Shared Flashcard Set


trust and estates
trusts and estates

Additional Law Flashcards




IOLTA account
trust account that must beset up as an atty in which you place all monies recieved from clients for which is not yet earned...non-interest account. Mandated by the state bar. THis is a state bar holding account.
outline of engagement letter
client name and address
-re line: legal reresentation
-nice one paragr greeting
-scope of work
-fee estimate
-intro of ethical rules
-retainer request and explanation of how retainer will be applied (IOLTA)
-right to withdraw if fees unpaid
-termination of representation: auto or voluntary?
-nice closing
-your actual signature, not assistant's
-client consents
what is a devisee of a person who dies without a will
surviving spouse
the current spouse of the decedent when he/she dies
person who dies with a will
the state's procedure for disposing of the decedent's property, will or no will
2 different types of probate
formal-contested, litigated
3 core functions of probate
1. documents title transfer
simultaneous death: who survived forpurposes of inhereitence?
if the other predeceased by 120 hrs.
IS there sufficient evidence of survivorship?
IF yes, the evidence is used to determine who survived.
-If no (insufficient evidence of surviv.), the beneficiary is deemed to have predeceased the donor. Donor survives for purposes of homestead allowances
Intestacy statutes apply when:
No will or invalid will (invalid as determined by the probate court
-A valid will does not dispose of the entire estate of the decedent (partial intestacy)
Who has standing to challenge the validity of the will?
-only those who would recieve some of the estate if the will was completely or partially invalidated by probate court
-in other words, those who would recieve under intestacy statutes (potential heirs)
what info do you need to ask your client in order to properly analyze intestate estate
-living children children at DOD?
-was the decedent married at DOD (date of death)
-Does decedent have living grandchildren at DOD?
-IF decedent was not married and had no children, was decedent survived by anyone related to him or her in any way?
IF D dies intestate, how much of probate assets does SS (surviving spouse) get? UPC 1-102 (or state law)
SS gets all if:
-SS has surviving kids only from D-SS union (D had no step kids from SS), OR
-Ds parents and descendants do not survive D. ***See statute for other scenarios
IF D dies intestate without a SS, how are probate assets divided among descendants? UPC 2-103 (or state law)
English Per Stirpes (minority)
-divide at child level even if no child alive
Modern PEr Stirpes (majority)
-divide into equal shares among that first generational level where someone is living
UPC & AZ: per capita by generation (AKA "by representation")
-divide into equal shares at that first generational level where someone is alive
-divide the rest equally among next generation (put in pot then divide what's left among children with deceased parents)
See pg. 93 table of consanguinity
To determine whether posthumously conceived genetic children may enjoy inheritance rights under an intestacy statue, the court balances:
(1) the best interests of children, (2) the State’s interest in the orderly administration of estates, and (3) the reproductive rights of the genetic parent.
Under intestacy law, a nonmarital child must obtain a judicial determination of paternity as a prerequisite to succeeding to a portion of the father’s estate if there is no acknowledge of paternity by the father. Posthumous genetic children may enjoy the inheritance rights of “issue” under intestacy law in limited circumstances where...
(1) the surviving parent or the child’s other legal representative demonstrates a genetic relationship between the child and the decedent, (2) the survivor or representative must establish that the decedent affirmatively consented to posthumous conception and to the support of any resulting child, (3) the proper time limitations are met,
and (4) notice is given to all parties.
■Where a government instrument is silent, children born of this new biotechnology with the consent of their parent is entitled to...
...the same rights, for all purposes, as those of a natural child
refers to the blending or combining of property in order to ensure equality of division.[1] It usually arises in cases of divorce or in connection with advances made from the estate of a deceased, if so provided for in his Will. Hotchpot was abolished for all persons dying intestate ( that is without a Will)by section 1(2)of the Law Reform (Succession) Act 1995 in respect of all intestates dying on or after January 1, 1996.
Laws that classify on
the basis of race are reviewed under equal protection with...
...strict scrutiny and will not be upheld
unless they are necessary to accomplish some
permissible state objective.
strict scrutiny categories: (2)
will use SS when:
A. protected classes- the ct. must declare it a protected class, if it has not been found as such you can still argue but the court hasnt created a protected class in 40 years. "discreit and insular". today, it does not matter which race (not only minorities)
B. fundamental interest- this is the other way in which a law can be subject to SS under an equal protection challenge.the ct. finds that what the law deals with is something that is so fundamental to american fundamentals of liberty. even if there is express language in the consitution. like voting: no constitutional right to vote, but it is so necessary that it is strict scrutiny
-The state must have a compelling reason and the menas must be narrowly tailored to that reason
-the way the test works: 1. identify the class; 2. ask the question is there a compelling state reason?; 3. Are the means narrowly tailored to that reason?
When is influence "undue"
Integration of wills
Theory: which sheets of paper present at the time of the will execution constitue the will?
-A will proponent must prove:
1. the pages were present when the will executed; AND
2. the pages were intended by T to be part of the will (intent.
-intent and presence are presumed if pages physically connected(staple paper clip)
incorporation by reference
UPC 2-510
Acts of Independent Significance
UPC 2-512
republication by codicil
the process of treating an old will as if it were executed at a later date
-"this codicil hereby incorporates by reference the terms of the original will dated ___ which are not inconsistent with this codicil"
-will and codicil treated as one will with the date of the execution being the DATE OF THE CODICIL
power of appointment
e.g. I give my house to A for life and on A's death, to such of A's issue as she wshall appoint during her lifetime or by will; in default of appointment, to Bs issue then living per stirpes. who are the players?
-t= donor (gives power of appointment)
-A= donee (gets from T power of appointment)
-A's issue= objects of the appointment
-whatever is transferred by POA= appointive property
-B's issue= takers in default of appointment
-required languagee for takers in default (DRAFTING)
-what happens to property if no default provision?
-goes through residue of donors estate in will or intestacy
-So what type of POA is this?
2 types of power of appointment
1. limited POA: doneee can exercise power in favor or a specified class of persons NOT INCLUDING donee...
2. General POA: donee can exercise power in favor of donee(self), donees estate, donees creditors or creditors of donees estate (recipients selected by donee)
limited powers of appointment
-Eclusive POA: donee can distribute UNEQUALLY to objects and even may exclude some
-Nonexclusive POA: donee must distribute EQUALLY to all objects
-Presumption? Default is Exclusive, so better draft otherwise if client so desires
so what happens if POA not exercised?
-goes to takers-in-default under donors will
what if the property subject to the SPECIFIC BEQUEST is not in T.'s estate at T.'s DOD (destroyed sold given away lost?)
how is a living trust created? must satisfy requirements under UTC 401 and 402?
-intent; unequivocal, clear, present intent
-transfer of assets by will or declaration
-ascertainable benefeciary
-sole trustee does not mean sole beneficiary
-trustee needs duties
UTC 402 requirements to create a trust: (5)
1. the settloe has capacity to create a trust
2. the settlor indicates an intention to create the trust
3. the trust has a definite beneficiary or is:
A) a charitable trust
B)a trust for the care of an animal, sec. 408
C) a trust for a noncharitable purpose, sec. 409
4) the trustee has duties to perform; and
5)the same person is not the sole trustee and sole beneficiary
what are the requirements of a testamentary trust?
