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Course: Estates & Trusts Fall 2002
School: unknown
Year: 2002
Professor: unknown
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  1. The Power to Transmit Property at Death


  1. Probate – alternatives to dispose of money/wealth i.e by gift, will, trust, intestacy, deed, insurance, spending

  2. Testate – passing property at death by will

  3. Intestate – w/o a will; a legislative will by way of intestacy statutes = Michigan Statute of Descent & Distribution


  1. Wills are necessary even if you have no property because:

  1. you may have an unknown inheritance

  2. guardianship


  1. Shriner’s Hospital v. Zrillac:

  1. Mortmain statute – allows family members to challenge charitable gifts i.e. priest telling someone on their deathbed that if they want to go to heaven, they should give “x.”

  2. RULE: the right to devise property is given under the Constitution, but a state can regulate this right, provided the regulations are reasonable.

  3. the statute in this case was unreasonable as it affects too many people who don’t fit into the “shammed or coerced” category. The statute was both too broad & too narrow.

  4. no longer in effect in Michigan


  1. Shapira v. Union National Bank:

  1. RULE: the restriction that testator put in his will relating to who his son could marry was valid in that it only provided that the girl must be Jewish in order to take = partial restraint on marriage. The default provision to Israel showed that his reason was to further the religion. Only a restriction on marriage, not a restriction of right to marry.

  2. There is no right to receive property from your parents!

  3. Public policy: one cannot always restrict the class of who one is to marry. This case distinguished from Maddox because in said case, it greatly limited the # of men to choose from.

  4. Gift over clause: “if my son fails, I give to Israel.” He was not trying to control with the dead hand, but wanted to preserve Jewish faith.

  • known as an in terrorum clause: a gift conditioned upon the act of another controlled by testator. These are generally disfavored by the courts because don’t want the dead hand ruling from the grave.

  • Marriages

    1. No conditions allowed for 1st marriages, but can regulate 2nd marriage. i.e. sons will receive their share of the estate provided they don’t remarry if they divorce will be seen as reasonable.

    2. Cannot single out a person or further a personal vendetta; even if person not named but described it is not valid.

    3. No constitutional right to remain single – probably a valid restriction

    1. Personal Habits

    1. Generally as long as the personal habits are for the personal benefit of the individual, it is valid.

    1. Education

    1. Must be reasonable & reasonable to be potentially obtained in order to be valid.

    1. Other things discouraged: those that disrupt or separate family.



    1. Transfer of the Decedent’s Estate


    1. Advantages of the Probate Process

    1. An orderly distribution overseen by judge

    2. Quick distribution: average is (1) year; must be done in (3) years

    3. Protects creditors

    4. Provides an arbitration function if family members are fighting


    1. Disadvantages of the Probate Process

    1. Length of time – can be a difficult process

    2. Costs can be greater

    3. IRS tax questions


    1. Terms

    • Executor: nominated person in will who administers the estate

    • Administrator: executor not named in will so court appoints one to administer estate

    (Today these are both known as the personal representative)

    • Adminstrator DBA (de bonis non); “of goods not administered”: appointment made if, during the distribution, the adminstrator dies or does something improper. Now known as a successor personal representative.

    • Adminstrator CTA (cum testamento annexo); “with will annexed”: appointment where there is a will, but it is not the person in the will because that person is dead, disabled, or not a candidate.

    • Temporary Personal Representative: if one is contesting the appointment made (not signing consent forms) or if appointed PR cannot be found. Used while waiting for a hearing date.

    • Fiduciary: either a PR, guardian, conservator, or trustee

    • Devise: a gift in will of real property. Devise to a devisee.

    • Bequest: a gift in will of personal property. Bequeath to a legatee.

    • Beneficiary: someone with a present or future interest in property

    • Heir: a person that receives an intestate estate; has standing to challenge a will. i.e spouse & children

    • Next of Kin: all relatives that are descendants of the grandparents & could potentially take under intestacy.

    (All heirs are next of kin, but not all next of kin are heirs!)

    • Consanguinity: related by blood; by blood descendants

    • Descendants or Issue: those that come after you. i.e children, g-childre, etc.

    1. Examples of Probate & Non-Probate property: problem 1 p.49

    1. Furniture & personal assets: not probated if jointly owned

    2. Savings account in testator’s name: must be probated & need a court order to release $ (especially if >$100).

    3. Joint checking account: not probated, but good idea to open new account

    4. Pension plan naming spouse as beneficiary: if beneficiary survives, probate not necessary; if B dies first, the goes to estate

    5. Government bonds payable to either testator or spouse: “and” “or” survivor gets automatically

    6. Cash in shoebox: presumption that held jointly. If no spouse, but children, it depends! RULE: The further removed from heirship & the larger the amount of $, you should list it!

    7. Life insurance payable to spouse: same as pension plan

    8. Ford automobile: if spouse’s name on it, then she takes.

    9. House: if jointly owned, the no probate.


    1. Universal Succession: heirs can decide to “step into the shoes” of the deceased w/o probate. They must agree to take decedent’s assets & divide them among themselves.

    • Adult competent heirs are responsible for debts.

    • Only available in Louisiana – UPC §312

    • Michigan has the Dodge Act: enter into a family agreement to distribute estate different from the will. This recognizes that a dispute can be dragged out forever & allows a compromise to a will contest.

    1. Parties should consider this if:

    1. Client has (4) children, but only wants estate to g to (3); if other (3) think it is unfair, they can agree to divide (4) ways.

    2. Client has (4) children and wants estate divided equally. (1) child is retarded and the (3) competent children decide #4 needs more.


    1. Limitations on Inheritance

    1. Taxes – if estate is above estate tax level, it will be taxed to the fullest

    2. Rule Against Perpetuities – decedent cannot control the estate forever


    1. The law gives deference to the testator’s wishes as long as they are reasonable.


    1. Examples

    1. Must burn $100: If decedent is wealthy, the courts will probably allow. (90%)

    2. Must burn a dilapidated house in the country: Less likely to allow, however, still possible. (60%)

    3. Burn the Picasso painting: Probably won’t be granted due to loss of society (10-20%)

    4. Sandra West – left $2.8 M as long as she was buried in a certain way: upheld

    5. Destruction of Pets: court may uphold depending on age & condition of pet. Animal rights groups cannot challenge – no standing

    • EPIC 2722(2): pets can be made objects of a trust in order to maintain & keep up.


    7. Ogle v. Fuiten:

    1. In order for one spouse to inherit, must live (30) days longer than the other. The 2nd spouse only lived (15) days longer. P sued for improper drafting

    2. RULE: a trend has emerged allowing a 3PB to get compensation from lawyers if they clearly goof in drafting & intended beneficiary does not receive all they should have

    • The key for a 3PB suit is that there is a signed writing that includes them as part of their plan

    • Michigan: no signature = no duty!





      1. The Basic Scheme



      (decedent dies w:)

      sp, no issue, no parents sp: 100% sp: 100%


      sp, issue sp: 100% sp: 150k + ½ remainder

      issue: ½ rem


      sp, issue, surv. spouse sp: 150k + ½ rem sp: 150k + ½ rem

      has other issue issue: ½ rem issue: ½ rem


      sp, issue &/or deceased sp: 100k + ½ rem sp: 150k + ½ rem

      has other issue issue: ½ rem issue: ½ rem


      sp, no issue, parents sp: 200k + ¾ rem sp: 150k + ¾ rem

      parents: ¼ rem parents: ¼ rem


      1. UPC 2-103/EPIC 2103: “no spouse, no issue”

      1. if no spouse, no parents, no issue, then it goes to brothers & sisters:

      (M) & (D)

      (A) B C (D)

      1/3 1/3

      E F

      1/6 1/6


      • ½ siblings get the same as a full sibling if they have a parent in common; step siblings get nothing.

      • Adoption creates a full share


      1. if no spouse, no issue, no parents, no siblings, then it goes to g-parents & each side takes 50%:

      Maternal G&G Paternal G&G

      1. g-mother (50%) g-mother/g-father (50%)

      2. uncle-aunt1-aunt2 (50%) g-mother/g-father (50%)

      3. if (uncle)-aunt1-aunt2, then g-mother/g-father (50%)

      u’s descendent’s get 0.

      4. if only cousins, then they g-mother/g-father (50%)

      share 50%

      • if no heirs on one side, then 100% to other side

      • if no heirs at all, it escheats to the State

      • UPC & EPIC will not go beyond issue of g-parents = “laughing heirs”


      2. UPC 2-107/EPIC 2107

      • Relatives of half blood take the same as relatives of the whole blood; all are considered heirs.


      3. Surviving Spouse

      1. Test of Common Law marriage

      1. clear & convincing evidence of a present agreement to live as husband & wife

      2. both must be free to marry

      3. must be openly cohabitating = “notariety”

      4. must begin before 1957 (year when CL marriage abolished)

      • the 7-year rule is a myth, but a # a court found reasonable; less could be OK

      • common law marriage in another State is given full faith & credit in Michigan


      4. UPC 2-802/EPIC 2801 defines what a “surviving spouse” is not

      • EPIC: if in a bigamous relationship, you are not a surviving spouse. If for one year one is absent, wilfully neglectful, etc., they are not a surviving spouse.


      5. UPC 2-804/EPIC 2806, 2807, 2808:

      • a divorce decree revokes entirely any revocable disposition of appointment of property in a governing instrument i.e a will, insurance beneficiary, consent for trustee or executor, etc.

      • an ex spouse will not get estate under an old will made when married


      6. Codicil: an amendment to a will



      7. Example – Estate of Tommy Williams 164 Mich.App. 601 (1987)


      • how do you determine who is a surviving spouse?

      • FACTS: Tommy married 4x w/no divorces:

      1945 Daisy (Alabama)

      1951 Rosebud

      Estelle (died in 1970)

      1974 Betty

      Tommy died in 1984 leaving an apartment building as his only basic asset; Rosebud is claiming the estate.

      • RULE: in Michigan, there is a presumption of 2nd wife, therefore Daisy was out.

      Rosebud, although she had a claim, deserted Tommy & came back only to claim his asset.

      Betty was given the decision as she had married Tommy in good faith & put $ into the apartment.

      Therefore, ½ to Betty & ½ to Tina (Rosebud/Tommy’s child)

      8. Simultaneous Death

      1. Michigan Uniform Simultaneous Death Act (USDA):

      • if no sufficient credible evidence that persons died other than simultaneously, the property of each person is disposed of as though they survived; jointly held assets are divided 50/50; each spouse’s own assets go into the estate.

      • Plane crash example: if crash contains no evidence that someone survived another by even a fraction of a second, then all are deemed to have died simultaneously.


      9. Janus v. Trasewicz:

      1. If the primary beneficiary dies first, $ goes back into the principal’s estate

      2. Theresa had a spontaneous pulse & blood pressure after Stanley had died. Stanley’s mom argued that the machines kept her living, that they died simultaneously & the mother should go to estate (her).

      3. Living wills were created due to technology of medical machinery.

      4. One is declared legally dead when:

      1. “irreversible” cessation of circulatory & respiratory function – difficult w/life support; or

      2. a brain death standard – i.e “flatline”


      10. Problems p.80

      1. Husband & wife drown in a boat accident: wife drowned after violent struggle as she was a superior swimmer, but husband submitted peacefully. No evidence as to who died 1st, therefore, death was simultaneous.

      2. Husband & wife killed in a plane crash. Husband’s skull is crushed & there is no carbon monoxide in his blood. Forensics will allow a possibility to determine that Husband died 1st as the wife has some indication of respiration.




      11. 120 Hour Rule

      1. Testate Estates: UPC 2-702/EPIC 2702

      Intestate Estates: UPC 2-104/EPIC 2104

      1. In order to be considered a survivor, must survive by 120 hours (5days)

      2. If dead w/in 120 hours, treated as predeceased. i.e for tax purposes, the estate would be taxed 2x

      3. cannot begin probate until this 120 hour time period expires. Can provide a will for simultaneous death. i.e Husband:“In the event of a simultaneous death, it will be presumed that my wife survived.” & Wife:“In the event of a simultaneous death, it will presumed that I survive.”


      1. Problem examples:

      FACTS: Mom has a Son & a Daughter (w/Husband). Mom owns 150k in her name. Daughter owns 100 k in her name

      1. what if M dies 4/1 & D dies 4/4?

      *USDA in Michigan only applies to non-probate estates

      M: 150 k goes to son

      D: 100k goes to Husband. Don’t use 120 hr rule as M died first.

      1. what if M dies 4/1 & D dies 4/7?

      Blackacre goes to D then to H.

      M: 75k to son, 75k to D then to Husband

      D: 100k to husband

      1. what if D dies 4/1 & M dies 4/4?

      Blackacre to M then S

      M: 150k to son

      D: 100k to H

      1. what if M dies 4/7 & D dies 4/1?

      Blackacre to M then S

      M: 150k to son

      D: 1st 60k to H + ½ rem; son gets ½ rem


      12. Methods of Distribution (see more examples in notes)

      1. Types:

      1. per stirpes

      2. per capita

      3. Waggoner UPC/EPIC


      1. General Rule: if deceased has no issue, drop that share out! First divide into # of roots. All answers should add up to 1!








      1. Per stirpes – divide first at child level

      1. Example: 3 roots



      (A) (B) C


      D E F

      1/3 1/6 1/6



      1. Example: 2 roots



      (A) (B) (C)


      D E F

      ½ ¼ ¼


      1. Per capita – if all children deceased, divide equally at the next level (g-children).

      1. Theory of per capita – if Grandma would have known that the kids would die, she would have treated the grandkids equally

      2. Example:



      (A) (B) (C)


      (D) E F

      1/3 1/3

      G H

      1/6 1/6


      1. Waggoner – equalize at every level. EPIC! When dropping to the next level, the division of the assets is only b/w the issue with dead parents. It is assumed that the children with live parents will eventually get a share.

      1. Example:



      (A) (B) C


      D E F

      2/9 2/9 2/9






      1. Example:



      (A) (B) (C)


      D E F

      1/3 1/3 1/3


      1. Parentellic System – used by Louisiana & Europe

      1. Table of Consanguinity:

      Grandparents 2

      Parents 1 Uncles/Aunts 3

      Person deceased Bros/Sisters 2 1st Cousins 4

      Children 1 Nephews/Nieces 3 1st Cousins 5

      once rem’d

      Grandchildren 2 Grand Neph/Ncs 4 1st Cousins 6

      twice rem’d

      Great G-children 3 Great Grand 5 1st Cousins 7

      Nephs/Ncs thrice rem’d


      • Michigan only use the 1st (3) parentella, then escheats to the State.

      • # = the amount of steps removed from the deceased. Each # shares equally with those of the same #.



