but it
will not revive the old one after it was completely revoked
8. The burden of proof will fall on the person attacking
the instrument offered to probate… there is a presumption
that a cancelled or obliterated (in part) will has been
revoked and where a will has been cancelled or obliterated
(in part) and found among the testator’s things (the same
presumption is made)… so the burden will fall on the person
trying to show that the revocation was not intended
9. DRR is held to a higher standard when a situation arises
from the making of a subsequent instrument as opposed to
a physical act
This is a doctrine of presumed intent designed to get
to the true intent of the testator
With rare exceptions, courts have held that DRR applies
only:
1. where there is an alternative plan of disposition that
fails (usually in the form of another will either duly or
defectively executed) or
2. where the mistake is recited in the terms of the revoking
instrument or
3. possibly is established by clear and convincing evidence
By limiting the doctrine… the kind of extrinsic evidence
that can be looked at is narrowed
Carter Case=
1. To revoke, you need to have both intent and obliteration
(lots of ways to obliterate)… just because a will is destroyed
does not mean that it has been revoked you need to have
the intent.
2. the burden of proof goes to the person that is trying
to attack the paper offered for probate
3. Where a will has been cancelled or obliterate in a material
part… the burden of proof goes to the person trying to prove
that revocation was not intended… especially when the paper
in question is found among the testator’s things because
the presumption is that it was cancelled or obliterated
by the testator
4. There is a huge presumption against intestacy when it
comes to revocations
This doctrine depends on a series of events leading up to
the questionable outcome
You can have a holographic codicil to a statutory will if
your jurisdictions allow holographic wills… in states where
partial changes are not allowed… you just read it without
the modifications
Changing a will to give someone more is not a partial revocation…
just because a partial revocation might be permitted does
not mean… changing the will to give more will be allowed…
this may be considered a new will… if the modifications
don’t qualify as a new will… the DRR will set the will back
to a pre-modification status
If you can prove a mistake by extrinsic evidence then you
can use DRR to get a will back to the way it was before
the mistake… the prof said that extrinsic evidence as to
a mistake should be let in to show the mistake and the basis
for it
The Auburn Case:
1. if you can’t revive in a state then revocation of a later
will won’t instate the other will that was revoked… using
DRR in a situation like this (one of these wills will remain
in effect)… because of the presumption against intestacy
Revocation=
1. If there is no revocation in the 2nd will and it gives
away everything… this is revocation by inconsistency but
if not everything was given away then it is a partial revocation
UPC 2-509
2. Revocation by Operation of Law… Change in Family Circumstance=
in the event of divorce… when life-insurance policy is not
changed over to the new wife… the new wife won’t be a beneficiary
to that asset because it will go to the 1st wife… most states
feel this way but UPC 2-804 feels differently
3. The majority of states presume that a divorce/annulment
revokes the benefits to the divorced spouse (like the spouse
died before or disclaimed)… this presumed revocation includes
provisions providing powers of appointment, nominations
as executor/trustee/conservator/ guardian unless it is other
wise provided in the will… the remainder of the states require
a property settlement to revoke… note that this does not
ordinarily apply to life insurance plans, pensions, or other
non-probate transfers unless there is some sort of settlement
agreement
4. UPC 2-804 deals with revocation and non-probate property
5. In most states if a souse is not included in the will…
they will get an intestate share unless it is shown that
it was intended to be that way or if the spouse is accounted
for in some other way UPC 2-301
Revival=
1. When you can’t revive… use DRR against intestacy… UPC
2-509… note the difference between partial and full revocation
2. Revival is where the later will is revoked or found invalid…
then the courts have to decide whether or not the first
will should be revised
3. The large majority of states hold that the 2nd will legally
revokes the first will (when 2nd revokes by an express clause
or inconsistency)…@ the time when the 2nd will was created…
then the majority finds that when the 2nd will is revoked…
the first one is revived if the testator so intends… the
intent can be shown from the circumstances surrounding the