1) T intended to create a trust; AND
2)essential terms must be ascertainable from one of the following:
-terms of will, or
-existing writing properly incorporated by reference into the will
-facts having substantial, independent significance apart from theor effect on the terms of the will, OR
-exercised power of appointment
trust protector: add flexibility
A trust protector APPOINTED by the trsust instrument and has authority conferred by trust instrument.
May include the followning:
-remove and appoint a trustee;
-modify or amend the trust for any valid purpose, including to achieve favorable tax status
-increase, decrease modify...
types of powers of appointments
1. General POA: recipients selected BY DONEE: a donee can exercise power in favor of donee(self); donees creditors; or creditors of donees estate
-upon my death allison shall distribute the IBM stock as Allison shall appoing by will; in default of appointment...
2. Limited POA
exclusive v. noneclusive POA
EXCLUSIVE: donee can distribute UNEQUALLY to objects and ebven may exclude some
*the presumption is always exclusive
NONEXCLUSIVE: donee must distribute EQUALLY to all objects
What is a disclaimer
-transfer property to heirs or other devisees (usuually children or grandchildren ) without gift tax
-avoid estate tax: not in tax base
-protext Bs from creditors
whats the right way to disclaim
state law dictates
-ARS 14-1005 written or other record
-decalres the disclaimer
-describes interest (inheritence or share of
2 ways can prematurely terminate trust or change trust terms
change TST terms: TST may deviate from trust terms when compliance would defeat or substantially impair accomplishing the purposes of TST due to unanticipated changed circumstances
Ridell common law rule to analyze whether a trust may be alterred by the court
Equitable deviation rule:
Allows court to modify administrative or discretionary TST if:
1. circumstances are not anticipated by T
2. requires modification or deviation to further purposes of TST
*what does not anticipated mean? circumstances have chaged since the trusts creation, or T was unaware of these circumstances when the trust was established (unanticipated circ.)
*what must the trial court determine if issue is unanticipated circumstances? Whether modification would tend to advance the trust purposes. subjective process of trying to infer the relevant purpose of a trust from the general tenor of its provision
Clafin doctrine, to change or terminate the trust prmaturely
If continuation of the TST without modification or termination is necessary to carry out A MATERIAL PURPOSE of the T, the Bs cannot compel modification or termination
compare CL to statutes in regards to modifying or terminating trusts
Common law: R3d Trusts Sec. 66(1)(2003):
Statute: UTC sec. 412(a) (2000)
Modern trend: statutes, state statutes facilitate premature TST termination...
There are a handful of conditions that have been held to be invalid and against public policy:
1. Absolute restraints on marriage: cant marry anyone (partial restraints ok if reasonable
2. Requiring beneficiary to practice a particular religion
3. gifts that encourage seperation or divorce
4. gifts that promote family strife- conditioned on family members ostricising...
5. gifts with a directive that property be destroyed
____ is the default
probate ( opposed to nonprobatable property)
a gift of REAL property under a will
a gift of personal property under a will
personal representative
person appointed by the probate court to oversee the administrative process of wrapping up and probating the decedent's affairs
although the details vary from state to state, the basic order of who takes is fairly similar:
1. surviving spouse
2. issue
3. parents
4. issue of parents
5. grandparents/ issue of gparents
6. next of kin
7. escheats to the state
Community property
the intestate distribution schemes presumes that the jurisdiction does NOT recognize community property.
-Community property jurisdictions presume that all property acquired during marriage is community property, but property acquired before marriage and gifts, inheretence, and devises acquired during marriage by either spouse are that spouse's seperate property. Under community property, upon the first spouse's death the community property is immediately divided 50 percent to the surviving spouse outright, and 50 percent to the deceased spouse. If However, the deceased spouse dies intestate, typically all of the deceased spouse's half of the community property goes to the surviving spouse. the deceased spouse's seperate property is distributed pursuant to an intestate scheme similar to the intestate distribution scheme.
UPC intestate distribution scheme UPC#
UPC 2-102 through 2-105
The UPC approach to intestate distribution scheme:
Who takes?
1. Surviving spouse:
How Much?:
-100% if no issue or parents; or
-100% if all decedent's issue are also issue of surviving apouse and surviving spouse has no other issue; or
-$300,000 + 75% of rest if no issue but surviving parent; or
-$225,000 + 50% of rest if all issue are also issue of surviving spouse and surviving spouse has other issue;
-$150,000 + 50% or rest if one or more issue is not issue of surviving spouse.
Any property not passing to a surviving spouse passes as follows:
2. Issue: Equally
3. Parents: Equally, or all to the survivor
4. Issue of parents: Equally
5. Grandparents/issue:
-50 to paternal grandparents or survivor; otherwise to their issue equally
-50% to maternal grandparents or survivor; otherwise to their issue equally
-If no surviving grandparents or issue on one side, all to the other side
6. Issue of predeceased spouse(stepchildren): 100% equally
7. escheat to the state: 100%
The UPC favors ________.
surviving spouse. Compared to most state intestate schemes, the UPC gives the surviving spouse a larger share of the deceased spouse's intestate estate
The UPC also favors ______.
-under the UPC the decedent's property escheats to the state much sooner than it would under most state statutes, although the '08 revisions to the UPC now give the property to stepchildren (issue of predeceased spouse) before giving it to the state.
putative spouses
generally DO qualify as spouses. at least one believes valid marriage ceremony but for some reason the marriage is either void or voidable
If D. Dies Intestate Without a Surviving Spouse, How Are Probate Assets Divided Among Descendants? UPC 2-103 (or state law)
English Per Stirpes (minority)
Divide at child level, even if no child alive

Modern Per Stirpes or Per Capita with Representation (majority)
Divide into equal shares among that first generational level where someone is living

UPC & AZ: Per Capita by Generation (Trend)
Divide into equal shares at that first generational level where someone is alive
Divide the rest equally among next generation (put in pot then divide what’s left among children with deceased parents)
review of fractions:)
A 2/5 share is divided between three children. What share does each child receive?
2/5 divided by 3 = 2/5 x 1/3 = 2/15 (cannot reduce)
Now, a 2/3 share is divided among 4 children. What share does each child receive?
2/3 divided by 4 = 2/3 x 1/4 = 2/12, but reduces to 1/6
What are the “limited circumstances” in which posthumously born children can inherit as if born before Dad’s death?
Clear and unequivocal consent to posthumous reproduction and support of resulting child or children
Just having preserved sperm is not sufficient
Proven genetic relationship between children and deceased parent
Still, time period may bar intestacy inheritance
Only a decedent’s ______________ passes by intestate succession
-net probate property.
under the governing jurisdiction’s statute of descent and distribution. See
Chapter 1. Nonprobate property is not subject to intestate succession, and
the distributable probate estate is reduced by such items as taxes, debts,
administration expenses, funeral expenses, and any family allowances.
In general, the surviving spouse’s intestate share under the UPC
is greater
than the share of a surviving spouse under most non-UPC intestate
succession statutes.
The fixed dollar amount
under the UPC reflects both
a presumption of the decedent’s intent
plus a support theory that the surviving spouse will need a certain
minimum amount to avoid becoming a ward of the state. Notice that
the spouse is entitled to receive this amount regardless of the
spouse’s own resources and regardless of the amount of nonprobate
property the spouse received as a result of the decedent’s death.
UPC §2–102 also gives the balance of the probate estate to the
surviving spouse if (
(1) there is no surviving descendant or parent of
the decedent, or (2) if all of the decedent’s descendants also are
descendants of the spouse and there are no descendants of the spouse
who are not also descendants of the decedent. This last element
reflects a presumption that such a spouse is not likely to divert the
decedent’s property to objects of the spouse’s bounty who the
decedent would not necessarily favor.