      1. Transfers to Children


      1. Posthumous children: a child born after the death of its father

      1. How do you determine if child is the child of father?

      1. Common Law: child born w/in 280 days of death of father is presumed to be child of that father (a rebuttable presumption)

      2. Uniform Parentage Act: a child born w/in 300 days of death of father is presumed to be child of that father (a rebuttable presumption)

      3. Reasonable Time (EPIC/UPC/MICH): opens door for a lot of rebuttable presumptions

      1. Davis v. Davis:

      1. Divorce action that occurred after egg removal, but before implantation.

      2. ISSUE: custody of the embryos – Mom wanted right to have kids, Dad didn;t want to be made to have kids.

      3. RULE: the court would only give preference to woman only if she could prove it was her only chance to conceive. However, it was not & she lost.





      1. Adopted children

      1. Hall v. Vallandingham:

      1. RULE: adopted children cannot inherit from their natural uncle. Once children are adopted, they are cut off from their natural family rights.

      2. Adopted children are not given more inheritance rights than natural children – adopted children are considered natural children of their adoptive parents!

      3. Michigan follows this rule (MCL), however, EPIC 2114 is a combo of MCL and Hall. UPC 2-114(b) does not follow Hall.

      • EPIC 2114(2) & UPC 2-114(b) will allow inheritance through adoptive & natural parents

      • EPIC follows the Texas rule that if adoption occurs due to death of a parent, children can still inherit.

      • EPIC 2114(4) disallows inheritance by deadbeat parents.

      1. If parents divorce & children are adopted by stepfather, then children are cut off from natural father’s inheritance.

      2. If a parent doesn’t visit or support a child for 2 years, the law will cut off his parental rights.

      3. Adoption of an adult may not affect family’s rights.


      1. O’Neal v. Wilkes:

      1. Child was passed to several relatives before being given to the Cooks by her aunt. The Cooks never statutorily adopted her, but there was an obvious father-daughter relationship. The aunt was not legal custodian & could not contract for the adoption.

      2. MAJORITY: not a virtual adoption because no one had the authority to contract for the adoption.

      3. DISSENT: Equitable Adoption

      1. Used where someone treats a child like his own

      2. Estops other family members from denying the relationship. The child is the innocent party & it is not her fault nobody had the foresight to adopt her.

      3. Only flows one way as it can only benefit the child. i.e. “adoptive parents” cannot bring wrongful death action.

      4. Recognized in Michigan


      1. Estate of Riggs: (note 1 p.105)

      1. Equitable adoption is a one way street to benefit only the child. It prevents other relatives of equitable parent from denying adoption ever took place.

      2. Equitable adoption permits an equitably adopted child to inherit from the foster parents. On the other hand, foster parents (and their relatives) cannot inherit from the child.


      1. Non-marital Children

      1. At common law, child born out of wedlock was considered nobody’s child and, therefore, could not inherit.

      2. England: In 1926, allowed child to inherit from mother; in 1969, gave the same inheritance as the marital children.

      3. United States: all J’s permit inheritance from mother, however, inheritance from father varies.


      1. Uniform Parentage Act provides an assumption of paternity if:

      1. while minor, raised by father as his own

      2. child acknowledges paternity in writing with appropriate court

      3. father marries mother


      1. In order to establish paternity, must do one of the following: (EPIC 2114(1)(c))

      1. father signs written acknowledgment filed in probate court where child lives

      2. father & mother jointly request issuance of birth certificate legitimizing birth

      3. father & child mutually acknowledge the parent-child relationship before the child is 18 & it continues until one dies. (most common)

      4. where there is an order of affiliation entered by the court (usually after blood testing)

      • Children can’t choose biological father of extra marital affair if mom was married at conception. Therefore, mom’s husband, not biological father, is the father.


      e. Hecht v. Superior Court:

      1. Decedent donor’s administrator filed a petition on behalf of decedent’s children to have sperm vials destroyed.

      2. RULE: the court said that the vials should be treated as human tissue & as one of decedent’s assets to be gifted in his will. The individual producing them should have priority as to what to do with them & decedent had released them to the defendant. The court found no public policy against single women becoming artificially inseminated.


      4. Advancements

      1. Common Law – if a parent gave a gift to one child, it would be equalized upon parent’s death. The only way around this was to sign an acknowledgement creating an absolute gift.

      2. UPC 2-109/EPIC 2109: the presumption changed so lifetime gifts are not automatically deducted from the share unless there is a writing.

      1. must be signed by donor or donee contemporaneously with the giving of the gift.

      2. Hotchpot

      1. Example 1: Decedent leaves a 50 k estae, no spouse & 3 children. A received a 10k advancement. To calculate, add 10k to 50k estate = 60k total, then divide by # of children. Therefore A=10 k (already rec’d 10k), B=20k, C=20k


      1. Example 2: A received a 34k advancement. Now, A is left out and B & C receive ½ of the estate each. Therefore, A=34k, B=25k, C=25k. Things don’t always end up equal!

      • A does not pay back the estate as there is a public policy against possible placement of undue burden on the party with more.

      • Example 3: Decedent now leaves a 90k estate. A received a 30k advancement. D, A’s child, received a 15 k advancement. Do not add D’s advancement unless A is dead. Therefore, A=10k, B=40k, C=40k.

      • Example 4: A is now dead and also has child, E. Now add D’s advancement. Therefore, A=0, B=35 k, C=35k, D=2.5k, E=17.5k (15+90=105k divided by 3=35k)

        • If the advancement is real estate, then charge the value at the time of the gift. Depreciation/appreciation is not factored.


        5. Transfer of Expectancy

        a. Expectancy: what an heir expects to receive from a decedent. One cannot bank or

        count on this – it is a future interest!

        1. An expectancy cannot be transferred – actually it can, but who would want it???

        2. A transfer must be in writing & must be for fair consideration.

        3. A child can release expectancy to its own parents or transfer to 3rd parties unless an only child.


        6. Managing a Minor’s Property

        1. As of 1979, the court can appoint both a Guardian & Conservator for minor’s estate

        1. guardian: decisions regarding the physical person

        2. conservator: decisions regarding assets

        • the same person can be both guardian & conservator. Generally, the conservator will be a parent, but can be a non-family member. If existing parent is, i.e., a drug addict, another family member can petition the court for guardianship. If a child receives >5k settlement in any year, a conservator must be appointed.

        3. full guardianship: becomes a parent in the eyes of the law

        1. limited guardianship: parent files petition that someone else be appointed guardianship. i.e a single parent in Army boot camp. This allows for education & job training. It is the goal of the court to return the child to the parent ASAP.

        2. placement plan: if a parent fails to comply with its plan that was turned into the court, the court can terminate rights.


        1. Conservatorship

        1. Once someone qualifies as Conservator, the court must decide the type of bond to be filed:

        1. surety bond – in amount of minor’s assets

        2. nominal (personal) bond – usually 1k, although Oakland Co. is increasing to 2.5k

        • restricted letters of authority: the bank where $ is deposited may not process withdrawals w/o first getting a court order. (Wayne Co. requires surety bond & RLOA)


        1. Restrictions on Handling a Minor’s Money:

        1. Parents have a legal obligation to provide food, shelter, clothing, education & medical care. Too many parents treat their child’s $ as their own.

        2. The court will allow reimbursement for a used car (if necessary) or car insurance; others include tuition for private school.

        3. Investments are restricted to banking institutions that are FDIC insured: the court is very conservative with minor’s assets – more interested in security than return.


        7. Uniform Gifts to Minors Act (UGMA)

        1. A gift can be made to a minor that will not require a conservator i.e a grandparent can buy a bond, etc. A custodian will be appointed & he has more freedom in that there is no reporting to the court required.


        8. Guardian Ad litem

        1. This is an attorney who acts as a courts advisor or investigator. This is not a continuing app’t like that of conservator.

        2. Stands in the shoes of the minor & has the sole focus neutral position of deciding what is best for the minor.

        3. Largest area for this type of app’t is when a minor is attempting to collect on a P.I. claim. Under MCR 2.420, the settlement must be approved by the court.

        4. Requirements:

        1. once lawsuit is filed, settlement must be taken to judge that was assigned the case.

        2. if no lawsuit filed, but claim made, then go to probate court.

        • whether minor is entitled to receive >5k in one year, then must have conservator to have settlement approved & check paid out. If an attorney negotiates a settlement of 7.5k, but net to minor is <5k no conservator is needed.

        • if settlement is >5k:

        1. file petition for approval of conservator

        2. file for approval of settlement

        • Wayne Co. only: if >5k settlement, must take to probate court a form showing that the bond is sufficient before settlement will be approved.


        9. Structured Settlements

        1. Because a conservator must file an annual accounting with the probate court until minor reaches majority, structured settlements in the form of an annuity are a good option.

        2. The annuity grows until age 18 when it will be paid monthly, yearly, etc.

        3. If the $ is placed in an account gaining interest, the interest is taxable & a return must be filed.




        1. Example: 20 k settlement paid into an annuity. Therefore, not actually settling for 20 k, but for the right to receive future payments. No reports have to be done by conservator. No taxes paid because payments for P.I. & not income.

        Age 18=15k, Age 19=16k, Age 20=17k, Age 21=18k Total=66k!

        1. Advantage: Avoiding annual accounts

        2. Disadvantage: the future is unpredictable – sureties can go out of business & settlement is gone.

        3. If minor dies early, payments are still made on scheduled dates to the estate of beneficiary.



        1. Bars to Succession


        1. In re Estate of Mahoney:

        1. Wife convicted of manslaughtering husband & claimed his estate.

        2. 3 methods of thought:

        1. should not take away $

        2. treat as predeceased & don’t award $ (a legal fiction)

        3. legal title to killer, but does not enjoy profit of crime = constructive trust that prevents unjust enrichment. The constructive trustee muss pass to heirs.

        1. The court chose #3.

        2. UPC 2-803/EPIC 2803 follow #2:

        • If “feloniously & intentionally” kill another, then will be treated as if predeceased the deceased. Therefore, can’t elect against the will, pay on death K’s are revoked, no statutory share, sever joint interests whether testate or intestate (converted to tenancy in common). Michigan includes aiding & abetting. EPIC says the killer disclaimed its interest.


        1. Disclaimers

        1. A renunciation of a gift; a document preventing $ from passing to the donee, rather the $ rolls right past the donee & treats him as if he is predeceased.

        2. qualified disclaimer: donee refusing to accept gift; an irrevocable & unqualified refusal to accept an interest in property.

        1. requirements:

        1. must be in writing

        2. received by transferor or donor or his estate w/in 9 months of date of transfer or date of death or attaining age 21

        3. donee must not receive any benefit or gift

        4. donee cannot control where property passes.

        5. MichiganUniform Disclaimer Act: can disclaim a portion of the inheritance

        6. Cannot disclaim present interest and claim future interest





        1. Potential problem with disclaimer:



        (A) (B) C 1/3


        D E F G H I J

        1/6 1/6 1/3

        • under per capita, if C disclaims, will cause the roots to drop, allowing his kids to get 1/7x4 = more than half!





        1. Mental Capacity


        1. Formalities of creating a will: EPIC 2501

        1. 18 years of age

        2. of sound mind

        1. Minimum test for mental capacity:

        1. testator must know nature/extent of his property

        2. must know persons who would be natural objects of testator’s bounty – i.e who are the heirs?

        3. disposition testator wishes to make of his property at time of death

        4. must know how above 3 requirements form an orderly plan for disposition of wealth – i.e understanding that he is signing a will

        • All that matters is that testator have mental capacity on the day & time that the will is signed.

        • Even if the testator had a guardian or conservator appointed, they can still sign a will – does not create a presumption of unsound mind.

        • Legally incapacitated: a person unable to make an informed decision regarding your person or your assets


        1. Questions to ask the client:

        1. what property do you own?

        2. who are the natural heirs?

        3. what do you want to give to whom?

        4. do you understand that you are going to be signing a will?


        1. In re Strittmater:

        1. She had a documented illness that manifested itself in her hatred for men. However, the court went through the back door to invalidate the will due to the time.

        2. Today, just because the testator may have a mental illness will not invalidate the will. The test for mental capacity must still be performed and will depend on the if the testator is being treated or not.



        1. Insane Delusion

        1. Definition: a delusion is insane even if there is a factual basis for it if a rational person in testator’s situation could not have drawn the conclusion by testator; an impairment of testamentary capacity.

        • Lack of testamentary capacity: lack of capacity to understand any of the 4 requirements

        • Difference b/w delusion & mistake is that a mistake is susceptible to correction where a delusion is not. A mistake will not invalidate a will where an insane delusion will invalidate only the part of the will that is affected by the delusion.

        • Insane delusion is a legal concept, not a psychiatric concept.


          1. In re Honigman:

          1. Man insisted that his wife was having an affair as he felt his wife was exuding bizarre behavior.

          2. ISSUE: whether he was suffering from a delusion at the time he made his will.

          3. RULE: The court must look at whether his belief of the affair was “reasonable.” If they weren’t, then they go to his insane delusions. Would a rational person based on these facts believe that she was having an affair?

          • this is the majority view.

          • Michigan (the minority view) says that if there is any factual basis for delusion at all, it is not a delusion.

          • Ante-mortem probate (Michigan): figure out one’s mental capacity while they are still alive.

            1. Advantage: testator is there & able to answer questions

            2. Disadvantages:

            1. Ties up the legal system

            2. Could cause family disagreement

            3. Family would become aware of what was contained in the will



            1. Undue Influence: coercion into doing what you don’t want to do.


            1. Test for undue influence:

            1. Does the influencer have the disposition & opportunity to influence? i.e Is there a confidential relationship?

            • status as family member not sufficient – more likely a lawyer, doctor or priest


            1. Is testator susceptible of undue influence? i.e physical/mental condition, in hospital, low IQ, drugged, etc.

            2. Is there an unusual disposition in the will?

            • If all 3 questions are answered affirmatively, then there is a presumption of indue influence. The BOP shifts to influencer to prove by a preponderance of the evidence that they did not influence. If influencer is an attorney, then by clear & convincing.





            1. Lipper v. Weslow:

            1. A will prepared by testator’s son that cut out her grandchildren

            2. Test:

            1. Confidential relationship? Yes – A/C privilege & son. Also, son lived next door & had a key.

            2. Susceptible of undue influence? She died 22 days after signing the will, therefore, she may have been sicker than originally thought.

            3. Unusual disposition? Yes – kids that she didn’t even like ended up getting ½ .

            1. No contest clause (in terrorem):

            1. Provide that a beneficiary who contests the will shall take nothing, or a token amount, in lieu of the provisions made for the beneficiary in the will.

            2. Generally, not upheld as they are disfavored by the courts


            3. Michigan has somewhat different test for undue influence:

            1. susceptible/mentally weak testator (most important!)

            2. activity can be beneficiary in procuring will (important!)

            3. opportunity of influence to influence testator (confidential relationship)

            • family is not in itself confidential; involvement in immoral activity is not enough

            • does will benefit influencer?

