Wills Outline—Jenkins

Fall 2003


I.                    INTRODUCTION.


A.                 50 question MC exam, only covers TX law.


B.                 2 Methods of transfer @ death.

1.                  By Will—Testate succession.

a)                Person indicates how to distribute their possessions @ death (plan of distribution).

b)                 You can write your own w/out a law license.

2.                  By Statute (no will)—Intestate.

a)                Person dies w/out a will, or the will is defective.

b)                 Probate code; declares how property is to be divided based on family relationships, etc.

3.                  Trust is the other way to transfer, covered later.


C.                 Requirements for the validity of a will.

1.                  Testamentary intent:  the transfer takes place at death.  “I leave all to Jack” has no testamentary intent b/c we don’t know when the transfer takes place.  Need to add “upon my death” to make intent.  Adding “Will” also gives proper intent.

2.                  Testamentary capacity:  testator must know:

a)                  Kind & character of his property. 

b)                 Natural objects of his bounty.  Those we would naturally look to that would normally take his property.

(1)               A girlfriend can be the natural object of his bounty b/c of a relationship.

(2)               You don’t have to leave prop to your children.

c)                  Effect of this act of making a will.

3.                  Must have ability to form a plan for disposition of her estate.


D.                Formal requirements for execution of a will.

1.                  Execution:  actual signing of the will; makes it valid.

2.                  2 witnesses if typewritten.

3.                  T/or’s signature:  required in every juris.

4.                  Competence of witnesses:  age, saw the signature applied, etc.

5.                  Witnesses sign in T’s presence.

6.                  No publication required.


E.                 Holographic will—wholly in the handwriting of the t/or; must also be signed by t/or.

1.                  Problem:  what is wholly?

2.                  Doesn’t require witnesses; must prove handwriting/sig. in ct.


F.                  Codicil:  amendment/addition to existing will.

1.                  Must be executed in the same way a will in the same format would’ve been executed.



G.                Revocation:  getting out of an executed will.

1.                  Requires intent to revoke.

2.                  Subsequent will revokes the previous.

3.                  Written revocation of the current will.


H.                Probate:  validation of the will by a ct.


I.                    Administration of estate:  management of the estate after the will is probated.

1.                  Administrator (appointed by ct):

a)                  Gets property together;

b)                 Pays debts;

c)                  Distributes what’s left.

2.                  Executor (named in the will).

3.                  Independent executorship (TX):  acts free of ct. control.

4.                  Dependent admin:  acts under ct supervision; expensive b/c everything requires ct’s permission.




A.                 Passing of interests.

1.                  At death, property passes to the beneficiary, w/ a will or w/out.

2.                  The heirs exist, but haven’t been determined; the property vests by operation of law—no gaps in seisin.

3.                  The prop vests subject to the admin of the estate—pay debts, litigate/probate the will, collect prop, etc.

4.                  Prop is willed by a living person, does a dead person have any rights over it?

5.                  Dead hand—ability to control prop after death.


B.                 Right of control of prop.

1.                  Irving v. Day (p. 3):  nothing in the const. prohibits a state to limit, condition or even abolish the power of testamentary disposition over prop w/in its juris.

2.                  Hodel v. Irving (p. 3):  Indian land got fractionated after Congress allowed land allotments.  Congress then made a law that allowed the land to escheat back to the tribe if the land earned its owner less than $100/yr; the owner couldn’t devise by will or intestacy.  Issue:  is this a const. taking, requiring just compensation; is the right to pass it on a prop right?  RULE:  the right to pass on prop goes into the bundle of sticks; a const. right.

a)                  Getting rid of any of the rights in the bundle of sticks is an unconst. taking.

b)                 Factors in determining a regulatory taking:

(1)               Economic impact of the reg;

(2)               Its interference w/ reas. investment-backed expectations;

(a)               Diff. b/t bought land & inherited land = you worked to buy the land; probably no real difference.

(3)               The character of the gov’t action.

(a)               It should distribute the benefits/burdens broadly.

(b)               It’s a taking b/c the statute totally abrogates the right to pass on prop.

3.                  Is there a const. right to receive prop at death?  NO—not a right to receive just b/c you’re a testator’s child.

a)                  State legislatures are given the power to change the intestacy laws.


C.                 Taxes & Transmission of Wealth.

1.                  See syllabus for schedule of amts.

2.                  Some opinions are that gov’t needs to distribute wealth evenly, & should then tax estates at a higher rate.


D.                In Terrorem Clause

1.                  Example - “A beneficiary shall forfeit his bequest under the will if he contests the validity of the will”

2.                  Also called the “no contest clause”

3.                  Rule is valid in Texas but will not apply to an attack on the will that is based on reasonable grounds and instituted in good faith.

4.                  Shapira v. Union National Bank:  Restriction in will requires son to have married a Jewish girl with two Jewish parents; Π argued that the restriction was an unconstitutional restriction on the right to marry.

a)                  This argument fails because a 14th amendment violation requires state action; this restriction is action by the individual testator.

b)                 However, to enforce a condition of a will, parties go to state courtàis this sufficient state action for a 14th amendment violation?  Courts have repeatedly held that court enforcement is not sufficient to constitute state action.

c)                  The Π’s right is not constitutionally protected – there is no constitutional right to inherit property.

5.                  Pennsylvania case – testator left money in trust to a university for the education expenses of poor white male orphans; this was state action because it was enforced by a state agency (the university).

a)                  This does not mean that there cannot be a college fund for a particular group – it must be managed by a private organization rather than a state agency

6.                  Restatement (p. 32)if the restriction does not unreasonably restrict the transferee’s opportunity to marry, it may induce a person to marry a member of a particular faith.

a)                  Ex:  “if D marries, X, who is Jewish” – overly restrictive.

b)                 Condition that D marries a Jewish girl would be invalid if the testator knew that D was engaged to another girl who is Catholic (this is disruptive of the family).

c)                  This same logic would apply if the son was gay and the testator knew that (this is effectively a total restriction).

7.                  Residuary – Destruction.

a)                  What happens if the testator requests that property be destroyed upon their death?

b)                 Public policy – society’s total wealth will be maximized by permitting private individuals to decide the best use of their property; there is an assumption that each individual will make rational choices to maximize her wealth, and the loss that would follow poor decisions will act as a deterrent.

c)                  The court may ignore this kind of condition in a will because it violates public policy – waste of property harms society.

d)                 The court will:

(1)               Weigh the social utility of destruction against loss to society of valuable resource.

(2)               Weigh motivation of testator.

e)                  When you are alive, you bear the burden of whether you are going to waste your assets, because you will bear the resultant economic burden; after your death, others must bear the burden associated with waste, and you are not in as good of a position to make such a decision.

f)                   Notes discussion other kinds of property that have been requested to be destroyed – Justice Black destroyed his notes in his lifetime; what about musicians and authors whose works have literary value? In some of those situations, instructions to destroy have been ignored.


E.                 Probate Process.

1.                  Probate means that the court validates a will; court issues and order admitting the will to probate.

2.                  The process has to do with administering the estate after the court has decided that the will is good.

3.                  TPC §72  

a)                  Probate or administration of the estate of a living person is void.

b)                 Probate of one believed to be dead proved by circumstantial evidence is allowed.

(1)               Ex:  two pilots – one saw the other eject and the parachute did not open; this is sufficient circumstantial evidence to prove death.

c)                  4 year statute of limitations (unless proof that party was not in default-muniment of title only).

d)                 Muniment of title – if the testator put the will in a mason jar and buried it, forgetting to tell someone where it was, after 5 years it is found – if the person can show that they were not in default (not at fault) for failing to present the will, the will can still be probated as a muniment of title (this can be done as many as 30 years later).

e)                  If everything is distributed and the will is found, a party must swear that there is no will and a diligent search has been made; even so, if it involves real property, the property can be subsequently divided according to the will (this would be unlikely if cash were involved because it is probably gone).

4.                  TPC § 81(b)—Probate of a Lost Will.

a)                  Presumption: the testator destroyed it.

b)                 In order to probate a lost will, you must overcome the presumption and must show:

(1)               Reason it cannot be produced;

(2)               Contents, as far as known;

(3)               Date of execution & executor, as far as known;

(4)               Name, age, martial status, rela. to decedent, of each devisee, as far as known.

(5)               To have this information you would have to have read the will or have seen a copy of it.

c)                  interested person – one who has a pecuniary interest (see definition section of the code).

5.                  Non-probate property – Property passing under an instrument other than a will which became effective before death.

a)                  Ex:

(1)               joint tenancy property – right of receivership; this does not pass under the will, it passes under contract law.

(2)               life insurance.

(3)               contracts with payable-on-death provisions.

(4)               interests in trust – governed by trust law.

6.                  Probate propertyProperty that passes under a will or by intestacy.


F.                  Personal representatives = persons who probate the will; executor [named in will] or administrator [ct appointed].

1.                  Duties of the rep:

a)                  inventory & collect the assets of the decedent;

b)                 manage the assets during administration;

c)                  to receive & pay claims of creditors & tax collectors;

d)                 to distribute what’s left.

2.                  When intestacy occurs, it is not bequeathed, it descends to the recipient.


G.                Functions of probate.

1.                  Provides E of transfer of title to new owners;

a)                  G/tor = the testator, g/tee = beneficiary under the will.

2.                  Protects creditors by requiring payment of debts;

a)                  Property can still be foreclosed upon after the owner dies.

b)                 Creditors must still be paid.

3.                  Distributes the decedent’s prop to those intended to get it.

4.                  Proof for probate of a will TPC § 88:

a)                  Person is deceased;

b)                 4 yrs have not elapsed since date of death;

(1)               Exception:  person shows good faith

c)                  Court has jurisdiction [ct has smj over the estate] & venue [person died in that county];

d)                 Person applying for “letters” is qualified.

(1)               Letters testamentary:  ct approves that you are named as executor & allows you to do things on behalf of the estate.

(2)               Prop collected must be kept separate from the assets of the executor.

5.                  TPC 83(b)—when another will is brought after 1 is probated.

a)                  If 1st application has not been heard:  ct will hear both & decide which to admit to probate, or void both & consider decedent intestate.

b)                 If 1st will has been admitted to probate:  ct will determine whether the 1st probate should set aside & admit the 2nd will, or void both & consider decedent intestate.

6.                  TPC 84(b)—proving a holographic will:

a)                  2 witnesses required for the will to be valid;

b)                 Have 2 disinterested witnesses testify that they recognize his handwriting.


H.                Probate Venue—TPC 6

1.                  First sought where the decedent was domiciled at death (primary or domiciliary juris).

2.                  See Joe Jackson problem, p. 42.


I.                    Independent executor vs. Dependent administrator.

1.                  Executor has control of the estate & it’s under his judgment.

2.                  Dependent administrator needs ct approval for all decisions he makes regarding the estate (can be requested in will).


J.                    Estate planning problems (p. 50).

1.                  Remember that life insurance payouts go through the estate for purposes of the estate tax.

2.                  But, the owner of the policy should not be the deceased—if another owns it, it does not go through the estate for tax purposes.


K.                 Professional Responsibility.

1.                  Simpson v. Calivas (p. 59):  P sued lawyer for K & neg b/c he said the will drafted did not reflect the intent of the testator.  Will gave wife the “homestead;” son claims that it’s only the house, not the 100 acres & family business also on the land.  Ct admitted some extrinsic E of intent, would not admit notes taken by the lawyer during consultation that said “house to wife & rem to son, land to son.”  So, will not drafted according to intent of daddy.  Son had to buy out mom’s LE for $400K.

a)                  Duty to beneficiaries (TORT):  the attorney owes a duty to both the testator & the intended beneficiaries. 

b)                 RULE:  foreseeability of harm allows the beneficiary of a will to recover from a lawyer in the K b/t the lawyer & testator.  Beneficiary must be a 3rd party beneficiary (almost a no-brainer, except in TX & other states).

c)                  RULE:  a neg action can be maintained if ben shows duty & foreseeability.

d)                 TX RULE:  beneficiaries can’t sue the lawyer for neg will drafting.  BUT, the estate can sue the lawyer for poor estate planning.

2.                  Hotz v. Minyard (p. 66):  daddy had 2 wills, 1 daughter didn’t know about.  She got screwed by the 2nd will.  She went to lawyer’s office to ask questions about the will (he was also her attny); he showed her the 2nd will & did not disclose the 1st.  Issue:  did the attny owe her a duty to show her the actual will?  YES—she was his client also.

a)                  Beneficiary has no right to see the will w/out the testator’s permission.

b)                 Even though she has a prop right, it’s not vested—“mere expectancy.”

c)                  Lawyer’s rep of both daddy & daughter became improper (adverse) when the lawyer showed her the wrong will.

d)                 Her dgs are probably what she was represented to receive & what she did receive.

3.                  Barcelo v. Elliot (p. 65):  D was preparing estate documents for P, P didn’t want her son to know that she was cutting him out of the trust.  P gave specific instructions that the son was not to know.  Trust went unfounded & cost them taxes, bens sued lawyer.  RULE:  no privity gives ben.’s no remedy.




A.                 Intro.

1.                  Intestacy is the default position, for those w/out a will.

2.                  Reasons why people make wills:

a)                  Birth of a child;

b)                 Death of someone they know who didn’t have a will;

c)                  Going on a trip.


B.                 § 45—Community Prop/Disposition of whole community.

1.                  Protects the share of the surviving spouse.

2.                  Putitative spouse:  one who reas believes that the person she married was free to marry (actually divorced).  If the belief was reas, they can get a cut of the estate.


C.                 Simultaneous Death.

1.                  A person succeeds to the prop of an intestate or testate decedent only if the person survives the decedent for an instant of time.

2.                  Survival is necessary to take.

3.                  Uniform Simultaneous Death Act:  when there is no sufficient E of the order of deaths, the ben is deemed to have predeceased the benefactor.

4.                  Ex:  A’s will leaves everything to B, remainder to C.  A & B are both killed in the same car wreck.  B’s will gives everything to X.  If there is no E of order of death, everything goes to C.  If there is E that B survives A, X gets both A’s & B’s prop.

5.                  TX RULE § 47:  in order to “survive” the testator, the beneficiary must survive for 120 hours.

a)                  This can be altered by will, longer or shorter—47(e).

b)                 But, if it’s altered, it applies to anything that causes death (not necessarily simultaneous).

c)                  Does not apply if the result would be escheat.

d)                 Applies to joint owners, insurance beneficiaries.

6.                  Janus v. Tarasewicz (p. 78):  Janus’ died from taking poisoned Tylenol.  Husband’s will allowed that $100K ins. went to wife, with Tarasewicz as contingent ben.  So, if wife died 1st, mom gets the $; if she survives him, the $ goes to his estate.  Issue:  did wife survive husband?  YES—husband was undoubtedly brain dead when he arrived at hospital, wife showed signs of life for 2 days.

a)                  In TX, mom would get the $ b/c wife did not survive husband by 120 hours.

b)                 There are still questions as to when death actually takes place.


D.                Shares of Descendants.

1.                  Per capita:  by the head.

2.                  Per stirpes:  by the root.

3.                  Disinheritance—“my son John gets nothing.”

a)                  Not allowed at CL, you could get around it by willing all your prop to others & leaving John out in the cold.




E.                 Shares of Ancestors & Collaterals.

1.                  Ancestors & collaterals take (after deducting spouse’s share) when the intestate dies w/out descendants.

2.                  Collateral kindred:  all persons related by blood to intestate who aren’t descendants.

a)                  First-line collaterals:  descendants of the decedent’s parents (other than decedent & his issue).  Brothers & sisters of deceased.

b)                 Second-line collaterals:  descendants of the decedent’s grandparents (other than decedent’s parents & their issue).  Great aunts & uncles of deceased.

3.                  Order of taking:

a)                  When no descendant—to parents (after spouse).

b)                 When no spouse or parent—to collaterals.

c)                  When no spouse, descendant or parents—to brothers & sisters & their descendants.  Nieces & nephews take by representation of their dead parents.

d)                 When no 1st-line collaterals, 2 choices (states are split):

(1)               Parentelic system:  the intestate estate passes to grandparents & their descendants, & if none to them, & if none to great-grandparents & their descendants . . . until you find an heir.

(2)               Degree of relationship system:  use table of consanguinity on p. 92.


4.                  TPC § 45—distribution of community prop.

a)                  Spouse can only give away their ½ of the Community.

5.                  Real prop distribution:

a)                  Deceased is: married & no kids → all to surviving spouse.

b)                 Married w/ kids of surviving spouse → all to surviving spouse.

c)                  Married w/ kids (kids not kids of surviving spouse) → ½ to surviving spouse (their ½ of community) & ½ to kids.

(1)               Ex:  H has W1 (former) & W2 (current W), & 2 kids w/ each.  He dies intestate, W2 keeps her ½; all kids then split his ½ (each gets 1/8). 

6.                  Other prop is treated the same way.


F.                  TPC § 38—distribution of separate prop.

1.                  Prop that is not community.

2.                  Real prop:

a)                  Unmarried w/ kids → to kids equally per stirpes.

b)                 Unmarried w/out kids → ½ to MOM & ½ to DAD (or brothers & sisters in place).

(1)               If DAD is dead, his share goes to deceased’s brothers & sisters.

3.                  Other prop is treated the same way.

4.                  38(d):  Real estate.

a)                  Married w/ kids → 1/3 to W in LE, 2/3 to kids.

b)                 Married w/ no kids → ½ to W

5.                  38(d): Other prop.

a)                  Married w/ kids → same.

b)                 Married w/ no kids → all to surviving spouse.


G.                TPC § 43—Distribution per capita.

1.                  TX distributes per capita; disregard a level if all on that level are deceased.  When you find a level w/ a living heir, split the estate by the head.  If 1 person on that level is deceased, his descendants take that person’s share.

2.                  If they’re all on the same level w/ the level above all dead, divide it evenly among those on that level that are all alive.