Example of: All of the Remainder of the Estate if . . .
D, who died intestate, was survived by a spouse and two children,
both of whom also were the spouse’s children. Under the UPC, D’s
spouse inherits the entire probate estate, unless the spouse had
descendants from another relationship who survived D. This
spousal entitlement is a significant departure from traditional
intestate succession law under which the surviving spouse shares
the decedent’s intestate estate with the decedent’s descendants.
Descendants of the Decedent or Spouse From Another
Relationship (UPC)
UPC §2–102 limits the entitlement of a surviving spouse if there are
living descendants of the decedent, or of the spouse, by another
relationship.The fixed dollar amount if the decedent had descendants
from a prior marriage is the first $150,000. Curiously, if the spouse
has descendants from a prior marriage (and all of the decedent’s
descendants also were descendants of the spouse), the spouse’s
recommended share would be the first $225,000. In either case the
spouse also receives half of the balance.
Spouse’s UPC Share if Decedent Had No Descendants
If the decedent is survived by a spouse but by no descendants, the
spouse receives the entire estate unless the decedent was survived by
one or both parents. In that case the spouse’s UPC share is the first
$300,000, plus three-fourths of the balance.
Spouse’s Share in Non-UPC Jurisdictions
The UPC provisions for a surviving spouse are more generous than the
statutes of most non-UPC states, many of which limit the spouse’s share
to one-third or half of the decedent’s net probate estate. Further, if the
decedent was not survived by any descendants, some states would give the
entire estate to the surviving spouse but many others do not alter the
spouse’s share. If there are no children by a former marriage, most
decedents probably would want the surviving spouse to take the entire
estate. So you can see that the non-UPC intestacy laws may be antiquated
or out of sync with the intent of the average decedent. They are not very
quick to change.
Uniform Simultaneous Death Act
Unless the decedent’s will contains an explicit survivorship condition, in
most jurisdictions (including Illinois, the law applied in Janus) the
question of survivorship is determined under the Uniform Simultaneous
Death Act. The prospective recipient of property is treated as having
predeceased the property owner if there is no sufficient evidence as to the
order of their deaths. But the Act does not apply if (as in Janus) there is
adequate evidence of survivorship.
UPC 120 Hour Survivorship Condition
To avoid litigation over the order of deaths in cases like Janus, UPC
§2–104(a) requires an heir to survive an intestate decedent by 120 hours.
See ¶ 157. Given the state of medical care and issues surrounding removal
of life support, 120 hours may be too short and many thoughtful estate
planners affirmatively require survivorship by 30 days or more.
Common Disaster Clauses
As illustrated, survivorship provisions should be used to plan for the
possibility of multiple deaths that occur in rapid succession. Too often,
however, the planning is in the form of a “common disaster” clause that
creates problems.
common disaster clause illustrative case:
In Ogle v. Fuiten, 466 N.E.2d 224 (Ill. 1984), the wills of spouses left
the estate of the first to die to the other, if the other survived by 30 days,
and provided that the estate was to be divided equally between two
nephews if the spouses died in a common disaster. The husband died
from a stroke; the wife died 15 days later from cancer. Because the wife
did not survive the husband by 30 days and because they did not die in
a common disaster, their estates passed by intestacy to their respective
heirs, who were not the nephews. Predictably, the nephews sued the
drafting attorney, who unsuccessfully defended (on lack of privity
Classic, or Strict, Per Stirpes Representation
Here, the notion of equality appears to be violated, because three
grandchildren are sharing in unequal amounts. The logic of this approach
(sometimes referred to as “classic” or “strict” per stirpes) is that division
occurred at the child level as if both children were alive, and their
respective shares then pass to their respective representatives, with
equality within each blood line.
-This is equality with representation as opposed to
some form of equal distribution. Notice the most important factor is
division into equal shares at the child level, regardless of whether any
children are living.
Each Blood Line Takes an Equal Share:
-Classic, or Strict, Per Stirpes Representation
Notice also that, under this approach, each child’s blood line will
receive the same aggregate share of D’s estate regardless of whether
a child survived D and subsequently left that share to descendants, or
predeceased D and it went to those descendants by the right of
English Per Stirpes Shares Often Are Not Equal
With shocking frequency among poorly drafted documents you find
the language “in equal shares, per stirpes.” As the last two examples
reveal, per stirpes distribution is not a system that necessarily
produces equality. It is based on the two concepts of equal division
and representation, but it does not guarantee equality among what
appear to be similarly situated beneficiaries. What drafters of this
language probably mean is “in equal shares, with the right of
representation.” But because per stirpes means more than just the
principle of representation, the phrase “in equal shares, per stirpes”
has led to all sorts of judicial interpretations trying to ferret out the
decedent’s intent (which is to say the intent of the drafter of the
document, who usually was not the decedent).
Definition of Classic, or Strict, Per Stirpes Representation
To summarize, a traditional definition of “per stirpes” in its classic
sense entails two concepts. One is division into equal shares at the
level of the decedent’s children, regardless of whether anyone is alive
at that level. One share is created for each person at that level who
is alive and one share for each person at that level who is deceased
with descendants who are alive. The other concept is distribution
with the right of representation.
The 1969 UPC
The 1969 version of UPC §2–103(1) altered the classic per stirpes
approach to give a sixth to each of the three grandchildren in the last two
examples, providing equality among the three grandchildren. This is a
“per capita” division (sometimes referred to misleadingly as “modern per
stirpes” or, more accurately, as “per capita with representation”). It was
meant to guarantee equality at more remote levels of descent. It did not
achieve equality in the sense that the drafters anticipated, and it was
changed in the current version of UPC §2–106(b) to what is known as “per
capita at each generation.” However, many states still have the old version
of the UPC with its original per capita system. Let’s start by understanding
that approach.
Modern PEr stirpes AKA
Per capita with representation
Per capita by generation
UPC and AZ
modern per stirpes (per capita with representation)(old UPC version)
The old UPC per capita approach divided the portion not passing to
the spouse into equal shares at the first level below the decedent at
which someone was alive, creating one share for each living
descendant at that level and one share for each descendant at that
level who is deceased but with descendants who are alive. Thus, thedifference from classic per stirpes is at what level the stirps begin:
under the old UPC per capita system it is at the first level at which
you find a living descendant, while under classic per stirpes it is at
the child generation, regardless of whether any of the decedent’s
children is alive. In the example above with both children deceased
before D the UPC result is equality at the grandchild level.
Classic English Per stirpes, you begin at...
Under a classic per stirpes distribution they begin (i.e., the first
division is made) at the child level, regardless of the fact that no
children are living.
Modern Per Stirpes (per capita by representation)
Aper capita distribution like that provided for by the 1969 UPC starts
the division at the first level at which a descendant is living, which
is the grandchild level here. Under that approach, the division is into
three shares at the grandchild level, one for each who is alive and one
for each who is deceased with descendants who are alive. The
curious thing is that, under per capita, the two shares created for
representatives of deceased grandchildren in this example would pass
by representation in the same manner as in the classic per stirpes
distribution, meaning that the great grandchildren still receive
unequal shares.
The 1990 UPC: Per Capita at Each Generation
1990 UPC §2–106 adopted a system known as per capita at each
generation, which guarantees equal shares to those in equal degrees
of relation to the decedent.