revocation of the 2nd will or from the testator’s contemporaneous
or subsequent oral declarations
4. Under UPC 2-509 if a will is wholly revoked by a later
will… revocation of the 2nd will presumes that the first
one is still revoked… If the 2nd will is only a partial
revocation of the 1st one… then the presumption is that
the 1st will is revived
Acts of Independent Significance:
UPC 2-512 deals with this
an example of this is when someone wills their car to you…
at the time they had a 1995 Eagle Vision but when they died
they were driving around in a Ferrari… that lucky someone
gets the Ferrari
When property designations or beneficiaries are identified
by acts or events that have a lifetime motive and significance
apart from their effect on the will (they will be upheld
under this doctrine)
Note that this doctrine can be used to dispose of things
by trust… a trust can count as one the aforementioned events…
note that the trust need not be in existence @ the time
of the will execution but there needs to be some assets
in it before the death of the testator… much different than
incorporation by reference
Do not require attestation under the statute of wills
Contracts Relating to Wills (2 types):
Contract to make a will=
1. UPC 2-514 deals with this
2. falls under contract law and not probate law…
3. the bene could be entitled to specific damages as well
as fungible damages
Contract to not revoke a will=
1. UPC 2-514 deals with this
2. Some examples are joint wills, mutual wills, and joint
and mutual wills
3. joint and mutual wills is the name that the court gives
to a joint will that devises property in accord with a contract
4. These are generally held to be unenforceable unless they
are proved by clear and convincing evidence
5. Generally it is presumed that joint wills and mutual
wills are not wills of contract
Contract law applies to these and not probate law… beneficiaries
sue to show that there was a valid contract
If a beneficiary sues successfully… the will is still probated
as it is set up to be but… the assets will be placed in
a constructive trust for his benefit by the people that
got the assets or the estate of the defaulting party
Contracts that handle dispositions of property need not
be in conformity with the Statute of Wills
A couple of examples of these types of instruments are:
1. 3rd party bene contracts performable @ death are of this
kind and are honored by the courts
2. inter-vivos trust where a settlor reserves a life interest
3. insurance policies
Mental Capacity=
1. In almost all states, to make a will, a person must be
18 or over. A person must also be of sound mind as well.
2. The policy for requiring a sound mind is that a will
should represent a person’s true desires, to protect the
decedent’s family, public opinion that wills need to be
a process of reason, making sure that the desires of a person
while they were sane are carried out even when they became
insane, protect society from irrational acts, and to protect
those of impaired minds from exploitation.
3. The test for mental capacity= The testator has to know
the nature and extent of the testator’s property, the person’s
who are the natural objects of the testator’s bounty, the
disposition the testator is making, and how these elements
relate so as to form an orderly plan for the disposition
of the testator’s property. It should be noted that the
testator does not have to be of average intelligence to
meet these requirements but he must have the mind and memory
relevant to the four matters in the test for mental capacity
for making wills
4. It should be noted that testamentary capacity can’t be
destroyed by a few isolated events like foibles, idiosyncrasies,
moral or mental irregularities, or departures from the normal
unless they bear upon and have influenced the testamentary
act… then mental capacity may be called into question… the
test may be used to determine if the person was of sound
mind when the will went into effect.
5. Note that the capacity required for contract or for gift
than that of a will… As for the gift, the idea is to protect
those who may not be of sound mind from being depleted economically.
Legal capacity to make a will is required to be higher than
that to enter into marriage
6. A lucid interval is a period of time where someone can
make a will even when they are found not to be of sound
of mind other times… these are times when the person seems
to be sound of mind
7. A lawyer will have to make his own judgment as to the
mental capacity of a person for the purposes of writing
a will… but drafting a will for someone who is not sound
of mind is not ethical
8. When the kids are really trying to ease the transfer
of the estate and the person is a little out of it, it will
probably be alright to get the transfer done… as long as
no one is asking out landishly reaches.