3.                  See examples in syllabus.


H.                TPC § 41(b)—Half-bloods.

1.                  Half blood = collateral kindred; the deceased’s rela to his siblings.

2.                  The whole blood gets twice the share of the half blood.

3.                  Ex: A is deceased, has 1 sister of half blood (S) & 2 brothers of whole blood (B,D).  Then S gets 1/5, B & D each get 2/5.


I.                    Table of consanguinity—p. 92.


J.                    TPC § 67—Pretermitted child— a child born or adopted by testator after the execution of the will.

1.                  Presumption that this child takes the same share as the other child if not provided for in the will.

a)                  Ex:  if the will provides that all kids get something & pretermitted child is left out of will, he will get the same share as the other kids.

b)                 E that testator provided for the pretermitted child could be life insurance, trust, etc.

2.                  Also, if the 4 kids are provided for to get nothing & the pretermitted child is not, pretermitted child would get an intestate share & the other 4 wouldn’t.


K.                 Transfers to children.

1.                  Meaning of “children.”

a)                  Posthumous Children:  where it is to a child’s advantage to be treated as in being from the time of conception rather than from live birth, the child will be so treated if born alive.

(1)               Presumption that gestation is 280 days (rebuttable).

(2)               Burden of proof is on child if gestation is longer.

b)                 Cts have held that adoption of adults to prevent a will contest is perfectly proper.  TX also allows this.

(1)               Comes up in same-sex relationships, to keep kids from contesting the will.

(2)               Guy1 adopts Guy2 as his son, when parents contest the will they can’t b/c they have no standing to contest.

(3)               Family Code prevents natural parents of adopted adults from taking by intestacy.

c)                  But, NY does not allow different sexes to adopt e/o for policy reasons.

2.                  Hall v. Vallandingham (p. 98):  adopted kids in Maryland can’t inherit from their natural parents directly or through representation.  Allowing this puts adopted kids in a better position than natural kids.

a)                  TX RULE:  adopted kids can inherit from both natural & adoptive parents.

b)                 TPC § 40—adoptive child loses the right to inherit from his natural parents if the adoption decree severs the right to inherit from the natural parents.

3.                  Hagaman, 886 SW2d 398:   will said that “bodily issue” would take; ct allowed that an adopted adult still could take.  The intent of the legislature was to put adopted children in the same place as natural children.

4.                  Who is the parent of a child born by surrogate motherhood?  Still evolving; 1 ct allowed that kid has 2 birth mothers (p. 103).

5.                  O’Neal v. Wilkes (p. 108):  kid wanted to be claimed “virtually” adopted by couple that took care of kid (but never formally adopted her) for 20 yrs or so.  Ct did not allow it, stating that adoption is a K that requires 6 elements:

(1)  The parties are competent to K for the disposition of the child;

(2)  An agreement b/t the natural & adoptive parents;

(3)  Performance by the natural parents of the child by giving up custody;

(4)  Performance by the child by living in the home of the adoptive parents (what?);

(5)  Partial perf by the foster parents in taking the child in & treating it like it was their child; &

(6)  Intestacy of the foster parent.

Ct found that the woman who gave the kid to the couple did not have the capacity to K for the adoption; she was not the natural parent or guardian.

a)                  Dissent:  there should be an equitable “out” that allows for an adoption in cases like this to be founded on the performance & acts of those involved.

6.                  Hecht v. Superior Ct (p. 117):  P (girlfriend) was impregnated by sperm left by decedent.  Decedent’s will specifically gave P his sperm.  Decedent’s kids challenge the will b/c they claim that P unduly influenced decedent b/c he committed suicide.  Trial ct ordered the sperm destroyed;

a)                  Whether sperm is prop is important b/c: (1) probate cts only have juris over prop; (2) if it’s prop, it can be gifted.

b)                 Ct finds that the sperm is a pre-embryo, that the deceased has a prop right in.

c)                  Ct holds that: (1) PP does not prevent the artificial insemination of unmarried women, & (2) post-mortem artificial insemination is not against PP.

(1)               Cal. law allows that if the insemination is done by a Dr., donor is not the father.  If she does it herself, he is the father.

(2)               TX Fam. Code allows that if the child is made by assisted means of reproduction, the donor is not the father.  Married couples can agree to it by permission.

(3)               TPC 42 allows that if a child is born by assisted conception & father agrees that he’s the father.

d)                 Destroying the sperm is an unconst. taking of private prop.

e)                  Extraction of sperm from dead/comatose men—is the kid his child?  Do parents have the right to get the sperm & have grandchildren.   


L.                 Advancements.

1.                  The ability of a ben to get part of his inheritance b/f the testator dies.

2.                  If there’s no writing indicating that it’s an advancement, then it isn’t.

3.                  TPC § 44—requires that a contemporaneous writing declare that it’s an advancement.


M.               Expectancies.

1.                  No living person has heirs—he has heirs apparent.

2.                  Heirs apparent have mere expectancies, which can’t be transferred.


N.                Managing a Minor’s prop.

1.                  Guardian of the person—responsibility of the minor child’s custody & care.  Guardian cannot manage the prop of the child.  For that, you need either a:

a)                  Guardianship

b)                 Custodianship

c)                  Trusteeship

2.                  Parent needs a will to allow for:

a)                  Designating a guardian;

b)                 Dealing w/ the mgt of child’s prop.


O.                Bars to Succession. 

1.                  Homicide.

a)                  In re Estate of Mahoney (p. 141):  slayer couldn’t get prop of her husband b/c she killed him.  At the time of his death, his prop vested her by constructive trust.  In equity, the prop would not allow her to profit from the killing.

(1)               Constructive trust:  legal fiction—trust imposed by law.  “Nothing but the formula through which the conscience of equity finds expression.”  Prop vests in the slayer & regards the slayer had predeceased the benefactor.

(2)               Ct imposes the CT when there is intent of the slayer in the death.

b)                 Restatement approves the CT, but not when manslaughter is involved; no requisite intent.

2.                  TX requirements:

a)                  Intentional & felonious cause of death to the testator.

b)                 BoP is preponderance of the E (it’s a civil trial).

(1)               Criminal acquittal does not mean there was no felonious intent (higher BoP in crim trial).

(2)               Probate ct decides if there was a preponderance of E that the benefactor killed the slayer.

c)                  Applies to multiple party bank accts & ins policies—all survivorship designations.

3.                  Disclaimer.

a)                  Troy v. Hart (p. 151):  attempt to rescind the disclaimer of Medicaid patient.  Ct allowed the disclaimer, but thought he should pay for Medicaid during the period he held the assets b/c his inheritance made him ineligible for Medicaid.  Ct holds the $ in a constructive trust for the possible repayment of Medicaid.

(1)               Capacity is required to make a PoA.

b)                 TPC 37A—you can disclaim in whole/in part.  You don’t disclaim in favor of anyone, it goes to the next person as designated by the will.

(1)               Law looks at it like disclaimer predeceased the testator.

(2)               RULE:  if a disclaimer is made under a will or intestacy, it won’t be considered a fraudulent transfer.

(a)               Dyer:  no interest is transferred, b/c the disclaimer never possessed anything.

(3)               Disclaimer must be done in writing w/in 9 mo.  After, you can’t disclaim.




A.                 TPC 57—Who may execute a will?

1.                  One who is over 18 (married or a member of the armed forces).

2.                  Of sound mind.

3.                  In re Strittmater (p. 159):  schizo woman who left her prop to National Women’s Party; will not allowed to probate b/c she lacked mental capacity.  The only proof was that she hated men; if she did, she must lack capacity. 

a)                  Even if you show that she was insane b/c of her hatred for men, did this insanity cause the bequest?

b)                 Case seems a little screwy.


B.                 Reasons for requirement of Capacity.

1.                  A will should be given effect only if it represents the testator’s true desire.

2.                  An incapacitated person is not a “person” under the law.

3.                  Capacity protects the decedent’s family.

4.                  Protects society at large from irrational acts.


C.                 Test for Capacity. 

1.                  Testator must have the ability to know:

a)                  Nature & extent of his/her prop;

b)                 Persons who are “natural objects of her bounty;”

(1)               Persons likely to take under the will.

(2)               Does not have to be a blood relative of any kind.

c)                  The disposition the testator is making;

d)                 How these elements relate to form an orderly plan for distribution.

e)                  These only set the stage.

2.                  Testator must have mind & memory relevant to all the things AND must understand the significance of the acts.

3.                  Little isolated facts & idiosyncrasies do not destroy capacity unless they directly bear upon & have influenced the testamentary act.  Wright, p. 163.

4.                  Just b/c someone is declared legally incapacitated & put under a guardianship, they still may have enough capacity to execute a will.

a)                  But, be careful—get a ct order.

b)                 Power to make a will takes lower level of capacity than that required to make a K, etc.

c)                  But, it takes more capacity to make a will than to get married (go figure!!).

5.                  It’s a breach of pro res to make a will for an incapacitated person.


D.                Insane Delusion.

1.                  Delusion—false conception of reality.

a)                  Legal, not psychiatric concept.

2.                  Insane Delusion—false conception of reality to which testator adheres against all reason & E to the contrary.

a)                  Testator may have the mental capacity to make a will, but suffer from an insane delusion that influences 1 part of the will.

b)                 If the delusion affects testamentary capacity, it is insane.

(1)               If so, only that part of the will fails.

(2)               When a part fails, the gift falls into the residuary part of the estate.

c)                  MAJ view:  a delusion is insane even if there is some factual basis for it if a rational person in the testator’s situation could not have drawn the conclusion reached by the testator.

3.                  In re Honigman (p. 166):  guy left nothing in his will to his wife but her statutory share.  He thought she was cheating on him & there was E showing the possibility.  We look for a factual basis to show that he was not suffering from an insane delusion & allow the will to stand.

a)                  MIN view:  if a person persistently believes supposed facts, which have no real existence except in his perverted imagination & against all E & probability, & conducts himself, however logically, upon the assumption of their existence, he is, so far as they are concerned, under a morbid delusion; & a delusion in that sense is insanity.

b)                 MAJ view adds the reas person test to this.

4.                  TEST:

a)                  There an insane delusion; AND

b)                 The will is a product of the insane delusion.

c)                  Contests using this usu. involve family members.

5.                  Insane Delusion vs. Mistake.

a)                  An insane delusion is a belief not susceptible to correction by presenting the testator w/ E indicating the falsity of the belief.

(1)               Cts usu. invalidate wills resulting from insane delusion.

b)                 A mistake is susceptible to correction if the testator is told the truth.

(1)               Cts do not reform/invalidate wills b/c of mistake.

(2)               Nothing you do can get it changed.


E.                 Undue Influence.

1.                  UI must result in coercion—to execute a will in someone’s favor/to someone’s detriment.

2.                  Elements:  sets the stage for the TEST.

a)                  Susceptibility of the testator;

(1)               Has to do w/ age & physical ability.

(2)               Age alone not a factor, it’s how you handle the age.

b)                 Opportunity;

c)                  Disposition for personal benefit;

d)                 Unnatural provision in the will;

(1)               Look if heirs were disregarded according to intestacy statutes.

(2)               Can be overcome w/ E of reasons why the will was structured this way.

3.                  TEST:  whether such control was exercised over the mind of the testator as to overcome her free agency & free will & to substitute the will of another so as to cause the testator to do what she would not otherwise have done but for such control.

4.                  Lipper v. Westlow (p. 177):  P’s are grandchildren of testatrix’s 1st dead husband, challenge being left out of will.  Issue is whether testator was unduly influenced in making the will.

a)                  Problem = will written by son, who was a lawyer; conflict of interest—avoid the appearance of impropriety.  Confidential relationship.

b)                 Problem = should have testator write down their own reasons for leaving out the kids.

c)                  Avoid factual recitations in the will; they may be countered by E at a contest hearing.  Put it in writing other than the will; the will is a public document.  There is such a thing as testamentary libel.

5.                  TPC 58b

a)                  Devise to an attny that prepares the will is void, unless the testator is a family member (spouse, ascendant/descendant, related w/in 3rd degree of consanguinity).

6.                  In re Will of Moses (p. 188):  Mrs. Moses shacked up w/ a lawyer 15 yrs younger.  Her will was written by another attny; the young lawyer got all of her crap.  He probably was the natural object of her bounty b/c of their rela.  Ct would not allow probate, based mostly on the inappropriate rela b/t the 2.  Age, illness, addiction probably increases her susceptibility; but going to another attny for the will, she manages a business, she kept re-working the will helps refute it.  But, you still have to find a causal rela b/t the influence & the will.

a)                  Attny should’ve asked who Holland was & his rela to Moses.  He should’ve anticipated/prepared for a contest.

b)                 Shell could’ve:  advised her to get a letter, adult adoption, give something to her natural heirs, marriage, inter vivos trust (to herself for life, remainder to him).

(1)               Trust allows the benefit of the trustee, you can validate it by adding to it during her life.

c)                  Why wouldn’t Shell want to do any of this?  Maybe he was embarrassed to get into her private life.

7.                  Gaines v. Krawley (supp., TX):  UI usu. proven by circumstantial E; it’s often the main E available.

8.                  In re Kaufmann’s Will (p. 193):  guy left all of his stuff to his male love-monkey.  He even left a letter stating what he wanted to do.  Still did not work; probate was not allowed.  Dissent said that the verdict rests upon suspicion & moral judgment, not on facts & law.

a)                  What might he have done?  Set up a trust, inter vivos gifts, draft a letter to the family, videotape the conferences/exectutions.

9.                  Seward Johnson’s estate (p. 197):  Johnson was 1 of the Johnson & Johnson boys.  He gradually gave his chick-friend Basia more & more stuff, leaving out his children.  Zagat, the attny who drafted the will, was Basia’s friend.  Trusts had been set up for his kids & some stuff to Basia during his life. 

a)                  Is it a conflict to represent both H & W in a will situation?  Not usu., but it becomes a conflict when their interests become adverse.

b)                 Problem was that Zagat got herself too personally tangled up in the will.

c)                  If the drafting attny is a witness to be called at trial, that attny can’t represent the estate.


F.                  Fraud:  intent to deceive the testator & influence the testamentary gift.

1.                  Fraud in the inducement:  a person misrepresents facts, thereby causing the testator to execute a will, to include particular provisions in the wrongdoer’s favor.

a)                  Ex:  testator asks who his nephews are, nephew answers “2” when there are actually 3.  The testator then makes the will out for 2 & the 3rd nephew challenges it.

b)                 Inducer has a const. trust imposed on him in favor of the other 2.

c)                  Fraudulently procured inheritance/bequest is invalid only if the testator would not have left the inheritance or made the bequest had the testator known the true facts.

2.                  Fraud in the execution:  when a person misrepresents the character or contents of the instrument signed by the testator, which does not in fact carry out the testator’s intent.

a)                  Ex:  testator can’t see/read & is deceived in making out the will.

3.                  Latham v. Father Divine (p. 215):  widow executed will, leaving all of her stuff to D.  D prevented her from executing a new will by killing her.  Ct held that it is also fraud to prevent someone from executing a new will so that they can take under the current will.  The wrongdoer will then have a constructive trust imposed on him, in favor of the intended beneficiaries.  You must be able to show who the intended beneficiaries are (easy in this case b/c they had the new will).  You can also go into the intestacy statutes.

a)                  A const. trust may also be imposed where no fraud is involved but the ct thinks that unjust enrichment would result if the person retained the prop.

b)                 It is a tort to interfere w/ an expectancy.

4.                  Action for tortious interference is not a will contest.

a)                  Challenger is trying to recover dgs.

5.                  TX—See King v. Acker (supp.); requires that the wrongdoer act willfully & maliciously.  Cts also allow exemplary dgs in TX.

6.                  TX—Neill v. Yett (supp.); tort has a 2-yr SoL.


G.                TPC 10—Persons entitled to Contest.

1.                  Any person interested in the estate may, at any time b/f any issue in any proceeding is decided upon by the ct, file opposition to a will.

2.                  TPC 3(r)—person interested means heirs, devisees, spouses, creditors, or any others having a prop right in, or claim against, the estate being administered; and anyone interested in the welfare of a minor/incompetent ward.


V.                 FORMALITIES & FORMS.


A.                 Execution.

1.                  Requirements are strict b/c it’s easy to comply w/ the statute.  There is no partial compliance allowance.

2.                  A will that is improperly executed is invalid.

a)                  You can’t be sued for improper execution b/c of the privity barrier.

b)                 The last resort is to execute by telephone.

3.                  Reasons for formal execution:

a)                  Ceremonial function—ct needs to be convinced that the statements of the t/or were deliberately intended to effectuate a transfer. 

b)                 Evidentiary function—gives reliable E to the ct.

c)                  Protective function—safeguards the testator, at the time of the execution of the will against claims of undue influence or other forms of imposition.

d)                 Self-proving Affidavit:  signed by testator, 2 witnesses & notary.  It’s prima facie E that the testator had capacity at the time the will was executed.

(1)               So, BoP lies w/ the challenger unless the self-proving affidavit is not executed.

4.                  TPC 64–65.  Oral wills (nuncupative) are recognized in TX.

a)                  Testator has to ask for witnesses.

b)                 Must be made at the time of the last sickness of testator.

5.                  TPC 81(c).  Requirements for probating oral will = all the requirements of a written will, PLUS:

a)                  The substance of the testamentary words spoken.

b)                 The names & residences of the witnesses thereto.

6.                  In re Groffman (p. 227):  will executed incorrectly; witnesses did not witness the testator’s signing the will & did not witness e/o signing it.  Wife challenges b/c she got life estates only; she claims ineffective execution.  Statute required that witnesses witness the signing of the testator at the same time he signs it.  But, the witnesses can sign 1 at a time, as long as the testator sees it.  Testator had to acknowledge to both witnesses at the same time that he signed the will.