            • suspicious circumstances – the “catch all”

              • threats of violence to testator, threats of civil/criminal prosecution, threats to leave testator when he is ill, if beneficiary keeps will in her possession

              4. Bequests to Attorneys

              1. Most J’s find automatic presumption of undue influence if there is a bequest to an attorney, even if attorney did not draft the will. The court, however, will be reasonable.

              2. An attorney shall not suggest that a gift be made. If client insists, the attorney has the duty to advise of outside, disinterested counsel.

              3. Family members:

              1. never charge a family member for drafting a will

              2. never leave more than intestate share for yourself if doing for family member as intestacy decides “normal” disposition

              3. must send family member to outside counsel if they want to cut out brother/sister

              4. it should never be your own idea to do a will for a family member

              5. in-laws are considered blood relatives


              5. In re Will of Moses:

              1. The court went through the tests of undue influence.

              2. Technically a wrong decision & very result-oriented


              6. In re Kaufmann’s Will:

              1. The court went through the tests of undue influence

              2. Seems like a case where the court’s morals were offended (wealthy, gay man) more than one of undue influence.



              7. Seward Johnson’s Estate:

              1. Major mistake for Nina was not to tell Seward that some of his children were going to contest the will – A/C confidentiality. Never agree to withhold information from client because there is a duty to the client!

              2. Things top help defend undue influence:

              1. have more witnesses

              2. ask more questions

              3. have many meetings & make notes as to capacity

              4. meet with client alone

              • if client comes with same kid every time, this is good evidence of undue influence, especially if that kid is to receive more than others

              • videotape: but if client is very ill, don’t want to videotape

              • have client write in his own handwriting

              • document your file


                1. Fraud


                1. Fraud: when the testator is deceived by a misrepresentation & acts in a way that he would not have acted otherwise; may be innocent misrepresentation – no intent to deceive

                2. 2-prong test for fraud:

                1. the misrepresentation must be done with intent to deceive testator

                2. the misrepresentation must have been given for the purpose of influencing a disposition

                1. Types of fraud:

                1. fraud in the inducement: a person misrepresents facts that cause a testator to execute or not execute a will. i.e induces a different disposition.

                • makes the will voidable

                • fraud in the execution: a misrepresentation as to the document the testator is signing. i.e testator thinks he is signing a K, but actually signing a will.

                  • makes the will automatically void


                  1. Latham v. Father Divine:

                  1. Testator left all $ to Father Divine, then she made statements that she wanted to change the will. Father Divine hired a surgeon to perform an unnecessary surgey that killed her.

                  2. Court found that there was fraud (in the inducement) & court set up a constructive trust having Father Divine hold as constructive trustee for her cousins.


                  1. Exam Tip: if funny things in fact pattern, think of:

                  1. mental capacity

                  2. undue influence

                  3. insane delusion

                  4. fraud

                  • any of these things can cause will to be thrown out



                  1. WILLS, FORMALITIES AND FORMS


                  1. Execution of Wills


                  1. History

                  1. 1540 England: Statute of Wills

                  • first written law allowing citizens to pass property w/o passing by primogeniture

                  • 1677: Statute of Frauds

                    • will must be in writing & signed by testator; signature did not have to be at the foot of the document, but could be anywhere

                    • Michigan/UPC follow this, but:

                    1. 1837 England: Wills Act

                    • combined real estate & personal property passing

                    • will must be in writing & signed by the testator at the foot of the document – a subscription/subscribed

                    • 2 witnesses must sign at the same time


                    1. Execution Requirements: UPC 2-502/EPIC 2502

                    1. shall be in writing

                    2. signed by testator (or another individual defined by statute)

                    3. signed by at least 2 persons who either:

                    1. witnessed testator signing; or

                    2. testator’s acknowledgment of the will or of signature

                    3. conscience presence” inserted into EPIC


                    3. In re Groffman:

                    1. (English case – under Wills Act) As both witnesses were not in the room at the same time to witness testator’s signature or acknowledgment, and did not witness each other’s signature, the execution was not accomplished. Only sufficient if the witness saw or might have seen the signature, not if the testator expressly declared the paper in his will

                    2. Michigan would have a different result as it is not required that both witnesses be present at the same time.


                    4. (3) Tests for Witnessing:

                    1. presence test: witness must see testator sign & be able to comprehend. i.e 2nd row of class

                    2. line of sight test: witness can see pen across the page. i.e back row of class

                    3. conscience presence test (UPC/EPIC): witnesses are able to sense, using natural senses, that a signing was going on. i.e. the room next door

                    • Witnessing over the phone is currently not legal, though this may change w/tech!

                    • An attorney can be a witness for a will that he has drafted – usually one of the best!




                    5. Addition after signature - Problem 7 p.217

                    1. Testator has a typewritten will & adds in his own writing below the signature, “I give Karen my ring.”

                    2. If there is an addition after the signature and T signs on the line, if addition is still below the line, then the addition is invalid in all jurisdictions.

                    3. If T signs the will, then adds more information, but doesn’t sign again, jurisdictions are split. Some say the will is invalid altogether & some say valid above signature & invalid below.


                    1. Delayed AttestationIn re Estate of Peters: Problem 9 p. 217

                    1. Definition: one witnesses the signature of testator, but the witness signs the will after testator dies.

                    2. Signing the will after testator’s death isn’t necessarily forbidden, but must be done within a reasonable time (maybe 1-2 weeks).


                    1. Estate of Parsons:

                    1. Two of the three persons that signed the will were beneficiaries of the will. One person attempted to disclaim her share so that the will could be found to be duly executed.

                    2. Is the will valid? Yes! It is in writing, signed by testator & at least 2 witnesses. If there had been one more disinterested witness, this could have been a valid gift. Since the will is valid, the gifts will purge into the residue clause.

                    3. Disclaimer: the disclaimer was ineffective because the disclaimer only relates back to the date of death. Therefore, it does not go back far enough. Also, the witness is required to be a disinterested person when they witness the will.

                    4. An attorney who is at the signing & allows this to happen has committed malpractice.


                    1. Types of Purging Statutes:

                    1. pure purging (Parsons): if no 2 disinterested witnesses, the witnesses’ gifts are knocked out.

                    2. UPC 2-505/EPIC 2505: will not purge at all.

                    • these are safeguards that go way back in history & are thought not to be needed now:

                    • any person generally competent may be a witness to a will

                    • gifts are valid even if interested party is a witness


                      1. Method of Executing a Will:

                      1. Make sure the document is complete

                      1. securely fasten (staple) the pages

                      2. label or # the pages

                      3. want sentences overlapping from page to page, therefore, it is easier to notice if something is missing

                      1. Make sure client knows what is in the will and understands it

                      • offer to read the will out loud if testator has difficulty reading

                      • Bring testator, disinterested witnesses, & notary into one room. Close the door & make sure no one enters or exits until the will is signed.

                      • Ask Testator the following questions in front of the witnesses:

                        1. is this your will?

                        2. have you read & understand it?

                        3. do you want these witnesses to witness?

                        4. what is your property & who are your heirs? (establish natural heirs especially if they are cutting someone out.)

                        1. Have the testator sign, making sure the witnesses can see. Then, have them sign or initial every page of the will.

                        2. Have each witness sign. Then, have witnesses initial every page.

                        3. Self proving affidavit: notary indicates that the parties appeared mentally competent & everything is accurate

                        1. Testator & witnesses should also sign

                        2. EPIC 2504: SPA is optional.

                        1. Conforming the will: Testator should only sign one copy. On the copies, use /s/Name

                        1. Where should the original will be kept? Options:

                        1. Have client keep in safe or fire box

                        2. Client can put in safety deposit box

                        3. File with probate court in county where client lives - $25

                        4. Put in attorney’s will vault – OK is give client other options

                        • if the original will is left with the attorney, make sure copies with testator ID where the original will is kept. Michigan: The attorney is obligated to deliver original to probate court upon hearing of client’s death (even if assets are jointly held)


                        1. In re Pavlinko’s Estate:

                        1. Husband & wife signed reciprocal wills, but each signed the wrong will.

                        2. Courts cannot correct a will or rewrite it if it is unambiguous in its terms. Here, they could not correct the wills without completely rewriting them.

                        • ambiguity: when there is no person or thing that answers to that description, or two or more persons or things answer to that description

                        • A court will strike terms if:

                          1. it will not change the terms of the will; and

                          2. there is sufficient evidence proving the mistake


                          1. Substantial Compliance Doctrine: UPC 2-503/EPIC 2503

                          1. If it can be established by clear & convincing evidence that testator intended it to be a will, codicil, or revocation, then it shall be if it substantially complied.

                          2. If used, the result in Pavlinko would have been different.

                          3. Developed by Professor Langbein.


                          1. In re Will of Ranney:

                          1. The will was signed in lawyer’s office with SPA. The witnesses signed only the SPA & not the will

                          2. Substantial compliance doctrine was used to save the will because it was proved by clear & convincing evidence that the intent of the witnesses was to sign the will and it thus substantially complied with the statute..

                          3. EPIC 2504(4) adds that the witnesses signature on a SPA will be considered signing the will.


                          1. Holographic Wills

                          1. Definition: a will written by the testator’s hand & signed by the testator; attesting witnesses are not required because it is in testator’s handwriting

                          2. Requirements:

                          1. UPC 2-502(b): signature & material provisions (“I give...”) must be in testator’s handwriting; the signature can be anywhere on the page.

                          2. EPIC 2502(2): material provisions & signature in testator’s handwriting; date;

                          • Intent that the document establishes the testator’s will including parts not in testator’s handwriting can be proved by extrinsic evidence.

                          • The important thing is testamentary intent!


                          1. In re Estate of Johnson:

                          1. Testator used a preprinted will form (like Michigan Statutory Will – EPIC 2519). When such a will is used, it depends on whether it is valid on the 4 corners of the will. The will did not have 2 witnesses (not required by a statutory will).

                          2. If no witnesses, is it holographic?

                          • In order to decide, must look at handwritten portions & not typewritten provisions.

                          • The court said there was not enough evidence of testamentary intent.


                          1. Kimmel’s Estate:

                          1. Testator wrote a letter to his sons using poor English & signed it “Father.”

                          2. Does this express testamentary intent?

                          1. Education does not take away from intent of words

                          2. He was ill, planning a trip, turning over important documents, told them to keep letter, therefore, it was sufficient to qualify as language of testamentary intent.

                          1. Was “Father” a sufficient signature?

                          1. This was his normal signature, it was his handwriting, he sent it to one of the heirs, he was a letter writer, therefore, it was sufficient for the signature requirement.

                          1. Conditional Wills:

                          1. Definition: a will that becomes effective upon the occurrence of an event; otherwise, the will is void; they are handwritten & conditioned on the party who may not return from atrip or may not make it through surgery.

                          • The condition is the failure to return or recover.

                          • Courts generally disfavor revoking or voiding a conditional will if it means the person will die intestate; courts try to interpret so that the condition has not been met if there is no subsequent will.

                          • Be specific on what exactly voids the will:

                            1. If party leaves a conditional will before going on a trip, the court will determine that the testator was still on the trip until they walk in the front door.



                            1. Revocation of Wills – UPC 2-507/EPIC 2507


                            1. Methods to revoke a will:

                            1. express: saying in a subsequent will, “I hereby revoke a previous will.”

                            1. 2 methods of express revocation:

                            1. subsequent will: must meet signing requirements or holographic statute

                            2. inconsistency:

                            will codicil

                            car to A house to D

                            house to B ring to E

                            bank acc’t to C

                            *Both are read together & 2nd document holds.

                            *D takes house & others take what they were given

                            b. physical act: burning, tearing, obliterating or otherwise destroying the will.

                            1. Requirements:

                            1. must de done by testator with intent to revoke

                            2. must be done by testator or someone else in testator’s presence or direction

                            2. UPC/EPIC allow only a “revoked” or “cancelled” writing at margin where MCL used to require “X” over the entire face.

                            c. Courts prefer express revocation because a physical act van be ambiguous

                            d. Presumption: if the will was last in testator’s possession & at time of testator’s death it cannot be found, it is presumed that testator destroyed the will with intent to revoke.


                            2. UPC 2-507/EPIC 2507(2)

                            1. What if a subsequent will does not expressly revoke a will?

                            1. it is presumed to be an intended replacement if it makes a complete disposal of the estate

                            2. it is presumed to be a supplement if it does not completely dispose of the estate


                            3. Harrison v. Bird:

                            1. Testator attempted to revoke her will by calling her attorney. The attorney & secretary tore the will into 4 pieces & sent it to her with a letter. At time of death, found the letter, but not the 4 pieces.

                            2. The will was not properly revoked by physical act

                            • Testator must do the tearing or at least it has to be done in her presence & at her direction

                            • A lost will is presumed to be revoked. Can use extrinsic evidence to prove unintentional destruction.





                              4. Probate of Lost Wills

                              1. In order to probate a lost will:

                              1. the will must have been unintentionally destroyed

                              2. must prove the contents of the will & name of witnesses

                              3. need 2 reputable witnesses who can testify to the execution and 2 reputable witnesses who can testify to the contents

                              • can be the same 2 people or 4 different people

                              • a copy of the conformed will greatly helps – once you get past the presumption (BOP=preponderance), a copy can be probated


                              5. Thompson v. Royall:

                              1. Testator signed a will, then talked to attorney about revoking. Attorney said that instead of throwing it away, she should keep as memo. The attorney wrote on the back, “this will is null & void.”

                              2. This was not an express revocation because it was not done by testator, therefore, it does not meet the requirements of holograph & no witnesses were present at signing.

                              3. Court fund no destruction by physical act – the writing on back was not sufficient.

                              4. UPC 2-507(a)/EPIC 2507 would have found this sufficient to revoke.


                              6. Partial Revocation by physical act:

                              1. Allowed by UPC and in Michigan, but many states do not.

                              2. Example:

                              “Residue to A, B, C, D.” Testator then crosses out C in pencil.

                              1. State that allows partial revocation (UPC/Michigan): would go to A, B, D (no signature or attestation necessary). There is a presumption that the additional marks were done by testator = a rebuttable presumption that marks on will were done by testator.

                              2. State that does not allow partial revocation: the line is ignored! All take.

                              3. State that does not allow partial revocation, but does allow holographs: this would be allowed & seen as effective: A, B, D take.

                              7. Dependent Relative Revocation (DRR)

                              1. An equitable power of the court that imposes a conditional frame of mind on the testator at the time a revocation is made; the revocation is usually made upon a mistaken assumption of law or fact.

                              • if a revocation if followed by a disposition that fails, we say, by testator’s conditional frame of mind, that he didn’t really revoke.

                              • DRR is recognized in every state. The state must recognize partial revocation by physical act.