9. But if someone has been taking care of the mother/father
for a long time and feels entitled to a larger share and
so wishes to get the will changed and the mother/father
is a little out of it…there could be an ethical problem
here…you have a duty to figure out if the testator has sufficient
mental capacity to do this legally/ethically.
10. Another concern is the kids of the incapacitated mother/
father… they could try and sue you for intended beneficiary
collection.
11. Old people have long term memory but they can’t remember
the short term stuff.
12. The treating physician… is important as being able to
measure mental capacity
13. The sitters (people that actually sit with the elderly)
are other people that can be used to determine the person’s
mental capacity. These people usually hate to get into this
type of position.
14. Some states allow for a person who does not have legal
mental capacity may be able to write a will while being
protected from contract.
15. It is not always easy to tell who has mental capacity
or not. People will have quirks and so some things
Insane Delusions=
1. a person may otherwise be sane but suffer from an insane
delusion that makes part or all of the will invalid as they
will not have the testamentary capacity to make a will
2. A delusion is a false concept of reality… that a person
adheres to despite all of the evidence and reason to the
contrary… Some courts have found that if there is some truth
backing the insane delusion… then the person is not insane
but the majority view is that even if there is a little
truth to the delusion the person will still not have testamentary
capacity… the test for it is if a rational person in the
same situation would not find the same way
3. Often… these are false beliefs about family members
4. If a will is thrown out in its entirety then the estate
passes by intestate… if just partially, then that part passes
by intestacy
5. An insane delusion as opposed to a mistake can’t be corrected
by evidence… the person continues to believe what he is
going to believe even after the facts have been presented
to him
6. Evidence to otherwise good financial judgment can be
a strike against insane delusions… if the person was able
to keep good books… it appears like they know what is going
on… but note it is not an end all defense to overruling
a case of an insane delusion
7. Minor changes in a will due to a valid insane delusion
may not be enough to over rule a will when those who were
supposed to be taken care of were
8. The burden of proof attacking a properly done will has
the burden of proof to show an insane delusion. In the case
above, she would not have to show that she was not actually
having an affair but that he believed something so wrong
that no one in their right mind would think that would happen
or would think the same thing.
Undue Influence=
1. Every jurisdiction permits wills to be overturned do
to undue influence.
2. The burden of proof falls to the people challenging the
will under undue influence
3. Undue influence can be from a confidential relationship
or a non-confidential relationship.
4. Proof of undue influence can be circumstantial or inferential
5. The type of undue influence that seems to raise eyebrows
is when a beneficiary or indirect beneficiary asserts the
influence
6. when someone is unduly influenced, their free agency
and free will is influenced by another to the point that
their will is substituted by another’s will and that substitution
actually causes them to act in a way that they would not
have normally done without that kind of undue influence
7. It should be noted that just because you prove a relationship
where undue influence can happen, that there was opportunity,
and that there was a motive does not mean that you have
proven undue influence… you need to further prove that the
will or change of it was from a result of undue influence
8. If the testator was unduly influenced… did it change
the will…this is what the challenge has to prove by a preponderance
of the evidence
9. It should be noted that a person has the right to dispose
of his property in the manner that he wishes… the burden
then falls on those who wish to challenge the will on the
basis of undue influence to prove that there was undue influence
and that the undue influence was the cause for the will
coming out the way that it did
10. When a person is not in the best capacity… (impaired
by age or disease)… and a person in a confidential relationship
receives the bulk of the estate… the burden will fall to
the person in the confidential relationship to prove the
absence of such undue influence (in most jurisidictions).
11. Also in the event that undue influence is shown and
it applies only to part of the will… only those parts resulting
from undue influence will be removed while giving effect
to the other legitimate parts when the separation can be
done without destroying the intent of the testator or without
destroying the testamentary scheme.