7.                  TPC 59.  For a typewritten will.

a)                  Would Groffman’s execution be valid in TX?  YES.

b)                 Testator does not have to acknowledge that it’s a will.

c)                  The will does not have to be signed at the end, sign it anywhere.

d)                 Witnesses (2, credible) do not have to be in e/o’s presence when they sign; they have to be in the testator’s presence.

e)                  Testator does not have to be in the presence of the witnesses when he signs.

f)                   Witnesses:  must be over 14 & disinterested.

g)                 T/or can get someone to sign his name for him, “by another person for him by his direction & in his presence.”  T/or must ask the person to sign. 

h)                 Cannot use a rubber stamp.

8.                  “Presence” TESTS.

a)                  Line of sight test:  t/or does not have to actually see the witness, sign but must be able to see them should the testator look.

b)                 Conscious presence test (TX):  the witness is in the presence of the t/or if the t/or, through sight, hearing, or general consciousness of events, comprehends that the witness is in the act of signing. 

(1)               Slight physical exertion to see the witness is sufficient. 

(2)               Being in another room is too far away.  See Nicholas, supp.

c)                  See notes on p. 233–35.

9.                  Additions after the signature.

a)                  TX—does not require the t/or to sign at the end, it can be signed anywhere.

b)                 All wills must be in writing.

10.              Video/spoken wills.

a)                  Not valid in TX b/c not a writing.

b)                 Animated words in the video, a signature on the label do not matter.  It must be a writing & witnessed.

11.              Order of signing.

a)                  TX—the exact order is not critical, so long as the signing is part of “1 contemporaneous transaction.”

b)                 TX—t/or can sign by making an “X.” 


B.                 TPC 62.  Execution by Interested Witness.

1.                  Interested witness:  a witness who is also a beneficiary under the will they are witnessing.

2.                  TX “purging” statute:  A bequest to subscribing witness shall not be void if the testimony proving the will is corroborated by ONE OR MORE DISINTERESTED & CREDIBLE PERSONS (not witnesses, could be notary, attny).

3.                  TPC 61—if no corroboration, & intestacy occurs, interested subscribing witness takes—LESSER OF WILL OR INTESTATE SHARE.

a)                  You can’t come out better if your gift is purged by 62.

4.                  Does not invalidate the will, but the witness’s gift is purged.

5.                  Estate of Parsons (p. 236):  Deceased had will execution witnessed by 3 persons:  Nielson, Gower, & Warda.  Nielson & Gower were beneficiaries under the will, Warda was not.  Nielson got $100 under the will, disclaimed it 10 months later.  Deceased’s heirs challenge the will, claiming it is invalid b/c not witnessed by 2 disinterested witnesses (there was only 1).  RULE:  subsequent disclaimer of an interested witness’ gift under a will does not then make them disinterested.

a)                  A gift not taken by a legatee is LAPSE & goes to the residuary & down by intestacy.

b)                 TPC 37A—for purging statute, disclaimer relates back to the date of death.


C.                 Executing a will.

1.                  See p. 242 & will in syllabus.

2.                  You become the custodian of the will & need to keep it for the client.

a)                  Do not make duplicate originals.

b)                 Safeguarding a will:  you need to let the client know where the original is—w/ the client or w/ you.

c)                  Typically, if a will is validly executed in another juris., it’s valid in TX.

3.                  In re Pavlinko’s Estate (p. 247):  H & W each signed the will of the other.  W died, then H died & residuary legatee tried to probate H’s will.  Ct wouldn’t allow it & made the will a nullity, too many changes were required to make her will into his.  Dissent was probably right, he claimed the will should’ve been probated b/c the brother who brought the will for probate was the residuary legatee in both wills & both H & W were dead.

a)                  In re Snide (p. 251):  had the same facts as Pavlinko, but reversed the names & probated the will.

4.                  In re Will of Ranney (p. 252):  see brief.  T/or & witnesses signed the self-proving affidavit, but not the attestation clause.  Ct held the will valid, allowed that they had substantially complied w/ the statute. 

a)                  Substantial compliance:  a functional rule that cures the inequity caused by the harsh & relentless formalism of the law of wills.

b)                 No substantial compliance in TX—the rules are simple enough.

5.                  TPC 59(b)—signature on the self-proving affidavit is considered a signature on the will.  But, using this provision makes the self-proving affidavit is void.

a)                  So, you have to prove capacity in court using the witnesses.

6.                  Boren v. Boren—cts previously held that the will & affidavit were 2 documents & the sig on one could not be used for the other. 


D.                Holographic Wills—written by the t/or’s hand & signed by the t/or; no attesting witnesses are required.

1.                  Ct is more likely to honor the t/or’s intent in a holographic will than in a typewritten will.  You still must have the required elements & the rules will still apply.

2.                  TPC 60—must be wholly in the handwriting of the t/or & signed by him [not at the foot—anywhere], no witnesses are required.  May be proved during t/or’s life by attaching an affidavit by t/or saying that:

a)                  It’s his last will;

b)                 He was at least 18 when he executed it;

c)                  He was of sound mind;

d)                 He has not revoked it.

e)                  No date is required, but is recommended b/c it helps determine which is the later will.

3.                  In re Estate of Johnson (p. 264):  will denied probate as holographic b/c it was a form will filled out in t/or’s handwriting.  RULE:  form will filled out by t/or qualifies as a holographic will only if the printed parts can be eliminated & the handwritten part would still E testamentary intent of t/or.  The “material provisions” must be in the t/or’s handwriting.  Here, the material provisions were in the printed part.  2 witnesses would’ve made this will alright.  This is the typical way cts deal w/ a stationary-store will.

4.                  See example of “arrow” will & notes on p. 270.

5.                  A letter of instructions to an attny on how t/or wants the will made can’t be probated—cts find it a list of instructions.

a)                  But, putting a phrase like “keep this in case a will is not made” or something like this may allow it to be probated.

6.                  Statutory form wills:  form that essentially tracks the statute, so it’s easier/more likely to be probated.  Must be signed & attested to as any other attny-made will.

7.                  Kimmel’s Estate (p. 271):  father sent letter to his sons on the day he died stating what he wanted done w/ his prop.  Sons admitted letter to probate & intestate heirs contested.  Issues:  can this be probated?  Is “Father” a proper signature? RULE:  an informal document evidencing intent of a conditional gift & an intent to execute may serve as a testamentary document.  “Father” was allowed b/c it was intended as a complete signature to the particular character of document.

a)                  Did t/or intend for that to be his signature on this document at this time?

b)                 Remember, no rubber stamps.


E.                 Revocation of wills.

1.                  Important b/c it effects the probatability of the will.  Let your client know b/c:

a)                  They may want to change it later;

b)                 They may do something to screw up a valid will.

c)                  Remember the presumption of revocation when trying to probate a lost will.

2.                  Ways to revoke.  Begins with the intent & capacity to revoke.

a)                  By subsequent writing with testamentary formalities; OR

b)                 By physical act such as destroying, obliterating, or burning the will.

c)                  If a duly executed will is not revoked in a manner permitted by statute, the will is admitted to probate.

d)                 Capacity:  same as the capacity to create—prop you have, natural objects of your bounty, result of your action.

3.                  TPC 63—no will in writing, & no clause thereof/devise therein, shall be revoked, except:

a)                  By a subsequent:

(1)               Will [revokes the whole thing],

(2)               Codicil [revokes a provision], or

(3)               declaration in writing, executed w/ like formalities [not necessarily the exact same way], or

(a)               Hypo:  will #3 that revokes will #2 is not valid.  Then, will #2 is the will that can be probated.

(b)               Hypo:  you can revoke a typed will w/ a handwritten declaration in writing executed w/ like formalities.  Whatever method you use is valid for that instrument of revocation.

b)                 By the t/or:

(1)               destroying or canceling the will, or

(2)               causing it to be done in his presence.

(a)               T/or must have intent to destroy/cancel.

(b)               Be aware of the “in his presence” part.

(c)                Same test as for presence of witnesses.

4.                  What is a valid revocation?

a)                  A subsequent will revokes a previous will.

b)                 If there is a valid will and the client subsequently writes on paper, “I leave my car to X,” the will is not revoked, the subsequent writing is a codicil.

5.                  Problem p. 277 – REVIEW THESE PROBLEMS.

a)                  (a) destruction of a codicil does not destroy a will; however, destruction of a will destroys codicils.

b)                 (b) no – see above rule.

6.                  Harrison v. Bird:  testator executed a will, the original was kept by attorney, and a duplicate original was given to the beneficiary.  Testator called her attorney and told him she wanted to revoke her will, and the attorney tore it up in front of his legal assistant (testator was not present; on the phone); he sent the pieces of the will to the testator along with a letter saying that the will had been revoked.  When the testator died, the letter was found but the pieces of the will were not; the other original was submitted to probate.

a)                  Duplicate original = there are two original wills, both are properly executed; either can be admitted to probate.

b)                 ISSUE: is a duplicate will valid when the other original was revoked?

c)                  RULE: revocation by physical act requires that the will be torn up by the testator or at the testator’s direction in her presence.  Telephonic presence is not sufficient for execution; it is likewise insufficient for revocation

d)                 RULE: when you cannot find the will, there is a presumption of revocation that arises.

e)                  H: the beneficiary did not present sufficient evidence to rebut the presumption of revocation, and therefore the testator was deemed to have died intestate.

f)                   If the pieces of the will had been found, the pieces would have been reconstructed and submitted to probate (would the attorney be liable for malpractice? Yes; everywhere but Texas because of the privity bar).

g)                 If she (the testator) gets the pieces in the mail and then tears them up into 8 pieces (or throws them away), that would be valid revocationàthe presumption here is that she disposed of them, so she revoked the will herself after he mailed it to her.

7.                  TX: In Texas, there is no partial revocation by physical act (you cannot physically cut someone’s name out of the will and keep the rest as valid).

8.                  Problem 2 (279) – if the will cannot be found it can also be probated in Texas as a lost will under §81b; in order to submit to probate as a lost will you must overcome the presumption of revocation; the best evidence for this is a copy of the will or a duplicate original (you must establish that the will was not revoked – he was just talking about revocation, but  the testator told us it was in a safety deposit box; if someone else says that they saw the testator destroy it, the presumption remains).

9.                  Thompson v. Royall:  testator executed a will; later requested that the attorney come to her house to destroy the will.  The attorney suggested that instead of destroying it, she write “this will is revoked” on each page, and keep it for when she wants to prepare a new will.  The attorney wrote the note on the will; the testator signed it (but there was no proof as to her handwriting).  The testator died before executing another will.  RULE:  There was intent to revoke, but because the written revocation was not in the testator’s handwriting it was not valid (holographic revocation).

a)                  This was not a valid holographic revocation because the testator did not write it; if the judge had written that it was null and void, signed by the testator, and there were two witnesses, it would have been valid.

10.              TX - Marks or lines across the written parts of the instrument with intent to revoke is sufficient; the testator’s signature would not be required; the defacement does not require the same formalities as declaration in writing.

11.              Problems, 284.

a)                  Problem 3– what if there was a self-proving affidavit revoking the will; one case found this was sufficient because the affidavit can be considered a part of the will; Texas would likely follow this decision, based on the decision that the signature on the s-p affidavit can be considered signature on the will.

b)                 Problem 4 – testator writes “canceled; M. Kroll”; is this a valid revocation by physical act? No because she did not deface the actual will; would this be a signature – the test is whether the testator intended for this to be their signature.

c)                  Problem 5 – testator writes void across a copy – a copy would not be a valid will, and you cannot revoke something that was never valid.

12.              Ashley v. Usher (supp.)

13.              Smith v. Smith (supp.)

14.              Lowery v. Saunders (supp.)

15.              Harris v. Strawbridge (supp.)

16.              Leatherwood v. Stephens (supp.)

17.              Stanley v. Henderson (supp.)

18.              Lewis v. White (supp.)

19.              Matter of Estate of Glover (supp.)

20.              Harrison v. Bird (p. 277): 

21.              Thompson v. Royall (p. 280):

22.              Carter v. 1st United Methodist (p. 286):

23.              Estate of Alburn (p. 292):

24.              TPC 62—in will covered by section 61, the gift to subscribing witness shall not be void if his testimony proving the will is corroborated by 1 or more disinterested & credible persons who testify that the testimony of the subscribing witness is true & correct, & such subscribing witness shall not be regarded as an incompetent/non-credible witness under section 59.


F.                  Doctrine of Dependent Relative Revocation & Revival.

1.                  If the t/or purports to revoke his will upon a mistaken assumption of law/fact, the revocation is ineffective if the t/or would not have revoked his will had he known the truth.  Ct can disregard a revocation based on a mistake of law or fact.

2.                  TX RULE:  there is no revival of a revoked will—EVER.  Once the will is revoked, nothing can be done.  Also, no partial revocation at all.

a)                  Exception:  DRR.

b)                 Ex:  if you revoke will #1 by making will #2, you can never bring will #1 back.  DRR will allow you to bring back will #2 if you revoke it by destruction, but you can never get will #1 back.

c)                  The idea is that the most recent will is the closest thing to the t/or’s intent; you can revive the most recent will b/c of tainted intent:  t/or did not know the consequences of his actions by revoking will #2 (he thought he could revive to will #1).

d)                 In TX:  if t/or destroys will #2 thinking he’s reviving will #1, ct will revive will #2 under DRR.

3.                  Similar provisions—Ex:

a)                  Will #1:            $10K to A

Gold watch to B

House to C

$5K to D

$3K to E

Residuary to X

b)                 Will #2:            $15K to A

Gold watch to B

House to C

Residuary to X

*These are probably similar enough to allow will #2 to be revived

4.                  Carter v. United Methodist (p. 286):  t/or made changes to will in handwritten document which was kept w/ the will. 

5.                  Estate of Alburn (p. 292):  2 wills executed by t/or; she revokes #1 by destroying it.  Ct would not revive #1 (like TX), they allowed #2 to be revived b/c they were similar enough.  Same DRR definition as 1. above.

a)                  Ex:  if #2 was never validly executed, will #1 is not validly revoked—no DRR problem.

6.                  Revocation by operation of law (i.e., divorce).

a)                  TX RULE:  a gift to a spouse who is now an ex-spouse is void.  Does not apply if t/or remarries divorced spouse.

b)                 What if gift is to “wife,” not named.  If t/or remarries a different wife, the provision still applies to the new wife.  This also applies to ins. proceeds & retirement benefits.

7.                  TPC 69(a)—NO partial revocation by physical act in TX.

a)                  If will is not found, presumption of revocation by physical act.

8.                  Problems, p. 290.

1.(a)     This is not a holographic codicil, b/c no signature.  Argue that it is b/c there’re initials & the amt.; you’ll probably lose b/c material provisions not in the handwriting of the t/or.  Handwriting must show testamentary intent on its own.

(b)        Blake gets $1000.  You can’t do anything about what he wrote on the will.


G.                Conditional Wills.

1.                  Wills that contain clauses that take effect when a certain condition occurs.

2.                  Most are given effect b/c of the presumption against intestacy.

3.                  Putting “if only” into the clause makes it more certain.

4.                  RULE:  cts presume the language of the condition does not mean the will is to be probated only if the stated event happens but is, instead, merely a statement of the inducement for the execution of the will, which can be probated upon death from any cause.


H.                Components of a Will.

1.                  Possibility that documents & acts not executed w/ testamentary formalities have an effect in determining who takes what prop.

2.                  2 Doctrines permitting extrinsic E to resolve the identity of persons/prop.

a)                  Incorporation by reference.

b)                 Acts of independent significance.

3.                  Integration of wills.

a)                  Which papers present @ time of execution comprise t/or’s duly executed will?

b)                 More concrete if all pages are fastened together b/f t/or signs & t/or signs/initials each numbered page.

c)                  Look for:

(1)               Internal continuity;

(2)               Staples.

4.                  Republication by Codicil:  an implied restatement/rewriting of the language of a valid will as of the date of the codicil.

a)                  A will is reexecuted (republished) as of the date of the codicil.  Assumption that a codicil re-affirms the will to which it is attached.

b)                 Ex:  will written in 1981.  Codicil dated 1992.  Will is republished in ’92 when the codicil is executed. 

c)                  Ex:  t/or has a will & revokes it by executing a 2nd will.  He then executes a codicil to the 1st will.  Since this is a republication of the 1st will, the 2nd is revoked by implication (“squeezed out”).

d)                 Not applied automatically, only when updating the will carries out t/or’s intent.

e)                  Diff. b/t republication & incorporation by reference = republication only applies to a prior validly executed will; inc. by ref. applies to inc. into wills instruments never validly executed.

5.                  Incorporation by Reference (ibr).

a)                  Applies only when instruments that NEVER HAD testamentary life are inc. into a will & given TESTAMENTARY EFFECT.

(1)               Will must refer to writing IN EXISTENCE [at the time the will is executed] w/ reas certainty.

(2)               Will description corresponds to description & was the one intended by T.

b)                 Differs from republication by codicil in that republication only applies to a valid will.  Inc. refers to documents w/ no testamentary value apart from their inc.

c)                  Clark v. Greenhalge (p. 303):  D was executor & principal ben. of Nesmith’s will; Nesmith reserved the right to make other distributions of personal prop in a memo.  Nesmith also made designations in a notebook in addition to the memo.  The notebook left a painting to P; D refused to give it up.  It was cool that the codicil was partially written by t/or’s nurse—intent is what matters.  Problem was that the memo referred to in her will was not in existence at the time of execution of the will.  But, they said codicil republished will & overcame defects in the inc. by ref.  RULE:  a properly executed will may inc. by ref. any document/paper not so executed & witnessed, if it was in existence at the time of the execution of the will & is identified by clear & satisfactory proof as the paper referred to therein.

d)                 Johnson v. Johnson (p. 311):  t/or typed his will but did not sign it or have it witnessed.  He later hand wrote a codicil at the bottom & died.  The entire document (typed & handwritten) was offered for probate.  RULE:  a valid, holographic codicil may inc. & republish a prior will which would’ve been ineffective b/c of its failure to comply w/ formal requisites.

e)                  For holographic wills it is necessary to eliminate the typed part on the face of a holographic will as either (1) immaterial or (2) no intent to inc. the typed matter.

