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Wills & Trusts Outline W/Explanations (Part II)



  1. The Power to Transmit Property at Death: Justifications and Limits
    1. Historical Backdrop
      1. Until 1987, US Supreme said there was no constitutional right to pass property at death.
      2. RULE:  Taking away rights of an owner to dispose of property rights is a taking without just compensation and it violates owner’s rights guaranteed under 5th Amendment.
        1. Hodel v Irving US Supreme 1987 p3
          1. O’Connor on p9 “, the right to pass on property- to one’s family in particular- has been part of the Anglo American legal system since feudal times.”
          2. Rule: States do not have the right to completely abolish the right to descent and devise.
          3. Schneider- Case is about right to transmit property, not merely receive- Limiting transfer rights would limit people’s power to do anything else.
    2. 3 ways to pass property at death:
      1. Will- requires probate and is costly and time consuming
      2. Intestacy
      3. Will SubstitutesToday, most property is transferred this way
        1. Inter vivos revocable trust- perfect because very flexible and doesn’t go to probate
        2. Joint tenancy
        3. Gift of a remainder interest
        4. Reserving a life estate, often in a revocable trust, designating a death beneficiary on a contract, pension plan, or bank account.
    3. Dead hand/ Why have wills and inheritance?
      1. GENERALLY, people are the best judges of their own concerns, they should manage their own concerns and it cannot be wrong continually to claim this liberty for every generation of mortal men.
      2. BUT- Dead people don’t have to deal with consequences.
      3. POLICY—Advantages of wills:
        1. Intent of testator
        2. Incentive for one to be productive and gather wealth (save $) in lifetime
        3. Security for family members, eases their transition into death.
        4. Economic stability for descendants—not on welfare, helps maintain family.
        5. Property owner is best suited to decide who gets his prop (e.g. small business is better run by one’s son than the gov.)
        6. Government gets some– through taxes
      4. POLICY—Disadvantages of wills- REASONS to Limit Dead Hand
        1. Wealth gets passed onto children who are born lucky.
        2. Concentrates inherited economic power in the hands of the few and denies equality of opportunity to the poorer.
        3. Surviving spouse automatically has right to certain portions of property even if dead spouse intentionally disinherits spouse.
    4. Restraints on Wills
      1. What is Not allowed?
        1. Banning marriage altogether.
        2. Promoting divorce
        3. Having something destroyed– provision won’t be enforced unless there’s a good reason. 
          1. Won’t be enforced by ct unless there’s a good reason. 
          2. Not wanting anyone to live in it is not good decision.
      2. Partial Restraints on Wills ARE ALLOWED
        1. RULE:  A testator may validly impose a restraint on the religion of the spouse of a beneficiary as a condition precedent to inheriting under the will.
        2. Shapira v. Union National Bank Ohio Court of Common Pleas 1974 p21
          1. Testator placed a provision in his will which provided that his two sons would receive a portion of his estate only on the condition that they each marry a Jewish girl whose both parents were Jewish, within seven years of the testator’s death, and if the condition was not fulfilled, the share would pass to the State of Israel.
          2. Rationale: 1) restriction is on getting the $, NOT on who he marries- so the Ct is not affecting his rt to marry. Reasonableness test.
            1. This is not a complete ban on marriage so it is reasoanble
          3. Rule: The right to receive property by will was a creature of the law, and not a natural right or one guaranteed or protected by either the state or federal constitutions.
          4. Re 6.2– A restraint to induce a person to marry within a religious faith is valid “if and only if under the circumstances, the restraint does not unreasonably limit the transferee’s opportunity to marry.”
            1. Invalid if restraint causes tortious behavior
            2. Typically, restraints are invalid if they cause a disruption of a family relationship, like causing divorce.
    5. Who can challenge a will?  2 types of people: Only one can challenge
      1. Someone who stands to lose in a revised will can challenge the will; pecuniary interest.
      2. RULE:  If a 2nd will reduces the amount from an original will, you can challenge the reduction.  If a 2nd will adds, then can’t challenge.
























  1. Transfer of The Decedent’s Estate, Planning & Social Responsibility
    1. Probate v. Nonprobate property
      1. Probate property– property that passes under the decedent’s will or by intestacy.
      2. Nonprobate property– property passing under an instrument other than a will which became effective before death– (inter vivos transfers)
        1. Joint tenancy- no interest of decedent passes
        2. Life insurance- payable upon receipt of death certificate
        3. Contracts payable on death provisions
        4. Interests in trust- trustees hold the property for the benefit of the named beneficiaries, who may have life estates or remainders or other types of interests.
      3. Administration of probate estates
        1. Personal representative– when person dies, first step is to appoint one to wind up the decedent’s affairs. Their responsibilities are:
          1. To inventory and collect the assets of the decedent
          2. Manage the assets during the administration
          3. Receive and pay the claims of creditors and tax collectors and
          4. Distribute the remaining assets to those entitled.
        2. Executor– if the will names a personal representative, they are the executor
        3. Administrator– If the will does not, or if person dies intestate, or if executor has died before intestate occured:  the court appoints the administrator. The administrator is typically selected in this order:
          1. Surviving spouse
          2. Children
          3. Parents
          4. Siblings
          5. Creditors
            1. Domestic partners have recently been included in this list (same level as spouse)
            2. In CA, property passing solely to surviving spouse is not subject to administration, unless specifically requested
        4. There are two different sets of terminology used
          1. One dying testate devises real property to devisees and bequeaths personal property to legatees.
          2. One dying intestate, allows for real property to descend to heirs, and personal property to be distributed to next-of-kin.


      1. Probate Procedure
        1. Probate performs 3 functions:
          1. Provides evidence of transfer of title to the new owners by a probated will or decree of intestate succession
          2. Protects creditors by requiring payment of debts
          3. Distributes the decedent’s property to those intended after the creditors are paid.
        2. Requirements of Probate
          1. Where: The will should be probated in the primary or domiciliary jurisdiction– where the decedent was domiciled. If real property is in another location, ancillary administration is necessary.
          2. Who: Letters testamentary to an executor or letters of administration– authorize a person to act on behalf of the estate- to distribute money, sign name- as if you have title to estate.
            1. The Uniform Probate Code provides for both ex parte probate and notice probate.
              1. Ex parte is informal probate
              2. Notice is formal probate
              3. The person asking for letters can choose which one to use.
          3. When: No proceeding, formal or informal, may be initiated more than 3 years from the date of death- if no will is probated, intestacy is assumed.
          4. SOL: If you go through probate- only a 1 year statute of limitation for creditors- even if you don’t do probate.
            1. If you do probate, it is cut back to 4 months. In some states, notice has to be given to creditors.
        3. Closing the estate­ Many things must be done before the estate has been completely administrated.
          1. Creditors must be paid.
          2. Taxes paid, real estate sold.
          3. Judicial approval of all of the administration is required to relieve the representative from liability, unless some SOL runs upon a cause of action on the representative.
          4. The representative is not removed from fiduciary duty until the court grants discharge.
    1. Do you need probate? It is expensive! Alternative Procedures:
      1. Under most state laws there is a law called Small estate– and a proceeding called a summary administration. This is a compromise between a full administration and none at all. What qualifies as a small estate?
        1. In most states, it is anything under $10,000.
        2. In CA- anything under $100,000.
          1. §13100→ courts looks at personal and real property to see if its under$100,000
            1. This affidavit procedure however does not serve one of the main functions of probate as you cant pass title (§13115) of real property
      2. A family allowance– or certain exempt properties, or ‘homesteading’, all make it so you can get your estate to under $100,000 to get a summary proceeding.
          1. Set asides (same as homesteading?)→ there to protect surviving spouse and minor children §6200 give examples
              1. Usually initiated by a petition to superior court
              2. Stops creditors from getting any of these assets
          2. To qualify for a summary probate proceding is to set up a disposition of a decedents assets without having to go through the time and expense of probate
            1. This is through a petition or affidavit to the court
      3. §13500– California’s anser to universal succession→ says that the surviving spouse is entitled to take part or all of deceased spouses proerty by will or intestacy and probate is not necessary, sot he surviving spouse has option to have an affidavit summry proceding or to for full probate.
        1. If opts for summary, affidavit procedure then the surviving spouse is liable for the decedend spouses debts
          1. So there is some risk here→ so you don’t get benedfit of non-claim statutes that you get when you go through probate.
        2. This also applies to registered domestic partners.


      1. One thing to remember, though- If there is no probate, and the family settles it- creditors have the SOL- usually a year to make claims. They just go after the family heirs.
      2. Problem #1 pg. 38– With Will
        1. This estate is common of many estates people have- Many times there is not much value so you can recommend to try and have the family work it out→ just because there is a will does not mean you have to go through a probate proceeding
        2. Let us look to see whether the functions of probate apply to each item
          1. Bank accounts and govt bonds→ Mrs. Green is listed as beneficiary so there is no need to have a probate proceeding
          2. Creditors→ the amount is not that much so it doesn’t seem probate is necessary
            1. The risk with not probating is that you cant use the 4 month non-claim statute especially if the wife doesn’t know much about his business so he may have lots of debt.
          3. Automobile→ one function of probate is title clearing so will we have to probate the whole estate just for this car? Most states have passed laws for transfer through affidavit §5910 of vehicle code to have to avoid probation just for the car transfer.
            1. So as opposed to furniture which has no title or registration, the car does.

Problem #2– No Will

Green dies intestate and the state’s statute of descent and distribution provides that where a decedent is survived by a spouse and children, one-half of his real and personal property shall descend to the spouse, and the remaining one-half shall descend to the children.:

Note- If child 1 and 2 are not adults you would have to set up a guardianship

1. Step one: determine that which is a non-probate asset and which is a probate asset

            1. Probate- (Items not listed here pass by means other than a will before death)
              1. furniture – personal property; less than $10k
              2. savings account
              3. ford car- title clearing fxn; transfer of title by affidavit for cars
                1. The kids are minors, so because they cant sign an affidavit maybe it should go through probate

2. Step two: add up the total value of probate items

            1. Total value; $22,500

3. Step three: divide the value of the items into the parts designated by the statute

            1. Spouse = ½ = $11,250
            2. 1 child = equal share of ½ of the estate = $5,625
            3. 1 child = equal share of ½ of the estate = $5,625

Problem #3 pg. 38

        1. Same facts, but Green also owned a house and lot worth $85,000 and another lot worth $8000. The deeds to both name Aaron Green as grantee. The residential property is subject to mortgage with a balance of $42,000; title to the other lot is free of encumbrances.
          1. Answer: The will should be probated and formally administered
            1. This is real property so she must get title in her name→ thus needs to go to court probate
              1. Under the small estate section you generally cant transfer real property.
              2. In CA is she is the surviving spouse then under §13500 she can opt out of probate and get the title of real property transfereed to her, the downside is that she will be liable to any debts of the decedents..
                1. This includes any debt, not just debt associated with the property
                2. Also she then cant use non-claim protections
                3. Using small estate exception you cant get title transferred
          2. Why? To protect heirs because there will be creditors because of mortgage

Problem #4

Does he need a will at all assuming he has the assets in problem 1→ no real property?

No, he doesn’t but one of the things about a will is that it speaks at the time of death, and covers all property the decedent owns at time of death. A trust on the other hand only regulates the property put in the trust.

If he were to die intestate with the stuff he has now, one of his survivors may not agree so probate may be necessary. A will is really done for the future changes that may occur.

Say one of his sons dies before he does, well now that childs share will go to the dead childs grandson and maybe he doesn’t want that for example.

So it is better to have a will→ Remember that even with a will this does not mean that there has to be probate.

The easiest way to avoid some issues, say the car and the state does not allow the affidavit procedure then the easisest way to deal with this is to create joint tenancy of the car for example.


      1. Universal Succession
        1. The European idea is that the property automatically goes to the heirs of the deceased and then they are under the obligation to properly distribute the property, and if not then they are liable.
          1. The heirs may get stuck with more debts then assets
          2. This has not caught on in the US as no state has adopted this.
          3. The closest we have come is in CA §13500
        2. In the US the estate is in administration, as opposed to European universal succession
        3. On the continent of Europe and Louisiana, universal succession is used- meaning that the heirs or residuary devisees succeed to the title of all the decedent’s property; there is no personal representative appointed by a court. No need for probate.
        4. The heirs or the residuary devisees step into the shoes of the decedent at the decedent’s death and assume all liabilities and the obligation of paying legacies according to the will. They immediately get title to the property and the liabilities.
        5. UPC §3212 and §3222 Allows for heirs to receive universal succession.
          1. These, though have not been adopted in US, except for in CA.
        6. CPC §13500-§13650- in CA, property that passes to the surviving spouse by intestacy or by will is not subject to administration unless the surviving spouse elects to have it administered.
          1. If the surviving spouse chooses to not have the property administered then he/she takes title to the property and assumes personal liability for the decedent’s debts chargeable against the property.
    1. An Estate Planning Problem
      1. First Article: “Direct that all of my just debts, funeral expenses and expenses of administration of my estate be paid out of my estate as soon as may be practicable”.
        1. One problem is what is a just debt? It is ambiguous. Having to pay mortgage means that there may not be much $ left.
          1. Miller case hold sthat the mortgage is a just debt, so this has to be paid off before the property can be managed and sold
          2. Kyle case reached the opposite conclusion
        2. What about death taxes? Thompson v. Thompson p52, said these are just debts. 
      2. Second Article: “I name and appoint my wife, Wendy Brown, to be the executor.” Fifth Article: “I authorize and empower my Executor to sell and convert into cash any and all of my personal property without the necessity of a court order authorizing such conveyance or approving such deed.
        1. What if Wendy predeceases Howard? She is named as the executor. If She dies first, there would be an administrator appointed by the court. One piece of advice for Howard would be to appoint an alternative executor.
        2. Is the power to the executor broad enough? Is sale enough power for property? You don’t want to put executor in the position to have to go back to the court each time to get permission to do things.
        3. What if both die at same time, he dies just before, though. You have to probate his estate with all expense, and then hers- two times the expense necessary. Double the administration and double the taxes.
      3. Article 6: A contingent trust may be a good idea, e.g. if we both die when our children are minors then the trust should be in the name of trustee  X.
      4. Which of the assets would pass through  probate?
        1. Tangible real property
        2. The lot
        3. The remainder in his mothers house
        4. Securities registered in his name


    1. Professional Responsibility
      1. No lawyer should prepare a will unless he considers himself competent to do so.
      2. Beneficiaries of a will are owed a duty of care by lawyer who drafted it
        1. Simpson v Calivas Supreme NH 1994 p49
          1. There is such a duty as between lawyer and intended beneficiaries 
            1. The privity rule is not ironclad, and we have been willing to recognize exceptions particularly where, as here, the risk to persons not in privity is apparent.
            2. The identified beneficiary may enforce the terms of the contract as a third-party beneficiary. This is because of the foreseeable injury.
          2. Second issue was regarding outside evidence of testator’s intent.
            1. In probate, the plain meaning rule still exists.
            2. To respect the sanctity of the will, courts will only look to outside evidence if the will is ambiguous.
              1. Circumstantial evidence is allowed to be brought in but not allowing prior alleged oral statements of the testator
            3. While probate courts are now authorized to construe the meaning of a will, direct declaration of a testator’s intent are generally inadmissible in probate proceedings.
            4. Remember that here, we are in a trial court, not probate. The question is- should the Superior Court take evidence of the intent of the testator beyond what the probate court considered? Courts are split. CA says we should.
            5. CA CPC 21102- ought to allow extrinsic evidence on the actual intent of the parties on a will intestate.
            6. Collateral estoppel is only applicable if the finding in the first proceeding was essential to the judgment of that court.
              1. The mandate of the probate court is simply to determine and give effect to the intent of the testator as expressed in the language of the will, a finding of actual intent is not necessary to the judgment.”
              2. Rule: Therefore a finding by the probate court of actual intent cannot be the basis for collateral estoppel.