12. There are three factors to look for when you think that
there might be some undue influence:
It must be proved that the testator was susceptible to undue
influence, that the influencer had the disposition and opportunity
to use undue influence, that the disposition was the was
the result of the influence, and an element of cohesion
should also be shown
13. The UPC deals with this in UPC 2-517 and 3-905 (I don’t
have 3-905 in the book yet)
No Contest Clauses=
1. These provisions are set up that if a beneficiary challenges
what is left to them in the will that they will receive
nothing or they will receive a reduced share
2. The policy behind these clauses is to discourage challenges
to wills
3. The majority of courts will support these types of clauses
built in to wills unless there is a legitimate reason to
challenge the will… the legitimate cause rules come from
UPC 2-517 and UPC 3-905
4. When you are challenging a no-contest will on the behalf
of your client… you need to check the local law very carefully
because there are subtle differences from state to state
especially when it comes to what a contest is…
5. For a good no-contest clause…Get a no-contest clause
in there offering a certain sum as an incentive for them
not to fight it out… they will lose everything or they will
be guaranteed this some…
Bequests to Attorneys=
1. There is a presumption that if an attorney receives a
legacy from a testator in the will… there was undue influence
unless the attorney is related to the testator
2. The presumption can only be rebutted by clear and convincing
evidence to the contrary… this will often be in the form
of paper work.
3. Note that if someone still wants to give their attorney
a gift and the attorney decides to have another attorney
draft the will, then he should probably pick someone who
he does not know that well… otherwise the same undue influence
issue and the same presumptions will arise.
4. There is something called “Body Heat” that may be an
old test… we need to ask about this.
5. There is a conflicting evidence rule about this… it states
that a lawyer may not draft a will that he will be a beneficiary
in unless he is related to the testator… note that this
does not includes tiny gratuitous presents from the testator…
if the gift is of the nature that it requires some paper
work to be filled out then… an independent lawyer will have
to be brought in to provide the proper paper work or write
the will himself.
6. These types of ethical prohibitions apply not only to
attorneys but their family/spouses. On the same note other
ethical standards do allow for small gifts of gratuity (not
substantial) that are normal such as thank you gifts or
presents on the holidays…the problem comes into when the
gifts are substantial and require preparing legal documents…
then the person should have detached advice from other council.
7. Even if another attorney is used a gift to an attorney
that is not writing the will could be challenged on the
ground that the testator did not receive the full benefit
of council from that independent lawyer
Some recommendations to avoid contests=
1. A way that the prof though was good was when a client
writes you a letter telling you what they want done in their
will… and you notice that certain key people are left out…
you send a letter back to the client telling them that certain
people are going to be left out and then ask for the reasons
why they have been left out… the client writes back with
the reasons why certain people have been left out… and then
you start on the will…
2. After the will has been written… these letters are filed
away for when challengers to the will come.
3. These reasons written in the hand of the testator are
very useful for warding off challengers
4. It should be noted that this method is not bullet proof
either… the challengers may still want say that they believe
the person was unduly influenced or not in the right mind
when the letter or even in some cases video tape was done.
5. Notes as to the mental capacity… should be taken after
a testator’s health begins to fail each time he comes in
to something to the will… otherwise it is considered malpractice.
6. Don’t act as a witness as to mental capacity when you
are the drafter of the will because you will be disqualified
as represention to the personal representative of someone’s
estate if there is going to be a challenge to it… it will
be considered a conflict of interest… A lawyer is not to
act as an advocate when he is likely going to be a necessary
witness in that case… If the drafting attorney works for
a firm… the partner may represent the personal representative
unless the partner also happened to be a witness to the
will
Fraud=
This occurs where the testator is deceived by a misrepresentation
and does something that he would not have done but for that
misrepresentation
To qualify as the but for element… the misrepresentation
must be of the nature where both the intent to deceive the
testator while having the deception being part of a purpose
of influencing the testamentary disposition
A provision of the will that was caused by fraud will be
considered invalid… but parts of the will that not as a
result of fraud will stand unless inseparable from the parts
that were affected by fraud
In situations where fraud arises and the courts can’t do
justice in the situation… they will enforce the will as
it stands and the person who should not be benefiting from
the will hold the assets he received in a constructive trust
for those who are deserving from them… the idea is not to
award wrongful behavior wile upholding an otherwise valid
document… it should be noted that the trust is set up only
to the extent the interferer received at the expense of
the rightful heir.