6.                  Acts of independent significance.

a)                  Determines how much extrinsic E will be allowed to show testamentary intent.

b)                 If the ben. or prop designations are identified by acts/events that have a lifetime motive & significance apart from their effect on the will, the gift will be upheld under the doctrine of acts of ind. sig.

c)                  Ex:  t/or leaves “the car I own at my death.”  You go outside the will to determine which car he owns at his death.  See cases, p. 318.

7.                  Exception to the “in existence” rule—Memo of Personal Effects.

a)                  TX allows this rule.

b)                 Separate writing t/or can create after the will is executed, telling the disbursement of personal prop.

c)                  Contains t/or’s personal effects & allows t/or to change things if he wants.  Also usu. allows the executor to make decisions about some of the crap.

d)                 Cannot contain real prop OR cash; has to be mentioned in the will.

8.                  See Simon v. Grayson, p. 309.

9.                  Johnson v. Johnson (p. 311):  t/or had a typed will that was not signed or attested, he later wrote another paragraph at the end of the typing.  The holographic part he signed & dated.  Issue:  were they 1 will, or a will & a codicil?  Ct found it a valid holographic codicil.  Ct is wrong, b/c the 1st will is not valid—RULE:  you can’t have a codicil to a will that’s not valid.

a)                  Possible argument is that the handwritten part is a will by itself, & the language “this will” incorporates the typewritten part by reference.

10.              To probate a holographic will, you must eliminate typed matter on the face of the holographic will on the ground either that it is immaterial or that there is no intent to inc. the typed matter.

11.              Contents of drawers, etc. 

a)                  TPC 58(e)(1)—devise of “contents” means tangible, personal prop.  Does not include intangibles, choses in action [bank book], “titled” personal prop represented by a certificate or ownership requires a formal title transfer [stock, cars].

(1)               Ex:  the “contents of the garage” would not include a Model T, stocks on the hood, a bank book on the workbench.

b)                 Caveat—one must expect to find item in such a location.


I.                    Contracts Relating to Wills—2 types:

1.                  K to make a will:  individual says “take care of me for 6 months & I’ll give you my car.” 

a)                  There’s a valid K;

b)                 Does wills law support it? 

(1)               TPC 59—the will must state that the K exists, & the will must state the material provisions.

(2)               If it’s not stated in the will, can we inc. it by ref?  Yes, if it’s referenced w/ specificity & existed at the time of the will.

2.                  K not to revoke a will:  H’s will & W’s will, give all to e/o.  If there’s a K not to revoke, when H dies W can’t make a new will (protects the will they made together if she remarries).

a)                  Even if there’s a K, you can still revoke it w/ notice to the other at anytime b/f death.

b)                 If W does revoke, she breaches the K.  You can’t change the nature of the vesting, so the prop goes into a constructive trust.  The prop goes to the ultimate beneficiaries under H’s will.

c)                  W’s new will can’t be challenged until she dies.  Her beneficiary gets the constructive trust for the benefit of the beneficiaries under H’s will.

3.                  Begin analysis w/ K law—is there a K?  Then to wills law—can we uphold the K?

4.                  Joint will—1 will w/ 2 people on it.  VERY DUMB.

5.                  Mutual will—separate wills of 2 or more persons that contain similar or reciprocal provisions.  Based on a K.

a)                  Reciprocal will has mirrored provisions—he gets mine, I get hers.

6.                  Via v. Putnam (p. 323):  H’s not making a new will made 2nd wife have to take a forced share by intestacy.  RULE:  kids as 3rd party beneficiaries under mutual wills of parents, should not be given creditor status when their interest contravene the interests of the surviving spouse under the pretermitted spouse statute.  Protection of spouses more than children.




A.                 Contracts w/ payable-on-death provisions.

1.                  K’s that avoid probate by paying out to the beneficiary at death.

2.                  Wilhoit v. Peoples Life Ins. (p. 331):  P dies w/ W as beneficiary of his life ins policy.  She got the $ & rolled it over as an investment to the ins co, at a different rate than the offered her at first. RULE:  you can’t use a will to change the beneficiary designation in an insurance K.  It’s a separate K, governed by separate areas of law.  The insurance co would never know who to pay.

3.                  Estate of Hillowitz (p. 336):  p/ship agreement in investment group gave his share of the investment club to his W at death.  Ct called it a 3rd-party-beneficiary K w/ a pay on death provision.

4.                  Cook v. Equitable Life (p. 339):  H purchased life ins naming W as beneficiary, then they divorced.  Divorce decree made no provision for what to do w/ $, H remarries.  H tried to change beneficiary in his will; ct would not allow it.

a)                  W would lose in TX, b/c the gift to a divorced spouse is void.


B.                 TPC 59A—


C.                 TPC 68—


D.                TPC 89—


E.                 Multiple-party Bank Accounts.

1.                  Types:  A opens joint acct w/ B, intending—

a)                  That either A or B is to have power to draw on the acct & the survivor owns the balance of the acct (a.k.a. true joint tenancy acct);

b)                 That B is not to have the power to w/draw on the acct during life but is entitled to the balance upon A’s death (POD acct);

c)                  That B is to have the power to draw on the acct during A’s life but is not entitled to the balance at A’s death (agency acct).

2.                  Include a joint & survivor acct, a payable-on-death acct, agency acct, & a savings acct trust.

3.                  In TX, the funds during the lifetime of the depositors are allocated depending on what each depositor contributed.  Determined by looking at the history of the acct.

4.                  TPC 442—no multiple-party acct will be effective to transfer to a survivor funds needed to pay debts, taxes, & expenses of administration, including statutory allowances to the surviving spouse & minor children, if other assets of the estate are insufficient.

5.                  Franklin v. Anna National Bank of Anna (p. 345):  joint tenancy sig cards can be defeated by clear & convincing E that the deceased did not intend to give the proceeds of the acct as a gift to the other signatory.

6.                  TPC 438A—Convenience acct.

a)                  If acct is established by a party in the names of the party & a cosigner & the terms of the acct provide that the sums on deposit are paid/delivered to the party or to the cosigner “for the convenience” of the party, the acct is a convenience acct.

7.                  See note 2, p. 349. 


F.                 Joint tenancies.

1.                  2 types:

a)                  Joint tenancy;

b)                 Tenancy by the entirety.

c)                  Upon death of 1 tenant, the survivor owns the prop outright, free of any participation by the decedent.

2.                  Important features:

a)                  The creation of a JT in land gives the JT’s = interests on creation.  The interest given the other JT can’t be revoked during life.

b)                 A JT can’t devise his share by will.

(1)               To devise his part, a JT must sever the tenancy (need agreement of other tenant; creating a TiC) during his life, then devise his part @ death.

(2)               This is so b/c @ death, the interest passes to the survivor automatically; there’s nothing for the deceased’s will to act on.

c)                  A creditor of a JT must seize the JT’s interest during life.


G.                Revocable Trusts.

1.                  The settlor can cancel the trust at any time.

2.                  Passing of interests by gift:

a)                  To be effective as a gift, personal prop must be delivered.  A gift w/out delivery = nothing.

b)                 To effectuate a completed gift, the deliverer must feel the “wrench of delivery.”

c)                  Delivery is separate from the requirement of intent.

d)                 Delivery may be effectuated by:

(1)               Delivery of the thing itself;

(2)               If the object is difficult/impossible to deliver, it can be delivered constructively.  Only available if you absolutely can’t hand it over.

(3)               Classic ex = a key to a box, the box can’t be delivered.

3.                  Deed of trust:  the trust settlor transfers legal title to prop to another person as trustee pursuant to a writing in which the settlor retains the power to revoke, alter, or amend the trust & the right to trust income during lifetime. 

4.                  On the settlor’s death, the trust assets are to be distributed to/held in further trusts for other bene.’s.

5.                  Revocable declaration of trust:  the settlor declares himself as trustee for the benefit of himself during lifetime, w/ the remainder to pass to others at his death.

6.                  Farkas v. Williams (p. 352):  RULE:  the beneficiary of a trust must, in the lifetime of the settlor, obtain some interest in the trust prop for the trust to be non-testamentary in nature.  The settlor can’t maintain absolute control over the prop & have an inter-vivos trust; Farkas signed trust instruments that he could only revoke the trusts in writing.  Ct said beneficiary had “a contingent equitable interest in remainder.”

a)                  Trusts can transfer prop @ death.

b)                 Here, Williams has an interest in the trust b/c of the fiduciary duty created by the trust.  Revocability does not make much difference.

7.                  Trust is a mgt. rela. whereby the trustee manages prop for the benefit of beneficiaries.

a)                  Trustee has legal title (can do whatever an owner would);

b)                 Beneficiary has equitable title (can’t do what an owner would, but can influence what the trustee does w/ the title).

c)                  When legal & equitable title merge in 1 person, the trust dissolves.

8.                  In re Estate & Trust of Pilafas (p. 361):  guy created trust & executed a will.  The trust could only be revoked in writing, delivered to trustee.  When the will was to be probated, they couldn’t find it or the trust documents.  Trial ct held that both were revoked; appeals ct reversed.  RULE:  when the settlor reserves a power to revoke the trust in a particular manner or under particular circumstances, that’s the only way it can be revoked.  RULE:  if no method for revocation is specified, it is revoked in any manner which sufficiently manifests the intention of the settlor to revoke the trust.

a)                  Pour-over will:  will that allows that anything not devised by the will goes into an existing trust.

b)                 If you can’t find the will, there’s a presumption of revocation.  Not so w/ trusts—see above rules.

9.                  Problem, p. 368.  Even though this is a trust, it has the testamentary function of a will.  The bank must accept the revocation order if she is competent.  Undue influence is irrelevant.  Why?  The beneficiary does not get possession until the death of the settlor.  If it’s revocable & she’s the sole beneficiary during her life, she can revoke it whenever she wants.

10.              State St. Bank v. Reiser (p. 368):  Dunnebier created an inter-vivos trust w/ stock of 5 corps; he kept the right to amend or revoke it during his lifetime & had could direct the disposition of p/al & income during his life.  He executed a will leaving the residuary of his estate to the trust.  He then got the bank to loan him $75K, w/out using any of the trust as collateral.  He said he had the stock, but did not tell them it was in a trust.  He died still owing the bank, they want to get at the trust to pay the debt.  RULE:  when a person creates a trust & reserves the right to amend & revoke or to direct the disposition of p/al & income, settlor’s creditors may satisfy debts—to the extent not paid by the estate—with trust prop over which the settlor had under his control at the time of his death as would’ve enabled him to use the trust assets for his own benefit.  They can’t get what’s poured-over at the settlor’s death.

a)                  Factors determining control:

(1)               Whether t/or can use or control the assets;

(2)               IRS views irrevocable trusts as the prop of the settlor.

(3)               To get around this, make it irrevocable.

b)                 It’s important that the creditors could reach the trust during his life (b/c he had control over prop & income).

c)                  RESTATEMENT 2D TRUSTS:  in the absence of a statute, creditors can reach a revocable trust either during the settlor’s life, or after his death.  Scott on Trusts says the same thing—the power to revoke is not prop, it’s a power.

d)                 TX RULE:  if the trust is revocable by the settlor, his creditors can reach the entire trust prop, even if the settlor does not retain any type of beneficial interest.


H.               Pour-over wills.

1.                  Passes its residuary into an existing inter-vivos trust at t/or’s death.

2.                  TX RULE:  if you have an existing inter-vivos trust that is added to (by pour-over will, etc), those assets are treated as if added to the trust by the settlor.

a)                  The pour-over is seen as being inter-vivos, even though created at death.

3.                  Clymer v. Mayo (p. 375):  D’s wife made a will naming D beneficiary.  She also created a trust for the residuary to pour into.  After they divorced, they forgot to take his interest out of the trust.  RULE:  in the absence of contrary intent, a divorce will revoke provisions of a spouse’s pour-over trust that favor the former spouse.

a)                  Why not use inc. by ref?  B/c the trust was not in existence at the time the will was executed.

b)                 The trust & will were considered 1 testamentary plan & so, a gift to a surviving ex-spouse was void.

4.                  TX RULE:  likely the same outcome as Clymer; our will law also voids the gift to an ex-spouse in a will.


I.                   Revocable Trusts in Estate Planning.

1.                  Idea is to reduce the estate of t/or to avoid taxes at death.

2.                  See notes 386–95.

3.                  W/ ancillary probate, you get real prop probated in the state in which it exists after you probate the will 1st in the state where t/or is domiciled.

4.                  TX allows you to file a certified copy of a will probated in another state right in the real prop records.  You don’t have to go through ancillary probate.


J.                   Planning for Incapacity.

1.                  Durable PoA:  unlike an ordinary PoA b/c it is effective even after the p/al becomes incapacitated.  Durable continues throughout incapacity until p/al dies.

a)                  Agent/attny in fact = person who has power under the PoA.

b)                 Any power of attny terminates @ death.

c)                  Can be terminated at any time, governed by the law of agency.

2.                  Not needed when you have a trust that allows for the care of the settlor during his life.

3.                  TPC 490—statutory form.  You have to choose whether you want it to be effective immediately or “springs-up” when person is incapacitated.

a)                  Requires that a notary be present, the agent does not have to be.

4.                  Franzen v. Norwest Bank (p. 397):  H executed a revocable trust in favor of he & his W w/ Norwest as trustee.  After H’s death, W told Norwest she wanted to keep the trust alive for her life, remainder to nephews.  But, she moved to another state & gave a PoA to her brother; he wanted to revoke the trust by its terms.  RULE:  a PoA that appears to give broad powers should be narrowly construed, but the authority to amend or revoke trusts can be conferred w/out specifically referring to the trusts by name.  No CL requirement of specificity; agency must be used for p/al’s benefit.

a)                  You 1st have to consider whether the trust is amendable, etc b/f allowing the attny in fact to act.

5.                  Directive to Physicians & Family Circumstances (“Living Will”)—syllabus.

a)                  Don’t put the directives for how you want to be buried in the will; you’re usu. planted b/f they look at it.

b)                 The directive is done when the person is competent.

c)                  You now have to specify that you also want nutrition & hydration removed.

d)                 The one in syllabus also includes a medical PoA, you can combine the 2.

e)                  These can be revoked any way the person wants to.

f)                   Look at the definitions in the syllabus.

6.                  Anatomical Gift Act:  you can decide what you want done w/ your organs.

a)                  Your corneas can be taken w/out your permission.




A.                Admission of Extrinsic E.         

1.                  Mahoney v. Grainger (p. 410):  Sullivan made a will leaving most of her shit to 2 first cousins, the rest equally among 25 first cousins.  The lawyer made the will to give the residuary to her heirs at the time of her death.  This heir was her maternal aunt.  Cousins challenged, saying that her comment about the 25 cousins should be admitted to show testamentary intent.  RULE:  a will duly executed & allowed by the ct must, under the statute of wills, be accepted as the final expression of the intent of the t/or.  Finding otherwise makes every will challengeable.

2.                  Ambiguities.

a)                  Patent:  appears on the face of the instrument.

b)                 Latent:  does not appear on the face.

c)                  RULE:  extrinsic E freely received to determine intent.

3.                  Plain meaning RULE:  a plain meaning in a will can’t be disturbed by the intro of extrinsic E that another meaning was intended.

4.                  See In re Estate of Smith, note 2, p. 412.

5.                  Personal use exception:  extrinsic E that shows that the t/or always referred to a person in an idiosyncratic manner is admissible to show that the t/or meant someone other than the person w/ the legal name of the legatee.

6.                  Fleming v. Morrison (p. 414):  guy has a will made & he executes it to get a chick into bed.  He signed it & as far as the witness knew, he had testamentary intent.  Ct allowed E from the lawyer that he had no testamentary intent.  RULE:  t/or must have testamentary intent b/f both witnesses who attest.

a)                  What could the lawyer have done when he found out the will was a sham?  Talk to the client about not using the will.

7.                  Estate of Russell (p. 417):  will gave part of woman’s shit to a dog.  He can’t take it, so the question is—what happens to it?  Ct says that the gift lapses & goes into the residuary.  Ct would not allow extrinsic E of the heir at law getting the residuary b/c there was no ambiguity. 

8.                  Ambiguities examples.

a)                  Will—I leave $6K to my nephew Ben.  There are 2 nephews named Ben.  Latent.

b)                 Will—I leave my beach home in Kemah as follows:  25% to Ben, 25% to Jerry, 50% to Bartles, 25% to James.  Patent ambiguity; extrinsic E may be admitted to even out the percentages (no one will be squeezed out).

9.                  Extrinsic E does not come in to correct mistakes.

10.              A mere mis-description of prop does not make the gift void; one that is so terribly wrong may cause the gift to fail.  We won’t second guess the testator.

11.              Tuttle v. Simpson (TX, supp.): guy died & left his wife a “20 acre strip on the north end” of a 97.85 acre strip tract he owned.  Wife wanted to bring extrinsic E of what the will meant.  RULE:   if a term of the will is capable of more than 1 construction, E of extrinsic facts is admissible to show the intent of the t/or. 


B.                 Admission of Extrinsic E to correct mistakes.

1.                  Erickson v. Erickson (p. 427):  dad made will leaving his stuff to his future wife, Dorothy, & to his kids if she predeceased him.  He married Dorothy 2 days later; he died after 8 yrs.  Statute revoked wills upon marriage.  Kids contested will, saying it did not allow for the contingency of marriage.  Probate ct would not allow extrinsic E of dad’s intent.  RULE:  extrinsic E is admissible to establish the intent of a t/or that his will is valid notwithstanding a subsequent marriage if a scrivener’s error led the t/or to believe that it would be valid.  3 reasons to admit a scrivener’s mistake:

a)                  There is no discernable policy difference for distinguishing b/t innocent mistakes & fraud, duress, or undue influence when it comes to extrinsic E.

b)                 The risk of subverting the intent of the t/or is no greater than the risk of enforcing an instrument that misstates the intent.

c)                  The narrowness of the exception would not likely give rise to a proliferation of groundless will contests.