Per Capita at Each Generation
Only the per capita at each generation system ensures that all
members of each generation of descendants who are entitled to
receive a share receive equal inheritances. Thus, under per capita at
each generation all grandchildren who are heirs always receive equal
shares of the estate, as will all great grandchildren, all great, great
grandchildren, etc. That is not necessarily the case under the other
systems. And blood line equality is not preserved.
If an intestate decedent is survived by descendants, typically whatever does not
pass to a surviving spouse will pass to the descendants (with the representation
questions discussed above). If there are no descendants, in some states a
surviving spouse will receive the entire estate. In others (e.g., under UPC
§2–102(1)) the spouse takes all only if there also is not some other heir, such
as a surviving parent. Otherwise any portion of the estate that does not pass to
a surviving spouse is divided among ancestors and collaterals.
Condition on Right to Inherit
Under the law of several states a parent who abandoned the decedent
is precluded from benefiting. For example, UPC §2–114(a)(2)
precludes inheritance from an intestate minor child by a parent whose
parental rights could have been terminated under state law for
nonsupport, abandonment, abuse, or neglect.
If neither parent survives...
If there is no living parent or descendants of the decedent, some
jurisdictions (e.g., UPC §2–102(1)(A)) would leave the entire estate
to the surviving spouse, while others would leave the share the
parents would have received to descendants of the parents by
representation under the per stirpes, per capita, or per capita at each
generation system of that jurisdiction. If the decedent is not survived
by a spouse, descendant, or parent, typically (e.g., UPC §2–
103(a)(3)) the estate will pass to descendants of the decedent’s
parents, again by whatever form of representation is embraced in that
More Remote Heirs: The Parentelic System
If there is no descendant and no parent or descendant of a parent alive to
take, some states follow the “parentelic system” under which whatever
property the spouse does not take goes up and back down the family tree
again.The estate is given to the nearest living lineal ancestor or per stirpes
are living.
Grandparents or Their Descendants
For example, if the decedent is survived by one or more grandparents
or one or more descendants of deceased grandparents, the estate
would be dividedamongthem, with half to the maternal grandparents
(or their descendants,withrights of representation,ifneithermaternal
grandparent is living) and the other half to the paternal grandparents
(or their descendants, with rights of representation, if neither is
More Remote Ancestors or Their Descendants
If the decedent is not survived by any descendant, parent, descendant
of parents, grandparent, or descendant of grandparents, in states that
follow the parentelic system the estate would be distributed to great
grandparents, or their descendants by right of representation, and if
none, to great, great grandparents, or their descendants by right of
representation, and so on. This can entail pretty remote relatives
(so-called laughing heirs) and some states preclude distribution
beyond a certain degree. For example, the UPC does not recognize as
heirs relatives who are more remote than grandparents and their
More Remote Heirs: The Degree of Relationship System
Some states do not follow the parentelic system of determining the
decedent’s heirs by passing up and down the family tree. Instead, they
abandon representation at some level (such as if there is no parent or
descendant of parents) and distribute the portion not passing to a spouse
(the entire estate if there is no surviving spouse) to more remote family
members under a degree of relationship (consanguinity) system. Distribu-
tion typically is in equal shares to all who fall within the nearest degree of
consanguinity, with no rights of representation. Degrees of consanguinity
are determined by adding (1) the number of steps from the decedent up to
the nearest common ancestor of the decedent and the relative to (2) the
number of steps down from the common ancestor to the relative
Escheat would apply if there is no one alive to take the decedent’s property
(i.e., the decedent had no heirs) under the applicable intestate succession rules.
In that case the estate would pass to the state. In some states, the statute of
descent and distribution limits the extent to which ancestors and collaterals of
remote degree are considered heirs (e.g., UPC §2–103 limits heirs to
grandparents and their descendants and, under UPC §2–103(b), step-children
of the decedent and their descendants). This laughing heir limitation is
designed to preclude property passing to someone who is so removed from the
decedent as not to be personally affected by the decedent’s death. These states
claim the property over those heirs who would laugh all the way to the bank if
allowed to inherit.
• First determine the surviving spouse’s share. The surviving spouse may receive the entire estate depending on which other relatives survive the
decedent and the governing law.
• In most jurisdictions whatever the surviving spouse does not receive will
pass to descendants. So, next consider the shares of the decedent’s
descendants and the representation issue.
• If no descendants survive the decedent, the governing statute may dictate
that the entire estate pass to the surviving spouse. If not, or if there is no
surviving spouse, usually the decedent’s parents are next in line.
• If the decedent also is not survived by either parent (or if no surviving
parent takes the entire estate), next in priority are descendants of the
decedent’s parents, by representation.
• If the decedent is not survived by a spouse, any descendant, any parent, or
any descendant of a parent, the estate will pass to more remote family
members, generally either under the parentelic or degree of relationship
• If there still are no takers, the estate will escheat (unless there are
step-children or their descendants who take under the UPC or in a few
non-UPC states). Remember that under the UPC a relative who is not a
grandparent of the decedent, a descendant of a grandparent of the
decedent, or a descendant of the decedent’s spouse cannot be an heir.
No residue of the residue rule (common law rule)
If the deceased beneficiary was intended to inherit part or all of the residuary estate, then that portion of the estate would pass by intestate succession, as though the testator had left no will. This rule is referred to as the doctrine of no residue of a residue, because the portion of the residuary estate that did not itself pass under the will could not be considered part of the residuary estate at all.
Most states and UPC sec. 2-604(b) change this result so that the other residuary beneficiary would take the share, not intestate heirs.
Under section 2-604(b) of the uniform probate code, "if the residue is devised to two or more persons, the share of a residuary devisee that fails for any reason passes to the other residuary devisee, or to other residuary devisees in proportion to the interest of each in the remaining part of the residue." Simply put, if there are two parties in the remainder and one has not survived, the entirety of the remainder goes to the surviving residuary devisee or devisees.
Negative wills
Assume that a testator expressly disinherits a family member (let’s say a
child) with language in the will stating that the child will take nothing
under the will or by intestacy. If the testator dies partially intestate the
child would be an heir of the testator’s estate, in most states despite the
will (sometimes referred to as a “negative will” with respect to the child)
specifically disinheriting the child. The theory is that the property
undisposed of by the will passes outside of its terms to the decedent’s heirs
as determined solely by the jurisdiction’s intestacy statute. UPC §2–
101(b) is nearly unique in allowing the testator to override application of
the intestate succession statute by use of a negative will. If the testator
then dies partially intestate, the part of the estate that otherwise would
have passed to the disinherited heir passes as if the heir had disclaimed the
intestate share.
Effect of Divorce or Annulment
A former spouse will not be treated as a spouse for intestate
succession purposes if the decedent divorced the spouse prior todeath, but this treatment is not universal. See Chapter 4 for a
discussion of the effect of divorce on provisions for a former spouse
in a will, trust agreement, or other dispositive instrument. A similar
result may obtain if a marriage is annulled. See, e.g., UPC §2–802(a).
effect of seperation
A married couple will not be treated as divorced if they enter into a
decree of separation that does not terminate their relationship as
husband and wife. Upon the death of one the other will be treated as
a surviving spouse. This might change if an order was issued
purporting to terminate all marital property rights. UPC §§2–802(a)
and (b)(3), and 2–213(d).
effect of Desertion or Adultery
Moreover, desertion or adultery generally will not affect the marital
status of the parties, or otherwise bar the offending party from
exercising rights as a surviving spouse on the other’s death.
effect of common law marriages
In a minority of jurisdictions persons who live together as husband
and wife and hold themselves out to the public as such (a “common
law” marriage) will be treated as being married to each other even if
they have not participated in a formal marriage ceremony.