Fraud that happens in the testamentary setting will be one
of two types: It should be noted that provisions will be
considered invalid if they resulted in fraud only if things
would have been left to different people but for the fraud.
This rule will even be imposed on innocent parties if they
benefit from unjust enrichment… they will have to hold assets
received in such a manner in a trust also
Fraud in the inducement=
1. this occurs when a person misrepresents facts thereby
causing the testator to execute a will, to include a provision,
not revoke a will, not to execute a will, or other behavior…
that will benefit the wrong doer…
2. One thing to look for is intent… if someone induces someone
to do something in a will while having legitimate intent
but then later changes his mind after the death of the testator…
it will not be considered fraud.
3. This question of whether it happened will ultimately
go to the jury or the judge… the remedy for fraud is going
to be a constructive trust. When there is regular fraud…
the written portion will be honored and the person who gets
it under the fraud gets it in the trust… to hold for the
person that the court decides should have received it but
for the fraud.
Fraud in the execution=
1. this happens when a person misrepresents the character
or contents of the instrument signed by the testator… which
does not equate the testator’s intent
Tortious Interference with an Expectancy=
1. Transfer of an expectancy = Generally people expect something
from their parents. These expectancies are not property
rights according to the law. Since it is not a legally recognized
property interest, then it can’t be an interest but there
is another base to sue for what you think should have been
yours (Tortuious Interference with an Expectancy)
2. this is another theory that can be used to challenge
a will
3. Under this theory… a ? must show that that the interference
involved conduct tortuous in itself such as fraud, duress,
or undue influence.
4. This theory can’t be used when it is based on the testator’s
mental incapacity
5. Since this is a claim based in tort law… it is not considered
a will contest… It does not seek to challenge the probate
or validity of a will but it is going after parties for
certain tortuous acts committed.
6. An advantage to this being based in tort law is that
it will not be subject to the same SOL as will challenges
would be but in instances like this the SOL will start running
when it is deemed that the ? knew or should have known about
the tort.
7. Most courts are going to require that a ? pursuing this
method of justice only after trying other remedies… failure
to try the other remedies could result in a bar to a collection
in tort but note that if a ? challenges a will and loses
this may also bar him from an action in tort
8. Challenges based in tort law are not affected by a no-contest
clause. Also punitive damages may also be available to those
who pursue this type of legal remedy
9. Not all courts will recognize a claim based on Tortious
Interference with an Expectancy
Non-Probate:
o In Louisiana= Minor and disabled children can’t be disinherited.
o Some thing that started out as non-probate property can
end up being probate property. This can happen when the
property is transferred automatically to one person and
that person does not provide for its transfer at their death.
o You can turn probate property into non-probate property
by putting it into a trust. This is usually done by a declaration
“I hold this property in trust”. Trusts are considered to
be non-probate property. Trusts are permitted in every jurisdiction
where as probate/non-probate property is not permitted in
every jurisdiction.
o POD= payable on death… most states hold that these things
can be made to contract like insurance policies…. Thus designating
to that person by contract… these were authorized by the
UPC 6-101 and the majority of states followed suit
o TOD= transferable on death
o Louisiana does not allow POD or TOD without further probate
procedures.