2.                  Intent must be shown from the language of the will, not through extrinsic E.

3.                  TX does not adopt this rule; if the scrivener makes a mistake too bad b/c of the privity bar.


C.                Death of Beneficiary b/f death of t/or.

1.                  RULE:  all gifts made by will are subject to a requirement that the devisee survive the t/or, unless the t/or specifies otherwise.

2.                  Lapsing Devises—see p. 438.  Default rules.

a)                  Specific or general devise:  if a specific/general devise lapses, it falls into the residue.

b)                 Residuary devise:  if the devise of the entire residuary lapses (b/c the sole residuary devisee or all residuary devisees predeceased the t/or), the heirs of the t/or take by intestacy. 

(1)               MIN. RULE:  No residue of a residuary—if a share of the residue lapses (2 of 3 residuary devisees predecease t/or), the 2/3 passes by intestacy, not to the 1 residuary devisee left.

(2)               This is on its way out.

(3)               Class gifts get around this.

c)                  Class gift:  if the devise is to a class of persons, & 1 member of the class predeceases the t/or, the surviving members of the class divide the gift.

(1)               Class of persons—brought together w/ some kind of commonality (a gift to A, B, C, & D & they are all e/ee’s).

(2)               If it’s to e/ee’s (not by name) & D is fired, then the other 3 split D’s part.

d)                 Void devise:  when a devisee is dead at the time the will is executed.

3.                  Anti-lapse statutes.  Change the default rules.

a)                  Don’t prevent lapse—they substitute other beneficiaries (usu. issue) for the dead beneficiaries if certain requirements are met.

b)                 TPC 68—if the legatee who is a descendent/parent of the t/or dies b/f the t/or, his gift goes to the legatee’s descendents. 

(1)               Ex:  you leave your car to X.  X dies b/f the t/or & is t/or’s nephew.  He counts b/c he’s a descendent of t/or’s parents; so, X’s kids will get the car.

(2)               Statute presumes that the t/or would rather have the kids of legatee to have it than to lapse.

(3)               If the statute applies, the gift is divided up among the # of people on X’s level.

(4)               If a class gift is made & a member of the class is under this section, then his children take.  But, if the gift is made per capita to nephews, the anti-lapse does not apply.

(5)               Section (e) also allows you to stipulate that the anti-lapse does not apply.

(6)               Statute does not apply to a person who died b/f execution of the will.

4.                  Allen v. Talley (p. 441):  saying my “living brothers & sisters” requires survivorship & the anti-lapse does not apply.  It’s not a class gift & not ambiguous; it’s clear the intent was only for the living brothers & sisters to take.

5.                  Jackson v. Schultz (p. 446):  in Delaware, they’ll substitute “or” for “and” if it’s necessary to effectuate the intentions of the t/or.

6.                  See problems & notes, 444–45.

7.                  Dawson v. Yucus (p. 449):  question of whether a gift to 2 nephews individually was a class gift.  Important b/c 1 nephew predeceased b/f the t/or.

a)                  Class Gift:  a gift of an aggregate sum to a body of persons uncertain in # at the time of the gift, to be ascertained at a future time, & who all are to take in equal or some other definite proportions, the share of each being dependent for its amount on the ultimate # of persons.

b)                 Class:  a # or body of persons w/ common characteristics or in like circumstances, or having some common attribute, &, as applied to a devise, it is generally understood to mean a # of persons who stand in the same relation to e/o or to the t/or.

c)                  TX would include the nephews b/c it includes descendents & parents of t/or.  If the language of the will is contrary to the making of a class gift, they will make a class gift & not apply the lapse statute.

d)                 No class gift here, b/c both legatees named specifically.  Jenkins thinks this decision is wrong b/c her intent was stated in the will that her husband’s family get the interest in the land.

8.                  In re Moss (p. 454):  Moss gave all his interest in the Daily Telegraph to his wife in trust for life, then to EJ Fowler & the kids of Emily Walter who live to 21.  Residuary went to his wife; she leaves it to Kingsbury.  EJ Fowler predeceased Moss.  Was this a class gift/did EJ’s gift lapse?  Lower ct said it lapsed; appeals ct reversed.  Calls it a class gift; difficult b/c it’s a class of an individual and the kids of Emily Walter.  Ask why Moss would separate out EJ Fowler?  He knew her, Emily could still have more kids.  RULE:  a gift to an indiv. & a group of indivs. is a class gift, unless we have E otherwise.

a)                  Ex:  a gift to my friend Gary & my friends Bob, Joe, & Mary is a class gift.

b)                 You can also just designate something a class gift on your own.


D.                Doctrine of Ademption—changes in the prop after execution.

1.                  Ademption by extinction:  applies to specific devises (a disposition of a specific item of the t/or’s prop).  “My 3-carat diamond ring to Mary.”

2.                  Does not apply to general/demonstrative devises.  “$10,000 to Bob.”

3.                  Ex:  t/or gives Whiteacre to Bob in her will.  She executes the will & sells Whiteacre.  She then uses the $ from Whiteacre to buy Blackacre & dies.  Bob gets nothing, b/c Whiteacre is adeemed.  See examples on p. 459.

4.                  Look at the gift at the date of death.  “I give you my Tiffany lamp.”  If you sell the Tiffany lamp & buy another one, you still get the lamp.

5.                  Wasserman v. Cohen (p. 459):  Drapkin created a revocable inter vivos trust w/ “certain prop” along w/ a pour-over will.  He left an apt. building to P, but the building was never put into the trust.  Drapkin sold the building during his life; P wants the proceeds from the sale.  RULE:  ademption applies to trusts that are executed as part of a comprehensive estate plan.

6.                  TPC 70A—unless the will provides o/w, a devise of securities that are owned by the t/or on the date of execution includes:

a)                  Securities of the same org. acquired by a split, dividends of stock, & new issues of stock in a reorganization, redemption, or exchange.

(1)               Ex:  you are devised 50 shares & it splits, you get 100.

b)                 Does not include:

(1)               Cash dividends accruing b/f death, regardless of when paid ($ dividends after death belong to the devisee).

7.                  TPC 322B—Abatement (order in which things are sold to pay debts out of the estate).

a)                  Property not disposed of by will, but passing by intestacy;

b)                 Personal prop of the residuary;

c)                  Real prop of the residuary;

d)                 General bequests of personal prop;

e)                  General devises of real prop;

f)                   Specific bequests of personal prop; &

g)                 Specific devises of personal prop.

8.                  Problems, p. 466.

1.         Not in TX.

9.                  Exoneration of liens:  make sure to pass real prop under the will take it subject to existing liens (so the estate is not exhausted to pay off the lien).

10.              Shriner’s Hospital v. Stahl (TX, supp.):  chick died, devising 103 acres of land to several benes.  She sold the land b/f she died, getting a note for $80,000 secured by a deed of trust & vendor’s liens.  The will contained a residuary clause which set up trust for her brother, & if he predeceased her the residuary was to go to “Masonic home or homes for crippled children.”  John predeceased her; the executor filed suit to have the will construed to find out he gets the $80K.  Ct held the devise adeemed by extinction; there was no mention of the $80K in the will, & they wouldn’t rewrite it.  RULE:  the same rules apply to adeemed bequests as apply to lapsed bequests—they pass under the residuary clause.  The hospital gets the cash.

11.              O’Neill v. Alford (TX, supp.):  Alice left Kenny 69 shares of Kodak stock.  The stock split 2 for 1 after the will was executed, then Alice croaked.  Kenny sued to get the stock from the split & won.  Executor appealed.  App. ct affirmed, holding that giving Kenny ½ the shares would only give him ½ the interest the testator wanted to give him.  The split only changed the form of the gift, not the substance.

12.              Thompson v. Thompson (TX, supp.):  Bobby died survived by his wife & 3 kids from his 1st marriage.  Wife elected to take against the will.  Trial ct & ct of appeals apportioned the estate tax among the benes in the same proportion in which they received prop from the estate.  Wife wanted taxes paid 1st out of the intestate prop; 2nd, out of personal prop; last out of real prop.  Ct held that the prop was to be paid out of the residuary estate, then personal prop, then real prop.




A.                Property systems.

1.                  Separate prop:  whatever the worker earns is his.  No sharing of earnings.

2.                  Community:  all earnings of the spouses & prop acquired from earnings are community prop.  TX system.  Idea is that the marriage is a p/ship.

a)                  Prop acquired b/f marriage & prop acquired by gift, devise, or decent is the acquiring spouse’s separate prop.

b)                 Each spouse has an undivided ½ interest in all the prop acquired during the marriage.

c)                  If the wife dies, the community is dissolved; wife can only devise her ½ by will.  It can be given to whoever she wants.

d)                 If it’s willed to a 3rd party, husband & the 3rd party become TiC’s.

e)                  Exception:  husband gives “all rights, title, & interest in Blackacre to Fred” & he gives wife $1M to wife.  Cts will deem that by accepting the $1M, she has acquiesced to his giving away the whole interest.

(1)               Widow’s election:  she takes the will, or community prop share.

(2)               Value will determine the choice she makes. 

(3)               You elect out of the whole will; you can’t do it piecemeal.

3.                  Homestead—surviving spouse has as the right to occupy the family home for his/her lifetime.

a)                  Surviving spouse has a life estate in the homestead; even if she gets married again.

4.                  Personal prop set aside is exempt from creditors’ claims.

5.                  Family allowance—$ set aside for 1 yr in a certain amt to help surviving spouse & children to keep them for a yr during probate.

a)                  Must be approved by a ct.

6.                  In re Estate of Cross (p. 488):  Cross died intestate, leaving everything to his son, Ray (not the son of surviving spouse).  Wife was incompetent; Ct decided that surviving spouse would take her elective share.  Ct of appeals reverses; SC reverses them.  She should’ve gotten her forced share.  RULE: a ct may elect for an incapacitated spouse, if it’s for the benefit of the spouse during her lifetime.  It was key that wife was on Medicaid & in a nursing home.  Whatever she did not use would go into her estate & Ray loses it.

a)                  Could’ve made a custodial trust to take care of her for her life, then Ray as beneficiary of the trust when she dies.

7.                  In re Estate of Cooper (p. 492):  Cooper’s will left everything but real prop that was 80% of the estate to Chin.  The 80% went to a former lover of Cooper.  Chin is the gay-boy lover who wants to take a forced share, claiming they were lovers who could not get married b/c the state prevented it.  Cts held it was not a marriage; he’s not a surviving spouse that can take an elective share.


B.                 Rights of Surviving Spouse in Community Prop.

1.                  Horlock v. Horlock (supp., 533 S.W.2d 52):  fraud on the spouse; looking @ prop to determine whether a gift perpetrates a fraud on the surviving spouse.  Wife claimed gifts to husband’s daughters were fraud on the community.  Factors:  (1) size of the gift in relation to the total community estate; (2) adequacy of the estate remaining to support the other spouse in spite of the gift; & (3) rela of donor spouse to donee.  Ct found no fraud, the gifts were an estate planning move.

2.                  Basics.

a)                  H & W own earnings & acquisitions from earnings of both spouses during marriage in undivided = shares.  Whatever is bought w/ earnings is community prop.

b)                 Prop acquired b/f marriage or by gift, devise, or descent is separate prop.

c)                  Commingling of prop creates problems in tracing it on death.

d)                 On death, deceased spouse can dispose of his ½ of the community assets.

3.                  Widow’s election.

4.                  Migrating couples & multistate prop holdings.  RULES—

a)                  The law of the situs controls problems related to land.

b)                 Law of the marital domicile at the time personal prop is acquired controls the characterization (separate or community) of prop.

c)                  Law of the marital domicile at the death of 1 spouse controls the survivor’s marital rights.

d)                 See p. 526–27.

5.                  Estate of Shannon (p. 530):  guy was alone when he executed his will; then he married Lila, but did not put her in the will.  She can get a statutory share if she can prove she’s a pretermitted spouse under the statute, even though dude left all his shit to his daughter.  Problems b/c he seemed to have intentionally omitted her from the will, which is a statutory exception that gives her nothing.  Cts require very strict proof to give her nothing, cts lean toward the surviving spouse.

a)                  Pretermitted spouse:  1 who is omitted from the will & marries the t/or after the execution of the will.

b)                 TX does not have a pretermitted spouse statute b/c we have community prop.


C.                Omission of a child.

1.                  TPC 67—pretermitted child—a child of the t/or who, during the lifetime of the t/or, or after his death, is born or adopted after the execution of the will of the t/or. 

2.                  Pretermitted children are given the same share as the kids get that are included in the will.

3.                  This does not happen when:  the pretermitted child has been o/w provided for (i.e., trust, ins.).

4.                  If the other kids are provided for & a pretermitted child & some kids are left out, the pretermitted child still shares.

5.                  If all the kids are left out & you have a pretermitted kid, he still gets an intestate share.

6.                  If kids are alternate beneficiaries after the surviving spouse under the will, the pretermitted child does not get an intestate share.

7.                  Best way is to mention whether the will makes provisions for pretermitted children or does not.

8.                  Coolidge’s Will, p. 537.  John can’t say he’s pretermitted b/c he’s been intentionally omitted.

9.                  Azcunce w. Estate of Azcunce (p. 537):  guy had a trust, a will & 2 codicils.  1 kid (Patty) was born b/t the 2 codicils.  T/or dies, Patty files to take her share as a pretermitted child of the will & the early codicil.  The 2nd codicil (republication) defeats this argument; she’s not pretermitted b/c she was now born b/f the execution of the will.

10.              Espinoza v. Sparber, Shevin, Shapo (p. 540):  Patty now sues the draftsman of the codicil from the Azcunce case.  Privity screws her; she can’t sue. 

11.              Testamantary Libel:  you can sue the estate for bad things said about you in the will.  Better to write him a private note, no publication.


D.                Bank accounts.

1.                  TPC 439—Right of survivorship:  (a)—sums on deposit at the death of a party to a joint account belong to the surviving party/parties against the estate of the decedent if, by a written agreement signed by the party who dies, the interest of such deceased party is made to survive to the surviving party/parties.  Survivorship will not be inferred from the mere fact that the acct is a joint acct.

a)                  (b)—if the agreement is a P.O.D. acct & there is a written agreement signed by the original payee/payees, on the death of the original payee or on the death of the survivor or 2 or more original payees, any sums remaining on deposit belong to the P.O.D. payee/payees if surviving, or to the survivor of them if one or more P.O.D. payees die b/f the original payee.  If 2 or more P.O.D. payees survive, there is no right of survivorship in event of death of a P.O.D. payee thereafter unless the terms of the acct/deposit agreement expressly provide for survivorship b/t them.

b)                 (c)—if the acct is a trust acct & there is a written agreement signed by the trustee/trustees, on death of the trustee or the survivor of 2 or more trustees, any sums remaining on deposit belong to the person/persons named as benes, if surviving, or to the survivor of them if 1 or more benes die b/f the trustee dies.

2.                  TPC 442—

3.                  TPC 444—




A.                Intro.

1.                  Trust:  a fiduciary rela in which 1 person is the holder of legal title to prop subject to an equitable obligation to keep or use the prop for the benefit of another.

a)                  Inter-vivos:  lasts through the life of settlor.

b)                 Testamentary:  begins at the settlor’s death.

2.                  Created by:

a)                  Declaration of trust—settlor declares that he holds certain prop in trust.  Settlor is trustee.  Must have a writing if the corpus is real prop.

b)                 Deed of trust—settlor transfers prop to another person as trustee.

3.                  Parties to a trust.

a)                  Settlor—person who creates a trust (a.k.a. trustor, donor, grantor); must intend that a trust come into being.

b)                 Trustee—in charge of the trust; must be given something (res, trust prop, corpus, principal) in order for the trust to function. 

(1)               Holds legal title for the beneficiary (can act w/ regard to prop as actual owner, limited by the terms of the trust).

(2)               There may be 1 or several trustees.  Co-trustees must act by majority (TX), cts decide deadlocks.

(3)               Most trust instruments allow for reas compensation (unless trustee is a beneficiary).

(4)               You’re not trustee until you accept the responsibility; you can waive the right.

(a)               Once you accept, you can only get out by order of ct or permission of beneficiary.

c)                  Beneficiary—person who benefits from the trust; holds equitable title to the prop.  Equitable title allows bene. to hold trustee accountable for his actions.

4.                  Requirements to create a valid private trust.

a)                  Intent—intent that prop be held at least in part for the benefit of one other than the settlor.

(1)               No particular words are necessary to create a trust.

(2)               Intent sufficient when 1 conveys prop to a grantee to hold for the use & benefit of another.

b)                 At least 1 beneficiary.

c)                  Prop interest in existence or ascertainable.

d)                 It takes at least 2 persons to create a trust; a trust will not fail for lack of a trustee—ct will appoint one.

5.                  When does a bene. have standing to sue the trustee?

a)                  When his interest vests—when the instrument is executed it’s an interest, but it’s not vested in possession.

b)                 Start at the trust instrument to determine whether the trustee’s acts are improper.

c)                  Trustee’s 1st duty is to read the trust instrument.

6.                  Problem, p. 561.  When O gave X the $, X did not overtly accept the trust.  It can be argued that a trust is not effective until a trustee accepts.  This fails b/c a trust can still be valid w/out a trustee.  There was intent, a bene., delivery; there is probably a trust & ct will appoint one.

a)                  X has breached his fid. duty by putting the $ in a safe-deposit box.

b)                 X is probably trustee by accepting the instrument & accepting the $.

c)                  Trust-pursuit rule:  allows A & B to go after the $ in the hands of D & E.