Same Sex Couples
Finally, a survivor may enjoy spouse status in jurisdictions that
recognize civil unions, domestic partnerships, or marriages between
same sex partners for state law property purposes, including intestate
succession. Even if state law does not allow the creation of such
status in that state, a few state laws (but not most) recognize a
marriage, union, or partnership that was validly created elsewhere.
Posthumous Heirs
A posthumous child is one who was conceived before, but who is born
after, the decedent’s death. Usually such a child can take as an heir of the
parent, because posthumous children are treated as born at conception if
they subsequently are born alive. Depending on state law this may apply
only to children of the decedent and not with respect to other representa-
Children of Assisted Conception
The question of status as a child has taken on a new significance with
respect to children of assisted conception. For example, a biological childcan be conceived after the death of the DNA provider. The issue is
whether state law will follow the Uniform Status of Children of Assisted
ConceptionAct or the Uniform Parentage Act and treat those whose birth
is engineered (e.g., artificial insemination with the frozen sperm of a long
deceased “father”) as not the children of the gamete providers. Case law
to date appears to favor these children, meaning that these advances have
altered traditional estate planning concepts. We return to this concept at
¶ 108 because effective estate plans probably do not want to leave this
issue to chance or to litigation.
Share of a Half-Blood Sibling
In most jurisdictions (e.g., UPC §2–107) whole blood and half blood would share
equally inD’s estate. In a few states half-bloods receive half the share
received by a whole-blooded relative, or the whole-blooded relative
is favored to the total exclusion of a half-blood.
Modern adoption statutes
Most jurisdictions now sever the natural parent-child relationship
when a child is adopted away (except, as discussed below, in the
step-parent adoption context) and the adopting parents take the
natural parents’ place for all purposes. This makes the adopted child
the same as a natural born to the adopting parents for all purposes,
even to inherit through the adopting parents from the adopting
parents’ relatives.
Nonmarital children; outta wedlock
a. Mother and Child [¶ 103]
The typical intestacy statute today allows a nonmarital child to
inherit from its mother and vice versa. Although nonmaritals also
may inherit through their mother (and vice versa) in most states, in
a few states they may not.
b. Father and Child [¶ 104]
Trimble v. Gordon, 430 U.S. 762 (1977), held unconstitutional under
the Equal Protection Clause of the FourteenthAmendment an Illinois
statute prohibiting a nonmarital child from inheriting from her
putative father who died intestate, notwithstanding that his paternity
had been established premortem and he had openly acknowledged
and supported her during his life. The Court held that only legitimate
state interests may be effected by statutes that discriminate against
the rights of nonmarital children.
children of science (artificial incemination, etc.)
whether a child conceived after
the death of a sperm or egg donor can inherit as an heir of the donor, and the difficulties such a result could pose to the timely administration and
distribution of the donor’s estate. State statutes vary and may define heirs
differently (e.g., in terms of a “surviving” child’s right to inherit) or may
impose requirements such as premortem consent of the sperm or egg
conception within a specified time after the decedent’s death.
slayer statute
most states have this to prevent a murderor from inheriting money from the person who he murdered
-Typically, only felonious and intentional killings trigger application
of a slayer statute. Thus, a successful insanity defense will prevent
operation of most statutory bars, as may conviction of an offense that
does not establish intent (such as involuntary homicide). Moreover,
many statutes require a conviction before the slayer must forfeit an
inheritance, meaning that the slayer’s death before adjudication of
guilt may prevent operation of the bar. This most often arises in a
murder-suicide situation. If there is no conviction, some moreenlightened statutes (e.g., UPC §2–803(g)) permit the probate court
to adjudicate the question of guilt as if it was a criminal proceeding
and some statutes also permit determination of “guilt” in this case (or
if the slayer was found not guilty in a criminal case) by applying a
lower threshold than beyond a reasonable doubt.
If P gives child C $10,000, and P then dies intestate, the question is
whether the $10,000 gift counts against C’s intestate share of P’s estate.
advancements, partial intestacy
a. Partial Intestacy
Known as the concept of advancements, the question generally
applies only to fully intestate estates. UPC §2–109 applies the
concept to partially intestate estates as well, but the logic behind
inapplicability to a testate estate is a presumption that a testator
would state any intent regarding the effect of prior transfers on
dispositions under a subsequently executed will. Similarly, we
presume that the testator was aware of the provisions in an existing
will when a gift was made, and determined to make the gift anyway.
-advancement statutes now apply to all descendants, or even to all
heirs, but frequently not to a spouse (UPC §2–109 is unusual in that
it does apply to a spouse).
Advancement example, Applicability to Descendants of Deceased Donee
P made an advancement to P’s child C, who predeceased P
leaving one child, GC, surviving. Should GC’s entitlement as
C’s representative be reduced by the advancement to C?
Conversely, if P gave the advance to GC but C survived to
take, would C’s share be adjusted because of the gift to GC?
The UPC does not charge advancements down to representa-
tives of an advanced party unless the decedent indicated an
intent to do so in writing (§2–109(c)) and fails to even
consider charging advancements up to ancestors of recipients.
Most statutes are silent on both questions.
Advancements, Proof of intent
Lifetime gifts to children were presumed to be advancements at
common law. Statutes in most states have reversed this presumption
and now require some proof of intent to treat a gift as an advance-
ment. This reveals that the doctrine of advancements is not favored,
especially with respect to small amounts (think of the administrative
difficulties of proving the amounts of gifts made by a parent to
several children over a lifetime and who died intestate at, say, age
advancements, what will prove intent:
(1) A Writing of the Donor or the Donee
(2) Intention of Donor at the Time of the Transfer Controls
Hotchpot, advancements
refers to the blending or combining of property in order to ensure equality of division
Hotchpot example:
Assume that: (1) Decedent’s probate estate is $100x; (2) inter
vivos advancements (all declared in contemporaneous writings by
Decedent) included an outright transfer of $40x to Child A,
placement of $60x in joint tenancy with Child B, and an insurance
beneficiary designation of Child C that will pay proceeds of $80x;
and (3) Child D received nothing. Computation of any advance-
ment is at the fair market value when the transfer was made,
computed without interest. Note the unfairness in that approach:
the recipient receives (but is not charged in the hotchpot process
for) the use of the money from the time of the gift to the decedent’s
death, along with any income earned and appreciation generated.
So, in this illustration, if all the recipients of lifetime transfers
participate in hotchpot (which we will see they likely will not all
do in this case), each child’s share of the probate estate would be
determined as follows:
Probate estate at death $100x
Add advancements:
to Child A $40x
to Child B $60x
to Child C $80x
Total $280x
divided by four would give each child $70x, which would be
reduced by their respective advancements.
Does advancement apply to life insurance?
One issue we’ve begged here is whether advancement applies to
insurance. If it does, would we count the insurance as an
advancement at the value of the policy at the time of the
beneficiary designation, or at the higher face amount of the
proceeds payable at death? For now, let’s assume state law is
clear and that the latter is the case.