o Examples of POD and TOD accounts are IRA, 401k plan,
… thee are a lot of devises that allow for POD designations
on them like mutual funds but there is great variety among
the states on this
o Every jurisdiction permits certain assets to be non-probate
assets. Not every jurisdiction allows all assets to be held
in TOD/POD account
o FED law permits death benes to be put on these types of
plans = pension plans, profit-sharing plans, Keogh plans,
401-k plans, and Individual Retirement Accounts (IRAs)
o Some Non-Probate property is off limits to creditors (like
Life Insurance Proceeds or retirement benefits) if payable
to a spouse or a child… other things like US Savings Bonds
with a POD bene may be exempt as well… but not that not
all POD things are treated the same. UPC 6-215 expressly
permits the decedents creditors to reach POD bank accounts
and joint bank accounts if the probate estate is insufficient
Non-probate property:
1. This is property that passes under an instrument other
than a will which becomes effective before death. There
is no need for a court proceeding to have these forms of
property pass to their intended recipient but the passing
must be made in accord with the deed, trust, or contract.
They transfer simply by designation of the beneficiary
2. Non-probate assets governed by FED laws are not covered
by state laws (like 401-k) plans…
3. Non-probate assets but are governed by designation of
benes… 6pts on the final (in book)
4. Non-probate assets are evolving… these are now recognized
in all jurisdictions=
? Life insurance
? Revocable trusts
? Annuities
? IRA, 401k, and Pension Plans
? And these are not recognized in all jurisdictions= bank
accounts, investment accounts, and CDs
5. Examples of non-probate property joint-tenancy (property
that is held by both people… the person who survives is
not passed to but the person who dies has an interest that
simply goes away… must have a death certificate to bring
this into effect), life insurance policies (benefits paid
to a beneficiary when the holder dies… need a death certificate
to make this happen), contracts with payable-on-death-provisions
(like IRA’s…the benefits of such a contract pass to a beneficiary
like a life insurance policy…need a death certificate to
give to the custodian of this type of property), and interests
in trusts (these are intervivos instruments assembled by
the decedent and name a trustee that holds the assets in
conformity with the wishes of the instrument… they come
in revocable and irrevocable forms… Revocable are recognized
in all states... if the testator maintains some testamentary
power over the assets in trust then the will must be admitted
into probate but the trust assets will not have to go through
probate because they are distributed to beneficiaries through
the trustee…)
6. Joint Tenancy=
? When one of the joint tenant dies… the property automatically
passes to the other tenant
? Common law vie is that the other interest simply vanishes
and so there is no need for probate
? There 3 important features of joint tenancy:
1. creation of jt for land gives both tenants equal interest
to it… neither party can revoke the transfer and cancel
the other party’s interest in the land (during life)… this
is way different than a POD designations that can be changed
by the owner during life and the UPC says that a joint bank
account can be revoked by the depositor that puts in all
the funds
2. A joint tenant can’t designate his share by will… if
he does not want the other party to get his share… he need
revoke the JT during life and concert it into a tenancy
in common
3. creditors must seize a joint tenants property during
his life because after… there is no property interest for
them to get a hold of
7. If title changes automatically= non-probate property
(without court order). Property that transfers due to a
contract will qualify as this like a life insurance policy
(because you don’t need to go to court). It should be noted
that the actual passing of the property happens before death.
8. IRAs, 401k plan, Insurance Policies, Contracts with payable
on death provisions, and Joint Tenancy Property… qualify
as this also. When insurance policies are not separately
owned= there is a greater chance that Uncle Sam won’t get
involved. When trying to gain control of a non-probate asset,
a death certificate needs to be produced and filed with
those holding the asset. The prof recommended about 10-15
should be made up for the survivors.
9. It should be noted that at times non-action can actually
have the effect of transferring the non-probate property=
“drive the car until it dies, or close the account= these
are the informal ways of transferring the non-probate property.
10. Trusts and deeds are the conduits this type of asset
transfer or at least they dictate the terms of the transfer.
11. If you see a T.O.D. (transferable on death) tag on an
asset=
? it means that a probate asset was turned into a non-probate
asset.