                                8. Carter v. First United Methodist Church:

                                1. Will executed in 1963. In 1978, testator made notes about changes captioned as her will.

                                2. What is her intent for disbursement? Her 1978 notes, however, these did not create a valid will.

                                • The 1963 will has not been expressly revoked

                                • The court said that by using DRR, the 1963 will should be probated because there is a presumption that she would prefer the 1963 will over intestacy.

                                  • By finding the notes with the will, this meant that she wanted the will revoked to uphold the notes. If the notes were found by themselves, DRR is out & she dies intestate.

                                  • The BOP is on the person offering the will for probate. Must have a preponderance of the evidence that testator wouldn’t have revoked if he would have known that he couldn’t have made the change as he did.


                                    9. Examples:

                                    1. Example:“I give the sum of $1000 to my nephew, Charles.” At time of death, the will was in testator’s possession and 1000 was changed to 1500.

                                    2. This is not a valid holographic codicil, therefore, cannot give $1500.

                                    1. If not a holographic codicil, must look at only handwritten portions (material provisions) to get testator’s intent. Here, could not ascertain the intent.

                                    2. In a state that does not recognize partial revocation, Charles gets $1000.

                                    3. In a state that does recognize partial revocation, Charles gets 0!

                                    • Crossing out 1000 entirely revokes the gift.

                                    • Using DRR, Charles would get $1000 because it appears that testator intended that Charles get something!

                                      1. Example: “I give the sum of $1000 to my nephew, Charles.” At time of death, the will was in testator’s possession and 1000 was changed to 1500.

                                      1. Now Charles gets 0 because it appears that testator would rather give Charles 0 than 1000. (200 closer to 0 than 1000)

                                      1. Example: “I give the sum of $1000 to my nephew, Charles.” At time of death, the will was in testator’s possession and 1000 was changed to 500.

                                      1. Under UPC 2-509/EPIC 2509, there is a presumption in favor of revival if partial revocation. If there is sufficient evidence of wholly revoking, then Charles would get nothing. If revoking an entire will, there is a presumption against the revocation of the entire will. DRR cannot be used if amount is cut in half.

                                      1. Example: “I give the sum of $1000 to my nephew, Charles.” At time of death, the will was in testator’s possession and Charles was crossed out & Peggy was inserted.

                                      1. Presumption in favor of $ going to Carl unless sufficient evidence that it should go to Peggy.

                                      • However, Peggy will never get the $ because it is not a valid holograph. Either Charles take or the $ goes into testator’s estate!



                                      10. Estate of Alburn:

                                      1. Testator expressly revoke 1955 will with 1959 will 7 then destroyed the ’59 will thinking that it would revive the ’55 will. This took place in Wisconsin which was not a revival state, therefore, ’55 will can’t be revived & intestacy heirs take. These heirs were not mentioned in the will.

                                      2. The presumption is that testator would rather have the ’59 will than die intestate. Testator’s intent shows that he didn’t want assets going to family.

                                      3. ’59 will is closes to testator’s wishes, therefore, court uses DRR to say she wouldn’t have revoked the ’59 will if she would have known that she couldn’t bring back ’55 will.


                                      1. Revival

                                      1. UPC/EPIC: a previous will is not revived unless there is a preponderance of evidence that testator intended to revive it.

                                      • Under this, in Alburn, either will could have prevailed over intestacy.

                                      • Some states have automatic revival that would have automatically revived ’55 will in Alburn.

                                      • See examples in #9 above


                                        11. Revocation by Operation of Law

                                        1. Divorce

                                        1. Sever interest of ex spouse even though the will was not changes; if will expressly provides for an ex spouse then it is OK.

                                        2. POD K: depends on the language of the K & the state it occurs in

                                        1. Subsequent Marriage or birth of a Child

                                        1. don’t have to change the will; by statute, ex spouse is cut off

                                        2. pretermitted spouse or child: a new spouse or child not reflected in the will will still get its intestate share; this may exclude specific gifts given in will

                                        • this operates as a partial revocation of will by operation of the law



                                        1. Components of a Will


                                        1. Integration: what papers compose the will?

                                        1. Rules:

                                        1. all papers must be in existence at time document is signed

                                        2. all papers must have testamentary significance (must be signed as a will – either 2 witnesses or holographic)


                                        2. Republication by Codicil: reaffirms the will (unless explicitly revoked); usually contains

                                        a phrase that will do so.

                                        1. This updates the date of signing the will; i.e the date of signing the codicil is now considered the date that the will was signed for purposes of integration.

                                        2. Rules:

                                        1. ratifies previous will to the extent not inconsistent

                                        2. updates the will

                                        1. can give new life to a previous will declared invalid; i.e a will signed while under undue influence will be validated by a codicil that does not change it.


                                        3. Incorporation by Reference:

                                        1. Rules:

                                        1. document must be in existence when will is signed

                                        2. must identify document in will

                                        3. does not have to have testamentary significance (i.e signed like a will)

                                        1. This is how letters, deeds & trusts become part of a will.


                                        4. Clark v. Greenhalge:

                                        1. Testator left a painting to Clark in a memorandum referred to in the will. The last amendment to the memo was made subsequent to the signing of the will, however, a codicil was executed after the amendment.

                                        2. The codicil made the amendment valid. This republished the will making the amendment valid because it incorporated by reference.


                                        5. Simon v. Grayson:

                                        1. A will was first written, then a letter, then a codicil incorporating the letter into the will.

                                        2. The codicil republishes the will as of that its date & because of the letter’s incorporation by reference, the court read all 3 together through integration as the last will & testament.

                                        3. integration = only a will or codicil

                                        incorporation by reference used for the letter


                                        6. UPC 2-513/EPIC 2513

                                        1. List exception: one may leave a list of tangible personal property without conforming to the rules of integration or republication.

                                        • a standard clause in a will is that testator can do his own list; does not have to be in existence at time of will execution in order to be incorporated

                                        • Statute requirements:

                                          1. list must be in writing (doesn’t have to be signed if in handwriting)

                                          2. list must describe property & person to whom it goes with enough detail to describe with particularity

                                          3. can be signed before or after will is signed

                                          4. list does not need testamentary significance

                                          1. Under UPC/EPIC, one cannot include $ or coin collections in list!

                                          2. If a will & a list are in conflict, the will wins. The will is the stronger document.


                                          7. Johnson v. Johnson: A bad decision!

                                          1. A typewritten one-page, 3 paragraph will that had one handwritten line (codicil) giving $10 to brother, then testator’s signature & no witnesses.

                                          2. Typewritten portion was never signed & witnessed, so how can a holographic codicil give life or republish a document that was never valid?


                                          8. Events of Independent Significance – UPC 2-512/EPIC 2512

                                          1. Usually not an event, but a fact that allows extrinsic evidence to clarify ambiguities in a will. There must be ambiguity! (usually a general statement)

                                          2. Example: If entire estate is given to B, A can’t claim that T meant everything except his car.

                                          3. Example: “I give my entire estate to my 3 sisters.”

                                          • can bring in testimony to ascertain the names of the sisters

                                          • If the only way to clarify the ambiguity is to know what was in testator’s mind, then extrinsic evidence cannot be brought in.

                                          • Example: T leaves “to A the contents of my drawer.”

                                            • Must look at what is normally understood to be in the drawer. This may or may not be able to be established with extrinsic evidence.



                                            1. Contracts Relating to Wills – UPC 2-514/EPIC 2514


                                            1. Contract to Make a Will

                                            1. if part of a marriage agreement, it is generally not valid

                                            2. the common use today a promise that testator will take care of elderly who will pay out of the will when he dies


                                            2. Contract Not to revoke a Will

                                            1. more common than K to make a will

                                            2. a promise that testator will not revoke prior to death

                                            3. must have valid consideration – can be spouses’ mutual promises to each other


                                            d. Types:

                                            1. joint will: the same document signed by two people as their will

                                            1. when the first dies, if probate assets, they are probated (usually none at this point because they are held jointly)

                                            2. reciprocal (mutual) will: the same two people sign two separate documents

                                            that mirror each other (follow the same distribution plan)

                                            3. joint & mutual will: a civil document with contract mutuality; a joint will

                                            giving according to a contract


                                            e. UPC/EPIC recognize that a will can be revoked anytime prior to death, so to have

                                            a K not to revoke, one must be able to prove by clear & convincing evidence.

                                            1. Can prove by:

                                            1. provisions in will stating material provisions of K

                                            2. reference in will to outside K

                                            3. express writing (separate document) giving terms of K & signed by both parties

                                            f. Example: if testator makes a K with A that if A cares for T until T’s death that T will leave everything to A. A subsequently rescinds the K, but T never changes the will.

                                            • A takes because there is no ambiguity on the face of the will!


                                            3. Shimp v. Huff:

                                            1. Shimp signed a joint will with K not to revoke with 1st wife. Upon his death, his spouse was affected by the K.

                                            2. The court relied on public policy to protect Shimp’s spouse & allowed her to take her elective share.



                                            X. WILL SUBSTITUTES: NONPROBATE TRANSFERS


                                            A. Contracts with Payable-on-death Provisions


                                            1. Wilhoit v. People Life Insurance Co.:

                                            1. Beneficiary received the benefits from husband’s life insurance policy, but redeposited them with the defendant with the balance to go to Owens. She left the benefits to Wilhoit in her will. Owens predeceased her.

                                            2. Is this a K of deposit or is it life insurance?

                                            3. Court said that it was a K of deposit because she removed $ for 3 weeks. Had she accepted the 1st offer & never withdrawn, it would have been life insurance.


                                            1. UPC 6-101/EPIC 6101

                                            1. refers to pay on death contracts & says they are non testamentary and, therefore, not a will

                                            2. sub §(2) says that one cannot avoid creditors by insolvency if large funds payable to family, etc.


                                            1. Cook v. Equitable Life Assurance Society:

                                            1. Testator failed to change the beneficiary of his life insurance policy from his ex spouse to his current spouse & child. Instead, he wrote in his will that his son was to get proceeds.

                                            2. The will does not take priority over the contract

                                            1. The insured must change the beneficiary using the beneficiary form provided by the insurance company.

                                            2. Insurance companies do not want to have to pay benefits 2x!

                                            1. Only other option is to state in the divorce decree what is to become of proceeds.


                                            4. Estate of Hillowitz:

                                            1. Testator was a partner in an investment club & the club paid the wife the required payout.

                                            2. The court says that partners can come to an agreement, therefore, the interest passed to spouse.



                                            B. Multiple Party Bank Accounts


                                            1. Types of accounts:

                                            1. true joint account: either A or B can withdraw & survivor gets balance

                                            2. pay on death account: B cannot withdraw, but gets balance on the death of A

                                            3. agency account: B may withdraw, but on A’s death does not get the balance

                                            • commonly used by elderly parents so kids can pay their bills


                                            1. UPC 6-211

                                            1. Each party owns whatever they have contributed to the account unless there is clear & convincing evidence that different arrangements were intended by the parties.

                                            • Exception: if multiple parties are married, then they split account equally

                                            • A beneficiary has no right to sums during the lifetime of any party.


                                              1. UPC 6-212

                                              1. If 4 people share in account and 2 are married, if one spouse dies, then the other spouse gets ½ and the other two get ¼.

                                              2. On death of all parties, if beneficiary named, he gets it, but not until everybody dies.

                                              3. If no beneficiary, then the whole account goes through the estate of the last person to die.


                                              1. In re Cullman’s Estate:

                                              1. Jedd & Cullman were neighbors & friends. Cullman funded bank account with signature cards signed by both as joint tenants.

                                              2. The statute allows the keeping of funds when the account is joint,

                                              3. Must look at the intent on the day the account was opened – statements made before or after the date 7 time of account establishment are irrelevant.

                                              4. Presumption: intent of right of survivorship unless clear & convincing evidence to the contrary.

                                              5. Michigan: with a joint account, both parties have the right to remove the entire amount of $.



                                              C. Joint Tenancies


                                              1. If four joint tenants own land, if one dies, then his share goes to the other joint tenants. Therefore, each tenant now owns 1/3 instead of ¼.


                                              • if one of the JT’s wants to sell its interest, the buyer becomes a tenant in common & interest would pass to heirs

                                              1. Tenancy by the Entirety (married people): neither party can sell its interest without other’s permission.



                                              D. Revocable Deeds of Land


                                              1. Wright v. Huskey:

                                              1. Grantor devised property to daughter & son-in-law as tenants in common with the restriction of a life estate with the option to sell. Son-in-law remarried leaving a daughter as heir. She placed a lis pendens disallowing the sale of property by grantor.

                                              2. The court says this was not a deed:

                                              1. only thing transferred was a future interest, not a present interest

                                              2. deed was not a testamentary devise because it did not meet signing requirements

                                              1. Testator can sue for slander of title because lis pendens was wrongfully filed & someone else may have lost the opportunity to buy the property. One must be sure to be correct when filing a lis pendens!


                                              2. Requirements of a Gift:

                                              1. intent

                                              2. delivery

                                              1. constructive: giving donee access (keys to a car)

                                              2. symbolic: deliver a symbol of gift

                                              3. actual: physically turn over property

                                              1. acceptance

                                              2. Real property requires that a deed be delivered prior to death, but doesn’t have to be recorded prior to death.



                                              1. Revocable Trusts


                                              1. Advantages:

                                              1. another way to avoid probate as there is no need to go to court

                                              2. faster & less expensive


                                              1. Farkas v. Williams:

                                              1. This case established that one can be settlor, trustee, and beneficiary of his own trust.

                                              • The court said that just because he wears all 3 hats does not mean that he owns the property in the same way as before he set up the trust as he now owes duties to the remainderman.

                                              • Once someone holds their own property in trust, you must act as your own fiduciary. Therefore, you cannot squander $ needlessly because if you do, you canbe sued!


                                                1. In re Estate & Trust of Pilafas:

                                                1. Testator had both a trust & a will and was his own beneficiary & trustee. As he made up with children, he made amendments. After his death, they could not find codicil & amendment to trust. There was testimony that he was an impulsive man & may have thrown them out if the kids again angered him.

                                                2. Rules of Revocation for a will & trust:

                                                1. will: presumption that will was destroyed by testator with intent to revoke, therefore, will declared revoked & he dies intestate.

                                                2. trust: don’t have to sign trust with same will formalities

                                                1. Method of revocation is that which settlor says the method of revocation is – most require a writing delivered to trustee

                                                2. What if no method is specified? Any reasonable method of revocation

                                                • Michigan follows this


                                                4. State Street Bank & Trust Co. v. Reiser:

                                                1. Testator funded his revocable trust by using corporate stock from 5 companies. He took out a loan from the bank & he died shortly thereafter with a basically insolvent estate.

                                                2. It is against public policy to put all assets into a trust in order to avoid creditors.

                                                3. This case established the rights of creditors. However, those assets that pour over into the trust are not reachable by creditors.

                                                4. To the extent that settlor was able to withdraw funds himself while alive, creditors have the right to get paid to the same extent because he gave himself the right to withdraw funds from the trust.