Opting Out of Hotchpot:
On the basis of these two assumptions, C cannot benefit from
P’s probate estate (because C already received $80x, which is
more than C’s $70x share under hotchpot) so C probably will
“opt out” of hotchpot—no one can be forced to participate.With
C and C’s advancement out of the picture, the hotchpot would
be recomputed at only $200x, and it would be divided by three
to give each of the other three children $66,66x. To reflect
amounts that A and B already received, the distribution of P’s
probate estate then would be made as follows:
Child A receives $66.66x – $40x = $26.66x
Child B receives $66.66x – $60x = $6.66x
Child D receives $66.66x – $0x = $66.66x
Total distributions = $99.98x
Advancements, Release
A release is an agreement between a potential heir and the property
owner, sometimes called a “liquidated” or “negotiated” advance-
ment. In effect, A could ask for early distribution of A’s share of P’s
estate in exchange for a release of A’s expectancy. If A dies after the
release and before P, and P is survived by children of A, those
grandchildren of Pwill be barred byA’s release so that B will take the
entire estate. An exception to this general rule may apply, however,
if B also predeceases P, in which case some jurisdictions will allow
A’s children to share in P’s estate.
advancements, concept of assignment
An assignment is the transfer for consideration of an expectancy by
a potential heir, in this case to a third party. Assignment is not
common in the United States because the assignee receives only what
the assignor is entitled to receive, which is zero if the assignor is
disinherited by or predeceases the decedent. Because a prospective
assignee of an expectancy has no way to protect the “right” to benefit
from the expectancy when the prospective decedent dies, an assignee
generally will not be willing to pay much for the assignment (unless
the prospective decedent becomes involved in the transaction and
contracts or otherwise commits not to take any action that would
defeat the assignee’s expectancy). Furthermore, although a release
usually will bind descendants of the releasing potential heir, an
assignment will not. It is easy to find fault with the distinction, but
it is said to be based on the fact that a release is an agreement with
the decedent (a “negotiated” disinheritance) while an assignment is a
contract with a third party to which neither the decedent nor the
assignor’s representatives were parties.
A disclaimer, sometimes called a renunciation, is a refusal to accept an
inheritance or other property interest. Disclaimers of intestate property
were not recognized at common law, but statutes typically now permit
disclaimer is also referred to as...
tax motivated disclaimers
Typically most people disclaim either for federal tax reasons or to
preclude their creditors from reaching the disclaimed property. In the
example above, the disclaimer is not regarded as a gift by C to GC
if it is “qualified” under the rules of Internal Revenue Code §2518.
Rather, the property disclaimed would be treated for tax purposes as
having passed directly from P to GC, meaning that C would have no
adverse gift tax consequences (and a generation-skipping transfer tax
might be imposed).
Disclaimer to avoid creditors
in the main a disclaimant can protect property from creditor claims
by disclaimer
Effect of disclaimer
Both old UPC §2–801(d) and newer §2–1106(b) provide that only the
“disclaimed interest” passes as if the disclaimant had predeceased thedecedent. Most statutes provide for the decedent’s entire estate to
pass under that presumption. The rationale for this carefully drafted
UPC modification is to be certain that a disclaimer does not alter the
size of other shares of the estate under either UPC per capita system
of representation.
Disclaimers made by personal representative
UPC §2–1105(b) also makes clear what many state statutes do not,
that a disclaimer is permissible by a personal representative on behalf
of a deceased beneficiary. This is important because often the
decision to disclaim occurs when the taker dies quickly after the
reveals that a disclaimer will reduce taxes. Although it is clear that
the federal estate tax liability may be reduced in such a manner, state
law in many jurisdictions remains unresolved as to whether other
creditors may be disfranchised by disclaimers made by personal
representatives for deceased beneficiaries.
disclaimers, survivorship
UPC §2–702 imposes a 120 hour survivorship condition on the ability of
an heir to inherit from an intestate decedent (and on the ability of a devisee
under a will or a beneficiary under any other dispositive instrument to
take, if the will or other instrument does not address the survivorshipissue). Thus, under the UPC, C will not share in P’s estate if P dies
intestate, survived by C, who dies within 120 hours after P’s death.
Will Execution formalities and contest.
******BEGIN TOPIC******
Testamentary capacity
Today, anyone who is of the
requisite age and mentality may execute a will. Thus, lack of testamentary
capacity can be of two types: the testator is too young or lacks mental capacity.
Most capacity issues involve the latter.
Presumption of testator sound mind
the test of mental capacity is subjective.
The requisite mentality usually is articulated as something like “of sound
mind.” Usually this is presumed to exist if the will properly was executed
and attested by witnesses.
Test of Mental Capacity
Most statutes do not address the mentality necessary to meet the statutory
requisite; this is determined by case law. Generally, courts hold that being
of sound mind means that the testator had the ability to understand: (1) the
nature and extent of the testator’s property; (2) the natural objects of the
testator’s bounty (i.e., those persons—usually family members—who the
testator “ought” to have in mind when deciding to whom to leave
property); (3) the disposition being made; and (4) how these three interact
with each other.
Actual Knowledge Not Required [
It is not necessary that the testator actually understood these things;
it only is necessary that the testator had the capacity (i.e., the ability)
to understand them. Nor does the capacity to understand the
disposition the testator is making require an appreciation of all the
technical aspects of the plan. The testator only needs to be able to
comprehend the general pattern of the dispositive provisions. Boil-
erplate, technical tax jargon, drafting formalities, and such need not
be within the ken of the average individual.
Understanding the Natural Objects of theTestator’s Bounty
In addition, a testator can know and understand the natural objects of
the testator’s bounty without providing for them. The key is whether
the testator knew that any unnatural dispositive provisions were out
of the ordinary (such as leaving the estate to a friend or caretaker,
instead of to children, or leaving the entire estate to one child to the
exclusion of others).
Effect of “Normal” or “Unjust” Dispositions
That the dispositive provisions are “normal” will not prove capacity,
nor is capacity belied by an unjust or unnatural disposition.Aperson
with capacity may make as eccentric, injudicious, and unjust a will
as caprice, frivolity, or revenge may dictate. Eccentricities, peculiari-
ties, exaggerated personality traits, religious beliefs, or beliefs in the
supernatural typically will not invalidate a will on grounds of
Understanding the Nature and Extent of the Testator’s Property
The testator need not know with any precision the property the
testator owns. The testator needs only the ability to understand the
kinds and values of property owned. Thus, it may be that a
marginally competent testator would have the requisite mental
capacity to dispose of a small or simple estate, but lack the capacity
to dispose of a large or complex one.
Capacity to Contract Not Determinative
Although cases sometimes refer to a testator’s ability to perform other
tasks as indicative of testamentary capacity, it is not determinative
whether a testator could contract, transact normal business, or manage the
normal affairs of living. Indeed, a greater level of capacity generally is
required to enter into a contract or to conduct normal business affairs than
to execute a will.
Capacity to Create a Trust
Curiously, in some jurisdictions (but not under UTC §601, if the trust
is revocable), the capacity to enter into a trust relationship (which
could transfer all of a person’s property) is higher than to execute a
will. Thus, a marginal case may create problems if both a will and a
trust are involved.
Will being declared incompetent or having a guardian or conservator appointed prove capacity to execute a will?
Also curious is that being declared incompetent or having a guardian
or conservator appointed will not prove incapacity to execute a will,
especially if a guardian or conservator was appointed to ease the
burdens of property administration for a testator who was late in life,
ill, or just did not want to be bothered.
When is capacity required?
at the Time of Execution:
Capacity is tested at the moment of execution; losing it thereafter, or
lacking it before execution, will not affect validity. Incapacity may be
fleeting; the impairment may be temporary (a chronic alcoholic may
execute a valid will while sober) or testators with serious mental
impairments may enjoy a “lucid interval.” As a consequence, the most
important testimony truly is from witnesses to the execution.