***Note- IN CA the probate court is a court of General JX

Look at CA case Smith v. Lewis on pp.53


      1. What duty of care is owed by an attorney? What is the standard of malpractice?
        1. Boranian v. Clark (2004)
          1. Rule- Balancing test when a lawyer should owe a duty to a non-client
            1. Extent to which the transaction affects the π
            2. Foreseeability to harm this particular π
            3. Degrees of certainty that the π suffered injury
            4. Moral/ethical conduct
        2. Hotz v Minyard Supreme SC 1991 p54 Conflict of Interest
          1. Facts- Father made 2 wills, one w/ & one w/ daughter Judy. Lawyer met w/π & showed daughter the 1st will (had been revoked). Same firm had done tax & other work for π.
          2. RULE: A fiduciary duty exists when one has a special confidence in another so that the latter, in equity and good conscience, is bound to act in good faith. Shouldn’t have represented her!
          3. No duty to disclose contents of 2nd will; Yes duty to deal in good faith & not misrepresent

























  1. Intestacy: An Estate Plan by Default
    1. Basics
      1. Intestacy- a government drafted estate plan. This is what happens to your property if there’s no valid alternative estate plan.
      2. Generally speaking,
        1. Personal Property– law of the state where the decedent was domiciled at death governs the disposition of personal property
        2. Real Property- law of the state where the decedent’s real property is located governs the disposition of such real property.
      3. Policy-
        1. Carry out the intent of the average property owner.
        2. Carry out something that is relatively easy to administer
        3. Parents of decedent are not allowed to take anything if there is either a spouse or descendants of the decedent alive.
        4. Spouse and children are favored because they are easy to identify and are the ones left behind.
      4. There is no consitunional right to inherite so each state is left to determine this for themselves
      5. In Separate Property States- A spouse may not disinherite a surviving spouse in a will (this is referd to as a forced share)
      6. In Community property state this is not a problem as whatever is earned during the marriage belongs to both.
      7. The meaning of Heirs and the Transfer of an Expectancy
        1. In the eyes of the law, no living person has heirs.
        2. The person who would be the heirs of A, a living person, if A died within the next hour are not the heirs of A but the heir apparent.
          1. They have a mere expectancy which can be destroyed by A’s deed or will
          2. They only have an interest
          3. A’s heirs are only identified at A’s death by reference to the applicable statute of descent and distribution.
        3. As it is not an interest, an expectancy cannot be transferred at law, however a purported transfer of an expectancy for an adequate consideration may be enforceable in equity as a K if the court views it as fair under all the circumstances.
          1. The court will only enforce a K for such an expectancy if the consideration given for the expectancy is fair under all of the circumstances


    1. A third of the states have adopted the Uniform Probate Code (California has not)
      1. NOTE- EXAMPLES ON pp.1 of BLANK pages back of text
      2. UPC §2-101 Intestate Estate
        1. Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs as prescribed in this Code, except as modified by the decedent’s will.
      3. UPC §2-102 Share of Spouse
        1. The intestate share of a decedent’s surviving spouse is Entire (kids take none) if:
          1. There are no descendents or parents of the decedent that are alive, OR
          2. All of the surviving descendents (kids) are also descendents of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent
            1. *If all kids of deceased are of couple, spouse takes all, kids take none!
            2. Notice how different this is from CA→ in CA she would split it with the children
        2. Surviving Spouse gets the first 200K plus ¾ of the balance of the estate if only parents of the decedent survive
          1. No children in this situation
        3. Surviving Spouse gets the first 150K plus ½ of the balance of the estate if all surviving descendents are also descendents of the surviving spouse but surviving spouse also has issue of her or his own who were not issue of the predeceased spouse
        4. The first 100K plus ½ the balance of the estate if ONE OR MORE of the surviving descendents of the DECEDENT are NOT descendents of the surviving spouse
          1. (Applies when decedent has kids not of the survivor- past marriage probably)
      4. §2-103 Share of Heirs other than Surviving Spouse
        1. Any part of the intestate estate not passing to the decedent’s surviving spouse under §2-102 passes in the following order to the individuals designated below who survive the decedent:
          1. To the decedent’s descendants (children, etc.)
            1. There are arguments here as to why the children get all before the parents →e.g. the young spend more and its better for the economy etc.
          2. To the decedent’s parents
          3. To descendant’s of the decedent’s parents (kids of dead’s parents)
          4. To the decedent’s grandparents
        2. §2-105 No Taker
          1. If there is no taker under the provisions of this Article, the intestate estate escheats to the state.
      5. The Uniform Probate Code provision for the surviving spouse is considerably more generous than are the current provisions for the surviving spouse under most state intestacy laws.


    1. California Probate Code Provisions
      1. CPC 6400: Property for Intestacy
        1. Any part of an estate of a decedent not effectively disposed of by will passes by intestacy
      2. CPC 100: Community Property (property acquired during marriage in CA)
        1. When a married person dies, ½ community property goes to spouse and ½ to the decedent.
        2. Husband and wife may make an agreement to the contrary to divide community property


CP v. quasi CP during the marriage while both parties are still alive quasi CP is treated as separate property of the acquiring spouse:

          1. So while acquiring spouse is still alive that spouse can treat this property as separate property.
          2. If the non aquirng spouse dies first then the quasi CP belongs entirely to the aquiring spouse.
          3. On the death of acquiring spouse, then ½ belongs to surviving spouse and the other 1.2 subject to testamentary disposition→ so this is similar to community Property


      1. CPC 101: Quasi Community Property (acquired in CA while couple was outside CA during term of marriage)
        1. When a married person dies, ½ quasi community property goes to spouse and ½ to the decedent
        2. Husband and wife may make an agreement to the contrary to divide the quasi community property
      2. CPC 102: Transfer and restoration of Quasi Community Property
        1. If decedent transfers quasi-community property, surviving spouse can require ½ value/proceeds or property if:
          1. Decedent died domiciled in CA, AND
          2. Decedent made transfer for no consideration AND
          3. One of these types
            1. Interest created in trust, with income payable to decedent
            2. Joint tenancy agreement
            3. NOT accident/life insurance, or pension payable to another
      3. CPC 6401: Surviving Spouse/Domestic Partner, Quasi/Community Property
        1. For Community and Quasi, follow 100 and 101.
        2. If you don’t leave ½ to person other than spouse, (most you can leave), it all goes to the spouse.

3 types of Propert:

        1. As to community property, the intestate share of the surviving spouse is the one-half of the community property that belongs to the decedent under Section 100.
          1. So all goes to surviving spouse
        2. As to quasi-community property, the intestate share of the surviving spouse is the one-half of the quasi-community property that belongs to the decedent under Section 101.
          1. All goes to surviving spouse
        3. As to separate property, (that which goes to “probate”) the intestate share of the surviving spouse or surviving domestic partner, as defined in subdivision (b) of Section 37, is as follows:
          1. The entire intestate estate if the decedent did not leave any surviving HEIRS (issue, parent, brother, sister, or issue of a deceased brother or sister).
          2. One-half of the intestate estate in the following cases:
            1. Where the decedent leaves only one child or the issue of one deceased child.
            2. Where the decedent leaves no issue but leaves a parent or parents or their issue or the issue of either of them.
          3. One-third of the intestate estate in the following cases:
            1. Where the decedent leaves more than one child.
            2. Where the decedent leaves one child and the issue of one or more deceased children.
            3. Where the decedent leaves issue of two or more deceased children.
        4. Look to 6-402 to see where the rest of the shares go


      1. CPC 21610: Share of Spouse Omitted in Previous Testamentary Devices (Happens when T marries spouse after execution of will→ forgets to change the will, a mistake→ does not apply however if the couple is married and then after that one spouse makes a will and leaves out the other spouse)
        1. Follow 100 and 101
        2. Share of the estate equal to that which spouse would have gotten if no device made, but no more than ½
      2. CPC 21611: Spouse not to receive share; circumstances- She gets her half of community property, but nothing else if-
        1. If it appears that the decedent PURPOSELY left the spouse out of the testamentary device
        2. Spouse made an agreement to waive the right to the estate
        3. Decedent provided for spouse outside of the other devices
      3. Under 14th Amendment, states must abide by restraints of Due Process and Equal Protection. Intestate succession laws must bear rational relation to permissible state objective.
      4. UPC 2-301 Omitted spouse (1974 Version)
        1. If a testator fails to provide by will for his surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate they would have received if the decedent left no will unless it appears from the will that the omission was intentional or the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator or from the amount of the transfer or other evidence.
      5. SEE CPC-2251


    1. Class/Book Problems
      1. Page 64- Howard and Wendy
        1. Wendy has two children with Howard and one from a previous marriage. Under the UPC, what will each of their shares be if the other one dies?
        2. If Wendy dies, Howard gets $100,000 plus ½ the rest of the estate- because one of the remaining children is not his. All 3 of her children get 1/3 (remaining ½)
          1. Here the children all take equally.
        3. If Howard dies, Wendy gets $150,000 plus ½ the rest of the estate- because all of the remaining children are hers.
          1. The children that were from deceased husband (and Wendy together) take the other half, and the child of only Wendy (previous marriage) takes nothing as Wendy got the ½
        4. As a policy issue why is there a difference in $?
          1. If Wendy was alive she would take care of the child
          2. If Howard is the surviving spouse it is assumed he might not take care of Wendy’s child so he gets less money.
        5. This is one of the reasons why the UPC has been criticized
      2. Page 64- Problem 2- H and W have been married one year. H dies, survived by W and a brother, but no parent. What’s W’s share?
        1. If H was intestate, seems to be W takes entire estate.
          1. W doesn’t have to share with anybody under UPC 2-102
        2. If will, and W elects to take against it, UPC gives a one year marriage 3 percent of decedent’s estate.

EXTRA CLASS NOTES: In most separate property states the surviving spouse has right to take against the will (cant write them out).

        1. This varies from state to state as to what the forced share is→ life estate, etc? estate in fee?
        2. It is usually less then what the surviving spouse would have gotten if there was no will at all.
        3. See UPC 2-203 for an example
        4. In CA, the spouse will get ½ of the community property and ½ of the quasi community property, but all the separate property can be willed away if the will was created after the couple got married see CPC 21611 pp.11 of outline.


      1. Page 65 Problem 3- Henry dies intestate. Anne, with whom he has been living, claims a spouse’s share. Is Anne entitled to such if she married Henry, but the marriage is bigamous? (Henry already had wife). Hmm, Seems like the woman now married should be able to take share.
        1. If the two are merely living together and he dies, then she does not get a share. If however, they are in a state that recognizes common-law marriage (where 2 people have lived together and there has been some sort of publicity about it and it has not been done in secret) then she may qualify under the statute to take as a spouse if her common-law husband dies.
      2. If a couple gets married, and one person dies without having modified the will to include their new spouse, the situation is then treated as intestacy.
        1. W will receive half of the community property and quasi-community property and separate property up to ½ in accord with CPC 100, 101.
      3. If a couple gets married and the husband then rewrites his will omitting his wife from it, she will still get her share of the community property. He can only distribute that property which is his own. He cannot touch her half.
      4. What if he files for divorce, but it hasn’t gone through when he dies? She takes because it is not final.
        1. If there is no final dissolution of the marriage then Ann is still the spouse and takes as a spouse under the intestate statute.
        2. Imagine that they were in an abusive relationship and Ann dies from circumstances other than the abuse. Regardless of the abuse, he will still take as a spouse because there was no final decision regarding their marriage or divorce.
        3. In a few states, however, statutes will disqualify a spouse if they abandoned or refused to support the spouse.
      5. If married in good faith and then W discovers that H had a previous wife, does she qualify as a spouse?
        1. B/c of the ambiguity, you can bring in extrinsic evidence to determine the meaning of the term. (i.e. if there was an insurance contract naming the wife as a death beneficiary.)
        2. Many courts say that if you have gone through a marriage- it is valid based upon the un-rebutted presumption that there wasn’t a previous marriage. 
      6. Domestic partners- CPC 6401 (Jan 2005)
        1. Two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring- take as married couple
        2. Must file a declaration for domestic partnership→ must be registered
        3. Required to have a common residence, share living expenses. Partners may be same sex or opposite sex partners over the age of 62. This legislation was a result of 9/11.

CA family code 297.5→ gives almost all the same rights to domestic partners as married couples. Whenever you see spouse in CA you can substitute domestic partner.

Limitations on becoming a domestic partner:

  • Both parties hav eto share a common residence
  • Must be responsible for each others expenses
  • Neither party can be married
  • Parties can not be related by blood
  • Must be at least 18 years old
  • Must either be members of same sex, or over age of 62 if of oppositie genders
  • Formal way to do this is to file with CA secr of State
  • To get out of one of these there is a divorce equivalent in CAL Fam code §299.
    • Terminated when any of a number of events ocurr:
      • One partner sends to another written notice of termination of partnership,
      • Or one gets married, or
      • No longer has a common residence etc.

The law is in a state of flux in the area of domestic partner rights etc.


    1. Simultaneous Death
      1. CL→ A person must survive the decedent for at least an instant of time in order to succeed to the property.
      2. USDA prior to 1991 only requires sufficient evidence
      3. The Uniform Simultaneous Death Act (1991 ammended version)– if it cannot be established by clear and convincing evidence that the person who would otherwise be an heir has survived the decedent by 120 hours, (5 days), for purposes of intestate succession, the beneficiary is deemed to have predeceased the benefactor.
        1. Under USDA– To figure out who gets the estate there are two inquiries:
          1. Could the one deceased prove that they actually survived the other (did they survive any time longer)? And then,
          2. Can it be proved that legally the one outlived the other?
            1. To satisfy this legal part the issue is whether the one survived the other by at least 120 hours/5 dies.
          3. If this can not be proven then it is assumed that the beneficiary predeceased the benefactor and therefore the probate property of each would go to their heirs and not their spouse which would then have gone to the spouses heirs becaue the spouse is also dead.
      4. CPC 6403: Failure to survive decedent by 120 hours
        1. Deemed to have predeceased the decedent, and has no share, UNLESS this would result to escheat to the state+
        2. Clear and Convincing evidence of survivial beyond 120 hours
        3. Uses 120 hour rule
        4. Applies only to intestacy
          1. This part is much more limited then the UPC and Simultaneous death Act.
          2. So if decedent had a will then you must use §21109 instead
            1. This requires a showing by clear and convincing evidecen that ht beneficiary has survive dthe deceeased→ there is no 120 day rule
              1. So there is no 120 day limit on will or insurance policy etc
                1. So you must put that language in the will in order to avoid possible double probate or the same kind of fight as was the case in the Janus case.
      5. UPC 2-104 Same as CPC
      6. CPC 220: Insufficient Evidence of Survivorship: When there is NO sufficient evidence, the beneficiary is presumed to have predeceased the property owner.
        1. Janus v. Tarasewicz IL Appellate Court 1985 p68– (Note that this case still used the sufficient evidence standard)
          1. H & W Janus were husband and wife. They ingested Tylenol which was laced with cyanide and both had reactions to it which caused their death.
          2. Regardless of which standard is applied, survivorship is a fact which must be proven by a preponderance of the evidence by the party whose claim depends on survivorship– not just by ‘sufficient evidence’. 
          3. Court finds that trial court did not make finding contrary to weight of evidence, and that the record established that Stanley died before Theresa. Accordingly, Jan Tarasewicz (Teresa’s devisee) should get the $, not Stanley’s mother.
      7. [We went over Problems 1 & 2 on pp.72]



      1. Husband and Wife with NO evidence
        1. CPC 103: If it cannot be established who died first, half the community property and half the quasi-community property goes to the H and other to W.
      2. CPC 223: Joint Tenant
        1. If JT’s die and you can’t determine who died first, ½ goes to each decedent’s estate
        2. If more than 2 JTs, then divide accordingly
      3. Tenancy by the entirety? Community Property? Same rule as joint tenancy.
      4. CPC 224: Insurance and Simultaneous Death
        1. If insured and beneficiary die at the same time, and you can not determine who died first, proceeds are distributed as if the insured survived the beneficiary- the beneficiary gets nothing




























    1. Shares of Descendants
      1. Basics
        1. In all jurisdictions in the US, after the spouse’s share is set aside, children and issue of deceased children take the remainder of the property to the exclusion of everyone else.
          1. Property will excheat to the state instead of going out of bloodline to inlaws→ however in CA inlaws can inherit
        2. When one of the several children has died before the decedent, leaving descendants, all states provide that the child’s descendants shall represent the dead child and divide the child’s share among themselves.
        3. Sons and daughters in-law are excluded as intestate successors in virtually all states.
          1. CA is exception to this rule.
        4. Taking by representation”: The fundamental issue is whether the division into shares should begin at the generational level immediately below the decedent or at the closest generational level with a descendent of the decedent alive.
      2. 3 Approaches to determine representation – NO surviving Spouse
        1. Per stirpes– “By the Stocks” (Classic English/ Minority approach)—3 steps:
          1. Division of shares begins at generation level immediately below decedent. (Divide the property at the level of children.) Regardless of whether anyone is alive they get share which will then be passed to children of those children if the child is dead, and so on.
          2. Shares go to 2 types of people:  living, dead w/ living descendants (i.e. no shares are assigned to dead w/o living descendants).
          3. Takers take as representatives of their predeceased ancestor.