7.                  Jimenez v. Lee (p. 568):  daughter sued father (a lawyer) for property she claimed was given to her; two gifts.  Language of the conveyance makes it clear that it is a gift to the father for the benefit of the daughter (check for 500).  Father argues that the property is a gift given to him and that he is a custodian under UGMA (rather than a trustee).  Daughter argues that it is a trust; father is trying to avoid the fiduciary duty (he wanted to use the money for his own benefit).

a)                  What is the difference between a gift under UGMA and a gift under a trust? A higher duty is imposed on the father if there is a trust.

b)                 RULE: as long as it is clear that it is given to a trustee for the benefit of a third party, the specific language is not required (i.e., it does not have to use the word “trust”).

c)                  Under a trust, he was required to spend the money for education because that was a specified purpose of the money; if he was found to be a custodian he could spend the money any way he saw fit (still for her benefit).

d)                 Termination – custodianship lasts until daughter turns 18; she is 21 at the time of the caseàfather raises this argument to bar her claims under the statute of limitations (if he is a custodian, he argued that the SOL ran when the custodianship terminated).

e)                  However, the SOL for a custodianship runs once he provides an accounting, and the father had never done that, so his argument there failed.

f)                   Father had to make an accounting both as a trustee and as a custodian – he attempted to do this, but the court found it was insufficient – he showed that he had paid for ballet tickets (for himself too), birthday presents, etc.; the court did not give him credit for these items because they were not specifically educational.

8.                  Precatory language (p. 575) – “I wish to give my cousin…”; “I would like for…”; this is common in holographic wills and is not considered to clearly establish a trust, but it establishes a moral obligation, which is unenforceable at law; this is any language that shows a wish or hope that something would be given to someone.

9.                  Equitable charge – similar to a mortgage lien; the mortgagee gives title to the trustee subject to payment of the lien/mortgage; after that is paid, the trustee gives title to the mortgagee (no fiduciary relationship is imposed).

10.              Hebrew Univ. Ass’n v. Nye:  P wants possession of a library; he claims it was given to him (representative of association).  E, wife of A, came into possession of the library when her husband A died; she expressed her intent to make a gift of the library to P; P held a luncheon for her and presented her with a plaqueàall of this was evidence that she had given a gift to P.  E gets ready to send the stuff – packs it up and makes an inventory; but there is nothing to indicate that she intends to send it to P—no delivery.  E died before she sent the property to P; beneficiaries of her will are claiming that the library should pass to them along with the rest of the estate.

a)                  E declared a trust at the luncheon; where there is a self-declaration of trust, there does not have to be a transfer of the property in order to meet delivery requirementàthere was no delivery and no consideration, so no trust was established.

b)                 In order to establish a trust, she had to take on herself some fiduciary duties and she did not do that; there is no evidence to show that E intended to assume the duties of a trustee.

c)                  P also argued that she made an inter vivos giftàthis argument failed because there was no delivery.

11.              Delivery.

a)                  Constructive delivery – gives donee means of obtaining the object (e.g., a key).

b)                 Symbolic delivery – gives the donee something symbolic of the actual object (e.g., a written instrument); when manual delivery is difficult or impractical.

(1)               In Hebrew, E gave P a memorandum demonstrating her intent to give the library to the P; This constituted symbolic delivery

(2)               Delivery – would be giving the actual object to the donee.

(3)               Is there clear and convincing evidence that E intended Π to have the library? YES.

(4)               Held: P was legal and equitable owner of the library.

c)                  RULE: gift is perfected when the donor gives the donee the means of obtaining the object together with acts and declarations clearly showing an intention to give dominion over the property.

(1)               Something can be difficult or impractical to deliver by virtue of the fact that the donor does not have it with him when he makes the gift.

d)                 Trust created by a written instrument is irrevocable unless there is a provision that allows it to be revoked; TX has the opposite rule – a trust is revocable unless there is a statement that it is irrevocable.

e)                  A trust can contain a nominal amount for the purposes of giving it a corpus.

12.              Unthank v. Rippstein (Texas case):  C (deceased) wrote a letter to R promising to pay her money every month for the next 5 years; letter expressly bound the estate to make such payments.  This is the language challenged by the estate.  R presented the letter as a holographic will, but the court refused this argument because the letter lacked testamentary intent – there was no indication that he wanted to give the money after his death; binding the estate was not sufficient to do so.  R also argues that the letter is a declaration of trust – the court held that the trust failed because there was no res, and therefore no trust.

a)                  The money could be considered a res –

b)                 If there is a res, property must be set aside to generate the 200 monthly payments; C did not do that here – there was no money set aside to allow the gift to be made

13.              TX Trust Code 112.001–112.010 (supp.).  Fills in duties/conduct when the trust instrument is silent.

14.              State v. Rubion (supp.)

15.              TX Trust Code 112.035 (supp.)

16.              Duties of trustee.

Read the trust instrument.

Delegate duties you can’t handle.

Duty to separate funds (no commingling).

Duty to keep accurate records.

Duty to make accurate and periodic accounting.

Duty of loyalty to the beneficiary.

Defend the trust against attack.

Duty of Impartiality in Dealing w/ Income Bene & Remaindermen.

Duty to Retain Trust Documents & Vouchers & Keep Records.

Account to Beneficiaries.

Duty to Collect & Protect the Trust Prop.

Duty to Separate & Earmark Trust Prop. 

Duty to not Comingle.

Duty to Make the Trust Prop Productive.


B.                 Resulting & Constructive Trusts. 

1.                  Arise by operation of law, not a written instrument.

2.                  Resulting Trust:  a trust that arises by operation of law in 1 of 2 situations—

a)                  Where an express trust fails/makes an incomplete disposition, OR

b)                 Where 1 person pays the purchase price for prop & causes title to the prop to be taken in the name of another person who is not a natural object of the bounty of the purchaser.  A.k.a. purchase money resulting trust; see cases, p. 584.

c)                  Neither of these is subject to the SoF.

d)                 Outcome:  takes res back to the settlor/settlor’s estate.

e)                  Ex:  A is trustee in a trust for B for benefit of B for life (no remainder).  At CL, the trust failed at its inception.  Now, B gets it for life & then back to A or A’s estate by way of a resulting trust.

f)                   Ex:  A gives $ to trustee for “benefit of Sam’s cocaine addiction, then to Society for Legalization of Cocaine.”  Trust is illegal so res goes back to A in a resulting trust.  Also applies to a trust in defraud of creditors.

3.                  Constructive Trust:  ct imposed; a flexible remedy imposed to prevent unjust enrichment; when prop is acquired in such circumstances that the holder of legal title may not in good conscience retain the beneficial interest, equity converts him to a trustee.

a)                  Const. trustee is under a duty to convey the prop to another on the ground that retention of the prop would be wrongful.

b)                 Requirements for imposition of a const. trust:

(1)               A confidential/fiduciary rela;

(2)               A promise, express or implied, by the transferee;

(3)               A transfer of prop in reliance on the promise; &

(4)               Unjust enrichment of the transferee.

c)                  Can also be applied when a person procures an inheritance by fraud (Latham v. Father Divine), upon the estate of a person who breaches a K not to revoke a will (Via v. Putnam), to prevent a killer from profiting form his act (In re Estate of Mahoney), to enforce an oral trust of land which violates the SoF, or a secret testamentary trust.

4.                  Trust Code 112.001.  Creation of trusts; by:

a)                  A prop owner’s declaration that the owner holds the prop as trustee for another person;

b)                 A prop owner’s inter vivos transfer of the

5.                  TC 112.002.  Must manifest intent.

6.                  112.003.  No consideration is required.

7.                  112.004.  Must have written E of the trust.  Oral trusts are allowed if:

a)                  A transfer of the trust prop to a trustee who is neither settlor nor beneficiary if the transferor simultaneously with or prior to the transfer the intention to create a trust; OR

b)                 A declaration in writing by the owner of prop that the owner holds the prop as trustee for another person or for the owner & another person as a beneficiary.

8.                  .005.  Must have trust prop to have a trust.

9.                  .007.  Same capacity required as for a will.

10.              Power of appointment.

a)                  The right (power) to select (appoint) within prescribed limits who shall receive an interest in prop or how various interests in prop shall be allocated.

b)                 Permits one to dispose of prop while postponing or giving to another the auth of disposition.

11.              Brainard v. Comm’ner (p. 586):  P tried to create a trust for wife & kids w/ unearned profits from stock sales.  After the sale of stock, he put the profits into the trust & didn’t pay taxes on them.  RULE:  where a promise to declare a trust of prop not yet in existence is unsupported by consideration, & the intention to hold the prop in trust is not manifested until sometime after its acquisition by declarant, the prop is not received in the trust & is taxable to the declarant.  A K to create a trust must have consideration. 

a)                  RULE:  Trust comes into existence when settlor puts the res into it.  Intent does not matter; it comes into existence when there is a corpus/is funded.

b)                 In Brainard, the trust was created when he credited the profits on his books.

c)                  Future profits can’t constitute the res of a trust b/c there’s no present interest.  It’s just a gratuitous promise.

d)                 It would probably have been ok if Brainard would’ve said “these are the stocks that will produce the profits for the trust.”

12.              Speelman v. Pascal (p. 589):  D promised to pay P a shore of profits from future productions of a play he owned the rights to.  After D’s death, P sued to enforce the promise b/c D’s wife said the promise not enforceable b/c the profits were not in existence at the time the promise was made.  RULE:  a gift of prop to be acquired in the future is valid & effective if the donor manifests an irrevocable intention to make a present transfer of his interest.  If the donor or trustor retains any interest in the future prop or maintains any control over its distribution, the gift/trust is likely ineffective.

a)                  Sounds very similar to the future profits in Brainard, but ct allowed future profits to be a present interest b/c D did have a present license to produce the play.

b)                 But, ct relied on Field v. May, which did not require any present interest to create a trust w/ future profits.

13.              Go back to Unthank & figure out what’s going on.

14.              Problems, p. 593.

a)                  #2(a)—this is a problem b/c the declaration is oral, there is no trust b/c no res.

b)                 #2(b)—there is a res here, b/c he identified the body of stock.

c)                  #2(c)—no specification of a res, but a notarized writing may make a difference b/c he swore b/f a 3rd party.

d)                 RULE:  if the owner of prop declares himself trustee of the prop, a trust may be created w/out a transfer of title to the prop.

15.              Grantor Trusts:  trusts in which the income is taxable to the settlor b/c the settlor has retained substantial control & is deemed by the code still to be the owner of the trust assets.

a)                  Ex:  revocable trust.


C.                Power of Appointment.

1.                  The right (power) to select (appoint) w/in prescribed limits who shall receive an interest in prop or how various interests in prop shall be allocated.

2.                  Permits one to dispose of prop while postponing or giving another the authority of disposition.

3.                  Ex:  wife leaves house to husband, to leave at his death to 1 or more of 4 children.  If he fails to direct, it goes to A.  “I leave my house to husband w/ power of appointment under his will.”

a)                  Not a trust b/c the house can only be disposed of w/in the limits of wife’s will.

4.                  Ex: 

a)                  Wife gives to trustee to choose among my nephews.  Power of Appt, must be to a clear group of persons.

b)                 Wife gives to trustee at his discretion.  Semi-secret trust; invalid.


D.                Necessity of Beneficiaries.

1.                  RULE:  there must be someone to whom the trustee owes his fiduciary duties, someone who holds the trustee accountable.

2.                  Exceptions:  beneficiaries may be unborn/unascertained when trust is created.

a)                  Ex:  a trust created by a childless settlor for the benefit of future children can still be valid.  Ad litem represents the unborn children.

b)                 Ex:  if at the time the trust becomes effective the beneficiaries are too indefinite to be ascertained, the trust may fail for lack of ascertainable beneficiaries.      

3.                  Ex:  trustor gives to trustee for benefit of A for life, then to children of B.  B has kids, X & Y.  A dies, the class of B’s kids is still open.  It closes when B dies (w/out E that B can’t have anymore children).  X & Y represent the interests of that class.  X can hold the trustee accountable for waste during the life of A b/c X is a beneficiary. 

4.                  Clark v. Campbell (p. 598):  decedent left her personal prop to her trustees in trust to “make disposal by way of memento . . .” to friends of hers that the trustees selected.  Heirs alleged that the trust was void for lack of beneficiaries or ascertainable stds to identify them.  RULE:  a noncharitable trust fails where the beneficiaries can’t adequately be determined.  A trust must have an identifiable beneficiary or the instrument must contain stds for their identification in the future.  Here, there are none—no accepted statutory definition of “friend.”  Insufficient criteria for determining the beneficiaries.  Kin & kin-folk are allowed b/c of statutes of decent & distribution.

a)                  Ct would not call this a power of appointment, b/c there was no instruction for default of the gift.

b)                 If beneficiaries can’t be defined, the trust fails & is invalid.

5.                  In re Searight’s Estate (p. 602):  idiot left $ to a trustee to take care of his dog, remainder to 5 friends.  Creates an honorary trust, which is valid.  RULE:  an honorary trust is valid where it is for a valid purpose & the trustee accepts the t/or’s wishes, even though there is no beneficiary who can enforce the trust.


E.                 Necessity of a Written Instrument.

1.                  Oral Inter Vivos Trusts of Land are invald.

a)                  RULE:  where the owner of an interest in land transfers it inter vivos to another, but no memorandum properly evidencing intent to create a trust is signed as required by SoF, & the transferee refuses to perform the trust, transferee holds the interest upon the const. trust for the transferor if the transferee at the time of the transfer was in a confidential rela to the transferor.

b)                 Not that the conveyance is oral, but the trust is created orally.

c)                  Ex:  p. 609.  Father deeded his house to his son to avoid taxes.  Son evicted them & ct would not allow father to call the prop back, b/c of unclean hands—he was trying to defraud creditors.

d)                 Hieble v. Hieble (p. 609):  Mrs. Hieble conveyed real prop by deed to her son & daughter after finding out she had cancer.  There was an oral agreement that the prop would be reconveyed to her if it didn’t come back after 5 years.  Mrs. Hieble continued to use the prop & paid for all taxes & upkeep.  The daughter reconveyed her share of the land, the son did not & mom sued. 

(1)               RULE:  elements of a const. trust: (1) a confidential relationship (b/t grantor & grantee; position of trust); (2) a deed by grantee; (3) an oral agreement to reconvey; & (4) unjust enrichment of transferee has been established, it is up to the transferee, through clear & convincing proof, to negate the presumption of a constructive trust.  Fraud is not necessary.  A mere familial rela may not automatically qualify as a confidential rela.  Unclean hands not a problem b/c she was trying to avoid probate, not taxes.  TX also looks for undue influence & fraud.

(2)               A const. trust is not a trust.

(3)               Oral promises to reconvey land are unenforceable.

(4)               How could mom have avoided this problem?  Set up a revocable trust.

e)                  Pappas v. Pappas (p. 613):  ct would not find a const. trust when dad conveyed his prop to his kid to keep it out of the divorce estate.  He did not have clean hands b/c he defrauded the ct.

2.                  Oral Trusts for Disposition at Death.

a)                  Olliffee v. Wells (p. 614):  corpse left a will that gave Wells, the executor, the residue of the estate & the power to distribute it in such manner as in his discretion is best calculated to carry out the corpse’s wishes.  Wells said her wishes were to give the stuff to charity, the family sued to get it.  The trust was not on the face of the will, so can’t be proved by extrinsic E.  Trust could not be carried out & goes into residuary.  RULE:  where a will upon its face shows that the devisee takes the legal title only & not the beneficial interest, & the trust is not sufficiently defined by the will to take effect, the equitable interest goes by way of resulting trust to the heirs or next of kin as prop of the deceased no disposed of by his will.

(1)               This is a semi-secret trust, & is void.  Also TX rule.

(2)               Semi-secret trust:  the will indicates no trust (i.e., “I leave $50K to Ben to dispose of as I have instructed.”).  Turns into a resulting trust.

(3)               Secret trust:  a trust where the existence of a trust is not evident; the donee knows that it is.  The donee must distinguish this from a gift; the law allows him to have a const. trust for the benefit of the beneficiaries.

b)                 Why treat secret & semi-secret differently?  B/c in a semi-secret, we can tell it’s not an outright gift.

c)                  A failed trust goes back to the settlor, as a resulting trust.


F.                 Discretionary Trusts.  

1.                  Trusts are divided into:  mandatory & discretionary.  Applies to either the principal OR the income.

a)                  Mandatory:  trustee must distribute all the income; he has no discretion to choose either the recipients or the amt they’ll get.

(1)               Ex:  if settlor says to give all interest income to beneficiaries earned in the yr, trustee can’t sit on the interest 1 yr to try & grow the corpus.

b)                 Discretionary:  trustee has discretion over pmt of either the income or the principal or both.

(1)               Discretionary powers may be drafted in limitless variety.

(2)               Ex:  O transfers prop to X in trust to distribute all the income to 1 or more members of a group consisting of A, A’s spouse, & A’s kids in such amts as the trustee determines. 

c)                  Trust instrument that the trustee has discretionary power to distribute principal to the income beneficiary.  Such power may be limited by a std (“such amts as are necessary to support my wife in the style of living to which she has become accustomed”), or the trustee may be given wide discretion.

2.                  Marsman v. Nasca (p. 618):  Sara Marsman set up a trust to care for her husband, Cappy, after her death.  Trustee had discretionary power to pay out amts of the principal as he deemed advisable but failed to adequately explain that power to Cappy.  Cappy got into financial problems & conveyed his house to Sara’s kids, w/ a life estate for himself.  After the kids died, the residuary owner tried to kick out Cappy’s wife.  RULE:  where a trust gives the trustee a discretionary power to pay amts of the principal for the comfortable support & maintenance of a beneficiary, the trustee has a duty to inquire into the financial resources of that beneficiary so as to recognize his needs.

a)                  You can’t just give the house back b/c there was a valid transfer.

b)                 Ct emphasized that trustee had not fulfilled his duty to keep up w/ Cappy’s finances. 

(1)               He needed to do more to tell what Cappy’s needs actually were.

(2)               It is important to look into the trust instrument & see what the intent was of the settlor.