1. Deficient Capability and Derangement
Two forms of mental incapacity can affect the validity of a will: (1)
Deficient capability, meaning that the testator simply was unable to understand the four items required for a proper
which may be paranoia, general dementia, or a delusion, each of which
generally affects the validity of only those portions of the will that are the
product of the derangement. Either results in a lack of capacity. A person
lacks testamentary capacity if there is either derangement that affects any
part of the will or deficient capability, or both.
what is the relationship Between Mental Derangement and Deficient
Relationship Between Mental Derangement and Deficient
Capability [¶ 16]
Evidence of mental derangement also may show that the testator had
deficient capability. For example, In re Hargrove’s Will, 28 N.Y.S.2d
571 (1941), involved a decedent who allegedly suffered from an
insane delusion that two children born to his wife during their
marriage were not his, and that he therefore had deficient capability
because he was not able to know the natural objects of his bounty.
What are Insane Delusions?
An insane delusion is a belief to which the testator adhered without
knowledge or evidence that a sane person would believe. An insanedelusionmustaffectthedisposition(s)underthewill,andthe conclusion(s)
the testator drew from the delusion must be such that no rational person
would draw. Some states also require that the falsity of the testator’s
conclusions were pointed out and the testator continued to believe them
nevertheless. Thus, it is not an insane delusion if the testator’s belief is
based on evidence a rational person could believe, from which a rational
person might draw the same conclusion.
Is testator's Ability to Pass Four Part Test Determinative of Testamentary
No, it is not. A person may have basic mental capacity but still lack the mentality to
execute a will. In Strittmater and Honigman, for instance, the question
was not whether the testators had the ability to understand the nature and
extent of their property, the objects of their bounty, the disposition they
were making of their property, and the relationship among these three.
Rather, the questions were whether they suffered from a derangement and
whether any part of their wills was a product of that derangement.
To be a valid will the decedent must execute it with the intent that it be a will. Lack of testamentary intent is unusual because it may serve as a will contest ground or a ground to deny probate to a will. Contest grounds usually are notadequate to deny probate of a will. The usual remedy if there are grounds to contest a will is:
to admit the will to probate and then challenge its validity ina contest action.
Presumption of Testamentary Intent
Proper execution of a will raises a presumption that the testator knew the
contents of the will and understandingly executed it with the requisite
capacity and intent. The burden in this regard is on the contestant to rebut
the presumption of testamentary intent raised by proper execution.
One common source of a challenge based on lack of testamentary intent
is a client letter to an attorney asking for the preparation of a will...
spelling out the client’s testamentary objectives. This letter cannot constitute a will
even if it otherwise meets the statutory requisites for execution of a will, because the client did not intend the letter to constitute a will. The client clearly knew the difference between them and intended only that the letter result in the production of a will.
Nontestamentary Purpose
Occasionally a decedent’s duly executed will is challenged on the ground
that it was executed to accomplish a purpose other than disposition of the
testator’s property and thus was invalid due to a lack of testamentary
Undue influence: What Influence Is Undue?
A will beneficiary can exert influence on a testator that affects the
testator’s dispositive provisions without that influence being undue. For
influence to be undue, it generally must satisfy three requisites
For influence to be undue, it generally must satisfy three requisites:
1.)Relates to Execution of Will:
2.)Improper Purpose
3.)Overcoming the Testator’s Free Will
For influence to be undue, it generally must satisfy three requisites:
1)Relates to Execution of Will...
First, the influence must be directly connected with execution:
required is a causal connection between the influence and the will,
operating at the time of execution (although the influencer need not
be present at the time of execution). Thus, general influence
unrelated to execution of the will is not undue influence.
For influence to be undue, it generally must satisfy three requisites:
2.)Improper Purpose
...Influence directed at dispossessing someone else is not undue
influence, although it might be actionable fraud, deceit, or tortious
interference with an expectancy. So, the second requisite is that the
influence must be directed toward procurement of a disposition in
favor of the influencer or someone the influencer wishes to favor.
For influence to be undue, it generally must satisfy three requisites:
3.)Overcoming the Testator’s Free Will (2 subtopics)
The third, and perhaps most important, requirement for activity to be undue influence is that the influence must destroy the testator’s free will and result in a will that reflects the wishes of the influencer instead of the testator.The testator’s independence must be overcome
such as to leave the testator unable or unwilling to resist the
(1) Susceptibility
Thus, in many jurisdictions a factor bearing on the question
whether influence was undue is the susceptibility of the testatorto influence. As a result, undue influence claims (which are
difficult to prove in any case) are most likely to succeed with
respect to elderly, dependent, and weak-willed testators.
(2) Effect on Testator [¶ 33]
To prove undue influence it is necessary to show what this
testator thought and whether this testator was influenced. It will
not suffice to show what the average individual in the testator’s
circumstances would have done or thought in the face of an
alleged influence.
How is undue influence distinguishable From Duress?
Undue influence frequently is said to involve an element of coercion. The
influencer so overcomes the will of the testator as to coerce the testator
into executing a will that reflects the influencer’s wishes rather than the
testator’s. Duress is not common as a will contest ground, but it relates to
undue influence because a will executed by a testator under duress may
not reflect the testator’s testamentary desires. Holding a gun to the
testator’s head during the signing makes the will invalid because it was
signed under duress. Moreover, a threat need not be unlawful to constitute
duress. See, e.g., In re Sickles’Will, 50 A. 577 (N.J. Prerog. Ct. 1901), in
which a threat to abandon a paralyzed elderly testator was held to be
undue influence.
What is the effect of “Unnatural” Disposition?
Unjust or unnatural provisions in a will may support (but will not prove)
a case that the testator was prevailed upon to do something that otherwise
would not have been done, and that this influence was undue. In addition,
some courts improperly state that influence is not undue if it does not
result in an injustice. That conclusion is wrong, although it might be hard
to make the case and it depends on what the court would consider an
“injustice.” To illustrate, consider a will leaving an equal share to a child
who exerted undue influence to overcome the testator’s antipathy toward
the child that resulted in a previous will that cut the child out completely
Who bears the burden of proof with undue influence?
The initial burden of proof with respect to undue influence is on the
contestant. This burden requires evidence of the testator’s subjugation to
the will of the influencer, which could be next to impossible to produce:
because the influence usually occurs in private, proof of undue influence
usually is scant, often only circumstantial and lacking in verifiability.
Undue influence:
Shifting the Burden of Proof:
Consequently, in many jurisdictions proof of three elements suffices
to shift the burden of proof from the contestant to the proponent ofthe will. As a practical matter, it typically is the burden shifting that
is most important to winning an undue influence case. To shift the
burden of proof, typically it is necessary to show three things: (1)
That the testator’s condition or state of mind made the testator
susceptible to undue influence (the more feeble minded the testator,
the easier will be the proof of this element). (2) That the influencer
had the opportunity to exercise control over the testator, with special
scrutiny if the alleged influence came from the testator’s attorney or
other advisor. (3) That the alleged influencer was disposed to
exercise control over the testator (i.e., there was a motive). Proof of
actual activity exercising control, or of advantage to be obtained by
the influencer, usually will suffice and frequently is shown by a
testamentary gift to the influencer (or someone the influencer wanted
to favor) in an amount that is greater than would have passed without
the alleged influence.