              C1                            C2                            C3                                          C1 and C3’s descendants

                                     Gets nothing b/c                                                              split a half each

GC1     GC2                        had no kids AND     GC3              So the shares are divided at C level as

  ¼           ¼                         died before D.                ½               opposed to Modern method below             

-So if C2 had kids, then all C’s would get 1/3 and that 1/3 would be split up among their kids.



        1. Per stirpes modern (Majority) (CA)
          1. Begin by dividing shares at highest generational level where one or more descendants is alive; divide shares among all at this level, even if someone is dead- just figure out dead’s share→ like above in the English system.
          2. DIFFERENCE→ Divide the decedent’s estate into shares at the generational level nearest decedent where one or more descendents of the decedent are alive and provide for representation of any deceased descendant on that level by his or her descendants.
          3. DIFFERENCEIf at that highest generational level no one is alive, then his share goes evenly to representatives.



D                                                        Look at highest generation where

                                                                                                  1 or more descendants is alive.

              C1                            C2                            C3


GC1     GC2                                                        GC3

  1/3       1/3                                                      1/3



D                                                        More complicated.                           

                                                                                                  Begin dividing at GC level.

              C1                            C2                            C3                            If dead, divide if they have living


GC1(1/3)      GC2  1/3                                          GC3  (1/3)              Note each get 1/3 as

                                                                                                    Opposed to English system

                                                                                                  Shares divided at first living level

X1   X2         X3                                                  X4     X5     X6

1/6   1/6       (X3 gets nothing b/c                      1/9       1/9     1/9

                    GC2 is still “in his own

                    shoes;” X3 cannot represent GC2)



        1. Per capita at Each Generation (UPC model)
          1. Those who are equally related to decedent and take shares take equal shares.
          2. This system treats each taker at each generation equally with the other takers at that generation.
            1. “Equally near equally dear”
          3. After the initial division at the level of the living descendant, the shares of the dead w/ living descendants are gathered, and divided equally among representatives of the next generation.  [We give to the living their shares; but we give the shares assigned to the dead of the living descendants—we gather that, then distribute to living of dead ancestors.]



              C1 *                            C2                            C3 *              *C1 and C3’s descendants share 2/3

                                          1/3                                          Gather C1 and C3’s share up

                                                                                    b/c they’re dead. (In CA model- C3 would                                                                                     have gotten 1/3 and so would have GC3)

GC1     GC2                                                        GC3

2/9         2/9                                                2/9              So here initial division at level where at

least one living, then the rest is divided

C2:  1/3                                                                                    equally among others.

GC1, GC2, GC3:  split the 2/3 left over.



If GC1, then C2 gets 1/3, GC1 (1/3) but is dead, GC2 2/9, GC3 2/9, X1 1/9, X2 1/9.


X1     X2

1/9   1/9


NOTE- In all of these 3 methods, even if a child has grandchildren, the grandchildren gets nothing if his/her parent is still alive. E.g. In example above if C2 had had a grandchild GC4→ GC4 would not get anything as C2 is still alive.



          1. UPC §2-106 Representation
            1. The estate or part thereof is divided into as many equal shares as there are:
              1. surviving descendants in the generation nearest to the decedent which contains one or more surviving descendants and
              2. deceased descendants in the same generation who left surviving descendants.
              3. Above, it is divided into thirds in the C1/C2/C3 group.
          2. THE UPC is different because people of equal level get the same.


          1. Negative Disinheritance: Allowed
            1. Old Common Law rule of American inheritance says that disinheritance (saying “My son John shall get none of my property”) is not allowed.
              1. An old US rule said that more then a statement that a child doesn’t get anything is needed, one would also have to devise all of the estate to other persons.
            2. But the UPC §2-101(b) changes this rule and authorizes a negative will.
            3. Disinherited are treated as if they predeceased the intestate share.
            4. CA §6400→ Seems to follow old CL rule→ policy against escheate

PRACTICE PROBLEM on page 1 in back of book

Problem 1 at pp.76, and 2 at pp.77

    1. Intestate Shares of Ancestors and Collaterals- If descedent is not survived by spouse, descendant or parent:
      1. Only applicable if there is no surving spouse and decendants→ CA §6402(b)
      2. See pp.79 to see the lines of collaterals
      3. Ancestors and collaterals take, but only if there are no descendants of the decedent & no spouse 
        1. Ancestors– blood relations that came before you- grandparents, parents
        2. Collateral Kindred blood relations not ancestors or descendants= siblings, aunts, uncles, cousins.
            1. All persons who are related by blood to the decedent but who are not descendants or ancestors.
          1. Descendants of the decedent’s parents, other than the decedent and their issue, are first line collaterals. Siblings, nephews, nieces.pp.78 chart
          2. All others are second line collaterals. Second-line collaterals are descendants of decedent’s grandparents other than the decedent’s mother and father and their issue. Aunts, uncles, first cousins.
          3. Next-of-kin- descendants of decedent;s great & great-great GP
      1. So how do we decide who gets what? See the two systems below:
      2. 2 systems used for succession when there are no first line collaterals: (no siblings, nephews, nieces)
        1. (1) Parentelic system– intestate estate passes to grandparents and their descendants, and if none to great-grandparents and their descendants and if none, to great grandparents, etc. until an heir is found.
          1. 1st Parentella = dead and his descendants. (Dead’s kids)2nd Parentella = dead’s parents and all descendants of dead’s parents except those in 1st Parentella. (Dead’s parents, siblings and their kids- not dead’s own kids).3rd Parentella– grandparents and their descendants, excluding 1st and 2nd parentella (dead’s aunts, uncles, cousins, children of cousins). “Line” on p92 is same thing as Parentella, but # of line is one lower that # parentella

          (2) Degree of relationship (CA)– chart on p79- estate passes to closest of kin, counting degrees of relationship. When two people contest that they should take, must count degree of relationship from dead person & then down to π/ whoever is making claim. Person with least # away wins.

          1. Count UP to their common ancestor, then DOWN to claimant
          2. No representation- all other claimants alive but that have larger # get nothing
          3. E.g. you count steps up from decedent to nearest common ancestor then down to the heir
            1. E.g. an uncle and aunt is in the same position as a nephew and neice
              1. Under the Parenelic system the nephew and niece would get before the uncle

          Tiebreaker– if 2 have same #

          1. Most states- share equally
          2. Parentellic- lower parentella
          3. Degree of relationship- share equally

        Some states are combinations of parentelic and degree of relationships.

        1. CPC 6402: Intestate not passing to surviving Spouse, Order of Descendants:
          1. Children, closest relation get bigger share
          2. Parent or parents equally
          3. Issue of parents, taking equally if all of same degree of kinship- (siblings, nieces, nephews)
          4. If there is no surviving parent, to the spouse’s parent(s) equally
          5. Grandparents or issue of grandparents (cousins, aunts, uncles)
          6. Any issue of predeceased spouse
          7. Next of Kin
          8. Any parents of a predeceased spouse

        “Laughing heirs”- so removed, that they suffer no grief. Should they be able to challenge a will?

        1. UPC §2-103 Share of Heirs other than Surviving Spouse
          1. Any part of the intestate estate not passing to the decedent’s surviving spouse under §2-102 passes in the following order to the individuals designated below who survive the decedent:
            1. To the decedent’s descendants (children, etc.)
            2. To the decedent’s parents
            3. To descendant’s of the decedent’s parents (kids of dead’s parents)
            4. To the decedent’s grandparents
              1. half of the estate passes to the decedent’s paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent’s paternal grandparents or either of them if both are deceased, the descendants taking by representation;
              2. the other half passes to the decedent’s maternal relatives in the same manner;
              3. but if there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent’s relatives on the other side in the same manner as the half.
          2. The decedent’s grandparents (or their descendants) is the stopping point. Great-grandparents do not take, but only a minority of state have adopted UPC.
        2. CPC § 6402(e), 6402(g) have expanded number of people who will be laughing heirs.
          1. Stepchildren- may take
          2. Mothers-in-law- may take
          3. Fathers-in-law- may take
          4. NOT to sons-in-law or daughters-in-law

        Half-Bloods- In a large majority of states, a relative of half-blood is treated the same as a relative of whole-blood. This is the position of the UPC. §2-107.

        1. CA §21115(a) Half bloods are treated the same.
        2. CPC 6406: Half-Blood Relatives
          1. Relatives of the half-blood inherit the same share they would inherit if they were of the whole blood.
        3. VA and other states say they get half what the whole gets- gotta do some math- half of a share is split 1/3 and 2/3

        Problems p82

        1. Problem 1- Decedent is survived by mother, sister, and two nephews. How is decedent’s estate distributed under UPC? Under CA?
          1. §2-103(2) because there are no descendants, the succession is to the mother.
          2. CPC §6402(b) it is the same.
        2. Problem 2- Decedent survived by one first cousin on his mother’s side and two first cousins on father’s side. How distributed under UPC? Under CA?
          1. §2-103(4) Half of the estate passes to maternal first cousin, the 2 paternal cousins share the rest, they get ¼ each. The UPC breaks from their principle that people on equal people will be treated equally.
          2. CPC- 1/3 each. CPC 6402- To the grandparent or grandparents equally, or to the issue of such grandparents if they are all of the same degree of kinship to the decedent, but if unequal degree those or more remote degree take in manner provided in Section 240.
        3. Problem 3- Decedent survived by A, first cousin of the decedent’s mother, and B, granddaughter of decedent’s first cousin. Who takes?
          1. Under parentelic view, it should be B, because B comes from grandparent line, not greatgrandparent.
          2. Degree of relationship, A takes.
          3. 2-103? §6402(d)? Both seem to point to B, because B is issue of grandparent.

        Problem p83 M has one child, A, by her first marriage and two children, B and C, by her second marriage. M and her second husband die. Then C dies intestate, unmarried and without descendants (and without parents). How is C’s property distributed under UPC? VA? CA? 

        1. C has no descendants, no parents, no spouse, but has B- sibling, and A- half sibling.
        2. UPC §2-107 A and B take equally, even though A is a half-blood to C.
        3. VA- A=1/3, B=2/3 Scottish rule: takes ½ of what a whole blood takes
        4. CA §21115(a) Half bloods are not treated any differently.



    1. Transfers to Children


Remember: “The right to receive property by devisee or descent is not a natural right but a privilege granted by the State…Every state possesses the power to regulate the manner of term by which property within its dominion may be transmitted by will or inheritance and to prescribe who shall or shall not be capable of receiving that property.” In Hall v. Vallandingham (quoting another)


      1. Posthumous Children– Children conceived before but born after death of deceased
        1. Where, for purposes of inheritance or of determining property rights, it is to a child’s advantage to be treated as in being from the time of conception rather than from the time of birth, the child will so be treated if born alive.
        2. Courts have created a rebuttable presumption that the normal gestation period is 280 days, or 10 months. If the child claims they were conceived more than 280 days before the birth, the burden is on the child.
        3. The Uniform Parentage Act §204 presumes that a child born to a woman within 300 days after the death of her husband is a child of that husband.
        4. Relatives?
          1. CPC 6407: Unborn Relatives
            1. Relatives of the decedent conceived before the decedent’s death but born thereafter inherit as if they had been born in the lifetime of the decedent.
      2. Adopted Children– CA’s laws are complicated
        1. MacCallum v Seymour VT 1996- adopted children may inherit through adopting parent. Reason is that if you didn’t, it would be unequal protection of adopted child. Can’t discriminate based on fact that children are adopted.
        2. General Rule: Inheritance rights of the child to inherit from the natural parent are cut off once the child has been adopted, except for limited circumstances.
          1. CA allows inheritance by adopted child through natural parent if two conditions are met (see below)
        3. Hall v Vallandingham Court of Special Appeals MD 1988 p83
          1. No dual inheritance, once the children were adopted, there was a “rebirth” into a completely different relationship and the rights of the natural relatives terminated.
          2. “A state may deny the privilege altogether or may impose whatever restrictions or conditions upon the grant it deems appropriate”…”the legislature giveth, and the legislature taketh away”
        4. Inheritance rights 
          1. UPC §2-114 Parent and Child Relationship
            1. Except as in b) and c), an individual is the child of his natural parents, regardless of their marital status.
            2. An adopted individual is the child of their adopted parent and not of his natural parents, but adoption of child by spouse of natural parent has no bearing on this.
              1. This is used if the child is adopted by a step parent the child will still then inherit from the relatives of the natural parents.
            3. Inheritance from or through a child by natural parents or kindred is precluded unless that natural parent has openly treated the child as theirs. Unless parent acts this way, the parent cannot inherit, even if they are natural parent. 
            4. The adopted child inherits from the natural relatives and also from adopted relative if the child is adopted by a step-parent.
            5. In a step-parent adoption, the children can inherit from natural relatives, but natural relatives cannot inherit from the children.
          2. CPC 6450: Relationship Existence:
            1. Parent/Child relationship exists for the purpose of determining intestate succession by, through or from a person in the following circumstances
              1. (if there is no adoption) Parent/Child relationship exists regardless of marital status of natural parents
              2. (if there is adoption) Parent/Child relationship exists for adopted children and adoptive parents (but see below)
          3. CPC 6451: Adoption:
            1. (If adoption), Adoption severs parent/child relationship between adopted and natural parents unless both of the following are met:
              1. The Natural parent and adopted lived as parent-and-child at anytime (could be before adoption!), or natural parent was co-habitating or married with THE other natural parent at time adopted was conceived but died before birth, AND
              2. Adoption was by spouse of either natural parent or adoption was after the death of either natural parent
            2. (If adoption), Neither a natural parent or relative of a natural parent, except for whole-blood brother/sister (or issue of brother/sister) of adopted, inherits from or through the adopted through above section, unless adoption is by spouse or surviving spouse of that parent- (natural parent).
                1. So, there still is natural parent, and spouse of that one adopts, or natural parent dies, and spouse of that parent adopts.
        5. When you have a situation where you have 6451(a), the adopted child can inherit from adopting parent and his family and also from natural father and his family.
          1. In these, you ask the questions of 6451 of each person who you are trying to get inheritance from.
          2. When it says ‘natural parent’, you have to ask whether that parent died, or was married, etc. with respect to who you are trying to inherit from.
        6. Surrogate parentsChildren born by reproduction technology
          1. As a child may have the gentic material of only one parent or both or no connection, the law is evolving as to who is the parent, and the courts by no means agree pp.111
          2. Johnson v. Calvert– Husband and wife signed K with a woman surrogate providing that an egg of the wife fertilized by the husbands sperm would be implanted in the surrogate woman and after the child is born it would be taken home by the husband and wife as their child. The surrogate mother then changed her mind, claiming parental rights
            1. The court held that parenthood in surrogate mother cases should not be determined by who gave birth or who contributed genetic material but should turn on the intent of the parties as shown by the K→ Husband and wife were sole parents.
            2. In CA, parental rights are not based on surrogacy of mother, but intent of parties at signing of contract for surrogate pregnancy. They don’t want 2 legal mothers.
              1. K trumps in CA
          3. In re Marriage of Buzzcana– H and W agreed to have an embryo genetically unrelated to either of them implanted in a woman surrogate→ then before birth of child the H and W split up→ surrogate mother did not claim parenthood.
            1. W claimed parenthood and wanted K to pay support
            2. Court hled both H and W were the parents
          4. Why do other states differ? Strange contract for people to engage in- bear child and sell it.