(3)               A little extra work by Farr would’ve required that he use the p/al of the trust to pay the taxes, etc. that Cappy needed.

c)                  Cts will enforce exculpatory clauses unless they’re inserted to protect against a breach of trust duty.

d)                 A trustee can’t be passive:  he must inquire, inform, & advise.

e)                  Problem that Farr was representing adverse parties; he represented into an ethical problem.

(1)               The representation became improper when the clients’ interests became adverse—when he drew up the deed conveying the house from Cappy to the kids.  He should’ve known that Cappy was having financial trouble when he did this.

3.                  Why favor the remainderman over the life tenant & be conservative about paying out income/corpus?

a)                  Remainderman will be around longer than life tenant & could sue if they’re unhappy.

b)                 Being conservative lessons liability to everyone.

c)                  Keeping the corpus intact may be important to life tenant also b/c of illness, unemployment, etc.

4.                  Even if the trustee’s discretion is not expanded by “sole,” the ct will not substitute its judgment for the trustee’s so long as the trustee “acts only in good faith & from proper motives, but also w/ in the bounds of reas judgment.”

a)                  Subjective std.

b)                 Even unlimited power in the hands of the trustee can be defeated by a suit in equity.

c)                  Settlor’s intent is the most important consideration in considering whether judgment was reas.

d)                 In TX, a settlor may provide that a trust is a spendthrift trust by putting in all the language, or just calling it a “spendthrift trust.”

5.                  Other sources of income for beneficiary.

a)                  In Marsman, the trust instrument required the trustee to consider Cappy’s financial situation & distribute from the trust as needed to support him.

b)                 In the absence of this type of language, cts presume that the beneficiary should get trust support regardless of his other financial resources.

6.                  Termination.

a)                  Claflin Doctrine:  a trust may not be terminated by all of the benes if it would interfere w/ a material purpose of the settlor.

b)                 Generally, a trust can’t be terminated if:

(1)               It’s a spendthrift trust;

(2)               The bene is not to receive the p/al until a specified age;

(3)               It’s a discretionary trust; or

(4)               It’s a support trust.

7.                  Trust Pursuit Rule.

a)                  You can’t follow the trust prop taken in violation of the trust duties if it goes into the hands of a bfp for value w/out notice.

b)                 Otherwise, you can get it back.

8.                  Factors to Consider in deciding whether to allow an exculpatory provision to be enforced:

a)                  Whether the trustee prior to the creation of the trust had been in a fid rela to the settlor, as where trustee was guardian of settlor;

b)                 Whether the trust instrument was drawn by the trustee or by a person acting wholly or partially on his behalf;

c)                  Whether the settlor has taken independent advice as to the provisions or the trust instrument;

d)                 Whether the settlor is a person of experience & judgment or a person who is unfamiliar w/ business affairs or is not a person of much judgment or understanding;

e)                  Whether the insertion of the provision was due to undue influence or other improper conduct on the part of the trustee;

f)                   The extent & reas of the provision.


G.                Creditor’s Rights—Spendthrift Trusts.

1.                  Beneficiaries can’t voluntarily alienate their interests nor can creditors reach their interests.

2.                  Created by imposing a disabling restraint on beneficiaries & their creditors.

a)                  Ex:  T devises prop to X in trust to pay the income to A for life & upon A’s death to distribute the prop to A’s children.  A clause in the trust provides that A may not transfer her life estate, & it may not be reached by A’s creditors.

b)                 A is given a stream of income that A can’t alienate & his creditors can’t reach.

3.                  Shelley v. Shelley (p. 633):  Dude had 2 marriages & divorces; 1 divorce gave child support, the other child support & alimony.  RULE:  Spendthrift provision does not protect the trust income from a divorce decree giving alimony & child support pmts.  In a discretionary trust, corpus is protected (unless [like here] the trusts instrument allows for pmts in emergencies to support bene & his children) until the trustee gives something to the bene.

a)                  Ct went w/ public policy arguments—if dude doesn’t take care of his wife & kids, the state will have to.

b)                 Look at the ability of the bene to get at the trust corpus himself. 

4.                  Exceptions—limits on the protection of spendthrift trusts:

a)                  Self-settled trusts:  spendthrift trust can’t be set up for settlor’s own benefit.

(1)               In a mandatory trust, creditors are entitled to reach both income &/or p/al.

(2)               In a discretionary trust, creditors can reach the max the trustee could pay the settlor or apply for the settlor’s benefit 

b)                 Child support & alimony:  Shelley is the MAJ RULE. 

(1)               Some (TX) statutes allow cts to order child support & alimony paid from spendthrift or discretionary trusts.

(2)               TX requires you to 1st get a judgment in family ct, then take that judgment against the trust.

c)                  Furnishing necessary support:  a person who has furnished necessary support services can reach the bene’s interest in a spendthrift trust.  Medical, housing, etc.

d)                 Federal tax lien:  income can be reached by the IRS; Fed. tax law trumps state spendthrift trust rules.

e)                  Excess over amt needed for support:  some states allow creditors to reach that part of the spendthrift trust income in excess of the amt needed for the support & education of the bene. 

(1)               Station-in-life rule:  to determine what amt is needed for support & education of bene—

(a)               Creditors can reach only the amt in excess of what is needed to maintain bene in his station in life.

(b)               Useless to creditors if bene was raised w/ substantial luxury; they’re used to living w/ more, so it takes more to support them.

f)                   Percentage levy:  some states allow creditors to reach a certain % of the trust in a garnishment proceeding.

g)                 Tort creditors:  not settled; but most allow it b/c they’re involuntary creditors.

5.                  Bankruptcy:  A beneficial interest in a spendthrift trust can’t be reached by bankruptcy creditors.

6.                  Support trusts:  a trust that requires the trustee to make pmts of income (or maybe p/al too) to the bene in amts necessary for the education & support of the bene in accordance w/ an ascertainable std.

a)                  Bene can’t alienate his interest.

b)                 Creditors can’t reach the interest, except suppliers of necessaries can recover through the bene’s right to support.

7.                  US v. O’Shaughnessy (p. 643):  RULE:  in a discretionary trust, the bene has no interest in corpus or income until the trustee exercises his discretion & actually gives the bene something.  Bene has a mere expectancy until he gets something.

a)                  Creditors standing in the shoes of the bene have no remedy against the trustee until the trustee distributes the prop.

b)                 Cts won’t interfere so long as the trustees act in good faith, from proper motives, & w/in the bounds of reas judgment.

c)                  But, bene can still go after the trustee to enforce the trust if the trustee acts in bad faith.

8.                  Some states allow a creditor to compel a trustee to pay the creditor b/f he pays the trustee.

9.                  Trusts for the state-supported.

a)                  Individuals have to meet a financial max to qualify for Medicaid.

b)                 Does a trust count as a resource for this purpose?

(1)               A trust created by the individual applicant if the assets of the individual were used to form all or part of the corpus of the trust & the trust was established by the individual who cares.

(2)               Revocable trusts are considered prop of the settlor for Medicaid purposes.

(3)               Exceptions.

(a)               A discretionary trust created by the will of 1 spouse for the benefit of the surviving spouse is not a resource for Medicaid.

(b)               If the trust is established for a disabled individual from the individual’s prop, by a parent, grandparent, or guardian or the individual or by a ct, & the remainder goes to the state, it does not count for Medicaid.


H.               Modification & Termination of Trusts.

1.                  RULE:  trust can be modified or terminated w/ consent of settlor & all benes.  No one else has a beneficial interest.

a)                  Trustee can’t object b/c he has not interest.

b)                 Power exists even if it’s a spendthrift trust.

2.                  If, however, the settlor is dead/does not consent to the mod/term of the trust, there is a question of whether the benes can term it if they all agree.

a)                  GEN RULE is Claflin Doctrine— a trust may not be terminated by all of the benes if it would interfere w/ a material purpose of the settlor.

b)                 Exception:  cts may alter the trust if unforeseen circumstances arise that frustrate the intent of the settlor.

3.                  In re Trust of Stuchell (p. 652):  Stuchell established a trust w/ his granddaughter as 1 of 2 surviving benes.  The remainder of the trust was to be distributed among the kids, 1 of whom was a retard; this would disqualify him for Medicaid.  Mom petitioned ct to have the distribution changed.  RULE:  a trust may be terminated if: (1) all the benes agree, (2) none of them is under a legal disability, & (3) the trust’s purposes would not be frustrated by doing so.  Ct also looks at motive & will kill the modification if it goes against the wishes of the settlor.

a)                  Kids wanted to create a discretionary supplemental needs trust that would pay wherever social security & Medicare fell short.

b)                 Whatever the retard didn’t use would go to the other benes.

4.                  Changes in Circumstances Doctrine.

a)                  In re Walcott (supp.):  trust which did not give trustee power to invade the corpus on behalf of the bene, a surviving wife.  Remainder went to settlor’s sons.  Trustee had basically all powers except to invade the corpus.  As wife got older, trustee & benes tried to alter the trust to allow invasion of the corpus.  Problem was that there was a spendthrift clause that wouldn’t allow them to assign/encumber the corpus.  They went to ct; ct allowed them to use the changes in circumstances.

b)                 Requirements:  settlor could not have anticipated the events to come which would affect the bene.  You have to start w/ satisfying Claflin. 

c)                  Ct has to decide the material purpose of the trust:  to support the surviving spouse, or to give something to the remaindermen?  Ct said care of wife was paramount.

d)                 Would this apply to Stuchell?  Maybe, but the material purpose was to split the trust up among the kids.

5.                  Settlor can include in the trust instrument the power to modify the trust in the trustee or a 3rd party.

6.                  Widows may ask to invade the corpus of a trust created by their husbands that does not give them enough $ to live. 

a)                  Unless all the remainder benes consent, cts usu. don’t allow it.

b)                 But, trust may be construed as containing a power to invade, either express or implied.

c)                  Trusts that create annuities usu. lose buying power w/ inflation, cts also don’t change these.

7.                  Deviation in exercising powers:  cts more liberal in letting trustees deviate from enumerated powers in response to changing situations. 

a)                  Ex:  trustee of the Pulitzer family trust was allowed to go against the instrument & sell stock it contained against settlor’s wishes when the stock went into the crapper & put the existence of the trust in jeopardy.

8.                  TTC 112.051—settlor may revoke the trust unless it’s irrevocable.

a)                  If the trust is created by a written instrument, the modification & termination must be in writing.

b)                 Settlor can’t enlarge duties of trustee while settlor is alive, w/out trustee’s permission.

c)                  The rest of it goes along w/ Claflin Doctrine.

9.                  In re Estate of Brown (p. 657):  Brown died after transferring all his shit into a trust.  The income & corpus were to be used for the education of the kids of Brown’s nephew Woolson.  After that, the residue was to go to care & maintenance of nephew & his wife in the manner they were accustomed to.  At their death, their kids get it.  After the education was done, the Woolsons petitioned the ct to terminate the trust & give it all to the kids, saying the purpose of the trust was for the education.  RULE:  an active trust may not bet terminated, even w/ the consent of the benes, if a material purpose of the settlor remains to be accomplished.  The material purpose was also to provide for the parents for life, not just for the education of the kids—remember intent of the settlor.

10.              Trust provision in will in syllabus; if the thing isn’t addressed here, look @ trust code (in Prop Code).

11.              Trustee can only be removed & a new one appointed if guilty of a breach of trust or has shown unfitness.

a)                  RULE:  inasmuch as the settlor reposed special confidence in the designated trustee, the ct will not change trustees just b/c the benes want to.

b)                 Usu. also requires that the trustee give an acctng of the trust assets to the benes.


X.                 CHARITABLE TRUSTS.


A.                Nature of Charitable Purposes.

1.                  When there’s a charitable bene in a will, you have to put it in your application to the probate ct; the AG of the state is responsible for keeping up w/ charitable benes.

2.                  Diff. b/t private & charitable:  charitable is not subject to RAP, private trust is.

3.                  If a charitable trust is found not to be charitable (or the charitable entity fails), it fails & lapses & goes by resulting trust back to settlor or his estate

4.                  Shenandoah Valley Nat. Bank v. Taylor (p. 859):  settlor created a perpetual trust w/ his $86,000 & Shenandoah as trustee.  Funds were to be invested & the income paid to 1st, 2nd, & 3rd grade students at some school.  Each kid was to get an equal cut, to use for his education.  Distant relative of Taylor challenged the trust as not being charitable.  Problem was the timing of the gift (just b/f x-mas & Easter) & no trustee oversight to ensure the $ was in fact used for education.  Just having the trustee give the $ to the kids does not fulfill the charitable purpose; it was only a gift.  You can’t set up a charitable trust to just give gifts; this as a private trust violates the RAP.

a)                  We might’ve been able to save this trust today, w/ perpetuities reform—allow it to exist as a pvt. trust for 21 yrs. & then trust terminates (“wait & see”).

b)                 Difference b/t charitable & benevolent trust = a benevolent trust is private & subject to the rule against perpetuities; a charitable trust is public & not subject to the rule.

c)                  RULE:  for a perpetual charitable trust to be valid, it must provide relief to the poor or needy or otherwise benefit or advance the social interest of the community. 

5.                  To be classified as charitable, a trust that’s for the benefit of a class of persons & not for the benefit of the community at large must be for the relief of poverty or for the advancement of education, religion, health, or other charitable purposes.

a)                  A trust is not charitable merely b/c it’s for the benefit of a class of persons.

b)                 Ex:  a trust for the benefit of sick/needy e/ee’s is charitable, a trust for the general benefit of e/ee’s is not.

c)                  It may be valid although the persons who benefit are limited in #. 

d)                 A trust to educate a particular person or named persons is not charitable; neither is one to educate the descendants of the settlor.

e)                  Exceptions: a trust to educate young people w/ a preference for descendants of the settlor’s grandparents is charitable; a trust to send a chick through medical school w/ the promise she’d return to practice in the testator’s hometown is charitable.

f)                   Charitable purposes include:

(1)               The relief of poverty;

(2)               The advancement of education;

(3)               The advancement of religion;

(4)               The promotion of health;

(5)               Governmental or municipal purposes; &

(6)               Other purposes the accomplishment of which is beneficial to the community.

6.                  A trust can’t benefit a political party—against public policy.  You can’t endow perpetually a political party.

a)                  But, you might get away w/ trust for the improvement of gov’t through the views of a political party.

7.                  When making a document that has a charitable entity, make sure you get the name right.


B.                 Modification of charitable trusts—cy pres.

1.                  Cy pres:  a royal prerogative power which made charitable gifts have to comply w/ the king’s public policy.

a)                  Ex:  Jewish guy left a trust for the purpose of teaching Jewish law & religion.  Since the $ was left to promote a religion other than the one the king liked, the king allotted the $ to instruct the Christian religion.

b)                 Cts here reluctant to adopt it; recently have used it to meet testator intent in changing circumstances.

c)                  A general charitable purpose must exist b/f cy pres will be applied.

2.                  Applies where the purpose of a trust has become:

a)                  Illegal;

b)                 Impossible; OR

c)                  Permanently impracticable of performance.

d)                 Make the trust as near as possible to the settlor’s intent.

e)                  Ex: a trust for research for a cure for cancer only & a cure is found.  The trust then becomes impossible & it goes back to the settlor as a resulting trust.

f)                   Ex: a trust for cancer research only in a particular hospital.  If the hospital shuts down, the trust becomes impossible.  Cy pres can be used to get the funds to another hospital.

3.                  TTC 5.043—cts intent to reform a trust that violates the RAP.  Cts can reform a trust that violates the RAP to make it conform to the rule using cy pres.  If part of it does not violate RAP, the ct will not touch these parts.

4.                  In re Neher (p. 870):  Neher willed her home to Red Hook Village to be used as a memorial to the memory of her husband; was to be called the “Herbert Neher Memorial Hospital.”  The Village later found it did not have the resources to establish a hospital on the prop, & another hospital nearby served the community well enough.  Village petitioned the ct to erect a building for the Village’s administration & called the Herbert Neher Memorial Hall.  Ct denied petition & appeals affirmed.  RULE:  where a will gives real prop for a general charitable purpose, the gift may be reformed cy pres when compliance w/ a particular purpose grafted on to the general purpose is impracticable.

5.                  Applying the TX rule to Shenandoah Valley.

a)                  Cts would reform the trust by waiting for 21 yrs to see what happens.

b)                 It would eventually fail, but we’d still wait & see. 

c)                  When it does fail, it goes back to settlor’s estate as a resulting trust.

d)                 Cy pres doesn’t apply, b/c no general intent to begin w/.

6.                  Administrative Deviation.

a)                  Ct permission to deviate from the administrative terms of a trust when compliance would defeat or substantially impair the accomplishment of the purposes of the trust.

b)                 Cts will interpret “administrative” broadly on appealing facts.

c)                  Maybe the better choice for application in Buck.

7.                  AD vs. Cy pres.

a)                  For cy pres to apply, you need 1 of the 3 I’s.

b)                 For AD, you still want to do what the settlor wants, you just want to administer it differently.

c)                  The merger of Hermann Hospital w/ Memorial was administrative deviation—let us administer it differently in allowing the hospital to become part of the Memorial system.

8.                  The Buck Trust (p.872):  chick left oil co stock worth $9M to a trust to benefit Marin & other Calif. counties—a larger % to Marin; the stock went up in value to $300M & the trustees asked for a cy pres change to get more $ to the other counties.  No opinion was published b/c the trustees dropped the suit.  The ct refused to apply cy pres, saying:  inefficiency of trust expenditures in one location given greater relative needs or benefits elsewhere do not constitute impracticability.  The situation is not the equivalent of impossibility; nor is there any threat that the operation of the trust will fail to fulfill the general charitable intention of the settlor.

a)                  Cy Pres—Restat. of Trusts—  if prop is given in trust to be applied to a particular charitable purpose & it is/becomes impossible or impracticable or illegal to carry out the particular purpose, & if the settlor manifested a more general intention to devote the prop to charitable purposes, the trust will not fail but the ct will direct the application of the prop to some charitable purpose which falls w/in the general charitable intention of the settlor.

b)                 None of this applied here, b/c the trust could still be carried out.  This case is relegated to its facts; may’ve changed the case on appeal.