                                                1. Pour Over Wills

                                                1. Most estate planners, upon drafting a revocable trust, also draft a new will because you want a will that pours over the assets of estate into the trust.

                                                • The residuary clause pours into trust & the trust is the vehicle that makes the distribution.

                                                • incorporation by reference: the trust must be in existence at time of making the will

                                                  • ”I give the rest, residue & remainder to the trust and name ‘X’ as trustee.”

                                                  • Michigan – Uniform Testamentary Additions to Trust Act (UTATA)

                                                    1. recognizes scheme that either trust or will might be amended, but it is incorporated by reference.

                                                    2. supercedes incorporation by reference


                                                    1. Fast facts about trusts

                                                    1. Inter vivos trusts are either revocable or irrevocable

                                                    2. Irrevocable trusts are only used for special items; revocable trusts are very common

                                                    3. Irrevocable trusts can be a problem because they are forever – like giving a gift

                                                    4. In Michigan, you must reserve right to revoke – there is a presumption that it is irrevocable


                                                    6. Clymer v. Mayo:

                                                    1. Most common type of estate plan involving trusts.

                                                    2. Professor married in ’53 & executed wills in ’63 with Mayo as beneficiary on retirement accounts & life insurance. When her parents died in ’73, she got lots of $ and, therefore, created a marital trust & a family trust. Husband was to get all income from family trust and the trustees could invade to give him $. Upon their divorce, husband gave up everything, but she did not change trust. Once she dies & husband is remarried, he wants assets of her trust.

                                                    3. Does he retain the benefit of the trust?

                                                    1. Court said:

                                                    1. it was a valid trust

                                                    2. Mayo did not take out of marital trust – object was defeated upon divorce

                                                    3. He was entitled to take under family trust because it was intended to give him a life estate & it was never revoked.

                                                    4. Nieces & nephews (original beneficiaries)were entitled to take under family trust


                                                    d. unified credit: amount able to pass at death tax free = $650k

                                                    unlimited marital deduction: can leave all $ to spouse tax free

                                                    • Example:

                                                      1. M estate; 2 trusts: Marital = 850k & Family = 650k

                                                    Therefore, can pass entire estate tax free!

                                                    • when spouse dies, only pay tax on 200k: 850k-650k

                                                    • if left all to spouse, then tax = 850k because only 650 k can go untaxed!


                                                    7. Reason why a settlor finds advantages to put assets into a trust while alive:

                                                    1. Can be managed by trustee & settlor can relax!

                                                    2. No income tax advantage – all assets still taxable to settlor.

                                                    3. Incompetency – if become incapacitated, trust has a mechanism where successor trustee can take over.

                                                    • a physician can declare incompetent & again when competence is regained (no hearings required either time!)


                                                    8. Consequences after death:

                                                    1. Avoided probate costs offset by trust costs, therefore, usually a wash. However, initial trust cost is higher.

                                                    2. Delays of probate is an advantage of a trust

                                                    3. Creditors – not a big difference with either

                                                    4. Wills are public information, while trusts are not because they are not registered/admitted with probate

                                                    5. Ancillary probate much easier with trusts

                                                    6. Testamentary trust must be registered with probate while revocable trust is not

                                                    7. Can choose law to govern a trust; with wills, the state of domicile governs

                                                    8. Avoid will contests with a trust; a trust can be challenged, but much harder

                                                    9. Controlling surviving spouses

                                                    • QTIP: Qualified Terminal Interest Property

                                                    • all spouse gets is income; upon spouse’s death, surviving spouse cannot move the corpus of the trust

                                                    • protects deceased spouse’s children in 2nd marriage



                                                      1. Planning for Incapacity


                                                      1. Durable Power of Attorney (often b/w spouses)

                                                      1. document that gives to designee the power to handle what it says they can handle = usually very broad

                                                      2. “intended to endure incapacity” makes it durable

                                                      3. General power of attorney’s power terminates upon incapacity where durable power of attorney does not = good!

                                                      4. Normally make DPOA immediately effective

                                                      5. “Springing” Durable Power of Attorney

                                                      1. Takes effect only if become incapacitated. However, difficult because person must be declared legally incapacitated before it takes effect = a hassle!

                                                      1. The problem with DPOA is that the person could clean you out, therefore, it can be a good idea to have a 3rd party hold the original

                                                      2. Financial institutions are not required to accept DPOA’s

                                                      3. Power of attorney is “attorney in fact,” not “attorney at law.”

                                                      4. DPOA can be revoked at any time as long as you have capacity. Must have the same signing requirements as the original DPOA.

                                                      5. A DPOA is automatically void on the death of the grantor of the power. The attorney in fact must have actual knowledge of death before actions are void.


                                                      2. General Power of Attorney for Minors

                                                      1. Can give power to someone else to make decisions for minor children if parents are unable. i.e parents on vacation

                                                      2. Maximum time good for is 6 months unless it is renewed.

                                                      3. Should be in writing, 2 witnesses, and a notray

                                                      4. If parent becomes incapacitated, the POA is void:

                                                      • Probate court would supervise & someone will be appointed limited guardian. The court “steps in the place” of the parents.


                                                      3. Cruzan v. Missouri Dep’t of Health – Health Care Directives/Living Wills

                                                      1. Girl was left incapacitated after a car accident & her family petitioned to remove life support. Guardian ad litem was appointed & concluded that she had a right to sustain her life.

                                                      2. The court said that we have a right of medical determination – what to accept or refuse. This continues even if one is incapacitated.

                                                      3. Must use clear & convincing evidence that this is what victim would want. In this case, the testimony of girl’s friend was not enough.

                                                      4. Living will: a signed document that allows life support systems to be shut off if victim is in a persistent vegetative state.

                                                      • remove the guilt & difficulty of making a decision for a family member


                                                      1. Due to Cruzan, Michigan enacted the following legislation:

                                                      1. ability to designate a patient advocate

                                                      1. hospitals must advise on the right to devise a PA & must provide the form

                                                      2. witnesses may not be family members who may receive estate or medical personnel

                                                      3. must be recognized that PA may make a decision that would hasten your death

                                                      4. cannot be done to a pregnant woman: must run a pregnancy test on every woman prior to doing so

                                                      • the fetus’s right to live outweighs the woman’s right to die



                                                      XI. INTERPRETATION OF WILLS


                                                      1. Admission of Extrinsic Evidence


                                                      1. Mahoney v. Granger:

                                                      1. Testator wanted to leave to her 25 cousins equally, but attorney instead left to her “heirs.” Her sole heir was her aunt.

                                                      2. The court said there was no ambiguity in the language of the will, therefore, can’t use extrinsic evidence to show intent. This is also the law in Michigan.

                                                      • An attorney’s mistake does not justify bringing in extrinsic evidence.

                                                      • Courts will not correct mistakes on the face of a will unless an unnecessary term can be stricken.


                                                        1. Plain meaning rule: the ordinary dictionary definition of the word; if unambiguous, the plain meaning cannot be disturbed & no extrinsic evidence can be brought in


                                                        1. Personal usage exception: using a term in a personal way – i.e “mother” instead of “wife” in a will.


                                                        1. Fleming v. Morrison:

                                                        1. Testator drew up a will to get a woman to sleep with him. He told the witnesses it was a fake.

                                                        2. The problem was in the execution & you can always bring in evidence to show that execution was improper.


                                                        1. Connecticut Junior Republic v. Sharon Hospital:

                                                        1. Testator executed a will giving $ to charities & subsequently executed 2 codicils adding & deleting charities, but a mistake was made. Attorney wanted to testify to his mistake.

                                                        2. There was no ambiguity on the 4 corners of the document, therefore, cannot allow extrinsic evidence to prove intent.

                                                        3. Even if there is ambiguity in the document, you can never bring in extrinsic evidence to show what was in testator’s mind – i.e what they were thinking.

                                                        4. Courts do not correct mistakes in wills!

                                                        5. Cannot sue the attorney because testator read & signed the documents.


                                                        1. Estate of Russell:

                                                        1. A 3x5 card will leaving $ to “Roxy Russell.” This was ambiguous because there was no person named Roxy Russell.

                                                        2. Ambiguity occurs when 2 or more people answer to a name or no one answers to the name.

                                                        3. Because underlying facts are a problem that can be proven without testator’s thoughts (cannot go into testator’s mind), you can bring in extrinsic evidence.


                                                        1. Types of defects:

                                                        1. latent ambiguity: one that is not clear on the face of the will – i.e. “to Roxy Russell”

                                                        2. patent ambiguity: appears on the language of the will

                                                        • Today, the courts do not distinguish between these types of defects as to when extrinsic evidence can be brought in – it always can be brought in!


                                                        1. Residue

                                                        1. Residue is now treated as a class gift.

                                                        2. At the time of this case, there was a “no residue of a residue” rule: once in residue, the residue could not be redivided & it fell out of the will.

                                                        • Today, this case would have a different result as this has been done away with


                                                        1. Death of Beneficiary Before Death of Testator


                                                        1. Lapse Statutes: if a beneficiary cannot take a specific devise, it falls into the estate & probably to the residue.


                                                        1. Anti-Lapse Rule – UPC2-603/EPIC 2603: if a specific devise in the will gives to someone already deceased, the gift is save for his children (if he is in the 3rd parentella – grandparents)


                                                        1. Narrow anti-lapse: only applies if child or descendant of child (IL, TX)

                                                        Broad anti-lapse: applies to any named beneficiary (D.C., IA, TN, VA)

                                                        Michigan/UPC: must be next of kin who potentially could be an heir under intestacy. i.e. grandparents parentella

                                                        • “120 hour rule”: to be a beneficiary, must survive by more than 120 hours past testator


                                                        1. 2 questions to ask about predeceased beneficiaries:

                                                        1. Is the deceased beneficiary within the required degree of relationship? i.e 3rd parentella (or stepchild under UPC/EPIC)

                                                        • if “yes’ go to #2

                                                        • Did they leave surviving issue? (120 hr rule)

                                                          • if “yes” anti-lapse is avoided


                                                          1. Example:

                                                          “House to brother, J (dec’d); Ring to girlfriend, H (living); Bank acct’s to C (died 120 hrs later-no children); Residue to members of barbershop quartet.”

                                                          • If J has kids, house goes to them due to anti-lapse

                                                          • Ring goes to H

                                                          • Bank acct’s go to residue

                                                          • One member of quartet was a relative with issue, other members dead, therefore, issue takes all!

                                                          1. If relative with issue dead & other members dead, other member alive, then alive member & issue share ½ of residue by per stirpes.

                                                          • Anti-lapse does not apply to one’s spouse!


                                                          5. In re Estate of Ulrikson:

                                                          (T) (M) (R) (S) (L)

                                                          a m t l g x y z eleanor

                                                          a b c d e

                                                          1. Will left everything to Melvin & Rodine, but if one should predecease the other, then everything to the survivor.

                                                          2. Was surviving a requirement to take?

                                                          3. The court found the language ambiguous & said that to have an absolute right of survival, the language must be clearer. If interpreted as an absolute right requirement, it falls into intestacy & divided into sixths...this was not his intent!

                                                          4. Ask Q’s:

                                                          1. Yes – brother

                                                          2. Yes – A & M. Therefore, residue goes to issue of M – A & M!


                                                          1. UPC 2-603/EPIC 2603 include stepchildren in the established required stepchildren, but does not give total intestacy rights!


                                                          6. Jackson v. Schultz:

                                                          1. The right of testator’s stepchildren’s right to sell house. Because the phrase included “and” instead of “or” it was challenged.

                                                          2. The Court found that whether “and” or “or” does not make a difference in the effect of interpretation.


                                                          7. Class Gifts

                                                          1. A gift in a will to two or more persons; or a gift to a group of indefinite size with a common bond or thread.

                                                          2. Saves the gift from going into the residue

                                                          3. Usually, there is a description that is easy to determine:

                                                          1. “to be shared equally among”

                                                          2. an indeterminate size until death

                                                          3. using specific names is usually not a class unless extrinsic evidence can place them as a class


                                                          1. UPC 2-603(4)/EPIC 2603(4): 120 hr rule & anti-lapse both still apply.

                                                          • Example: “to Amy, Bessie & Louise.”

                                                          • Was Louise related? She must be in order to take. otherwise the gift goes to the class!


                                                          1. EXAM TIP: in this area discuss all related areas: class gifts, anti-lapse & 120 hr rule!


                                                          8. Dawson v. Yucus:

                                                          1. Testator left property: ½ to A and ½ to B.

                                                          2. Even though it was intended as a class gift, the court said it was not a class gift because of the language used. Attorney did a poor job drafting!

                                                          3. Say in the will that you intend to give as a class gift to avoid problems!


                                                          1. Example: Testator gives Blackacre to bros/sisters in equal shares as class gift:

                                                          A B C D (E) At time of will



                                                          A B C D (E) At time of death

                                                          g h f


                                                          • Who takes? (g, h), (B), (C), (D), (f)

                                                          • f takes because of statute – 2-603(2) & (4)



                                                          9. In re Moss:

                                                          1. Testator devised to wife, Fowler (niece) and children of sister (nieces). At time of his death, wife and Fowler were deceased.

                                                          2. The court found this to be a class gift because, although one individual niece was named in the will 7 others were not, all were same degree of relationship (nieces) and should take equally.


                                                          10. Ademption

                                                          1. What happens when the gift no longer exists.

                                                          2. Applies only to specific bequests

                                                          1. specific gift: disposition of an item so specifically identified or capable of identification (not cash)

                                                          2. general gift: when the testator intends to confer a general benefit & not give a particular asset

                                                          3. demonstrative gift: a general sum of $ from a specific source i.e 5k from NBD acc’t

                                                          1. The devisee will receive nothing if the gift is no longer in testator’s estate = it adeems!


                                                          11. Wasserman v. Cohen:

                                                          1. Will gave real estate to A, however, the property was sold and put $ in different accounts.

                                                          2. RULE: If specific item is no longer owned by the testator, they get nothing!


                                                          12. UPC 2-605/EPIC 2605 - securities

                                                          1. If the entity or corporation declares a stock split before or after death of testatotr, the proceeds pass with the stock to the beneficiary.

                                                          2. Courts always consider stock a specific gift.

                                                          3. Example:


                                                          10/1 (T)a 4/30 (T)b 5/30

                                                          split record check

                                                          announced date:”snapshot” received


                                                          1. What if testator dies at Ta – who gets stock? The person who was bequeathed the stock & therefore will receive the dividend.

                                                          • At record date, who has beneficial interest of stock? If decedent dies before record date, devisee has the beneficial interest.

                                                          • What if testator dies at Tb – who gets the stock? The estate keeps the dividend & it is income to the estate.

                                                          • RULE: if T is alive on the record date, then any $ goes into the estate; if not then $ goes to beneficiaries





                                                            13. UPC 2-606/EPIC 2606: Exceptions to Ademption Rule

                                                            1. A specific devisee gets specific remaining property plus extra.

                                                            2. Example: “devise to my nephew, George, my stamp collection.”

                                                            • If 10 stamps are sold, they get what is left, not what has been sold for cash.