        1. Same Sex parents– MA case
          1. 2 mothers took child, and court said child could inherit through both.
            1. MA statute would have terminated the right of natural mother. But in this case, the natural mother and the partner both adopted, so the rule that the adoption terminates the natural mother should not apply. Sot he child would inherit from both the natural mother and adoptive mother.
          2. Court in Indiana concluded that “when two women involved in a domestic relationship agree to bear and raise a child together by artificial insemination of one of the partners with donor semen, both women are the legal parents of the resulting child.”
          3. Remember in adoption this cut out natural parent’s ability to inherite (exception Walker). Say here we have a lesbian partner who formally adopts a child from natural mother, so there is not a marital relationship.
            1. The court held that the court should be able to inherit from both natural and adoptive mother.
            2. Under UPC §2-114b– adopting of a child by the “spouse” of either natural parent has no effect on the relationship between the child and that natural parent
              1. With same sex partner, though, the partner is not a spouse, so there shouldn’t be inheritance of child from natural mother under the UPC because adoption severs the relationship between natural mother and the child.
              2. Eventhough this is probably contrary to the natural mothers intent
            3. Under CPC 6451(a)- Relationship with natural mother would not be cut off.
              1. What if child dies and is survived by natural mother and adopted mother? 6451(b)- Look to see whether the adoption was by spouse of that parent- this depends on relationship (registered domestic partner?) then they should both be able to inherite.
                1. This wouldn’t work under UPC as they don’t yet recognize partners as spouses
          4. West case has been overruled (pp.114)
            1. See cases on this page


        1. Babies inadvertently switched at birth in hospital-
          1. Court ruled that the birth certificate does not alone mean that the baby is the child of people who she went to. She probably is that of the genetic parents.
          2. Detemrining custody is not the same necessarily as determining inheritance
        2. Equitable adoption(Common law) kind of like estoppel, that after a certain time- since there was no challenge and the child lived for so long that she was in fact ‘adopted’.
          1. CPC allows for equitable adoption
          2. CPC 6455: Equitable adoption; Application:
            1. Nothing in this chapter affects or limits application of the judicial doctrine of equitable adoption for the benefit of the child or the child’s issue.
          3. CPC also allows foster or step-parents to equitably be ruled parents for purposes of intestate succession too.
          4. CPC 6454: Foster Parent or Stepparent
            1. For intestate succession, parent/child relationship between child and stepparent/foster parent is established if both of the following conditions are met:
              1. The relationship began during the person’s minority and continued throughout the joint lifetimes of the person and the person’s foster parent or stepparent.
              2. It is established by clear and convincing evidence that the foster parent or stepparent would have adopted the person but for a legal barrier.
                1. If there was no legal barrier, then child doesn’t inherit
          5. Analysis of Equitable adoption and Foster or Stepparent status
            1. Equitable adoption gives more rights of inheritance than 6454
            2. Equitable adoption works better- it is court created doctrine- works in situations where parents are not opposed to adoption and the child benefits from it, where they probably wouldn’t under §6454.
            3. Child can inherit from foster parents, but foster parents cannot inherit from children.
          6. In order for equitable adoption to take effect, a person must have legal authority to give child away.
            1. O’Neal v Wilkes Supreme GA 1994 p94 (minority)
              1. Appellant child’s mother died when she was a child, and her father never legitimized or supported appellant.
              2. Appellant’s aunt, Estelle Page, allowed the decedent, Roswell Cook, to raise appellant and the decedent referred to appellant as his child.
              3. The court held that in order for a k for adoption to be valid, it must be made between persons competent and have the legal authority to contract for the disposition of the child.
                1. Here Aunt did not have the legal authority the court says
              4. So here she couoldnt take because there was equitable adoption as the aunt had no authority to dispose of the child
              5. Must be a showing of agreement between natural parent & adoptive parents
              6. Dissent (MAJORITY VIEW)– Equity considers that done which ought to have been done.
                1. P has fully performed the contract over a lifetime.
                2. Equitable estoppel dictates that an agreement to adopt a child, so as to make a child an heir on the adopting person’s death, is enforceable upon the death of the adopting person as to property undisposed of by the will.
                3. Policy should protect the child.
                4. Dissent is now a mainstream majority.
              7. Question 2 p114- Suppose that Juvenile court placed Appellant in custody of Cooks, instead of aunt. Same result? GA case, said yes- still no equitable adoption by Cooks. 

SEE NOTE 3 and 5 pp.99

(b)   CA approach– Based on K law- Strict view as in the case above

              (i)    Promise or intention to adopt must be proven by clear & convicing evidence

                     (1) equitable adopted child can inherit from but not through adoptive parents

                     (2) equitable adopted childe can still inheret from natural parent

              (ii) §6454 provides that a foster or spechild does inherit if: (see above)

                    (1) Relationship must have started at minority & continued through their lives

(2) Clear & convincing proof that there would have been an adoption but for a legal barrier

                    (3) Child can inhereit from or through foster parent

                    (4) Foster parent relationship does NOT sever relationship w/natural parent


Inheritance under Equitable adoption The adopted child is permited to inherit from the foster parents. On the other hand the foster parents and their relatives can’t inherit from the child.

Many times we need to ask whether an adopted child is included in a gift to heirs of A→ in most states they are


        1. Adult Adoption
          1. Adult adoption is useful to prevent a will contest by collaterals to T. Most statutes do not make a distinction b/t adopting an adult and adopting a minor. If the testator adopts a child, testator’s collateral relatives cannot contest the will, since they now can inherit nothing by intestacy.
          2. Adopted children are presumptively included in heirs & decedents
          3. Exception to statute- intent of decedent
            1. Minary v. Citizens– W created trust in benefit of H & 3 sons. On death of last beneficiary remainder to pass to “my then surviving heirs” Son A adopts wife M…should M take as W’s heir? NO
              1. If she wanted to avoid this she should have placed a testamentary power of appointment
          4. Cases are split over whether adult adoptees are included within gifts to classes such as children, issue, or descendants
          5. See note 3 pp.92→ Can B be adoptd out of class without B’s consent when adopted by another father? So the interpretation of the instrument is considered here, what did the testator mean when he wrote the words→ he wrote per stirpes so this means that the child should take and should not be cut out. Even stronger arguemtn if B had been born by the time the instrument was made
          6. See §21102- Rule of construction is that there will be a presumption a certain way.


      1. Nonmarital Children (Children born out of wedlock)
        1. Children of unmarried parents were not given any rights under common law.
        2. All of our states have now alleviated this position. All jurisdictions permit inheritance from the mother, and the mother’s kin.
        3. While rules respecting inheritance from the father vary, most states have adopted the provisions in UPC § 2-109 which allow paternity to be established under certain circumstances.
          1. There has to be a valid state interest to block inheritance. For the states, it is proof of paternity.
          2. The Uniform Parentage Act, adopted by 1/3 of the states, ‘parent and child relationship’- presumed to exist between a father and a child if:
            1. while the child is less than 2, the father receives the child into his home and openly holds out the child as his natural child, or
            2. the father acknowledges his paternity in a writing filed with an appropriate court or administrative agency.
        4. With modern DNA testing, many courts have ruled to have a body exhumated (dug up) to do paternity test.
        5. CPC 21115- says in CA, there can be inheritance from father.
        6. CPC 6453 pretty well traces the Uniform Parentage Act

See note 2 pp.101


      1. Reproductinve Technology and New Forms of Parentage:
        1. How to determine if person is natural parent:
          1. CPC 6453: Natural Parents:
            1. When relationship is presumed and not rebutted under section 7600 of family code
            2. Can be established under any other part of Uniform Parentage Act, BUT not under Family Code 7630 UNLESS:
              1. Court order was entered during lifetime of father declaring paternity
              2. Paternity established by clear and convincing evidence that father held out child as his own
              3. It was impossible to hold child out as his own, and paternity is established by clear and convincing evidence.
        2. Inheritance from Nonmarital Children? Under certain circumstances
          1. CPC 6452: Out of Wedlock Birth
            1. Neither a natural parent or relative of natural parent inherits through or from the child unless both of the following are met:
              1. Parent or relative of parent acknowledged the child, AND
              2. Parent or relative of parent contributed to support or care of the child


      1. Cryogenically Preserved Sperm and Post Mortem Artificial Insemination
        1. Hecht v Superior Court Cal Court of Appeal 1993 p117
          1. Facts- decedent devised to gf 15 vials of sperm. D’s adult children contested the devise & ordered the sperm destroyed
          2. The court concluded that at the time of his death, decedent had an interest in his sperm, because he had decision making authority regarding it, and that this interest was sufficient to constitute property within the meaning of Cal. Prob. Code § 62, and as such, the probate court had jurisdiction over the vials of sperm.
          3. In CA, there is a presumption that if you are married, your partner is the other parent of the child.
          4. Sperm was not destroyed.

A recent case again brought this issue up→ Same sex partners, one of them had a child by artificial insemination→ we will discuss this later

          1. The court here did not have to consider how to deal with the inheritance question of a posthumously-conceived child (different form a posthum child in that the child I born and conceived after the death of one or both of the child’s genetic parents.) But a court did consider this in the case below:

See CPC§6453(3)

Woodward v. Commissioner of SS (2002) SC Mass

1)     Facts- Pre-leukemia H had semen medically withdrawn & preserved. H died 10/93 & π(w) gave birth to twin girls in 10/9- conceived through artificial insemination. The wife applied for Social security survivor benfits for her and for children→ these were rejected as SSA said that she needed to prove that the children were her husbands

2)     Q: whether a child resulting from posthumous reproduction may enjoy inheritance rights: The answer was that in certain circumstances yes.


Balancing test of State Interests:

                                                                (a) Best interests of the child

(i) leg intent that all children be entitled to the same rights & protections of the law regardless of the Accidents of their birth

                                                                      (ii) Rights to financial support

                                                                (b) State’s interest in the orderly administration of estates

(i) certainty of filiation- w/o father’s acknowledgment of paternity, a non-marital child must obtain a Judicial determination of paternity as a pre-req to succeeding to the father’s estate

(c) Reproductive rights of genetic parent→ Ct needs to harmonize all these   interest. Standard of Proof: B/P rests w/surviving parent to prove:

                                                                              (a) Donor parent clearly & unequivocally consented to

                                                                                    (i) Postumous reproduction &

                                                                                    (ii) Support of resulting child

CA §249.5- Grants posthumously conceived children intestacy rights, but under more limited condicitons than either the UPA or Rest 3d.: Specifically addresses conception after the fathers death

              COPY WHAT IT SAYS


What if woman took sperm from a man after he died, but without his consent and had child.

Suppose he didn’t want anymore children?

          1. CPC 6407: Unborn Relatives– Relatives of the decedent conceived before the decedent’s death but born thereafter inherit as if they had been born in the lifetime of the decedent.
          2. Those who think that women should be able to do this would argue that §6407 was only meant to codify the common law property rule of conception being a way of measuring, and that it didn’t contemplate the Hecht situation.

Question 3, 4, 5 on pp.110

(4) Woodward did not answer what evidence is needed to show affirmative consent. R.3d approach almost seems there is a presumption for inception of the child. Uniform Parentage Act needs a written consent. CA is strictest, needs a witnessed writing.

Mass court did not deal with timeliness of posthumously conceiving. Prof thinks that even the Mass woodward court would feel 21 years is not reasonable.R.3d uses reasonable time standard. CA uses a clear 2 year limit. Finality of the adminstratio fo the estate in all jx seems to weigh against such a long time before conception.


(5) This should depend on the intent of the grandfather in drafting. CPC §21102. Remmeber rule of cosnturction that if the intent does not give any answer then the adopted or half-bloods are treated equally, however this has not yet been extended to Posthumosouly conceived children.







      1. Advancements
        1. Q: child received $ during lifetime- should you get an equal share through intestacy?
        2. Common law- and in a number of states today, any lifetime gift is presumed to be an advance of what the child would receive as their intestate share
          1. Child has burden to show that the lifetime transfer was intended as an absolute gift that was not to be counted against the chld’s share of the estate.
        3. If a gift is treated as an advancement, the donee must allow its value to be brought into hotchpot if the donee wants to share in the decedent’s estate.
          1. To determine who gets what:
            1. Add advancement into total intestate estate
            2. Divide equally among all testate takers
            3. Subtract person’s advancement from their share. People may be in negative, but they do not have to pay back.
          2. Estate of $50,000 is left to A, B and C. A was given $10,000 while decedent was alive.
            1. $10k goes into hotchpot + $50k = $60k/3 = $20k → A gets $10k and keeps her 10k gift
            2. If A gets $34k advance- keeps the 34k but doesn’t share in the 50k as her share would have been 28k if we added her gift to the hotchpot.

Modern Approach– Presumption against advancement- UPC/CA

        1. In many states, a lifetime gift to an heir can be treated as an advancement only if:
          1. Expressly declared as such in writing signed by donor
          2. Acknowledged as such in a writing signed by donee
        2. UPC § 2-109. Advancements.
          1. If an individual dies intestate as to all or a portion of his [or her] estate- property that the decedent gave during the decedent’s lifetime to an individual who, at the decedent’s death, is an heir- is treated as an advancement against the heir’s intestate share only if
            1. the decedent declared in a contemporaneous writing or the heir acknowledged in writing that the gift is an advancement or
            2. the decedent’s contemporaneous writing or the heir’s written acknowledgment otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedent’s intestate estate.
          2. For purposes of subsection (a), property advanced is valued as of the time the heir came into possession or enjoyment of the property or as of the time of the decedent’s death, whichever first occurs.
          3. If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the division and distribution of the decedent’s intestate estate, unless the decedent’s contemporaneous writing provides otherwise.
        3. CPC §6409 takes the same approach as the UPC.
        4. Advancements when advancee predeceases decedent
          1. CPC and UPC say the amount is not reduced for issue.
          2. Common law says estate is reduced for issue.
        5. Avoiding application of the advancement doctrine
          1. When it is shown that the parent wanted the child to be treated differently, it will not be ruled an advancement.
          2. If it is shown that the transfer was an absolute gift not to be counted against the child’s share- like education, it won’t be counted against them.


      1. Transfer of an Expectancy = (Can’t, but…)
        1. Living persons are heirs apparent , having a mere expectancy.
        2. Not being an interest, an expectancy cannot be transferred at law.
        3. However, a purported transfer of an expectancy, for an adequate consideration, may be enforceable in equity as a contract to transfer if the court views it as fair under the circumstances.


      1. Managing a Minor’s Property– Transfers of property to a minor raise special problems. When a client with young children plans for death, I should advice them to provide for the possibility that heir children might be orphaned-a problem that must be confronted by rich and poor clients alike. A minor does not have the legal capacity to manage property. 3 alternatives for property management exist:
        1. Guardianship– least flexible for Guardian (expensive- much better to set up a trust)
          1. If both parents die while a child is a minor, and their wills do not designate a guardian, a court will appoint a guardian from among the nearest relatives.
          2. Guardian does not have title to or right to manage the ward’s property
          3. Usually cannot change investments without a court order. They can ordinarily use only the income from the property to support the ward, they have no authority to go into principal to support, unless the court approves.
          4. Ends at child’s 18th birthday.
          5. In states without modern conservatorship/guardianship laws, the best way to handle guardianship administrations is to avoid them. The better options are custodianship and trusteeship.
        2. As a guardian has no control over the childs property there are some alternatives for property management:
          1. Either the court assings a guardian of the property or a conservator
          2. A trust may also be created, but this must occur before death of parents
          3. Or custodian
        3. Conservatorship– In many states Guardianship laws have been revised to allow a more trust-like treatment.
          1. The guardian of the property has been renamed the conservator and given “title as trustee” to the protected persons property as well as investment powers similar to those of trustees.
            1. Appointment and supervision by the court is still required but the conservator has far more flexible powers than a guardian, and only one trip to the courthouse annually for an accounting is necessary.
          2. Permits a more streamlined administration of the estate; allowing a higher net return on the assets, more fliexibility in investments, and a greater chance of meeting the financial needs of the child.
          3. Terminates when child reaches age of majority or dies before then.
          4. Even if the state allows this, it is advisable to enter into an alternative custodianship or trusteeship for a minor because the court does not become involved unless the minor contests the custodians or trustees actions.
        4. Custodianship– more flexible for Custodian than guardianship
          1. Is given the property to hold for the benefit of a minor under the state Uniform Transfers to Minors Act. Under these, property may be transferred to a person as custodian for the benefit of the minor (A devise or gift may be made to X ‘as custodian for…) eliminating the necessity of drafting a trust instrument. Hence, creation of a custodianship is quite simple.
          2. Under the Uniform Transfers to Minors Act- the custodian has the power to expend so much or all the custodial property as the custodian deems advisable without court order AND without regard to
            1. the duty or ability of the custodian personally or
            2. any other income or property of the minor which may be applicable
          3. The custodian is expected to transfer the property to the minor on his attaining the age of 21 or if the minor dies before that, to the estate of the minor.
        5. Trusteeship- most flexible for Trustee
          1. Trustee holds property for beneficiary and can manage it
          2. Trust can postpone possession until the donor thinks the child is competent to manage the property. (Possible for child never to get it).


pp.120 Problem

What doesn’t have to go through probate?

  • House- it’s a joint tnenacy
  • Checking account
  • IRA
  • Etc all that are JT
  • So what is:
    • Cabin, GC stock, Mutual Fund, Remainder interest in mothers house, tangible personalty.

So what would Wendy inherit? UPC

  • She gets first 150,000 plus ½ balance, and his two children share the other have, about $37,000
  • UPC under 5-104- need a guardian as they each have more then $5,000.