? An asset on this would be an investment thing
? this is definitely one way around probate
? Once you move from insurance contract (recognized in most
jurisdictions as non-probate)… to a deposit arrangement
(not recognized by all jurisdictions as non-probate)… you
are probably losing non-probational attributes… so stay
in the majority
12. Insurance policies will not have the benefit of substantial
compliance because insurance companies have the right o
know who they are going to have to pay benefits to (majority
rule)… so UPC 2-804 has not been adopted by the majority
of the states
13. Non-probate assets recognized by the FED like IRAs…
can be designated to others but if they are not designated…
they go back to the estate for probate (it becomes a probate
asset)
14. when trying to avoid probate don’t just name one bene…
otherwise it may lapse if bene predeceases you… it should
be noted that anti-lapse provisions are rare.
15. Non-probate assets=
state controlled= governs life insurance, annuity TOD/POD
fed controlled= governs IRA, 401k (not affected by jurisdictional
statutes)
POD and TOD will not help you with Estate Taxing… having
rights associated with those types of things makes them
subject to Estate Taxation
Types of Accounts:
Joint Accounts (several types)=
1. When either side has the right to put in and take out=…
these accounts are of low liability because if either party
tries to steal funds the bank is off the hook and that is
why banks like them so much… the survivor is entitled to
the remainder of the account… known as the true joint tenancy
account… the person challenging the gift of one of these
will have the burden of proof showing that the gift was
not intended because the presumption is with the document
that created it
2. When one party can’t withdraw during the life time of
the other= but is entitled to the remainder in the account…
(POD account disguised as a joint account)… POD accounts
have a requirement of survivorship (UPC 6-212) the same
is true for securities in TOD registration and (UPC 6-307
3. One party is entitled to with draw on the account during
the life of the other party but= then is not entitled to
the remainder on the death of the other party… an agency
account disguised as a joint account
4. Parent-child agency accounts= When the surviving joint
owner survives… the banks will look to who was putting money
in the account to figure out where it goes (even with survivorship…
most states will decide that this is to go to parent’s estate
unless clear and convincing evidence that the right to survivorship
was the intent of the parent
5. UPC 6-211-b these types of accounts belong to the parties
during their joint life times in proportion to their net
contribution of each to the sums on deposit unless there
is clear and convincing evidence of a different intent
Joint Account Concerns= signature card and jurisdictional
differences and the starting point with joint accounts
Trusts:
A trust is a legal entity… it can sue… it can be sued… you
are relying on the jurisdictional trust codes when you make
a trust
1. Basically, a trust is where one person (trustee) manages
property for one or more beneficiaries
2. Trusts are a separate legal entity that can sue, be sued,
has to pay taxes, and can terminate itself/destroyed in
some way.
3. Every jurisdiction allows trust and has their own trust
code.
4. Trusts are much simpler than other devises that transfer
assets.
5. unlike the execution of wills, the creation of a trust
involves the present transfer of property interests in the
trust corpus to the benes... these trusts create interests
that can’t be taken away except by the trust instrument,
by actions of the benes, or decree of the court… this even
applies for revocable trusts… they have the right to enforce
the terms of the trust
6. Additionally, if you have kids, you can prevent them
from getting a hold of the assets at 18 by having it managed.
7. You can more than one trust in your will if you would
like to for each of the kids.
8. Even though the Uniform trust code is the starting point,
the states are free to modify it.
9. The uniform trust code needs to be studied for the test.
10. Trusts are transferred through a trustee that holds
the property for the beneficiary in accord with the terms
of the trust.
11. AB trust= common law trust, trusts have been reformed
to the intent of the testator when that intent is absolutely
clear. The IRS is beginning to respect those reformed trusts.
12. The IRS is beginning to respect those reformed trusts.
13. If the trust is created by the decedent the trust will
either be revocable irrevocable. Revocable trusts are valid