                                                            • If stamps are sold after death of testator, then George gets it!

                                                            1. Condemnation award: will get condemnation award instead of building if $ was not received & cashed or deposited by testator.

                                                            • The question is: has the check been negotiated?

                                                            • Proceeds to an insurance claim are treated the same as condemnation award


                                                              1. EPIC: devisee gets real/personal tangible property acquired as a replacement!

                                                              i.e. if testator’s house burns down & testator buys a new house, devisee will get new house!


                                                              1. Example: What if testator gives proceeds of CD’s to George & testator has a stroke & becomes incapacitated. Thereafter, a guardian is appointed & cashes CD to pay for nursing home expenses.

                                                              • This gift is only partially adeemed: a fiduciary cannot totally change testator’s estate plan. George will get remaining $ at time of testator’s death.

                                                              • If testator recovers and no longer needs a guardian, testator has one year to rectify what guardian did to estate plan, otherwise it is ratified. Therefore, not adeemed until one year period ends.


                                                              14. Abatement

                                                              1. Distributing the assets of the estate when they aren’t sufficient to pay off the debts & devises.

                                                              2. Order of abatement:

                                                              1. residue

                                                              2. specific

                                                              3. general


                                                              1. Example:


                                                              1. House to Andrew 120k specific

                                                              2. Any car I own to Bob 23k specific

                                                              3. Diamond ring to Carol 4k specific

                                                              4. GM stock to Donald 18k specific

                                                              5. Sum of 20 k to Ellen 20k general

                                                              6. 30k from NBD to Fred 30k demonstrative – 20k gen/10k spec

                                                              7. Residue to George (60k)


                                                              Gross estate = 275k

                                                              Debts & Taxes = 135k

                                                              No gifts have adeemed

                                                              NBD acc’t balance = 10k


                                                              Step 1: Residue

                                                              275k-215k = 60 k

                                                              135k-60k = 75k left – therefore, George will get nothing as residue is used!


                                                              Step 2: General = 40 k total

                                                              75k-40k = 35k still to come from specific pro rata

                                                              Step 3: Specific = 175k total

                                                              35k/175k = .20 = 20% each specific gift.


                                                              Step 4: calculate specific gifts

                                                              • options for devisees:

                                                              1-sell object

                                                              2- pay into estate the share & keep gift

                                                              deductions devisee’s share

                                                              A=24,000 96,000

                                                              B=4600 18,400

                                                              C=800 3200

                                                              D=3600 14,400

                                                              F=2000 8000

                                                              Total=35k Total=140k


                                                              1. Example 2: Debts & taxes change to 90k

                                                              Step 1: 90k-60k residue = 30k


                                                              Step 2: General = 40k, therefore enough to cover (specific takers will get 100%)


                                                              30k/40k = .75 = 75% out of each specific

                                                              Therefore: Ellen gets 5k

                                                              Fred gets 5k (plus 10 k specific)


                                                              1. Example 3: Diamond ring has been stolen & therefore adeemed.

                                                              • Carol gets nothing

                                                              • This changes everything except the gross estate – it stays the same


                                                              1. Example 4: Mortgage on house for 75k

                                                              • subtract this 75k from 120k value of house – new total=140k and residue=135k

                                                              • Does not change debts or gross estate


                                                              1. EXAM TIP: Never change gross estate or debts


                                                              15. Doctrine of Satisfaction (Mick Jagger Statute)

                                                              1. Applies only to general pecuniary bequests or devisees.

                                                              2. The same thing as an advancement for an intestate estate

                                                              3. Must be in writing contemporaneously with gift giving

                                                              4. Example: In the previous example, what if testator paid Ellen 15k prior to death?

                                                              • Ellen is only entitled to 5k at time of death.

                                                              • TERMS:

                                                              • Ademption of Specifics

                                                                Satisfaction of Generals


                                                                16. Exoneration

                                                                1. CL rule that if a testator gives a gift to someone it is given unencumbered – not in Michigan!

                                                                2. UPC 2-697/EPIC 2607: if there is a lien on any devised property, the devisee takes the property encumbered with that lien



                                                                VII. RESTRICTIONS ON THE POWER OF DISPOSITION:

                                                                PROTECTION OF THE SPOUSE AND CHILDREN


                                                                1. Rights of the Surviving Spouse


                                                                1. Allowances

                                                                1. Intended to be paid from general assets before creditors get paid

                                                                2. Payable to spouse & minor children


                                                                1. Types:

                                                                1. Homestead – UPC 2-402/EPIC 2402

                                                                1. A part of spouse’s life estate in family home, but only 15k; Michigan has also added a “cost of living allowance” in increments of $1000.

                                                                2. If no surviving spouse, the allowance is payable to minor or dependent children

                                                                • dependent: one with a disability

                                                                • Example: if spouse is to get 50 k in the will & creditors are paid, then spouse gets 50k+15k = 65k total


                                                                  1. Personal property allowance – UPC 2-403/EPIC 2404

                                                                  1. Covers personal property items

                                                                  2. Surviving spouse or “children” (not necessarily only minors) are allowed to keep 10k in personal property.

                                                                  3. if the value of personal property is <10k, they can make up the difference in cash out of the estate.


                                                                  1. Family allowance – UPC 2-404/EPIC2403

                                                                  1. A weekly sum paid to surviving spouse or minor children for up to one year for maintenance & support.

                                                                  2. If they continue to need support after one year, can be ordered by court but will be reducing their distribution.

                                                                  3. “reasoanble family allowance”= 18k per year




                                                                  1. Dower – EPIC retains it

                                                                  1. A widow gets a life estate of 1/3 of lands acquired by husband during marriage.

                                                                  2. An elective, not automatic right of spouse.

                                                                  3. The right runs with the land, therefore, always get wife’s signature on a deed so you can dispense with any dower right.


                                                                  1. Curtesy

                                                                  1. Husband’s right to 100% of wife’s property if they had one child.

                                                                  2. Abolished in Michigan & most states.


                                                                  1. The Elective Share

                                                                  1. There is only a certain margin where a spouse can be cut off – a spouse cannot be disinherited because of the elective share.

                                                                  2. Must send notice of elective rights options by will or by law to spouse:

                                                                  1. can abide by will (usually best)

                                                                  2. have will declared invalid – fraud, undue influence, insanity, etc. – spouse hets intestate share (60k + ½)

                                                                  3. elect against the will: spouse takes elective share

                                                                  4. dower right

                                                                  1. Michigan: elective share is ½ the property derived by the spouse as a result of decedent’s death (1/2 the probate nonprobate assets the spouse received)

                                                                  2. Example: 250 k estate; all children are of decedent & surviving spouse.

                                                                  • intestate: 250k-60k = 190k. 190k/2 = 95k. 95k + 60k = 155k total

                                                                  • elective: 155k/2 = 77.5k (minus life insurance, etc.)


                                                                  1. EPIC 2201, 2202

                                                                  1. Elective share is ½ the sum or share that would have passed to the spouse had testator died intestate, reduced by ½ of the value of all property derived by the spouse from the decedent by any means other than testate or intestate succession.

                                                                  2. Example:

                                                                  250k estate-150k = 100k; 100k/2 = 50k

                                                                  150k+50k = 200k; 200k/2 = 100k = elective share

                                                                  100k-75k life ins-50k house = -25k!

                                                                  Therefore, elect against the will – still gets life insurance & house.


                                                                  1. UPC 2-201, 2-202

                                                                  1. Elective share is called an augmented estate.

                                                                  • Based on a partnership theory of a sliding scale based on the # of years married. (chart p.486)

                                                                  • Starts with a bigger pot (all assets) instead of ½ intestate share.


                                                                  3. King v. King:

                                                                  1. Husband married 2nd wife & deeded house to her to avoid probate. Upon his death, his kids argue that this was an advancement,

                                                                  2. The court said that it was not an advancement as there was no contemporaneous writing.

                                                                  3. Wife was allowed to take her elective share & probably got a lot more than husband intended!


                                                                  4. In re Estate of Cooper:

                                                                  1. Homosexual relationships is not a surviving spousal relationship.

                                                                  2. Although NY courts had recognized these relationships as “family” under the rent control act, it was distinguished here because “family” does not have to mean blood or spouse.


                                                                  5. Seifert v. Southern National Bank of South Carolina:

                                                                  1. Husband left nearly everything in trust. Wife elects against the will, but there are not sufficient assets to pay her share. She wants to take her share against the trust.

                                                                  2. The elective share applies only to the estate & not to trusts.

                                                                  3. If a spouse puts assets into a revocable trust where they retain control & it can be shown that there was intent to defraud, it will not be held valid & is not safe from attachment.

                                                                  • An “illusory trust” is void – The “Doug Henning” trust!

                                                                  • Michigan has not yet addressed this issue


                                                                  6. Sullivan v. Burkin:

                                                                  1. The difference b/w this case and Seifert was that the parties had been separated for 20 years.

                                                                  2. The court is not interested in supporting such arrangements.

                                                                  3. The court found the trust valid even though clearly done to defraud wife. However, they said that “in the future, beware. A trust like this may be declared invalid” –Judge Legislation!


                                                                  7. UPC 2-209

                                                                  1. In Michigan, the elective share is against probate assets (unless a defrauding trust)


                                                                  8. In re Estate of Clarkson:

                                                                  1. Husband’s wife is incapacitated & will not get better. He places all property into a trust & left her exactly what she would get under her elective share in a marital trust (a life estate). The rest went into a family trust for the children. A GAL was appointed & he recommended taking the elective share.

                                                                  2. The court says that she has the right through GAL to elect against the will.

                                                                  3. They looked at the benefit to her: she gets only a life estate in the will where she gets in fee if taken through elective share – fee is more valuable!


                                                                  9. Briggs v. Wyoming National Bank:

                                                                  1. Bud Briggs waived his right to contest the will (“no contest clause”) & to any portion of the estate. He also waived right to independent counsel. Once she died, he tried to elect claiming he didn’t understand what he had waived.

                                                                  2. The court says that he can’t now claim that he didn’t understand because he didn’t read it! (K law)

                                                                  3. A “no contest” clause is valid unless there is “reasonable” cause to challenge. If no reasonable cause, you are out of luck!


                                                                  10. UPC 2-213/EPIC 2205

                                                                  1. Gives the right to spouse to waive elective share and other rights

                                                                  2. EPIC & UPC language slightly differ


                                                                  11. Pretermitted Heirs – UPC 2-301, 302/EPIC 2301, 302

                                                                  1. Generally, a full intestate share is preserved for a pretermitted spouse.

                                                                  1. Exclusions:

                                                                  1. contemplation of marriage when will was written

                                                                  2. provide for spouse outside the will

                                                                  1. A waiver of rights can be valid provided:

                                                                  1. the agreement is fair

                                                                  2. disclosure of all assets

                                                                  3. each spouse has own representation

                                                                  4. This is better than electing against the will = ½ !


                                                                  1. Pretermitted children

                                                                  1. No statutory right of child to receive portion of parent’s estate

                                                                  2. Testator can intentionally disinherit a child stating specifically “I have made no provision for ‘X’ and his exclusion is intentional for reasons of my own.”

                                                                  • If this language is not in will, a child is entitled to his intestate share.

                                                                  • If a child is unintentionally omitted (living when will made), that child is an omitted child & gets intestate share or % of estate as in UPC/EPIC.


                                                                    1. UPC/EPIC: omitted child takes under will, but amount depends on other factors:

                                                                    1. look at overall estate plan

                                                                    2. if testator left nothing to other children, omitted child gets nothing

                                                                    3. if testator gave X% to each child, then omitted child gets that %


                                                                    12. Estate of Shannon:

                                                                    1. Testator had a will where he intentionally disinherited all relatives. He then married Lila 12 years later. When he died, she claimed she was pretermitted and wanted her share.

                                                                    2. The court found that he could not have contemplated the marriage to Lila at the time of writing the will because of the 12-year gap. She got her share!

                                                                    13. Azcunce v. Estate of Azcunce:

                                                                    1. If a subsequent codicil is executed when a child is alive, the child is no longer considered pretermitted.

                                                                    2. This decision is not fair, but properly applies republication.

                                                                    3. She wanted to bring in extrinsic evidence but can’t because no ambiguity!


                                                                    14. Espinosa v. Sparber, et. al:

                                                                    1. The Azcunce malpractice case.

                                                                    2. Patricia does not have standing because she was not an intended beneficiary of the estate. At time of death, nothing signed showing intention of testator to give anything to Patricia.



                                                                    VIII. WRONGFUL DEATH


                                                                    1. Overlaps litigation & probate

                                                                    2. Is statutory – not recognized at common law

                                                                    3. History:

                                                                    1. Lord Campbell’s Act (1846): only spouse, parents & children can recover

                                                                    2. Crystal v. Hubbard: does not only go to heirs-at-law, but can also be distributed to next of kin (i.e bros/sisters)

                                                                    3. Double Hearings: personal representative of deceased party’s estate is only party who can bring wrongful death action; once settlement is reached in circuit court, then it goes to probate court for approval

                                                                    • Currently, the filing of a lawsuit triggers the circuit court that now has jurisdiction over a settlement – this amendment avoids going to both courts!

                                                                    • Which court?

                                                                    1. if suit filed, then circuit court

                                                                    2. if suit not filed, then probate court


                                                                    1. Current Michigan Law – MCL 600.2922 (Rev. Jud.)/MCL 700.122 (Probate Code)/EPIC 3924


                                                                    1. Timeline:


                                                                    Accident Death Claim Lawsuit


                                                                    Survival action Wrongful Death action


                                                                    Survival Action: “conscious” pain & suffering


                                                                    Wrongful Death Action: loss of society & companionship (family)


                                                                    • PRACTICE POINT: spouse suing for loss of consortium cannot also sue under Wrongful Death – they are the same thing. Therefore, if suit names spouse individually & the estate, file a motion!


                                                                    1. Statute of Limitations – “savings statute”

                                                                    1. If person dies before SOL runs (3 years) or within 30 days of SOL running, then not wrongful death – i.e 3 years 30days. At this time, the death is too remote & cannot be brought.

                                                                    2. Gives up to 2 years after estate is open to bring wrongful death action. Date opened appears on letters of authority.


                                                                    1. Summary: If you miss the original SOL, you will have either:

                                                                    1. 2 years from date estate was opened; or

                                                                    2. 3 years from running of SOL

                                                                    ...whichever comes first!