Under CPC:

  • 6401- She gets 1/3 and his kids get the rest

So he should have left a will and even created a trust.


pp.122 Excercise

Q.1 Pros→ provide for him until he is 25

Cons→ If there are enough funds to secure the youngest child anyway then it may be best to change it and give each child their share at age 25

A family trust is more advatnagous for younger children primarily because if set up as individual trusts this benefits older children because the older children may usually have their expenses, e.g. education paid by the parents and thus not come out of their trust portion









  1. Bars to Succession
    1. Homicide/Slayers
      1. If no statute barring succession to slayers: 3 different jurisdictions
        1. Title passes to slayer & may be retained- because no statute to say otherwise
        2. Title does not pass- because no one should profit from doing wrong
        3. Title passes to slayer who is constructive trustee- holds it for heirs or others who would take under will, next of kin, etc.
      2. In re Estate of Mahoney Supreme Vermont 1966 p126
        1. Issue: Whether a widow convicted of manslaughter in connection with the death of her husband may inherit from his estate.
        2. Court rules that the probate court was without jurisdiction to impose a constructive trust on the estate in the hands of the appellant.
        3. They ruled to give the administrator of the estate an opportunity to apply for relief. Should he do so, the proceedings shall be pending decision. Should he not, the court shall then, and only then assign the wife the estate.
      3. Note, if the killer is barred then the usual view as in UPC 2-803 is that the killer is treated as having predeceased the victim.
          1. In In Estate of Covert (2001), Edward fatally shot his wife and then killed himself. Appling the NY slayer rule the court held that Edward could not take from wifes estate, however inasmuch as Edwards devisee’s were innocent of the thecrime, the court allowed them to take from wifes estate. Pp.130
            1. Courts have split on this however, see Estate of Mueller pp.130
      4. Generic Anti-Lapse Statute (usually in wills):
        1. The person must survive the testator in order to take
        2. This staute applies when testator makes a gift toa  relative and that relative does not survive the testator→ then most staututes say that the relatives child takes in the relatives place.
        3. If the deposee however was not a family member but a friend then the anti-lapse statute will not apply and so the gift will fail.
      5. If we have the testator killed by the depose (relative), does the child of the depose receive the property?
        1. If the anti-lapse statute does not apply then the child does not get the house
          1. I AM NOT SURE ABOUT THIS!!!
      6. IF the will says “to my brother and then if not his child”
        1. If the brother is slayer then he is presumed to have predeceased the testator. Under UPC it seems however that the child of the slayer will still take.


      1. CA: A person who feloniously and intentionally kills decedent may not inherit from the decedent
        1. CPC § 250 Wills, intestate succession, and family protection
          1. A person who feloniously and intentionally kills the decedent is not entitled to any of the following:
            1. Any property, interest, or benefit under a will of the decedent, or a trust created by or for the benefit of the decedent or in which the decedent has an interest, including any general or special power of appointment conferred by the will or trust on the killer and any nomination of the killer as executor, trustee, guardian, or conservator or custodian made by the will or trust.
            2. Any property of the decedent by intestate succession.
            3. Any of the decedent’s quasi-community property the killer would otherwise acquire under Section 101 or 102 upon the death of the decedent.
            4. Any property of the decedent under Part 5 (commencing with Section 5700) of Division 5.
            5. Any property of the decedent under Part 3 (commencing with Section 6500) of Division 6.
        2. In order for §250 to kick in, do you need a criminal conviction? No.
        3. CPC § 254 says if you have criminal conviction, it is conclusive. However, if you don’t have a criminal court convicting the deceased person, the court is allowed to determine the issue, not by reasonable doubt, but by preponderance of evidence whether the killing was felonious and intentional.
        4. What about accessory? No statutory authority on this, but some cases on this have held that the person trying to inherit is disqualified.
        5. Can children of convicted murderer take?
          1. If there is will, they should not be able to. But case in MO ruled that named alternative beneficiary to the killer could take because they couldn’t speculate as to killer’s motive.
          2. If there is intent by killer, heirs of killer will be ruled not to be able to take, and maybe the heirs of decedent will take. Only way killer’s heirs can take is if they are same as decedent’s heirs.  
          3. If there is not a will, and children take by intestate succession- then they should.
        6. What about a no contest plea? This plea will not preclude inheritance, because technically it is not a guilty plea. However, the court can make a determination by preponderance of evidence in their own ‘trial’.
          1. If no contest plea- the estate of the parents may be allowed to be used to pay legal fees.
    1. Other Bars to Succession
      1. Abandonment/Neglect/Abuse of Testator
        1. CPC §259 Abuse of an Elder or Dependent Adult/ Predeceasing a decedent
          1. A person is deemed to have predeceased a decedent if ALL of the following apply:
            1. Person is liable for physical abuse, neglect or fiduciary abuse of dependent adult
            2. Person acted in bad faith
            3. Person was reckless, fraudulent, malicious in any of these acts
            4. Decedent was unable to manage finances after these acts until their death
    2. Disclaimer

1.  Occurs when about to inherit something & refuse it. Most states have disclaimer statutes. Reasons why it is done:

        1. Saving estate taxes– under Internal Revenue Code §2518, only ‘qualified disclaimers’ will avoid gift tax liability. A qualified disclaimer must be made within 9 months after the interest is created or after the donee reaches 21.
        2. Avoiding creditors
      1. So the disclaimant is treated as having predeceased the decedent.
      2. Example page 134– O has two children, A and B. B dies, survived by one child, C. Then O, a widow, dies intestate. O’s heirs are A and C. A has four children. A disclaims. What distribution is made of O’s estate?








                                                        |                            |

                                          C1, C2, C3, C4                            C


          1. UPC §2-801(d)(1) (21106?)
            1. The disclaimed interest devolves as if the disclaimant had predeceased the decedent, but if by law or under the testamentary instrument the descendants of the disclaimant would share in the disclaimed interest by representation or otherwise were the disclaimant to predecease the decedent, then the disclaimed interest passes by representation, or passes as directed by the governing instrument, to the descendents of the disclaimant who survive the decedent.
              1. So above, because B is dead, C and C1-C4 would take by representation if A looked like he was dead, each getting 1/5, and this wouldn’t be fair because A could always just pretend to say he was dead to get them more than if he was alive.
              2. To remedy, when a disclaimer occurs and the generation is to take by representation, they don’t divide the interest at the C1-C4 and C level, but pass the disclaimed interest (1/2), so C1-C4 get 1/8 each.
          2. CPC §282(b)(1)
            1. The beneficiary is not treated as having predeceased the decedent for the purpose of determining the generation at which the division of the estate is to be made
          3. Analysis
            1. UPC/CPC divide at the A and B level- so ½ to A and ½ to C (modern per stirpes)
            2. Disclaim? Treat A as if they predeceased– so C now gets 1/5 instead of ½ (UPC 1105-1106, CPC 282)
            3. BUT- if they are to share by representation, then the disclaimed interest (1/2) not the 4/5 would pass to them
              1. C gets ½
              2. C1-C4 get 1/8 each
          4. Before the disclaimer, under the UPC, the estate would be divided under mofern per stirpes, half to A and half to C.
          5. If A disclaims– then treat A as having predeceased O, so where is the first cut made?
            1. UPC says it is only the disclaimed interest that goes down, so the ½ goes down,  so C still gets ½ and the children of A have to share the other ½
            2. Under CPC you get the same result as you cut at the first level even with a disclaimer


      1. Uncle Sam as a creditor is treated differently then other creditors:
        1. Drye v. US- She died leaving her son as the sole heri to her $233,000 estate. Prior to her death the son had run up an unpaid $325,000 tax bill, prompting the IRS to file tax liens against all his property and rights of property. Then, to keep his mothers estate away formt he IRS he disclaimed his interest→ this allowed the entire estate to pass ot his daughter Theresa who was next in line:
          1. The issue was wether the disclaimer was effective?
            1. The Court ruled that the disclaimer was not effective
            2. Rationale- The disclaiming heir still excerciese dominion over the property in deicding who gets it if he does not.  So the son “held” property or a tight to property subject to the government’s liens.
              1. So he held property subject to federal taxes
      2. Disclaimer Upheld Troy v Hart MD Special Ct of Appeals 1997 (p.136)
        1. Issue: may a Medicaid recipient disclaim an inheritance?
        2. YES.
        3. MD law requires that once an individual is eligible for and receives Medicaid benefits, he must notify the Department of Social Services within 10 working days of changes affecting eligibility.
        4. Lettich failed to notify DSS of his inheritance, which constituted a violation of applicable Medicaid law and deprived both state and federal governments of an opportunity to reassess his eligibility.
        5. BUT, court rules that the effect of Lettich’s execution of the disclaimer was to transfer his intestate interest to his surviving sisters.
        6. The sisters will take subject to any claims the state may have for Medicaid benefits.
        7. Kennedy-Kassebaum Health Reform Bill– Criminalizes someone who knowingly helps another dispose of assets to qualify for aid, if disposing removes a period of ineligibility.
      3. Reasons state would not allow disclaimer:
        1. If you try to disclaim, or fail to act to remain eligible for public assistance
        2. To manipulate the intestacy scheme under the UPC to change portion a devisee gets



























  1. Wills: Capacity and Contests– Week 5
    1. What may affect validity of will?
      1. Mental Capacity
      2. Insane Delusion
      3. Undue Influence
      4. Fraud
    2. Mental Capacity (Policy):
      1. Rationale: Mental capacity is required for the protection of society and the decedent’s family and the decedent themselves.
          1. Will must represent the Testator’s true intent/desire
          2. A mentally incompetent man or woman is not defined as a ‘person’
            1. This is historical and still exists today
          3. Protect the decedent’s family
            1. Giving effect to the expectations of inheritance tends to preserve the family as a unit for mutual support.
              1. Again also goes back to idea that this encourages people to care for elderly parents etc→ the inheritance is a delayed payment in reciprocity.
          4. Legitimacy cannot exist unless decisions are reasoned
          5. Gives the person when of sound mind the advantage of being able to choose what will happen to his property in the future and have confidence that this choice will be carried out whatever should happen later, e.g. go crazy and bequeath it all to Hendrik.
          6. May protect society at large from irrational acts
          7. May protect a senile or incompetent testator from exploitation by cunning persons
      2. Requirments are minimal: From In re Strittmater (see next section)
        1. Must be an adult (18) to make a will and of sound mind
          1. Test of Mental Capacity (sound mind test): The decedent must have mind and memory to:
            1. Know the nature and extent of the testator’s (his/her) property
            2. Know the persons who are the natural objects of his property (who he will favor in will)
            3. Comprehend the disposition the testator is making
            4. Know how these elements relate to manipulate a plan (constitute an orderly plan of disposing property)
        2. Realize that the sound mind test is one of capability and not one of actual knowledge. Also the question is not one of whether the testator is of average intelligence.
      3. How is will affected?
        1. Without Mental Capacity- entire will is void, as opposed to insane delusions, undue influence and fraud where only the affected portions are void
        2. Lucid interval? Period of clarity- then acceptable.
      4. Mentally Challenged?
        1. Different than lacking mental capacity. Although someone has below average mental capacity, they can still write will- otherwise, this would alienate half of the population.
      5. Illustration of the minimum requirements of mental capacityEstate of Wright pp.141
        1. The legal presumption is always in favor of sanity, especially after attestation by subscribing witnesses, for, it is the duty of the subscribing witnesses to be satisfied of the testator’s sanity before they subscribe the instrument
        2. Where the testator had numerous eccentricities and indulged in strange, even bizarre behavior, the court found that the will was valid and therefore should be submitted to probate.
        3. Testamentary capacity cannot be destroyed by showing a few isolated acts. Foibles, idiosyncracies, moral or mental irregularities or departures from the normal unless they directly bear upon & have influenced the testamentary act
        4. Focus is on the moment of making the will
      6. The fact that a person has been declared incompetent and put under a conservator does not necessarily mean the person has no capacity to execute a will thereafter.
        1. Capacity to make a will is goverened by a different legal test and requires less mental ability then to manage one’s investments, to make a contract, or to make a gift.
          1. E.g. In order to make an irrevocable lifetime gift, not only must one meet all elements for making a will, but one “must also be capable of understanding the effect that the gift may have on the future financial security of he donor and of anyone who may be dependent on the donor.” Pp.145
          2. Pp.145-146- Miss  Supreme Court stated that “ one whose property is under a coservatorship may write a valid will if the trial court finds that the will was written during a lucid interval.
        2. Interstingly, making a will requires greater legal capacity then getting married, and through marriage the surviving spouse gets a share of the senile spouse’s estate, even though he has no capcity to devise it to her.
      7. CPC §6100.5 Persons Not Mentally Competent to make a Will– at the time the person makes the will.
        1. If individual does not have mental capacity to
          1. Understand the nature of the testamentary act
          2. understand and recollect the nature and situation of the individual’s property
          3. remember and understand the individual’s relations to the descendants, spouse and parents
        2. (MORE OFTEN THE CASE) Individual suffers from a mental disorder with symptoms including delusions or hallucinations which result in the individual’s devising property in a way which, except for the existence of the delusions, the individual would not have done.
      8. What kind of evidence to bring in?
        1. CPC §6100.5- Nothing in this section supercedes existing law relating to the admissibility of evidence to prove the existence of mental incompetence or mental disorders.
      9. Ethical Obligation
        1. It is a professional breach of ethics to draft a will for an incompetent person
        2. A drafter must reasonably believe that the testator was reasonably competent at time of making the will
      10. Estate of Man (1986) CA- Court said that old age, forgetfulness, etc, do not necessarily furnish gorunds for a holding that testator lacks mental capacity→ also just because a testator committed suicide does not evidence a lack of mental capacity
        1. One must be capable of understanding what you are doing→ being mistaken is okay but one cant not be capable of understanding.




    1. Insane Delusion
      1. A person may have a sufficient mental capacity to execute a will but may be suffering from an insane delusion so as to cause a particular provision in a will- or perhaps the entire will to fail.
      2. The part of the will caused by the insane delusion fails→ if the whole will was caused by insane delusions then the whole will fails.
      3. Insane delusion is ruled when there is no rational basis for the decision made; testator adheres against all reasonable evidence to the contrary
        1. Minority: If there is any factual basis at all for the testator’s delusion, it is not deemed insane.
        2. Majority: A delusion is insane even if there is some factual basis for it if a rationa person in the testator’s situation could not have drawn the concludion reached by testator.
      4. These insane delusion cases often involve some false belief about a member of the testator’s family.
      5. In re: Strittmater NJ 1947 p149
        1. She lived with her parents, and wrote awful things about them. She became a member of the National Women’s Party because of her extreme feminist tendencies. In her will, she left her estate to the party, as had been her intention. The will was admitted to probate.
        2. Issue: May a will that was executed by a person with insane delusions about men be admitted to probate?
        3. Holding: No.
        4. Strittmater suffered from delusions and was split personality.
        5. There was a causal problem here→ the court here held that there was not a reaosoanble basis for her decisions and was deemed insane. This case illustrates male bias.
      6. In re: Honigman Ct Appeals NY 1960 p150
        1. Decedent, Frank Honigman told friends and strangers that he believed his wife was unfaithful.
        2. Issue: If a person believes facts that are against all evidence and probability and conducts himself upon the assumption of their existence in making his will, does he suffer from an insane delusion so as to defeat testamentary capacity?
        3. Holding: YES.
        4. Rule: If a person persistently believes supposed facts that have no real existence except in his perverted imagination and against all evidence and probability, and conducts himself upon the assumption of their existence, he is under a morbid delusion; and delusion in that sense is insanity.
      7. Insane delusion v. Mistake-
        1. Mistake of fact are susceptible to correction if person is shown truth.
        2. Insane delusion is belief of false information even shown the truth.
        3. Mistake will not invalidate a will- only the part that is product of the mistake.
        4. HYPO: T is mistaken, not suffering from insane delusion, that his son is dead. The court will entitle the will to be probated. This will give the child an intestate share.
      8. Living Probate:
        1. In some states one can probate a will during the testator’s life. These statutes allow a person to institute during life an adversary proceeding to declare the validity of a will and the testamentary capacity and freedom from undue influence of the person executing the will.