What are examples of proof that will not establish undue influence?
argument, persuasion,
advice, assistance, affection, kindness, or solicitude. Normally, to be
undue influence this activity must rise to the level of violence, abuse,
litigation, or abandonment.
Example to illustrate card #157
To illustrate, assume that T’s child, C,
cares for T in T’s home. C threatens to move Tto a nursing home and
files litigation to declare T incompetent and have C appointed as T’s
conservator, all with the intent of procuring a will that leaves all of
T’s estate to C (to the exclusion of T’s other children). Any new will
that T executes in exchange for C abandoning the litigation and
allowing T to remain in C’s care is infected by undue influence.
What is the standard of proof with undue influence?
The level of persuasion is very important given the nature of the
proof required and the elements that must be proven. Typically only
a preponderance of the evidence is required, although clear and
convincing evidence is the standard applied in some jurisdictions.
Presumption of Undue Influence:
In many jurisdictions in two circumstances a presumption of undue
influence will shift the burden of proof to the proponent: (2)
1.) Drafter/Beneficiary:
One such circumstance is if the will benefits the drafter of the will or
a natural object of the drafter’s bounty. That drafter is presumed to
have exerted undue influence over the testator. For a case in whichthe presumption was not applied (we think improperly), see Lipper v.
Weslow, 369 S.W.2d 698 (Tex. Civ.App. 1963), in which an attorney
child of the testator drafted a will that left her estate equally to her
two children by her second marriage, with no provision for children
of a deceased child by her first marriage. Had the burden shifted, the
child who was the proponent of the will would have been required to
prove that the will was not the product of undue influence.
2.) Confidential Relationship [¶ 42]
More common is the presumption of undue influence arising if there
is a confidential or fiduciary relation with the testator, if the dominant
party in that relation participated in procurement of the will. In this
case the relation is not enough; there must be proof of participation
in preparation of the will. Relations that allow application of this
presumption include clergy (especially because of the demise of
attorney, physician, nurse, trustee, conservator, or close business
what are the alternative Confidential Relationship Tests?
Different tests for raising a presumption of undue influence are
used in some cases if the influencer was in a confidential
relationship with the testator. Rather than ask whether the
influencer participated in the procurement of the will, one test is
met if the influencer received the bulk of the testator’s estate
and the testator’s intellect was weakened
The test for raising a presumption of undue influence under §8.3 of the
new Restatement (Third) of Property (Wills and Other Donative
Transfers) is that the influencer was in a confidential relation-
ship with the testator and the will was executed under suspicious
What relations are not covered, undue influence?
Usually insufficient to raise undue influence presumptions would be
relation as a parent, spouse, or child (although a child who cares for
and manages the finances of an aged parent may be held to occupy
also is the testator’s attorney (as was the case in Lipper), the
presumption of undue influence would arise both because the will
drafter was a beneficiary and because of the confidential attorney-
client relationship
Suggested Analysis Procedure, Undue Influence
In an undue influence case, first determine what constitutes undue
influence (conduct by the influencer that is directly connected with
execution of the will, that is designed to produce a provision benefiting
the influencer or someone the influencer wishes to favor, and that so
overcomes the free will of the testator as to substitute for it the desires of
the influencer). Then consider whether the burden of proving undue
influence shifts from the contestant to the proponent (e.g., depending on
the jurisdiction, because of (1) susceptibility, opportunity, and disposition
or motive, (2) a confidential relationship and participation in procurement
of the will, or (3) other suspicious circumstances). A presumption of
undue influence can be overcome in some jurisdictions by a showing that
the testator received independent legal advice (which is unlikely if the
testator’s attorney also represents the influencer); that showing also might
negate that the testator’s free will was overcome by the influencer. The
will proponent also can introduce direct evidence tending to negate that
the testator’s free will was overcome by the influencer. For example, atestator may be elderly, infirm, and dependent on others for physical care,
but still be strong willed, with an independent mind and a free spirit that
is not malleable to the influence of the will’s proponent.
What's the effect of Undue Influence?
Afinding of undue influence will vitiate only the affected parts of the will.
The entire plan will fail only if the remaining portions cannot stand alone,
or if the court concludes that entire invalidity is required to best
implement the testator’s intent. Notice also that an allegedly revoked will
can be admitted to probate if the testator revoked it pursuant to undue
Bequests to Attorneys; Undue influence?
Apresumption of undue influence arises if a testator’s will includes a gift
to the drafting attorney, or to objects of the attorney’s bounty. The same
may be true if the attorney did not actually draft the will but participated
in its preparation in some other way. A“natural” bequest no larger than if
another drafter were involved may be permissible, without contest
concerns (e.g., if a single testator with two children and no descendants of
deceased children leaves half of the estate to one child who is the
attorney/drafter). Nevertheless, a bequest to the drafter in a will always
raises eyebrows and presents the potential for a contest. See ¶ 35 as to the
possibility of undue influence even if there is not an “unnatural”
What about a Drafting Attorney as Fiduciary or Witness to the Will; undue influence?
Awill nominating the drafting attorney as personal representative, or
as attorney for the personal representative, does not create the same
kinds of problems as a will devising property to the drafting attorney
(because the nominations are not binding, and an attorney who serves
in one or both of those capacities will provide services for which
compensation will be received, rather than receiving a gift under the
will). Neither is the attorney signing the will as a witness a will
contest or ethics problem. But overreaching or solicitation in
obtaining an appointment is an ethics concern, and writing the
drafter’s name into a document for any purpose always raises
questions of propriety. Even so, for an attorney to serve as a fiduciary for an estate or trust of a client is not necessarily unethical and should
not raise serious will contest concerns if proper precautions are
***New Topic***
Generally speaking, fraud as a ground for a will contest is a trick, device, or
deception, typically involving a misrepresentation to the testator. To be a
contest ground it must be intended to deceive the testator and to induce
execution of a will or codicil that benefits the perpetrator of the fraud.
Preventing Revocation of Existing Will or Execution of New One
It also may be fraud to prevent revocation of a prior will, or to prevent
execution of a new will (although these are not nearly as common).
What are the two types of fraud?
-fraud in the execution
-fraud in the inducement.
Fraud in the Execution
Fraud in the execution is a deception as to the provisions of the
document the testator intended to sign, or as to the character of the
document itself. It is more likely with someone who is unable to read
(poor eyesight, illiteracy, or the testator knew only a foreign language
and was relying on a true translation).
example of fraud in the execution
Testator (T) is told by X that the will T is about to sign leaves the
entire estate to a church, which T intends, but the instrument
actually leaves the estate to X; or T is asked to sign a document
that is presented as a lease agreement for T’s apartment, but in fact
it is a will.
Fraud in the Inducement
Fraudinthe inducementoccurswhenthetestatorknowinglyexecuted
the document, with provisions that the testator intended to include,
but the will or its provisions resulted from a deception worked upon
the testator in forming that intent.
Six elements must be proven to establish fraud in the inducement:
(1)false statements or material omissions of fact that prevented the
testator from recognizing the truth (e.g.: “Dad, brother Billy is
bankrupt—a spendthrift”);
(2) if false statements are involved,
they were made with knowledge that they were false;
(3) the statements or omissions were made with the intent to deceive;
innocent misrepresentations or omissions are not actionable;
(4)the statements or omissions were material;
(5) the statements or omissions actually deceived; and
(6) causation, being a link between the misrepresentation or omission and production or execution of the will or the affected provision.
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