9.                  Racially/gender restrictive charitable trusts.

a)                  If the trustee is a governmental body, cts have held that the administration of the trust in a racially discriminatory manner violates the equal protection clause; the racial restriction is unenforceable.

(1)               Cts applying cy pres or deviation often say the testator would want the trust to continue w/out the racial restriction.

(2)               Ex:  scholarship to the top male student who excels @ chemistry, to be decided by the superintendent.  Being gender specific violates the Equal Protection clause.

(a)               AD could be used to take out the super; have the students apply directly to a private trustee.

b)                 If the trustee is a private person, it does not violate the const.  But, it may break state or fed discrimination laws.

(1)               If it does break the law, cts will let it continue under cy pres or deviation.

(2)               See examples, 878–79.

10.              Barnes Foundation (p. 879):  ct allowed AD to change the hours of a museum to allow for greater income for trust.

11.              Evans v. Avney:  racially discriminatory trust that had to do w/ maintenance of a public park in Ga, for whites only.  Trustees applied to ct to have the trust changed to allow anyone to enter the park.  Ct considered the intent of settlor, which was bigotry.  Allowed the trust to stand, no application of cy pres or administrative deviation.  The prop went back to the settlor’s estate.

12.              Rice University is another example of AD; the trust was to have “a 1st class university for the white inhabitants of Houston, free of charge.”  Obviously, this did not stick.  Purpose not impossible, so no cy pres.  Still have to consider the donor’s intent.


C.                Supervision of Charitable Trusts.

1.                  Carl J. Herzog Foundation v. U of Bridgeport (p. 883):  P contributed to D’s nursing school to establish scholarships for needy students.  D closed its nursing program in ’91; the $ was then being used in the general scholarships.  P sued to have the $ used as specified in the gift instrument.  Application of cy pres b/c original purpose of trust became impossible.  RULE:  donors don’t have standing to enforce the terms of a gift where there was no express reservation of control over the disposition of the gift.

a)                  Standing:  established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved.

b)                 CL rule was that donors have no standing to challenge what is done w/ a gift.

c)                  Donor can’t do anything b/c he has no ongoing prop interest in the prop—it’s not his anymore. 

(1)               Keeps donor from harassing the trustee.

(2)               You get tax advantages when you give something away; you can’t give it away & then have something to say about it.

d)                 The AG of the state can bring suit to enforce the terms of a charitable trust, as can any other public officer, a co-trustee, or any person who has a special interest in the enforcement of the charitable trust.  But, not by persons who have no special interest or by the settlor or his heirs, personal representatives or next of kin.

e)                  Possible solutions under cy pres—give the $ to other medically-related departments in the same university.

2.                  Benes w/ special interests—can enforce a charitable trust.

a)                  Person must show that he is entitled to receive a benefit under the trust that is not available to the public at large or to an avg. bene.

3.                  The trustee-bene rela:

a)                  Trustee has duties to the benes, not to the settlor.

b)                 Essentially the same as a modern 3rd-party-bene-K.

4.                  The Bishop Estate (p. 896):  trust established by a descendant of Hawaii’s last king.  The assets are estimated at $10B—including 8% of Hawaii’s land mass & 10% of Goldman Sachs.  The 5 trustees were appointed by the Hawaiian SC; they were to build 2 schools—1 for boys, 1 for girls—“giving the preference to Hawaiians of pure or part aboriginal blood,” & to expend the annual income of the trust on the maintenance of the school.  2 schools were built, later merged into 1.  Today the school has 3,000 students, w/ 30,000 applicants.  Some of the breaches of trust:

a)                  Moving $ against the orders of the trust instrument;

b)                 Self-dealing;

c)                  Lack of accounting/safeguards.




A.                Duties of the Trustee/Administrator.

1.                  Loyalty:  trustee must administer the trust solely in the interest of the beneficiaries.  Duty of undivided loyalty to benes.

a)                  Hartman v. Hartle (p. 903):  son bought home at estate sale for his sister, the wife of 1 executor.  She split the $ w/ the other kids (as per the will), then turned around & sold it for more a few days later.  RULE:  thou shalt not self-deal; trustee’s spouse can’t buy at a trustee’s sale (just like the trustee can’t) w/out leave of ct.  Indirect benefits also count.  If she kept her $ separate, he’s still receiving a benefit.  Selling it to your adult child is also a benefit to trustee.  Any further away in relations is a question of fact.  You also can’t have a friend buy it & you later buy it from the friend.  Don’t sell to anyone you know, or anyone you’re related to.

b)                 When self-dealing is discovered, the trustee’s good faith & reas of the transaction are irrelevant (“No Further Inquiry Rule”).  Options for benes—

(1)               Benes can hold trustee accountable for any profit made on the transaction, or,

(2)               If trustee has bought trust prop, can compel him to return it to the trust, or,

(3)               If trustee has sold his prop to the trust, can compel the trustee to pay back the purchase price & take back the prop.

c)                  Only defenses to self-dealing:

(1)               Settlor authorized it; or

(2)               Benes consented after full disclosure (get it in writing—CYA).

(3)               Even here, the transaction must be fair & reas.

d)                 Trust Pursuit Rule:  equitable remedy for breach of trust—

(1)               If the trustee, in wrongfully disposing of trust prop, acquires other prop, the bene is entitled to enforce a const. trust on the prop so acquired, treating it as part of the trust assets.

(2)               Also applied where the prop ends up in the hands of a 3rd person, unless the 3rd person is a bfp w/out notice of the breach of trust.

(3)               A 3rd party who takes w/ notice or gives no value does not hold the prop free of the trust.

e)                  In re Rothko (p. 906):  not about self dealing, it’s conflict of interest of the executors selling paintings to Marlborough, an art gallery where 1 of the executors was on the board.  If a co-executor knows the others are breaching the trust duties, he can’t be passive & act like there’s nothing going on.

(1)               Duty of loyalty to benes of a trust or a will are the same.

(2)               This wasn’t quite self-dealing, but very close.

(3)               Ct allowed appreciation dgs in this case b/c the actions of the trustees were inherently wrongful; they were under a duty to retain the assets under the trust instrument.

(4)               Paintings sold to a 3rd party purchaser who had no notice of the breach of trust can’t be recovered.

2.                  TTC—allows the trustee to waive the self-dealing exclusion.

3.                  Read & study the terms of the trust instrument, even b/f you’ve decided to accept.

4.                  Co-trustees—when there is more than 1 trustee, the trustees of a private, noncharitable trust must act as a group w/ unanimity, unless the trust instrument provides to the contrary.

a)                  1 trustee may delegate to another ministerial duties that don’t require the exercise of discretion.

b)                 A co-trustee can’t delegate discretionary duties, they can be exercised only by co-trustees together.

(1)               Ex:  purchase/sale of trust assets, investment of trust funds, allocation of receipts & disbursements b/t principal & income, & discretionary pmts of income/principal to benes.

(2)               It’s improper for 1 trustee to leave the others the custody & control of the trust prop.

c)                  A co-trustee is liable for the wrongful acts of a co-trustee to which he has consented or which, by his neg or through inactivity or wrongful delegation, he has enabled a co-trustee to commit.

d)                 TX Rule: a majority of the co-trustees can make a decision.

e)                  But, in TX, the act of co-executors is the act of all.

f)                   Problem, p. 918.  Trustee that went on vacation w/out making accommodations for investing while he’s gone is neg.  He also sat around & waited for 6 months w/out getting out of the investment.

5.                  Not to Delegate:  trustee under duty to bene not to delegate to others the acts which the trustee can reas be required personally to perform.

a)                  Sometimes, there may be a duty to delegate—trustee may need to hire an accountant to keep the trust’s books, hire an attny to defend the trust against attack.

b)                 Certain ministerial functions can be attacked.

c)                  Does not absolve the trustee of the duty to supervise what’s going on w/ the stuff he delegated.

d)                 Shriner’s Hospital v. Gardiner (p. 922):  Gardner created a trust to pay to her kids, Shriner’s was remainderman (they are benes, so they have standing).  Trustee tried to delegate her duties to her brother Charles.  Charles (stock broker) embezzled trust funds; trustee tried to hide behind the fact that she delegated to him.  RULE:  trustee can delegate for expert advice, but trustee still responsible.  Made no difference that Charles was also 1st alternate trustee.  She failed to adequately monitor the trust balance sheet—she could’ve easily learned that the $ was going somewhere else.

6.                  Defend the trust against attack:

7.                  Duty of Impartiality in Dealing w/ Income Bene & Remaindermen.

a)                  Interests often clash when income bene wants $ now & remaindermen want the corpus built up.

b)                 Depends on the primary intent of the trust—was it to keep the life tenant, or provide for the remaindermen?

8.                  Duty to Retain Trust Documents & Vouchers & Keep Records.

a)                  All doubts are resolved against the trustee.

9.                  Account to Beneficiaries.

a)                  As often as is stated in the trust instrument.

b)                 TTC—if it’s silent, no less than every 12 months.


B.                 Duties relating to care of the trust prop.

1.                  Duty to Collect & Protect the Trust Prop:  duty to obtain possession of & secure the trust prop w/out unnecessary delay (as soon as is reas possible). 

a)                  What is an unreas delay depends on the circumstances.

(1)               Trustee probably has a duty to make administrator/executor hurry up & give the prop over.

b)                 When a testamentary trust is established, the trustee should collect the assets from the executor as promptly as circumstances permit.

c)                  Testamentary trustee also owes a duty to the benes to examine the prop tendered by the executor to make sure it is what the trustee ought to receive.

(1)               So, trustee must look at the acts of the executor & require the executor to redress any breach of duty which diminished the assets intended for the trust.

d)                 Once he gets the prop, trustee must act as a prudent person in preserving it.

(1)               Ex:  keep buildings in repair, guard against theft, pay taxes, & insure against loss by fire.

(2)               He also has to get ahold of documents necessary for this trust prop (deeds, mortgages, certificates, etc.).

e)                  Trustee may be responsible for losses.

(1)               Ex:  an inter-vivos trust w/ a will that pours over prop into the trust.  Trustee may be responsible (breach of duty to protect) for embezzlement of executor that occurred while the trustee sat around & waited for the prop to pour in.

(2)               Trustee has no duty to use his own funds for anything having to do w/ the trust.

f)                   Trustee has to get a ct order to abandon worthless prop.

2.                  Duty to Separate & Earmark Trust Prop:  differentiate b/t trust prop & trustee’s own prop.

a)                  Earmark:  put the name on accts, etc. w/ your name, as trustee in trust for the bene.  Trust stuff is labeled as trust stuff.

b)                 Separate:  keep it apart from your own assets.

c)                  Reason:  trustee may claim that profitable investments were his own, losers were the trust’s; you confuse your assets w/ trust assets.

d)                 Exception:  a trustee may invest in bonds payable to bearer instead of registering the bonds in the name of the trustee.

e)                  RULE:  trustee is liable for losses that result from the failure to earmark, not losses from general economic conditions.

3.                  Duty to not Comingle:  breached when trustee mingles the trust funds w/ his own, even if he doesn’t use the trust funds for his own purposes.

a)                  Commingled trust funds become more difficult to trace & hence subject to the risk that personal creditors of the trustee can reach them.

b)                 RULE:  trustee is liable to the extent commingling caused a loss to the trust.

4.                  Duty to Make the Trust Prop Productive:  make sure that the trust prop is providing income for the benes. 

a)                  Std = what a reas, prudent investor would do in managing his own affairs; how a prudent person would deal w/ the prop of another.

b)                 Is the income:

(1)               Discretionary; or

(2)               Mandatory.

c)                  Trustee may be responsible for sitting too long b/f investing.

d)                 Trustees typically invest conservatively; ct looks for a diversified investment & the performance of the whole fund.  You should diversify.


C.                Powers of the Trustee.

1.                  No inherent powers; everything comes from trust instrument.

2.                  But, powers not limited only to what’s listed; some are implied to carry out the expressed powers.

3.                  In some circumstances, cts will grant trustee powers not expressed or implied in the instrument—i.e., administrative deviation.

4.                  Problems, p. 954.

a)                  B does take Blackacre free from the trust.  A purchaser who knows he’s dealing w/ trustee must make due diligence to determine whether the transfer is in breach of trust.  If he reas believes that it’s not a breach of trust, the purchaser is protected.  What can bene then do?  Sue A for the breach of trust, the duty to protect the assets or inform the bene.  No const. trust avail b/c B is a bfp.

b)                 If the seller knows that the trustee has a duty not to invest in nonincome producing prop, the seller is participating in the breach of trust & may be liable.

c)                  A majority of trustees must act in TX (for 2, it’s 2).  No, A can’t be compelled to pay again.  A probably reas relied on his tendering of the check to Y.  Tough crap, the sale’s good.


D.                Investment of Trust Funds.

1.                  Estate of Collins (p. 957):  testator’s will created a testamentary trust for his wife & kids.  Trustees were allowed to invest $50,000 from the trust corpus.  Lawyer trustee loaned the $50,000 to 2 clown real estate developers; the loan was secured by a 2nd mortgage on prop.  The 1st lender foreclosed & the trust got screwed as 2nd mortgagor.  Trial ct said it was alright; appeals reversed.  Appeals ct said they violated the duty to diversify (2/3 of the corpus in 1 asset); investing in 2nd mortgages is risky (1sts are better); they didn’t have the land appraised; relied on info from the real estate developers themselves about their credit worthiness.  The broad language of the trust instrument did not allow the trustee to make improper investments; it allowed them to be good trustees.

2.                  Exculpatory clause:  inserted into trust instrument to protect the trustee from anything short of gross neg.

a)                  Will not be given effect if the result is to allow a fiduciary to act in bad faith or w/ reckless indifference to the interests of the benes.

3.                  Witmer v. Blair (p. 962):  grandmother trustee who had to keep $6,000 for her 7-yr-old daughter’s college.  She stuck it in a checking acct & didn’t do anything w/ it.  Ct held the failure to invest the $ was a breach of trust & made grandma pay the interest it could’ve earned sitting in the acct.

4.                  TTC requires trustee to diversify the trust assets, unless it would be imprudent to do so.

5.                  See Restatement of Trusts, p. 965.


E.                 Liability of Trustee to 3rd Parties.

1.                  Environmental cleanup is a big area here.

2.                  Valley National Bank v. City of Phoenix:  trustee purchases a landfill prop (allowed by instrument); the garbage co that operated lost the land by condemnation.  City sued trustee under CERCLA to get cleanup costs; ct held that trustee had personal liability, they were owners under CERCLA.

3.                  TPC 113.025—a trustee/potential trustee can inspect real estate, do tests on it for the purposes of determining the potential application of environmental law.  Allows you to test & stuff w/out being considered a trustee. 

a)                  $ for testing comes from the trust.

b)                 If you’re not sure if you’re allowed, as the ct for permission.  They will allow a potential trustee to get $ from the corpus.


F.                 TX Prop Code 113.056.  Std. for Trust Mgt & Investment. 

1.                  113.056(a)—unless the inst. provides o/w in acquiring, investing, reinvesting, exchanging, retaining, selling, supervising,& managing trust prop, the trustee shall exercise the judgment & care under the circumstances then prevailing that persons of ordinary prudence, discretion, & intelligence exercise in the mgt of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds.  The investment of all the assets of the trust will be considered, not the prudence of a single investment.

2.                  113.056(b)—w/in the limits of (a), trustee may acquire & retain every kind of prop & every kind of investment that persons of ordinary prudence, discretion, & intelligence acquire/retain for their own acct.

3.                  113.056(c)—w/in the limits of (a), trustee may indefinitely retain prop acquired under this section w/out regard to its suitability for original purpose.




A.                Purpose.

1.                  To protect interests of proposed ward.

2.                  Definitions—TPC 601.

a)                  Ward—someone who has a guardian appointed by a ct.

b)                 Guardian—a person who is appointed guardian, or a temporary or successor guardian.  Has a fiduciary rela. w/ the ward.  2 types:

(1)               Guardian of person of a person;

(a)               Has the right to physical possession of the ward.

(b)               Duty to care, control, & protect the ward.

(c)                Has the right to make medical care decisions, even make end-of-life decisions.

(i)                 Harris cty requires a ct hearing b/f this is done.

(2)               Guardian of the estate of a person.

(a)               Right to possess all of ward’s prop.

(b)               Right to enforce agreements on behalf of ward.

(c)                Manage estate by prudent person std.

(d)               Acct for rents, profits, etc from the estate.

c)                  Incapacity—a minor; an adult who, b/c of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs; OR a person who must have a guardian appointed to receive funds due the person from any gov’t source.

(1)               Dementia, alcoholism, etc.

d)                 Venue—application must be filed in cty in which the proposed ward resides/is located on the date the application is filed or in the cty in which the principal estate of the proposed ward is located.  

e)                  Attny ad litem—always appointed as advocate for a ward.

f)                   Guardian ad litem—appointed at the discretion of the court or by application, advocates the best interest of the ward.  Officer of the ct.

g)                 Ct investigator—

3.                  Getting a guardianship.

a)                  Application filed w/ ct.

b)                 Requires a medical basis—TPC 687.

c)                  Ct requires guardian be bonded (like an ins. policy).

4.                  Acts permitted by a guardian.

a)                  Much oversight by ct, must file acctg, investment plan, mgt. plan.

5.                  Alternatives to guardianship.

a)                  B/f incapacitation: 

(1)               Durable PoA (TPC 12); allows A to make financial decisions on the part of ward.

(2)               Durable PoA for health care (H&S Code); allows person to make health-care decisions on the part of another person.

b)                 Designation of guardian—while person has capacity, you can decide who you want as your guardian & also restrict the participation of others.