    1. Undue Influence
      1. Defined: Mental coercion that destroyed the testator’s free will and forced him to embody someone else’s intention in his will in place of his own. See Lipper v. Weslow pp.162 and below
        1. Must be a causal connection- actually cause testator to do something usually wouldn’t do
      2. 2 ways to prove: (1)direct evidence and (2) use of presumption (Lakatosh case below)
      3. Proof may be completely inferential and circumstantial. The influence can be that of a 3rd person imputed to the beneficiary.
      4. “This is against my will, but I must do it.”
      5. Test 1: Test of whether the testator was subjected to undue influence is a subjective one, measured at the time of the will.
        1. Testator was susceptible to undue influence
        2. The influencer had the disposition or motive to exercise undue influence
        3. Influencer had opportunity to exercise undue influence
        4. Disposition is the result of the influence, influence must have produced a will or a gift that expresses the intent not of the testator but of the one exerting the influence.
          1. Causal Relationship
      6. CPC §6104– a will or part or revocation will not be effective to the extent it was caused by duress, menace, fraud or undue influence.
      7. Analysis:
        1. Define
        2. Say that it is difficult to prove by direct evidence
        3. Because of this, courts have developed tests of circumstantial evidence (varies)
        4. The test of circumstantial evidence gives rise to a presumption for UI
        5. Presumption of UI can be rebutted- courts differ on how
        6. Confidential relationship between influencer and influenced is important- the opportunity and motive for undue influence
        7. Person influencing can be beneficiary, or one attributed to the beneficiary
        8. EVEN IF THERE IS UI- only those portions of will affected by it will be struck, the remainder of the will will be allowed to stand if they can be separated.
      8. Estate of Lakatosh­– 1994- Roger started seeing Rose (in her late 70’s). The elderly women came to depend on Roger as the only person with whom she really had substantial contact.
        1. Few months after meeting Roger suggested that Rose give him power of attorney.
        2. She did so and created a new will leaving all but $1000 of her $268,000 estate to Roger who was not present at the execution.
        3. Lawyer who drafter the will was Rogers second cousin.
        4. The tape recording of the execution revealed that she was easily distracted and had a weakened intellect.
          1. On the tape she also made mention of how her nephew had threatened to rob and kill her and that he was persecuting and torturing her.
        5. TEST 2: The court applied the test set out in Estate of Reichel (1979) pp.159:
          1. Contestant claiming unde influence has the burden of proof
            1. Burden may be shifted so as to require the proponent to disprove undue influence
          2. To shift the burden the contestant must prove by clear and convincing evidence:
            1. That there was a confidentional relationship,
              1. E.g. Attorney, power of attorney, family→ all have a trust relationship
            2. That he person enjoying such relationship received the bulk of the estate, and
            3. That the decedent’s intellect was weakened.
            4. In many Jxs, though, there must be further evidence that there was dominance over
          3. If this is presumption of undue influence burden is met, then the burden shifts back to the proponent to negate the undue influence.
        6. These three elements were easily met and so the court affirmed trial court, revoking the probate of Rose’s will and imposing a constructive trust on Roger int eh amount of $128,000.
      9. Requirement of Proof Showing Substitution of a Plan of Testamentary Disposition
        1. Lipper v Weslow TX Court of Appeals 1963Apply test 1– Here the scribner gets a lot of money
          1. Mrs. Sophie Block executed a will written by her son, Frank Lipper, 22 days before she died. Lipper bore malice against his deceased half-brother, who was excluded from the will.
          2. The children of the will contest it in that Mrs. Block was under undue influence by Frank Lipper.
          3. Issue: Must a person contesting a will on the basis of undue influence supply proof of the substitution of the plan of testamentary disposition by another as the will of the testatrix?
          4. Holding: YES.
          5. RULE: Challengers must prove in some fashion that the will, as written, resulted from D’s substituting his mind and will for that of the testator.
            1. Test for undue influence is whether such control was exercised over the mind of the testatrix as to overcome her free agency and free will and to substitute the will of another so as to cause the testatrix to do what she would not otherwise have done but for such control.
      10. DID WE DO THIS???Undue Influence a Question of Fact Where Testator is Easily Swayed
        1. In Re Kaufman’s Will NY 1964
          1. Decedent, Robert Kaufman, a millionaire by inheritance, lived with Walter Weiss for 8 years during which time Robert, in successive wills, increased Walter’s share of his estate.
          2. Upon Robert’s death, his brother sued to have the final will to set aside on the ground of undue influence.
          3. Court found undue influence, stating “where, as here, the record indicated that testator was pliable and easily taken advantage of, that there was a long and detailed history of dominance and subservience between them, that testator relied exclusively upon proponent’s knowledge…and proponent is willed virtually the entire estate, we consider that a question of fact was presented concerning whether there had been undue influence.


    1. No-Contest Clauses
      1. A no-contest clause provides that a beneficiary who contests the will shall take nothing, or a token amount, in lieu of provisions made for the beneficiary of the will. A no-contest clause is designed to discourage will contests.
      2. Policy:
        1. Pros: Discourages unmeritorious litigation, family quarrels and defaming the reputation of the testator.
        2. Cons: On the other hand, enforcement of a no-contest clause could inhibit a lawsuit proving forgery, fraud, or undue influence and nullify the safeguards built around the testamentary disposition of property.
      3. The majority of courts enforce a no-contest clause unless there is probable cause for the contest- including CA, with a few exceptions.
      4. Minority: Enforce no-contest clause unless the constestant alleges forgery or subsequent revocation by a later will or codicil, or the beneficiary is contesting a provision benefiting the drafter of will or any witnesses thereto.
        1. CA is minority in some respect as in 21306 a reasonable cause is needed when challenging on grounds of foregery or revocation
        2. CA take sposition that UPC where you only have tpo show probable cause increases litigation, therefore they require reasonable cause for certain issues.
        3. Under §21320 CA has a procedure whereby you as beneificary of will believe that one of other people under the will is going to bring a will contest, then you can file to get a declaratory judgment.
      5. CPC§ 21307.  Interested participant; Provision benefiting witness or person involved in drafting or transcribing instrument; contest; enforcement of clause
        1. A no contest clause is not enforceable against a beneficiary to the extent the beneficiary, with probable cause, contests a provision that benefits any of the following persons:
          1. A person who drafted or transcribed the instrument.
          2. A person who gave directions to the drafter of the instrument concerning dispositive or other substantive contents of the provision or who directed the drafter to include the no contest clause in the instrument, but this subdivision does not apply if the transferor affirmatively instructed the drafter to include the contents of the provision or the no contest clause.
          3. A person who acted as a witness to the instrument.
        2. So 2 showings necessary under CPC: beneficiary complaining has 1) probable cause, and 2) there is another beneficiary under the will who meets one of the criteria under the section (drafted the will, etc.)
      6. CPC §21306. Forgery, revocation, or action to establish invalidity of certain transfers; contest; enforcement of clause; “reasonable cause”
        1. A no contest clause is not enforceable against a beneficiary to the extent the beneficiary, with reasonable cause, brings a contest that is limited to one or more of the following grounds:
          1. Forgery.
          2. Revocation.
          3. An action to establish the invalidity of any transfer described in Section 21350.
        2. Reasonable cause” means that the party filing the action, proceeding, contest, or objections has possession of facts that would cause a reasonable person to believe that the allegations are likely to be proven after a reasonable opportunity for further investigation or discovery.
      7. CPC § 21350.  Limitations on transfers to drafters and others (IF any of the persons below are being contested to by some beneficiary, that beneficiary cannot be pushed out of the will by a no-contest clause. The thinking is that these are not random people, and deserve to be questioned about)
        1. Except as provided in Section 21351, no provision, or provisions, of any instrument shall be valid to make any donative transfer to any of the following:
          1. The person who drafted the instrument.
          2. A person who is related by blood or marriage to, is a cohabitant with, or is an employee of, the person who drafted the instrument.
          3. Any partner or shareholder of any law partnership or law corporation in which the person described in paragraph (1) has an ownership interest, and any employee of any such law partnership or law corporation.
          4. Any person who has a fiduciary relationship with the transferor, including, but not limited to, a conservator or trustee, who transcribes the instrument or causes it to be transcribed.
          5. A person who is related by blood or marriage to, is a cohabitant with, or is an employee of a person who is described in paragraph (4).
          6. A care custodian of a dependent adult.
        2. For purposes of this section, “a person who is related by blood or marriage” to a person means all of the following:
          1. The person’s spouse or predeceased spouse.
          2. Relatives within the third degree of the person and of the person’s spouse.
          3. The spouse of any person described in paragraph (2).


    1. Bequests to Attorneys
      1. Many courts have ruled that a presumption of undue influence arises when an attorney-drafter receives a legacy, except when the attorney is related to the testator.
        1. CPC §21350- Any bequest to a lawyer who drafts the will is invalidated
        2. CPC §21351(a) Exception to §21350– if lawyer is related by blood to the person in testate.
          1. 21351(b) Exception- permits bequest to non-related lawyer if the client consults an independent lawyer who attaches a “cert of independent review
            1. In this cert a reviewing lawyer states that he.she concludes the gift is not due to undue influence, duress, or fraud.
      2. The presumption can be rebutted only by clear and convincing evidence provided by the attorney.
      3. ABA Model Rules of Professional Conduct Rule 1.8(c) Conflict of Interest: Prohibited transactions
        1. A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee.
        2. Penalties applicable to attorneys violating the statute- Attorneys have both been suspended from practice and disbarred for drafting a will that gave him a share of the estate regardless of whether the will was contested or not.
      4. Undue Influence Arising Out of Attorney-Client relationship
        1. In Re Will of Moses MI 1969 p170- Court uses the presumption test, test 2 (there was confidential relationship)
          1. Fannie Taylor Moses, testator, during her second marriage, became friends with Clarence Holland, an attorney.
          2. Three years prior to her death, she made a will devising all of her property to Holland.
          3. Fannie Taylor Moses’ eldest sister attacked the will on the ground of undue influence.
          4. Issue: Does a presumption of undue influence exist where a sexual relationship between an attorney and client coexists with the attorney-client relationship?
          5. Yes The evidence here shows that the attorney who drafted the will was little more than a scrivener, and that there was no meaningful independent advice or counsel touching upon the area in question.
      5. Case: in re Kaufmann’s will: pp. 174
        1. 34 married man leaves family and moves in with man that is his lover
        2. Leaves lover in will entire estate
        3. his family contested based on undue influence
        4. after appeals—the court found that there was sufficient evidence ““to find that the instrument was the result of an unnatural, insidious influence operating on a weak-willed, trusting inexperienced Robert whose natural warm family had been accused of false accusations by Walter.
        5. Court found he was pliable and easily taken advantage of.
        6. Pp.176- “Where the record indicates the testator was pliable and easily taken advantage of…”
        7. Teacher says: undue influence why?
          1. Weak minded
          2. Confidential relationship
          3. And gave all of estate
          4. Court says enough


    1. Fraud
      1. Fraud occurs where the testator is deceived by a misrepresentation and does that which the testator would not have done had the misrepresentation not been made.
      2. Elements:
        1. Misrepresentation of fact, not opinion
        2. With INTENT to deceive the testator and
        3. With PURPOSE of influencing the testamentary disposition.
        4. Misrepresentation in fact influenced the testator– Was will based on legal existence of relationship (looks like misrepresentation influencing), or was it that the relationship itself cause the will
        5. Misrepresentation in fact influenced the will
      3. Only the provisions affected by fraud are void
      4. Types of Fraud
        1. Fraud in the inducement– causing someone to execute a particular will; for the benefit of the party who committed the fraud
          1. Invalid only if the testator would not have left the inheritance or made the bequest had the testator known the true facts. 
        2. Fraud in the execution– occurs when a person misrepresents the identity of the instrument the testator signed or the character or contents of the instrument signed by the testator
      5. 2 remedies:
        1. Probate is refused regarding the part of will that is tinged with fraud etc, OR
        2. Constructive Trust Imposed Where Testator Prevented From Executing Will
          1. Equitable remedy- the court imposes a trust upon property held by one party for the benefit of another because of some wrongdoing by the party in possession so as to avoid unjust enrichment. IT MAY NOT EVEN BE THAT THERE WAS FRAUD, merely unjust enrichment→ see Father Divine case below as example of constructive trust
          2. Seemst hat consturictve trust is set up when there is not either of the frauds but it seems unfair for the person to take, e.g. problem 1 on pp.188
      6. Problems pp.188
        1. Problem 1- There was no fraud in inducement or execution however it would be unjust for her to take, so the court grants her a constructive trust.
    2. DURESS
          1. Latham v Father Divine NY 1949 p215
            1. Will of Mary, testator, gave almost her whole estate to Father Divine, leader of a religious cult
            2. After making the will, T expressed desire to revoke the will and execute a will whereby Ps would receive a large amount.
            3. Shortly before her death, T had attorneys draft a new will, but before she could execute it, Ds by influence and physical force, prevented her from doing so.
            4. RULE: Where an heir or devisee in a will prevents the testator from providing for one for whom she would have provided but for the interference of the heir or devisee, that heir or devisee will be deemed a trustee, by operation of law, of the property, real or personal, received by him from the testator’s estate, to the amount or extent that the defrauded party would have received had not the intention of the deceased been interfered with.
          2. Note 4 pp.193- Unjust enrichment usually leads to constructive trust, this is when we don’t have all the elements to prove fraud, undue influence etc.
            1. Only duty is to pass property off
          3. Note 3 pp. 193
    3. TORTIOUS interference with an expectancy
      1. Finding a remedy where there has been fraud or undue influence
      2. Not used to challenge a will; try to get court damages from a 3rd party for some tortuous act preventing inheritance
        1. Does not affect the vailidity of the will

        Marshall v. Marshall (Anna Nicole Smith)

        1. The issue in this case was whether J.Howards son had tortiously interefered with J.Howards intervivos gifts to Anna
        2. Court found for her
        3. The 9th circuit court of appeals reversed under Probate exception– must 1st pursue remedies & if those are not adequate then an action in tort lies

        Test for tortuous interference w/expectancy:

        1. π must prove (1) existence of an expectancy (2) a reasonable certainty that the expectancy would have been realized but for the interference (3) intentional interference w/that expectancy (4) tortuous conduct involved w/the interference & (5) damages













  1. Execution of Wills
    1. 3 Requirements of Execution
      1. In writing
        1. Exception– Oral Will- but there are strict requirements as to conditions
      2. Signed by Testator
        1. Exception- If testator is frail or illiterate, someone else can sign
      3. Witnessed and Attested
        1. Exception- Holographic wills

B) Reasons for formality

              1.     Ritual– the Ct needs to be convinced that the statements were deliberately intended to effectuate a transfer

              2.     Evidentiary– increase the reliability of the proof presented to the Ct

              3.     Protective– safeguarding the testator, at the time of the execution of the will, against undue influence or other forms of imposition

4.     Channeling functionEncourages individuals to consult an atty to draft and supervise the execution of their wills, accounts too, ect. Makes it easier to determine the true wishes of the person at death if they are formalized


    1. Basics
      1. CPC § 6100: Persons who may make will
        1. An individual 18 or more years of age who is of sound mind may make a will.
        2. A conservator may make a will for the conservatee if authorized by a court order.
      2. CPC § 6101: Property which may be disposed of by will
        1. A will may dispose of the following property:
          1. The testator’s separate property.
          2. The one-half of the community property that belongs to the testator under Section 100.
          3. The one-half of the testator’s quasi-community property that belongs to the testator under Section 101.
    2. Writing and Basics
      1. CPC§ 6110: Necessity of writing; other requirements
        1. Will shall be in writing and satisfy the requirements of this section.
        2. The will shall be signed by one of the following:
          1. By the testator, OR
          2. In the testator’s name by some other person in the testator’s presence and by the testator’s direction, OR
          3. By a conservator pursuant to a court order to make a will
        3. The will shall be witnessed by being signed by at least two persons each of whom:
          1. Being present at the same time, witnessed either the signing of the will or the testator’s acknowledgment of the signature or of the will, AND
          2. Understand that the instrument they sign is the testator’s will.