                                                                    1. Example:

                                                                    DOA: 4/10/95

                                                                    DOD: 4/30/98

                                                                    Estate opened: 10/15/99


                                                                    1. Is it WD? Yes, its within 3 yrs 30 days

                                                                    2. SOL = 4/10/98 (3 years from DOA)

                                                                    3. 2 yr = 10/15/01 (2 years from DEO)

                                                                    4. 3 yr = 4/10/01 (3 years from running of SOL)

                                                                    5. Last day to file suit? 4/10/01 (earliest of #3 & #4)


                                                                    1. Example:

                                                                    DOA: 4/10/95

                                                                    DOD: 4/30/95

                                                                    Estate opened: 10/15/96


                                                                    1. Is it WD? Yes, its within 3 yrs 30 days

                                                                    2. SOL = 4/10/98 (3 years from DOA)

                                                                    3. 2 yr = 12/15/98 (2 years from DEO)

                                                                    4. 3 yr = 4/10/01 (3 years from running of SOL)

                                                                    5. Last day to file suit? 12/15/98 (earliest of #3 & #4)


                                                                    1. Example:

                                                                    DOA: 4/10/95

                                                                    DOD: 4/30/95

                                                                    Estate opened: 12/15/95


                                                                    1. Is it WD? Yes, its within 3 yrs 30 days

                                                                    2. SOL = 4/10/98 (3 years from DOA)

                                                                    3. 2 yr = 12/15/97 (2 years from DEO)

                                                                    4. 3 yr = 4/10/01 (3 years from running of SOL)

                                                                    5. Last day to file suit? 4/10/98 (earliest of #3 & #4)

                                                                    • Never forget about original SOL!


                                                                    7. Which parties are entitled to share in wrongful death proceeds?

                                                                    1. Categories of interested parties:

                                                                    1. Family

                                                                    1. spouse, parents, g-parents, children, g-children, bros/sisters

                                                                    2. other relatives: descendants of g-parents

                                                                    • Only have a right to ask, not an automatic right to recieve.

                                                                    • you will only get to (b) if no one alive in (a) group. If one person is alive from (a), no one in (b) can make a claim.

                                                                    1. Non Family: children of deceased spouse (stepchildren)

                                                                    • stepchildren have equal standing to ask for a right of share of proceeds

                                                                    • Devisees under a will or trust: unless relationship violates state law.

                                                                      • girlfriend = no!

                                                                      • same-sex couples = maybe

                                                                      • equal standing with other categories


                                                                      b. In order to take a share, individual must prove:

                                                                      1. that they suffered a loss

                                                                      • extrinsic evidence is allowed to show the kind of loss

                                                                      • that they survived the decedent


                                                                        8. Notice Requirements

                                                                        1. Must notify everyone who has standing:

                                                                        1. 1st notice sent within 30 days of filing complaint

                                                                        • instruct to notify personal representative if they plan on filing a claim (must show proof of loss)

                                                                        • Every wrongful death action is filed by personal representative, therefore, must open estate.

                                                                        1. 2nd notice when settlement is on the table 7 there will be a hearing to distribute

                                                                        • if they wish to make a claim, must do so by hearing or forever be barred

                                                                        • generally must have a court approve a settlement


                                                                        9. How do we distribute the proceeds?

                                                                        1. Normally leave up to the family who knows what is fair (no set formula)

                                                                        2. Normally goes to spouse or spouse & kids

                                                                        3. If all family members are competent & sign an agreement, the judge is required to follow it.

                                                                        • if minor children, the “no” & a GAL is appointed.


                                                                        10. Types of Loss – Survival & Wrongful Death

                                                                        1. Where does damage money go?

                                                                        1. survival (pain & suffering): become part of the estate (probate); creditors are paid out of the damages.

                                                                        2. wrongful death (loss of society, companionship, consortium): go directly to the family & not through the estate.

                                                                        1. Allocate $ between each.

                                                                        • Generally, if everyone agrees, all $ goes to wrongful death. Want to avoid $ going to the estate because of the estate tax. As long as creditors aren’t left out in the cold, judges will go along with this.

                                                                        • Must do an accounting keeping track of receipts ($ in) & disbursements

                                                                        1. The court will make sure that funeral, medical, burial & hospital expenses are paid first.

                                                                        2. Not allowed to use proceeds to pay other creditors – i.e credit cards

                                                                        3. Must have “consciousness” for pain & suffering – coma might not be “conscious”

                                                                        4. killers of the deceased are prohibited from collecting under wrongful death statute



                                                                        IX. TRUSTS: CREATION, TYPES, AND CHARACTERISTICS


                                                                        1. Introduction


                                                                        1. In trusts, the interests are divided:

                                                                        1. Legal interest: held by the trustee; cannot use for own benefit

                                                                        2. Equitable interest: held by the beneficiaries; the right to use property & proceeds; can’t sell because they don’t have legal interest


                                                                        1. Benefits of trusts:

                                                                        1. privacy

                                                                        2. current management of estate

                                                                        3. to provide for elderly parents, minors, or incapacitated children

                                                                        4. avoid probate

                                                                        5. (really no tax benefit)


                                                                        1. Types of trusts:

                                                                        1. Testamentary: written into the body of the will; takes effect only at death because wills are revocable until death

                                                                        2. Inter vivos (“living trust”): a separate document created during life, though may not be funded until death

                                                                        • Either: revocable or irrevocable


                                                                        1. Terms

                                                                        1. Settlor/grantor: person creating the trust

                                                                        2. Trustee: manages trust & makes sure terms are enforced

                                                                        1. holds legal interest

                                                                        2. can be 1 or more individuals or corporations

                                                                        3. can be settlor or beneficiary

                                                                        4. primary focus is a high duty of care to beneficiary

                                                                        5. nobody can force someone to be trustee; once accepted, can only resign with consent of beneficiary or court order

                                                                        1. Beneficiary: person who benefits from trust

                                                                        1. holds equitable interest

                                                                        2. “cestui que trust:” the one who benefits


                                                                        5. To create a Trust: “BIRST”

                                                                        1. need a settlor

                                                                        2. need a trustee; caveat: no trust shall fail for want of a trustee (court can appoint)

                                                                        • if settlor is trustee & beneficiary, as long as there is 1 remainderman, the trustee has fiduciary duties!

                                                                        • if settlor wants a trustee other than himself, the res must be delivered to trustee (same delivery rules as with gifts apply)

                                                                        1. need a beneficiary (must be identifiable!); if settlor is its own beneficiary, there must be at least 1 remainderman

                                                                        2. need intent to create a trust

                                                                        3. need a res – something that the trust will govern. i.e a fund, object, corpus, principal, etc.

                                                                        1. if the res is personal property, it does not have to be in writing & can be oral

                                                                        2. if the res is real estate, it must be in writing because of Statute of Frauds


                                                                        6. Problem p.569:

                                                                        • if a person accepts $ from settlor & holds it& agrees to distribute it, this is constructive acceptance by trustee. The beneficiaries can recover from him if he doesn’t properly execute.



                                                                        1. Creation of a Trust


                                                                        1. Jimenez v. Lee:

                                                                        1. Father was an attorney who received two $ gifts for his daughter to be used for her education.

                                                                        2. Questions:

                                                                        1. Settlor? yes, g-mother & client

                                                                        2. Trustee? yes, father

                                                                        3. Beneficairy? yes, daughter

                                                                        4. Res? yes, $1500

                                                                        5. Intent? settlors made statements to father to hold $ for daughter – he even told her he was holding in trust

                                                                        1. A trustee has a duty to keep accurate, contemporaneous records.

                                                                        2. If no proper accounting, there is a presumption in favor of beneficiary. Here, the father’s accounting was a joke!

                                                                        3. The court will force him to pay back the corpus & interest due to his improper expenses that he took out of trust.

                                                                        4. He wanted to use UGMA where he would be a “custodian” as SOL would be 2 years. SOL starts to run at age 18 & she would be out of luck. If a trust, SOL starts when there is a filing for an accounting. He didn’t do so, so her suit was timely.

                                                                        5. Don’t be too casual with small, informal trusts. Watch “intent” language!


                                                                        1. Precatory language: “wishful thinking”; if the language of the will creates a merely moral obligation unenforceable at law; use of the words “hope,” “wish,” or “desire.”


                                                                        1. Unthank v. Rippstein:

                                                                        1. Letter given to bind his estate to give friend $200/month for 5 years. However, settlor did not identify or set aside the $ to be used.

                                                                        2. No trust because no res! Court needs more as to what the fund or res is.

                                                                        3. This is merely precatory language, not a trust. However, some judges may find that this was a trust.


                                                                        1. What is the remedy?

                                                                        1. resulting trust: arises by operation of law; used when an express trust fails or makes an incomplete disposition of trust property.

                                                                        1. not bound by Statute of Frauds – doesn’t have to be in writing

                                                                        2. assets go into the estate

                                                                        3. Example: a trust without an ending date going against RAP or no beneficiary is named – assets will go back to the estate

                                                                        1. constructive trust: arises by operation of law; used to prevent unjust enrichment (doctrine of equitable estoppel)

                                                                        1. not bound by Statute of Frauds – doesn’t have to be in writing

                                                                        2. Rules/Test to create a constructive trust: (a guideline - not set in stone)

                                                                        1. confidential/fiduciary relationship

                                                                        2. a promise – express or implied

                                                                        3. transfer of property in reliance on that promise

                                                                        4. unjust enrichment to the transferee


                                                                        4. Brainard v. Commissioner:

                                                                        1. Wanted to put future stock market earnings in trust in order to save on taxes.

                                                                        2. The court said that this future interest was not a res & the trust, therefore, failed for want of res.


                                                                        5. Speelman v. Pascal:

                                                                        1. Theatrical producer with rights in Pygmalion. The res was a future interest in the profits.

                                                                        2. The court says that future profits in a musical are valid & gave the trust life.

                                                                        3. Reconciled with Brainard because it involved the tax court & a tax court cannot declare the validity of a trust, only the tax benefit.

                                                                        4. You can absolutely use a future interest in a trust – i.e life insurance! If you want to create a trust for a tax benefit, make sure that it fits within the IRC.


                                                                        6. Grantor Trust

                                                                        1. Any form of inter vivos trust where settlor/grantor retains a benefit.

                                                                        2. All income earned during life is taxable to grantor!


                                                                        7. Clark v. Campbell:

                                                                        1. Trust said that belongings go to “friends.”

                                                                        2. If this is a class gift, the class must be definable.

                                                                        3. This is so vague that a boundary cannot be placed – gifts will go into residue of estate


                                                                        8. In re Searight’s Estate:

                                                                        1. Set up trust of 1k for care of dog for as long as it lived or until $ runs out.

                                                                        2. Is naming the dog as beneficiary valid?

                                                                        1. Honorary trust: the proper way to provide for a pet; have to provide for ditribution of remainder of fund if dog predeceases.

                                                                        • a pet cannot be a beneficiary in a will, but can in a trust because there is a trustee making sure things are done.


                                                                        1. Did not violate the RAP because the trust will vest or fail within 21 years of the death of a life in being.

                                                                        1. Dog was not going to live 21 years greater than life in being.

                                                                        2. The $ would be exhausted in 4 yrs 57 days.

                                                                        1. Ab initio: from the beginning


                                                                        9. Oral Inter vivos Trusts of Land – Hieble v. Hieble:

                                                                        1. Ill mother conveyed real estate to son & daughter in order to avoid probate. If she survived 5 years, they were to convey it back, however, son refused.

                                                                        2. Can oral agreement is ineffective with real property, so can a constructive trust be imposed?

                                                                        1. Confidential/fiduciary relationship? yes, evidence showing higher than mother/son relationship

                                                                        2. A promise? yes, was to transfer back.

                                                                        3. Reliance? yes, she would not have done it

                                                                        4. Unjust enrichment? yes!

                                                                        • Therefore, a constructive trust can be imposed!

                                                                        • Unclean hands defeat a claim in equity: “He who wants equity must do equity!”

                                                                          • She did not have unclean hands because she was not doing this for tax purposes, etc. Her motive to avoid probate is not improper.


                                                                          10. Olliffe v. Wells:

                                                                          1. Woman left estate to a priest to be conveyed in a manner in which she relayed to him prior to her death.

                                                                          2. Semi-secret trust: have in the face of the will a trust, but beneficiaries are not named.

                                                                          • under the prevailing view, not allowed to use extrinsic evidence to prove beneficiaries

                                                                          • Secret trust: on the face of the will, no trust is indicated, but she previously told trustee what to do.

                                                                            • under the prevailing view, can bring in evidence in order to avoid unjust enrichment to trustee

                                                                            • In reality, today extrinsic evidence is allowable, otherwise the trust fails. The extrinsic evidence must prove the elements of a trust.



                                                                              1. Discretionary Trusts


                                                                              1. Mandatory/Discretionary Trusts

                                                                              1. Mandatory trust: if all income must be distributed to X and Y; “must” or “shall” usually attached to income.

                                                                              • ascertainable standard: describes for what (&how much) reason the trustee can invade the corpus of the trust; this standard can be identified as to when the trust should be invaded


                                                                              1. Discretionary trust: usually in the eyes of the trustee how much should be withdrawn; usually trustee must have the sole & absolute authority to decide how much to withdraw & must have authority to say “no.”


                                                                              2. Marsman v. Nasca:

                                                                              1. Testator created a (discretionary) marital trust for her husband Cappy with Farr as trustee. Trust gave Farr discretion to invade the trust, but should also check other available resources. Cappy remarried & hit hard times. He asked Farr for $, but Farr made him explain himself. Cappy never did because he was embarrassed.

                                                                              2. Farr breached his fiduciary duties as he should have inquired into Cappy’s situation .

                                                                              3. The court said Farr should calculate how much he should have given Cappy each year & that $ should go to Cappy’s widow via his estate.

                                                                              4. A fiduciary can be held liable if they breach their trustee/fiduciary duties.

                                                                              • Here, Farr had a valid exculpatory clause & was not liable.



                                                                              1. Spendthrift Trusts: Creditor’s Rights


                                                                              1. Created/originated in the U.S., not England.

                                                                              2. Purpose:

                                                                              1. creates a stream of income to a beneficiary

                                                                              2. prevents beneficiary’s creditors from attaching their share of trust assets = Disabling Restraint

                                                                              1. Generally set up for an individual who would blow $ if they got it all at one time

                                                                              2. A beneficiary can sell his interest in a trust (usually at a discounted value), however, in the U.S. we don’t usually do so because there isn’t a ready market.

                                                                              • A spendthrift clause prevents a trust from being sold


                                                                              1. Creditor’s Rights

                                                                              1. Creditor’s have a right to a revocable trust where settlor = trustee = beneficiary. However, if someone else is beneficiary, their creditors may or may or may not be able to invade.

                                                                              2. To what extent does settlor or beneficiary have right to payment?

                                                                              1. If a beneficiary can enforce payment against trustee, then the beneficiary’s creditors can invade the trust & get paid.

                                                                              2. If the trust has a discretionary clause for trustee, then the beneficiary’s creditors cannot come in & demand to get paid. Trustee can still say “no.”