2.     UPC §2-502 (a) a will must be (1) in writing (2) signed by the testator & (3) signed at least by 2 individuals, each of

        Whom signed w/in a reasonable time after he witnessed the signing or the testator’s acknowledgment

    1. Signature
      1. Order of Signing-
        1. Can not have the witnesses sign before the testator.
        2. Also, must have testator complete the whole signature while witnesses are present.
      2. Signature- In CA, an “X” is acceptable for a testator only if they can’t sign name, BUT a witness must write his name out and then sign the witnesses name next to it to “witness” that the X was from the testator.
        1. Rubber stamp- probably ok
        2. Digitized scan of signature- valid under TN statute
      3. Location of signature?
        1. CL- (subscription) must be at bottom and appear as the last writing.
        2. Modern- Can sign anywhere
      4. No videotape will allowed
      5. Delayed attestation?– Witnesses may sign after death of testator, but must be reasonable time.
      6. Addition after signature?
        1. What if something is written after the signature, is it entitled to probate?
        2. If the handwritten line was written after the testator signed the will, the will would be admitted to probate and the line would be ineffective as a subsequent unexpected codicil.
        3. If the handwritten line was added before the testator signed her name, it depends.
          1. Incorporation by reference


    1. Witnesses
      1. UPC 2-502: Execution; Witnessed Wills, Holographic Wills:
        1. Wills must be:
          1. In writing
          2. Signed by the testator OR in the testator’s name by some other individual by direction of testator, AND
          3. Have 2 witnesses sign in a reasonable amount of time (ie before death) after the testator signs
            1. So this dispenses with requirement that the witnesses must sign in presence of testator→ so here the types of presence are of no import.
        2. A will that does not comply with the above is valid as a holographic will, even if not witnessed, if signature and material portions are in testator’s handwriting
      2. Requirement that both witnesses be present
        1. In re Groffman England 1968 p204 (p.80 of notes)- Like CA statute
          1. Charles Goffman, Testator, asked solicitor who prepared his will, and a friend to witness his will.
          2. Goffman had them witness individually as opposed to together
          3. Issue: For a will to be valid, must it be signed by the testator in the presence of two or more witnesses present at the same time with the witnesses signing the will in the presence of the testator?
          4. YES. Probate denied.
          5. Here, there was no acknowledgment or signature by T in the presence of two or more witnesses at the same time.
          6. Today, as a result, doing less than the ceremonial formality risks putting your execution process in litigation, even in CA.
        2. Stevens v. Casdorph (see notes)
      3. 2 exceptions for witnesses signing in the presence of the testator:
          1. Presence by itself seems to focus on visual only CA
          2. UPC- Conscious presence test– testator through all of his senses is aware of the act of the signing. This is for blind testators really.
          3. CL- Line of sight test– assumes you would see the testator if you were looking up.
            1. Problematic- old people cant see
        1. HYPO: Attorney brings will to T, witnesses and signs it, and brings it to his secretary, the T calls secretary and asks her to witness it, she does. Valid? No. Over the phone, T does not know that the document is his will that is being witnessed.
        2. CPC §6110 if signed on behalf of T; must be in the presence of the T; witnesses must be present at the same time when T signs; BUT does NOT req that witnesses sign in T’s presence
        3. UPC §2-502 witness need not be in testator’s presence when they sign; reqs witness see T sign
      4. CA requires only one witness for proof of execution
        1. CPC § 8220: Subscribing witness; affidavit; deposition
          1. Unless there is a contest of a will:
            1. The will may be proved on the evidence of one of the subscribing witnesses only
            2. Evidence of execution of a will may be received by an affidavit of a subscribing witness to which there is attached a photographic copy of the will, or by an affidavit in the original will that includes or incorporates the attestation clause.
            3. If no subscribing witness resides in the county, but the deposition of a witness can be taken elsewhere, the court may direct the deposition to be taken.
        2. CPC § 8221: Subscribing witness unavailable; handwriting; witnesses’ signatures; affidavit of person with personal knowledge
          1. If no subscribing witness is available as a witness court may permit proof of the will by proof of the handwriting of the Testator AND one of the following:
            1. Proof of the handwriting of any one subscribing witness.
            2. Receipt in evidence of one of the following documents reciting facts showing due execution of the will
              1. A writing in the will bearing the signatures of all subscribing witnesses.
              2. An affidavit of a person with personal knowledge of the circumstances of the execution.
      5. Competency of Witnesses– At the time the will is executed the witness must be mature enough and of sufficient mental capacity to understand and appreciate the nature of the act he is witnessing and to be able to testify in court should this be necessary.
      6. Interested/Disinterested Witnesses
        1. Interested witnesses– At common law, if an attesting witness was also a beneficiary of the will, the witness-beneficiary was not a competent witness and the will was denied probate.
          1. TODAY, however, most jurisdictions have interested witness statutes, which provide that if an attesting witness is also a beneficiary, the gift to the witness is void but the witness is competent, and the will may be probated.
          2. Remember here, we are only talking about witnessing a will.
        2. RULE: Never use an interested witness, even if allowed in the state.
          1. Witness’ credibility will be challenged if there is a contest
          2. Better to have more witnesses than your state requires in case you move to another state
        3. Traditional approach– if witness had interest, the entire will is void
          1. Estate of Parsons CA 1980 p211 (majority but NOT CA???not anymore???)
            1. Three persons signed the will of the decedent, 2 of them were named in the will as beneficiaries.
            2. Issue: Is a subscribing witness to a will who is named in the will as a beneficiary a disinterested subscribing witness as required by statute? NO
            3. UPC §51 provides that a gift to a subscribing witness is void unless there are 2 other DIS-interested witnesses to the will.
            4. CL– party to an action who had a direct interest in its outcome was not competent to testify in ct
            5. It follows that a subsequent disclaimer will be ineffective to transform an interested witness into a disinterested one within the meaning of that section.
        4. Purging approach When an interested witness attests to the will, only that witness’ interest above and beyond what the witness would have received without a will is void. Purging statutes push that witnesses share into residuary.
          1. CPC § 6112: Witnesses; interested witnesses
            1. A will or any provision thereof is not invalid because the will is signed by an interested witness.
            2. Unless there are at least two other subscribing witnesses to the will who are disinterested witnesses, the fact that the will makes a devise to a subscribing witness creates a presumption that the witness procured the devise by duress, menace, fraud, or undue influence.
        5. Express approach (MODERN)– The witness gets the least between two options (because heirs would take under intestacy anyway)
          1. If there are 2 wills and 2nd gives more, witness gets property in 2nd, but nothing in excess of first
          2. If there is only 1 will, witness will not get in excess of what he would by intestacy
        6. Irrelevant interest approach (UPC)– does not matter if witnesses are interested- they don’t forfeit anything.
          1. UPC minimizes formalities
            1. Witnesses not required to sign in presence of T and each other
            2. Beneficiary who acts as a witness is no longer prevented from taking
            3. Unwitnessed holographic wills may be admitted to probate
        7. Lawyer who drafts will may be held liable for faulty execution, like for not warning Testator that it cannot be witnessed by a spouse. Some states, however, will retain a privity barrier.
    2. Harmless Mistake/Error
        1. COMMON LAW IN re: Pavlinko’s Estate Supreme PA 1959 p220
          1. Decedent, Pavlinko, by mistake signed the will of his wife, Hellen, and Hellen by mistake signed the will of her husband. The drafting attorney and his secretary signed as witnesses. The trial court refused to probate the will of Pavlinko.
          2. Issue: Will a court reform a will to allow probate when there is a mistake in execution of the will in that one party mistakenly signs the will of another? No.
          3. Policy to uphold the wills act, and not make exceptions, no matter what the cost. Today, mistakes can be corrected where equitable.
      1. Formalities in execution of wills- The formalities frustrate the matter when rigid insistence on literal compliance invalidates a will that is the deliberate and voluntary act of the testator
      2. UPC § 2-503 Harmless Error: Movement to correct mistakes, substantial compliance, not to frustrate the intent of the testator (Adopted in CO, HI, MI, MT, SD, UT).
        1. If document is not in compliance with 2-502, the document is still treated as valid if by clear and convincing evidence it is shown that the decedent intended the document to constitute:
          1. His will
          2. Partial or complete revocation of his will
          3. Addition or alteration of the will
          4. Partial or complete revival of his formerly revoked will
        2. Substantial compliance test (as opposed to harmless error test) does not rely on the testator’s intent as much
    3. Self Proving Affidavits
      1. This allows the will to be probated if the witnesses are dead, cannot be located, or have moved far away.
      2. Procedure in which the testator and the witnesses, after executing the will, execute in front of a notary public an affidavit reciting that all of the requisites for due execution have been complied with.
      3. UPC § 2-504 authorizes self-proving affidavits, and combined attestation
      4. UPC § 3-406 provides that, if a will is self-proved, compliance with signature requirements for execution is conclusively presumed.
      5. Self Proved Wills/Attestation is prima facie evidence that will was signed by testator in presence of witnesses
        1. In re Will of Ranney Supreme NJ 1991 p26
          1. Issue: Can a will with a self-proving affidavit signed by two witnesses be admitted to probate, although the witnesses did not sign the will itself, they signed an attached self-proving affidavit?
          2. YES, the affidavit was part of the will and therefore was enough to make the will valid, no need for two signatures. Court held that it substantially complied with the requirements.
          3. Substantial Compliance Test (CA)- (near miss) details almost all ok
            1. CPC §8220- unless there is a will contest can prove a will by testimony of only 1 witness or simply by providing an affidavit
          4. Dispensing Power- focuses on the intent of the testator
    4. Choice of Law
      1. Most states have statutes recognizing a will is valid if executed with the formalities required by
        1. The state where the testator was domiciled at death OR
        2. The state where the will was executed OR
        3. The state where the testator was domiciled when the will was executed.
          1. If you execute a will in TX, but move to CA and die, it is valid if it complies with CA requirements, but also if with TX at time of execution
      2. CPC § 6113: Validity; execution: (Meant to deal with conflicts of law issues)
        1. A written will is validly executed if its execution complies with any of the following:
          1. The will is executed in compliance with Section 6110 or 6111 or Chapter 6 (commencing with Section 6200) (California statutory will) or Chapter 11 (commencing with Section 6380) (Uniform International Wills Act).
          2. The execution of the will complies with the law at the time of execution of the place where the will is executed.
          3. The execution of the will complies with the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode, or is a national
    5. Recommended Method of Executing Will
      1. Procedure
        1. If the will consists of more than one page, the pages are fastened together, the will specifies exact number of pages.
        2. The lawyer should be certain that the testator has read the will and understands its contents
        3. The lawyer, the testator, two disinterested witnesses and a notary public are brought together in a room and everyone else is excluded
        4. The lawyer asks the testator the following
          1. Is this your will?
          2. Have you read it and do you understand?
          3. Does it dispose of your property in accordance with your wishes?
        5. Lawyer asks testator “do you request…(witnesses) to witness the signing of your will?”
        6. The testator signs on margin of each page
        7. One of the witnesses reads the attestation clause, which attests that the things were done.
        8. Each witness signs and writes his or her address next to the signature.
        9. Self-proving affidavit, typed at end of will, swearing before a notary public that the will is executed, is signed by testator and witnesses before notary who signs it and attaches seal.
      2. Safeguarding a Will
        1. Give it to the client with instructions to keep it safe. Problems is that they write on it, hide it so it can’t be found
        2. Have the drafting lawyer keep it: Problem is that it is soliciting business an unethical practice,
        3. Deposit it at Probate Court: Best idea, but few people know about it























  1. Holographic Wills
    1. Holographic wills-
      1. Handwritten and signed by the testator; attesting witnesses are not required.
      2. About half of states permit these.
      3. UPC § 2-502(b) A will… is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator’s handwriting.
      4. CPC § 6111  Holographic will (Watch for Material Provisions and Date)
        1. A will that does not comply with Section 6110 is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.
        2. If a holographic will does not contain a statement as to the date of its execution and:
          1. If the omission results in doubt as to whether its provisions or the inconsistent provisions of another will are controlling, the holographic will is invalid to the extent of the inconsistency unless the time of its execution is established to be after the date of execution of the other will.
          2. If it is established that the testator lacked testamentary capacity at any time during which the will might have been executed, the will is invalid unless it is established that it was executed at a time when the testator had testamentary capacity.
        3. Any statement of testamentary intent contained in a holographic will may be set forth either in the testator’s own handwriting or as part of a commercially printed form will.
      5. Several states, however, require that a holographic will be ‘entirely’ handwritten., not just material provisions. This furnishes more complete evidence for inspection by handwriting experts than would exist only if the signature were available.
        1. Testamentary Provisions not in handwriting of testator
          1. In re Estate of Johnson AZ Ct of Appeals 1981 p264- UPC 1969
            1. Will of Johnson was on a printed will form available in office supply stores.
            2. Issue: May an instrument be probated as a holographic will if it contains words not in the handwriting of the testator if such words are essential to the testamentary disposition?
            3. No- printed words were essential to establish intent→ not probated
            4. Rule: An instrument may not be probated as a holographic will if it contains words not in the handwriting of the testator if such words are essential to the testamentary disposition.
      6. Informal Will
        1. Kimmel’s Estate Supreme PA 1924 p237
          1. Issues:
            1. May an informal letter be testamentary in character?
            2. Is the signature “Father” sufficient to comply with the Wills Act?
          2. Yes- Where a testator’s purpose was to make a posthumous gift, deeds, letters, powers of attorney and an informal letter of requests have been held as wills.
          3. Yes- The signature ‘father’ was intended as a complete signature. It was the method employed by Kimmel in signing all letters.

b.    In re Estate of Kuralt 2000 p.245

              1) T made a will & left everything to W & children. Wanted to create a codicil & convey real property to his

                  “friend”. Wrote letter to friend- that hes hill & is going to get a lawyer to ensure she inherits the land in

                  Montana→ died w/o getting codicil.

              2) Friend files for ancillary probate of letter

              3) Honored the intent of the testato- the use of the term inherit underlined

      1. Wills that contain partial handwriting and partial typeface
        1. California has not upheld written portions on typeface will- when they by themselves can not make sense as a will without reference to the typed words.
        2. UPC provides that testamentary intent can be established for a holographic will by looking at portions of the document that are not in the T’s handwriting- as long as material portions are handwritten.
      2. General Rule of Thumb– when executing a holographic will, keep the entire will consistent- either TYPE or HANDWRITE all material provisions.





































  1. Revocation of Wills
    1. 3 ways (Common Law): A will is an ambulatory document, meaning it is subject to modification.
      1. Subsequent will/Codicil [i.e. Revocation by Writing]
        1. Codicil is in essence a will.
      2. Physical Act
        1. tearing, destroying, burning.
        2. Need both simultaneously:
          1. Intent to revoke, AND
          2. Physical act
      3. Operation of law– if a testator gets married or divorces after executing a will, this change may revoke all or part of the will.
    2. 3 ways UPC § 2507 CPC § 6120
      1. Subsequent will revokes by:
        1. express written statement (“This will revokes the previous will”)
        2. inconsistency w/ 1st will
      2. Physical Act—T must revoke himself, need both simultaneously:
        1. Intent to revoke, AND
        2. Physical act
      3. Revoked by someone else if done at testator’s direction AND in testator’s presence.
      4. NO oral revocation
    3. Subsequent Will/Codicil (Revocation by Writing)
      1. RULE:  Partial revocation by subsequent instrument:  always allowed.
      2. A subsequent will wholly revokes the previous will by inconsistency if the testator intends the subsequent will to replace rather than supplement the previous will.
      3. A subsequent will that does not expressly revoke the prior will but makes a complete disposition of the testator’s estate is presumed to replace the prior will and revoke it by inconsistency.
      4. If the subsequent will does not make a complete disposition of the testator’s estate, it is not presumed to revoke the prior will but is viewed as codicil. A codicil supplements a will rather than replacing it.
        1. Entire will #1 is NOT completely revoked—only the provisions that are inconsistent.
        2. Problems p252- In 1995, T executes a will that gives all her property to A. In 1997, T executes a will that gives her diamond ring to B and her car to C. It contains no words of revocation. Even though the 1997 will makes no reference to the earlier will, the 1997 will is ordinarily called a codicil.
          1. In 1999, T destroys the codicil with the intention of revoking it; T dies in 2000. The 1995 will is offered for probate. Should it be admitted? It should, because revoking the codicil is not affected by an antirevival statute because it doesn’t revoke an entire will, merely a codicil which gave portions of her will to someone T later chose not to.
          2. Suppose instead, that T destroys the 1995 will with the intention of revoking it. After T’s death the codicil is offered for probate. Should it be admitted?
            1. Typically no, unless:
              1. Codicil is sufficient will and T’s intent is shown.
      5. If a duly executed will is intended to be revoked, but is not done so in a manner permitted by statute, the will is admitted to probate.
    4. Revocation by Physical Act
      1. Crossing out with pen
        1. Defacement = physical act of destruction.
        2. RULE:  Cancellation must touch words of will
        3. Must physically affect the written portion of the will and be written by testator
          1. Thompson v. Royall Supreme VA 1934 p255
            1. Sept 4 1932, Knoll signed a will consisting of five sheets of legal paper.
            2. Sept 19 1932 at Knoll’s request, her attorney and her executor took the will and codicil to her home, where she told the attorney to destroy both.
            3. Instead of destroying them, she decided to retain them as memoranda.
            4. On the back of the manuscript cover, in handwriting of her attorney, signed by Knoll was written: “This will null and void and to be held only by the executor instead of being destroyed as a memorandum for another will if I desire to make same.” The same notation was made on the back of the codicil, except that the name of the attorney was substituted for the executor.
            5. Issue: Must written words used for revocation by cancellation of a will be so placed as to physically affect the written portion of the will?
            6. YES– A will must be revoked as prescribed by statute, either by
              1. some writing declaring an intention to revoke and executed in the same manner as a will or by
              2. cutting, tearing, burning the will with intent to revoke.
            7. Here, the notations made on the back of the will are not wholly in T’s writing, nor are her signatures attested by subscribing witnesses. Hence, under the statute they are ineffectual as ‘some writing declaring an intention to revoke’.
        4. UPC §2-507 would change the result in Thompson v. Royall. It provides,
          1. A burning, tearing, or canceling is a revocatory act on the will, whether or not the burn, tear, or cancellation touched any of the words on the will. Words of cancellation, however, must be written on the will, whether or not they touch the words of the will. They cannot be written on another document.
        5. *If a self-proving affidavit was attached to a will and the notation in Thompson v. Royall made by Ms. Kroll was made across the affidavit, it would be considered a cancellation touching the words of the will.
      2. If will is missing
        1. Presumption of revocation
          1. Harrison v. Bird Supreme AL 1993 p277
            1. T executes a will naming Harrison as beneficiary. T wants to revoke- calls atty who tears the will into 4 pieces and sends to T. After T dies found letter but not will.
            2. If evidence establishes that T had possession of the will before her death, but the will is not found among- a rebuttable presumption arises that T destroyed the will
          2. Compared with Trusts—not presumed to be revoked if can’t find after testator dies.
        2. CA RULE: different! If will missing, don’t presume that it’s revoked.  If we can’t find original, but duplicate is found, duplicate might be considered. CPC § 6124
        3. Probate of lost or destroyed wills– In the absence of a statute, the fact that a will is lost or is destroyed without consent of testator, does not prevent its probate, provided its contents are proved.
          1. A lost will can be proved by a duplicate in the lawyer-drafter’s office or by a secretary who typed the will or by other clear and convincing evidence.
          2. Note on “Duplicate” v. “Copy” (VERY IMPORTANT DISTINCTION!)
            1. Duplicate is not same as copy.  “Duplicate” and “original” are the same thing b/c they’re executed at the same time.  “Copy” is a reproduction of the duplicate
              1. Q:  If T rips up a copy of a will w/ intent to revoke will, is it revoked?  No.
              2. Q:  If T rips up duplicate of a will w/ intent to revoke will, is it revoked?  Yes, b/c duplicate = original CPC § 6121
              3. BUT See CA RULE if missing will, Duplicate will is valid.
          3. The opportunity of an heir to enter house after death of T and destroy the will, and later claim they couldn’t find it- is alone not enough to rebut presumption that it was revoked- meaning, that just because heir could have gone in and torn up will, doesn’t mean that we shouldn’t believe it actually was revoked. It may actually have been revoked!
          4. Minority – In a few states, statutes prohibit the probate of a lost or destroyed will UNLESS the will was “in existence” at the testator’s death (and destroyed thereafter) or was “fraudulently destroyed” during the testator’s life. 
      3. Partial Revocation by Physical Act
        1. RULE:  Partial revocation by subsequent instrument: always allowed.
        2. UPC § 2-507 and the statutes of many states authorize partial revocation by physical act not allowed in few states.
        3. CA allows partial revocation by physical act
        4. Can’t increase gift.
        5. Can’t change devisee
        6. Extrinsic evidence is generally admissible to show whether the testator intended only a partial revocation.
        7. Reasons not to allow partial revocation by physical act
          1. Canceling a gift to one person necessarily results in someone taking the gift, and this ‘new gift’ like all bequests- can be made only by an attested writing.
          2. Permitting partial revocation by physical act offers opportunity for fraud.
        8. Effect of not allowing partial revocation– In jurisdictions that do not allow partial revocation, like a line striking, the act of doing so is given no effect. Thus, if the testator crosses out a bequest to Tom, Tom takes despite the attempted cancellation.
        9. HYPOS: Testator had will to relatives and struck out with pencil one line. There is no direct evidence mark was made by T. Does it stand?
          1. In UPC §2-507?
            1. Canceling stands- but maybe with pencil, there might not be ‘intent’, or there could be fraud.
            2. Canceling stands when there is complete devise, but usually not when it enhances another person’s bequest. Ex- $10,000 to A and B, and A is later struck.
            3. Re of Property, Wills doesn’t like limiting partial revocation like this.
          2. What if state doesn’t allow partial revocation?
            1. Won’t allow strike, because it is partial revocation, but entire will is not revoked, it is probated and portion struck passes by intestacy. Above, relatives would only take if by intestacy.
          3. What if T’s will is holographic?
            1. Has no effect, the partial revocation stands as valid.
    5. Dependent Relative Revocation
      1. Need 2 wills and second one fails:
        1. Will number 2 revokes number one.
          1. Will #1 created
          2. Will #2 created → revokes #1
          3. Will #2 fails → is revocation of will #1 not effective?
            1. If a T cancels or destroys a will w/a present intention of making a new one & as a substitute & the new will is not made or fails- it will be presumed that the T preferred the old will to intestacy & the old one will be admitted to probate in the absence of evidence overcoming the presumption
        2. Number two fails- what do you do?
          1. Either the testator dies intestate,
          2. OR you don’t have revocation of second take effect, you give them the first will.
      2. If the testator purports to revoke his first will upon mistaken assumption of law or fact, revocation is ineffective if testator would not have revoked his will had he known the truth. 
      3. The doctrine requires:
        1. Intent to revoke to make a new testamentary disposition that for some reason was ineffective
        2. T’s intent was premised on a mistaken belief as to the validity of the new disposition.
        3. Physical act executed w/ formalities
        4. The invalidation of the revocation would be consistent with T’s probably intent
      4. RULE:  If the court finds that the testator would not have destroyed his will had he known the new will was ineffective, the court, applying the doctrine of dependent relative revocation, will cancel the revocation and probate the destroyed will.
      5. DRR gets is based on a presumption against intestacy
        1. LaCroix v. Senecal- T executed will #1 giving ½ her estate to nephew & ½ to friend. T executed a codicil & replaced will #1 w/almost identical language- referred to nephew by both nickname & formal name. 2nd will failed due to witness issues.
          1. DRR gist- where the intention to revoke is conditional & where the condition is not fulfilled the revocation is not effective
            1. Must have clear intent of T that the revocation #1 is conditional on validity of #2
      6. Limits on DRR
        1. Courts have set limits on the dependent relative revocation doctrine, saying it only applies
          1. Where there is an alternative plan of disposition that fails OR
            1. Usually in the form of another will, either duly or defectively executed
          2. Where the mistake is recited in the terms of the revoking instrument or, possibly, is established by clear and convincing evidence. (extrinsic evidence)
      7. Problems p262
        1. Formal type-written will, leaving $1000, but corrections made by writing in new amount, $1500, to leave to nephew. Even with initials and date, what happens? Nephew feels that he at least gets $1000 or hopefully $1500.
          1. What about state that recognizes holographic wills? (Like CA)? Is it valid if there isn’t full signature?
            1. Are all the material provisions in handwriting of T? No- intent not there
            2. CA- initials alone unintelligible- use DRR
          2. State that does not permit physical act revocation?
            1. $1000
          3. State that does permit?
            1. Probably $1000, because partial revocation was not done correctly, but DRR comes into effect and at least gives them first will. 
          4. Does doctrine of dependent relative revocation apply in state that permits partial revocation by physical act?
            1. Yes.
        2. Typewritten will contains legacy of $5000 to John. T crosses out John and puts Nancy. Nancy cannot take because her gift is not attested to. In a state permitting partial revocation by physical act, should the legacy to John be given effect again because of DRR?
          1. DRR could not be used because the means to revoke here, are valid. DRR is used when means to revoke are not valid. While Nancy does not take because the new devise is invalid, John cannot take. The legacy passes by intestacy.
          2. In a state that recognizes holographic wills, the notation to Nancy is not valid, because alone it does not stand as a will. BUT- if the entire will was handwritten, the change would be permitted.
        3. Body Heat HYPO: First will gives half to wife and niece. T is killed and new will substituted which gives half to wife and puts niece’s share in trust which purposefully violated rule of perpetuities. Lawyer pronounces that the will is void, so intestate succession gives wife all of it. What option could lawyer use to get niece her share?
          1. DRR- say that the husband made new devise which was invalid, and had he known, he would have liked to reinstate first one.
      8. Problems p263
        1. Preparing to make new will, T writes VOID across duly executed will. She shows it later to lawyer and instructs him to make new one. He does so, and the new one is wrong (because it went to the wrong people), she mentions this, but before it is changed, she dies. Lawyer testifies who the beneficiaries were supposed to be under the new will. Does DRR apply so as to cancel the revocation of the earlier will?
          1. Probably not- the lawyer’s testimony may be insufficient evidence of a definitive alternative plan of disposition. Has to be clear and convincing evidence.
        2. T bequeaths $5000 to Judy and residue of estate to Mark. Then T executes a codicil that “revokes legacy to Judy because she is dead”. In fact, she is alive. What happens?
          1. Courts have ruled no revocation here because the cause is false. Judy gets $5000.
        3. If the codicil read “I revoke the legacy to Judy, since I have already given her $5000”, and in fact there was no gift?
          1. Most likely, the revocation would stand. Even if it was based on a mistake, this kind of mistake is not the kind the courts reform.
        4. Suppose a codicil reads only “I revoke legacy to Judy”, but evidence later shows T was told Judy died? (This brings up issue of where mistake must be).
          1. In order for DRR to apply, must have:
            1. alternative plan if disposition fails, OR
            2. mistake of fact to be recited in terms of the revoking instrument. 
          2. Here, we would NEED revocation by subsequent instrument (not revocation by physical act). 
          3. Has to be reason to revoke, like mistake. IF mistake, you can use DRR- but courts differ on where mistake has to be.
          4. Salmonski cited to say mistake has to be in the revoking codicil.
          5. Anderson case cited- says doesn’t have to be in document- can be on lawyers testimony.


    1. Revival
      1. Need 2 wills and T revokes second:
        1. Testator executes will #1
        2. Testator executes will #2 which revokes will #1 by express clause or by inconsistency
        3. Testator revokes #2.
        4. Question: Did #2 revoke #1?
        5. Question: Is #1 revived?
      2. 3 views of revival:
        1. (English/Minority) Will #1 was never revoked because Will #2 is not effective until T’s death.
        2. (Minority) Will #1 cannot be revived unless re-executed with testamentary formalities.
        3. (Majority/CA) Upon revocation of Will #2, Will #1 is revived if T so intends. 
          1. UPC § 2-509 and CPC § 6123 view.
          2. T’s intent controls. Must have evidence that testator intended the revocation of the second will to re-instate the first will in its place
          3. 3 presumptions of UPC § 2-509
            1. If a subsequent will that wholly revoked the previous will is revoked by physical act, the presumption is that the previous will remains revoked.
              1. WHY does this make sense?  It is plausible to assume that T did not think that the wholly revoked will had any continuing effect. He has already revoked one will, and now just destroys second.
            2. If a subsequent will that partly revoked the previous will is revoked by physical act, the presumption is that the previous will is revived.
              1. WHY does this make sense?  It is plausible to assume that T knew that the partially revoked will had some continuing effect.  Therefore, it is plausible to assume that T’s revocation was intended to restore the original terms.
            3. If a subsequent will that partly or wholly revoked the previous will is revoked by later writing, the later will must say earlier will is revived in order to have that effect.
              1. WHY does this make sense?  T is expressing his intent in writing; we can expect him to express his intent on revival as well in the same writing.
        4. CPC- Presumption is that will #1 is NOT what T wanted, and upon revocation of will #2, the #1 remains revoked.
      3. DRR Applicable where later will revoked under mistaken belief that doing so reinstates prior will Unique scenario, where testator actually revokes will #2. Question is- does that revive will #1?
        1. Estate of Alburn Supreme WI 1963 p292
          1. Decedent, Alburn, executed a will in WI in 1955 through attorney, George Affeldt (first will).
          2. Alburn then moved to IL and in 1959 executed another will (second will).
          3. Alburn then moved to WI and instructed her brother, Edwin Lehmann, to dispose of the IL will (second will), which she had torn up. He did so.
          4. Olga Lehmann, wife of Edwin (brother), testified that Alburn told her that she wanted the WI will to stand (first will).
          5. Issue: When a testator revokes a later will under the mistaken belief that by doing so she is reinstating a prior will, may the doctrine of dependent relative revocation be invoked to render the revocation ineffective?
          6. YES. The IL is reinstated and should be admitted to probate.
          7. The usual situation for application of DRR arises when a testator executed one will and thereafter attempts to revoke it by making a later testamentary disposition that for some reason proves ineffective. In that situation, the second is given effect despite the mistake.
          8. However, the doctrine has been applied to the unusual situation in which a testator revokes a later will under the mistaken belief that by doing so she is reinstating a prior will. In this situation, the doctrine of dependent relative revocation is invoked to render the revocation ineffective and the first stands.
    2. If given a fact pattern where revocation is based on mistake of law or fact, analyze this way: 
      1. Look at which alternative is closer to T’s intent! Alternatives to DRR
        1. Intestacy (property automatically goes to spouse/kin); OR
        2. Will #1 revived and probated; OR
        3. Will #2 not revoked and probated?
      2. Hypo: T wills $1000 to Alok.  Later, T crosses out $1000 and writes in $1500 on some mistake—initials, signs, and dates.  Assume we know it was T that wrote it.
        1. If in state that doesn’t permit partial revocation by physical act, then this is no good.  Alok gets nothing.
        2. If in state applying DRR, the $1000 is much closer to $1500 than giving Alok $0, so we can infer that T’s intent was to give Alok the money after all. 
          1. Intent to give $1500 was based on mistake of law, and had he known, he wouldn’t have revoked the $1000 and would’ve wanted to give $1000. 
        3. In this jurisdiction (applying DDR), court gives $1000.
          1. Physical act + intent exists here
          2. The revocation of the $1000 will is revived and put back in action
        4. If by clear and convincing evidence that T intended that this document be his will, then if jurisdiction adopts dispensing power, Alok gets $1500.
        5. If T had crossed out $1000 and put $500, what happens? 
          1. Tough call, courts are split.  $500 is equidistant between $1000 and $0.
    3. Revocation by Operation of Law/ Change in Family Circumstances
      1. Divorce
          1. A majority of states have enacted statutes that hold a divorce partially revokes a will in that it revokes the provisions in favor of the former spouse. The will is read as though the former spouse predeceased the testator.
            1. CPC § 6122 for spouses and CPC § 6122.1 for domestic partners- revokes what was given to partner in will.
          2. Valid unless T was careful enough to indicate otherwise.
          3. CL says applies to wills only, not life insurance, pension- so it doesn’t revoke them;
          4. UPC applies to wills and will substitutes- it does revoke them.
          5. Re: gifts to ex-spouse, or gifts to ex-spouse’s relatives?  If natural born child, not revoked.  If unrelated child (i.e. T’s stepkid), revoked.
      2. Marriage
        1. States without statutes- about half do not have them, and marriage in these does not affect the will.
        2. States with statutes- If the testator executed his will and subsequently marries, the spouse is given her intestate share. Varies from state how much spouse gets—1/3, ½
          1. Unless- the omission was intentional or the spouse is provided for in the will or by a will substitute.
        3. Disinheriting spouse differs in specificity.  E.g. “I’m marrying Mulder and I don’t want my will to be affected by the marriage.” Generally, jurisdictions require more specific language to disinherit spouse.
      3. Birth of children
        1. Minority/Common Law– marriage followed by children revokes a will executed before marriage- but the rule is disappearing.
        2. Majority– child statutes give a child born after execution of the parent’s will, and not provided for in the will, a share in the parent’s estate.
        3. If in will you leave all to wife, and then you have child, and then you die, wife takes 1/3 and kid takes 2/3.
    4. Problems p270
      1. T executes a will devising all his property to his wife, and if his wife does not survive him, to his wife’s son (T’s stepson). T divorces his wife and then dies. T’s heirs are his children by a prior marriage. A state statute revokes all provisions in a will for divorced spouse and treats the divorced spouse as having predeceased the testator. Does the stepson take?
        1. Stepson should take, not only because the state statute makes wife predecease the T, but also because it follows policy of honoring wills and decedent’s intent.










































Written by freelawschooloutlines

October 14, 2009 at 2:39 am

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