                                                                              3. A spendthrift clause says that a trustee does not have to pay creditors at all. Here, the creditors must only continue against beneficiary – i.e when Beneficiary gets $, creditors can attempt to attack it.

                                                                              4. A support clause can be woven into discretionary language – i.e discretion to support minor children.

                                                                              • support: basic food, clothing, shelter, medical, education, etc.

                                                                              • If a creditor is providing support services, then it can obtain payment from the corpus of the trust even if a spendthrift clause.

                                                                              • Support clause puts a limit on discretion.


                                                                              6. Shelley v. Shelley:

                                                                              1. Father set up a trust with a spendthrift clause leaving everything to his wife & on her death to her issue. She died, son married twice & then skipped town. There was discretion to invade the corpus for the son or on emergency. Son was to get all income outright. Son’s wife wants trust invaded to support their kids.

                                                                              2. The rust contained several parts:

                                                                              1. mandatory: income was to be paid quarterly to wife (or son)

                                                                              2. discretionary: trustee may from time to time distribute part of the principal if son is capable of investing

                                                                              3. support: puts a limit on discretion

                                                                              4. spendthrift


                                                                              1. Can they reach the interest income of the trust to pay child support? Yes; public policy: don’t want the children to go on welfare when father’s income is available – the payment of trust income is mandatory & society shouldn’t support his children).

                                                                              • The same policy exists for alimony.

                                                                              • Can the corpus be invaded in order to pay alimony or child support? No; invasion of the corpus was made discretionary.


                                                                                7. Other Trusts

                                                                                1. What if you have a beneficiary that is disabled?

                                                                                1. Interceptor Trust (a windfall): have a GAL prepare a trust for the benefit of injured/disabled person so $ goes straight from defendant to trust (intercepted from plaintiff).

                                                                                • can only be used for extras above what government would pay for

                                                                                • Medicaid Qualifying Trust (compromise): puts benefits into a trust used for extras for the injured.

                                                                                  • must contain a clause that says Medicaid has 1st right to $ for its lien before family gets remainder of funds

                                                                                  • These 2 types of trusts are very difficult to draft!


                                                                                  1. Irrevocable Trusts:

                                                                                  1. If settlor has not specifically retained the right to revoke, the trust is irrevocable.

                                                                                  2. A settlor may declare that a trust is irrevocable to gain tax advantages:

                                                                                  1. Example:

                                                                                  gross estate = $2 million - $1,350,000 taxed at 50% = $675,000!

                                                                                  • Therefore, create an irrevocable trust:

                                                                                  • Settlor’s immediate family & settlor cannot be trustee

                                                                                  • Settlor funds trust each year with $ to pay premium – trustee buys, not settlor

                                                                                    • If settlor has 4 children then they fund $40 k into the trust (19k per child non-tax) & this $ will pay the taxes on the estate upon death!

                                                                                    • EXAM: Know that unless the right to revoke is reserved, that settlor has no control. Also, that the irrevocable trust can be used to pay off estate taxes.


                                                                                      c. Testamentary Trusts:

                                                                                      1. only “kicks in” when both parents die; therefore, must be supervised by the court

                                                                                      • Testamentary trust are supervised by the court, while inter vivos trusts are not

                                                                                      • appears in the middle of the will

                                                                                      • all trusts are either testamentary or inter vivos, but not both


                                                                                        1. When to use testamentary trusts:

                                                                                        1. A young couple with a young family & not a lot of assets. They want to make sure that children will be cared for.

                                                                                        • This would allow them to pay children in increments & is a lot cheaper than an inter vivos trust.

                                                                                        • To provide someone to oversee the people who would care for their children. This way, guardian cannot run off with the $.


                                                                                          8. Funding a trust

                                                                                          1. A trust is useless if not funded.

                                                                                          2. Real estate must be adeemed.

                                                                                          • On the deed (usually quitclaim), put “from John Jones and Mary Jones ½ to John Jones, Trustee of the John Jones Revocable Trust Dated June 15, 1999 and ½ to Mary Jones...”

                                                                                          • Stocks, bank accounts work the same way: just change the name of the asset to the name of the trust.

                                                                                          • Personal property can be funded by assignment.


                                                                                            9. Miller v. Dep’t of Mental Health: support v. discretionary trust

                                                                                            1. Father set up a trust for his daughter. In 1958, she was incapacitated & institutionalized. Father died in 1984. He had supported her only until age 18. The language used in the trust was “he deems proper.”

                                                                                            2. Language can be interpreted 2 ways:

                                                                                            1. for support (State’s arg)

                                                                                            2. discretionary (trustee arg)

                                                                                            1. It is vital to look at intent & extrinsic evidence was brought in to establish intent; if in the document the ambiguity goes to how the $ gets paid out, extrinsic evidence is allowed.

                                                                                            1. Father stopped paying the State at age 18 indicating that it was not his intent that the trust be for support.

                                                                                            2. There was 172k in the trust & it costs 55k per year to care for daughter – this also indicates probably not supportive.

                                                                                            1. RULE: Parents who want to leave $ to make life nicer for disabled children must be careful to remain discretionary toward trustee.

                                                                                            • i.e “under no circumstances shall trustee approve $ for something the State should be paying for”



                                                                                            1. Modification of Trusts


                                                                                            1. Generally, as long as settlor is alive and settlor & all beneficiaries agree, a trust may be terminated.

                                                                                            1. This may even be true with an irrevocable trust.

                                                                                            2. The problem is: how do you know that you got the permission of all remaindermen?


                                                                                            1. In re Stuchell:

                                                                                            1. Mother wants to modify a trust for the benefit of her retarded son. Son will lose State $ if he receives any assistance from trust.

                                                                                            2. If circumstances arise that could not be foreseen, then a trust can be modified.

                                                                                            3. The court will not permit the trustee to deviate from the trust merely because it is advantageous.

                                                                                            4. However, 95% of the time, the judge will give the modification – this is a rare case!


                                                                                            1. Hamerstrom v. Commerce Bank of Kansas City:

                                                                                            1. Beneficiary was receiving $150 per month. The trust was created many years ago and the $ was now not enough. She wanted to increase payment to 2k per month & had received permission from husband & son to do so, but there was no provision for the trustee to invade the corpus (unusual!)

                                                                                            2. Because of the language of the trust, there were no unnamed, unascertained beneficiaries, therefore, the court made a mistake in appointing a GAL.


                                                                                            • The $ would go to the estate by a resulting trust

                                                                                            • Because all beneficiaries consented, the court did not have a reason to stand in the way and she got the $.



                                                                                              1. Termination of Trusts


                                                                                              1. Claflin Doctrine: a trust cannot be terminated before the time fixed in the trust even with the consent of all beneficiaries if doing so is contrary to a material purpose of the trust.

                                                                                              • Applies only if settlor/testator are dead.

                                                                                              • Generally, if no spendthrift clause, and all material benefits/purposes have been met & all have consented, the trust can be terminated.


                                                                                              1. In re Estate of Brown:

                                                                                              1. The trust had two purposes: education for nephew’s children & $ “for the remainder of nephew’s life.” The educational purpose had been completed. Nephew wanted to terminate the trust so that he could have all the $ now.

                                                                                              2. He can’t have money! If not for the language of trust, it could have been terminated.

                                                                                              3. Anytime a lifetime benefit is given, a trust cannot be terminated early!



                                                                                              1. Charitable Trusts


                                                                                              1. Must be established for the relief or benefit of poverty, education, religion, health, governmental/municipal purposes – i.e must be some “benefit at large”

                                                                                              • can be charitable when given to an individual if it will benefit many

                                                                                              • Charitable trust are not subject to RAP! They can continue forever.

                                                                                                1. Rule Against Perpetuity – MCL 554.71, et.seq.

                                                                                                • A non vested property interest is invalid unless one of the following is met:

                                                                                                • Old rule: when the interest is created, it is certain to vest or terminate no later than 21 years after the death of an individual then alive; or

                                                                                                • New rule: the interest either vests or terminates within 90 years of its creation: the “wait and see” rule.

                                                                                                  • At the end of the 90 years, if there is still property that has not vested or terminated, the court must construe as closely to testator’s intent as possible.


                                                                                                  3. Shenandoah Valley Nat’l Bank v. Taylor:

                                                                                                  1. Settlor left $ to be paid directly to children twice a year at Christmas & Easter vacation. Trustee argued that it was a charitable trust.

                                                                                                  2. The problem with the trust is that there was no termination date. Since it was found not charitable, the trust violated RAP.

                                                                                                  3. The court said that this was not educational because $ was unsupervised, it was paid before vacation, and nothing forced the children to actually spend it in furtherance of education.

                                                                                                  4. Nor is it a trust for public benefit, it is merely a benevolent, “feel good” trust.

                                                                                                  5. The trust was void ab initio and the $ went to distant relatives.

                                                                                                  • The better thing for the court to do would have been to used the $ for education for 90 years, then use the $ for some child purpose instead of having the $ go to distant relatives.


                                                                                                  4. Other things in charitable trusts:

                                                                                                  1. Cannot have a charitable trust to support or endow a political party.

                                                                                                  2. Can have a court designated to change a law though it might be declared invalid on its purpose – i.e to further socialism.


                                                                                                  1. Cy pres: allows the court to modify a charitable trust when intent of settlor is impossible to achieve.

                                                                                                  • Example: Sister Penny Foundation ($ to fight polio). What do we do with the $ now? Petition for court using cy pres to allow donations to be used for a similar purpose = now MDA.

                                                                                                  • Administrative Deviation: settlor’s intent is still possible, but to carry it out would be illegal or would defeat the purpose of the trust.

                                                                                                    • see In re Wilson



                                                                                                    5. In re Wilson:

                                                                                                    1. Trusts for educational use by men only. The lower court attempted to use cy pres to provide for “persons” instead of “men.”

                                                                                                    2. Cy pres can only be used when the goal of the trust is impossible and here it was not, so we can’t use it!

                                                                                                    3. There is nothing wrong with private discrimination – i.e minority scholarships. Public discrimination is the only thing prohibited.

                                                                                                    4. The court really used Administrative Deviation to change the trustee to a neutral trustee instead of the superintendent.

                                                                                                    5. Use Administrative Deviation when it is still possible to carry out trust law, but will violate a law – change procedures under AD!




                                                                                                    X. TRUST ADMINISTRATION: THE FIDUCIARY OBLIGATION


                                                                                                    1. Generally


                                                                                                    1. Fiduciary can be trustee, conservator, personal representative, GAL

                                                                                                    2. Fiduciaries are held to a higher standard of care

                                                                                                    • “Reasonably prudent person” standard and must be in the best interest of the ward


                                                                                                    1. Types of Duties:

                                                                                                    1. Duty of Loyalty

                                                                                                    2. Duty to collect, invest & protect property

                                                                                                    3. Duty to segregate property

                                                                                                    4. Duty to render an accounting

                                                                                                    5. Duty not to delegate discretionary decisions

                                                                                                    6. Duty of impartiality


                                                                                                    1. Duty of Loyalty

                                                                                                    1. Must be loyal to the ward or beneficiary(s)

                                                                                                    2. “Duty of good faith & reasonableness”

                                                                                                    3. Key element: the duty to not “self deal:” cannot gain for fiduciary at the expense of beneficiary or ward

                                                                                                    • i.e buying property for low $, then selling for 3x the price or sell for high price to the estate

                                                                                                    • Fiduciary must disgorge all property back to the estate

                                                                                                    • With self dealing, there is no “good faith & reasonableness” defense – almost strict liability

                                                                                                    • One self dealing defense: consent by beneficiaries after full disclosure (might be a defense); must be aware of unborn/unascertained beneficiaries

                                                                                                    1. Cannot have conflict of interest with ward or fiduciary

                                                                                                    • Exception: own banks stock & bank is trustee – use “Chinese Wall”



                                                                                                    1. In re Rothko:

                                                                                                    1. Testator appointed 3 friends as co executors. There were several conflicts of interest involved with Reis & Stamos. Levine simply did nothing to make the conflicts right.

                                                                                                    2. Levine should have gone to the court.

                                                                                                    3. Co trustees is not a democracy! There must be unanimity, not just a majority! Levine acquiesced and went along with the other two when he shouldn’t have.

                                                                                                    4. Damages: the value of paintings at time of trial beacuse if paintings had remained in the estate, they could have sold for a much higher value.

                                                                                                    1. Duty to Collect, Invest, and Protect Property

                                                                                                    1. Do not keep property in an unproductive state. if it is not producing $, must sell and reinvest the $.

                                                                                                    2. Follow the “prudent investor” rule

                                                                                                    • EPIC says fiduciary must keep property invested at a reasonably prudent fund where a reasonable person would invest in a reasonable risk. It is good to hire an investor who can assess a good investment.

                                                                                                    • Must diversify

                                                                                                      1. if stock is all in one company, diversify to other stocks – put into stocks & bonds

                                                                                                      2. if making an imprudent investment, the fiduciary is personally liable to replace loss and what should have been earned if prudently invested

                                                                                                      • cannot offset losses against gains


                                                                                                      1. Duty to Segregate Property

                                                                                                      1. No comingling of funds – each estate or ward needs its own account

                                                                                                      2. Each estate account must be held in the name of the estate or trust – i.e. “A’s estate, Patricia Patterson, P.R.”


                                                                                                      1. Duty to Render an Accounting

                                                                                                      1. Must be done at least once per year.


                                                                                                      1. Inventory balance + year income – disbursements made

                                                                                                      2. The balance should match value of all assets

                                                                                                      1. If an estate or testamentary trust, must file with the probate court – this way, interested parties get a copy through court.

                                                                                                      2. If an inter vivos trust, must furnish to all beneficiaries (not necessarily probate court) who have a current interest in the assets.


                                                                                                      1. Duty not to Delegate

                                                                                                      1. ministerial: simple decisions anyone can make; co trustees can delegate these

                                                                                                      2. discretionary: more difficult, often financial decisions; all trustees must decide together

                                                                                                      • if no financial knowledge, there is a duty to hire an advisor to assist.


                                                                                                      1. Duty of Impartiality

                                                                                                      1. Being impartial to all beneficiaries, income, & remaindermen.



                                                                                                      1. Example: Own apartment building


                                                                                                      INCOME CORPUS

                                                                                                      rents utility & ordinary sale profits roof & other

                                                                                                      & regular expenses bldg improvements

                                                                                                      cash stock

                                                                                                      dividends dividends


                                                                                                      • Fiduciary (trustee) fees get allocated ½ to each


                                                                                                      1. When making major decisions, get a court order so all beneficiaries are aware.


                                                                                                      1. Dennis v. Rhode Island Hospital Trust:

                                                                                                      1. Main assets of trust were 2 buildings in Providence. With the change in market, the buildings began to lose major $. trustee milked the building rents &let the building go to nothing.

                                                                                                      2. Trustee should have sold the buildings & reinvested the $ - now remaindermen have nothing!




































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