Introduction: Justifying Transfers at Death and Donor Control

I. Generally
a. Succession is the transfer of property at death
b. Probate succession governs wills and intestacy
c. Non probate succession includes inter vivos trusts, pay on death contracts, and will substitutes
d. The American law of succession is organized around the principle of freedom of disposition
i. Allows for dead hand control which is unique in modern legal systems
1. The right of a property owner to dispose of their property at death on terms that
they prescribe
ii. Am law of succession is not absolute, but serves to facilitate rather than regulate
implementation of decedent’s interest
iii. Protects donor’s spouse and creditors
iv. Imposes transfer taxes
v. Law imposes anti dead hand public policy constraints
II. Transmitting property at death
a. Property owners have nearly unrestricted right to dispose of property as they choose, main
function of law is to facilitate, not regulate
b. Law prohibits and restricts freedom of disposition to protect
i. Spousal rights
ii. Creditor rights
iii. Unreasonable restraints on alienation or marriage
iv. Provisions promoting segregation or divorce
v. Impermissible racial or other restrictions
vi. Provisions encouraging illegal activity
vii. Rules against perpetuity and accumulations
c. Modern law attempts to effectuate donor’s intent even with intestacy statute
III. Cases
a. Shapira
i. Decedent left a will with a conditional bequest where the son had to marry a Jewish
woman within 7 years in order to receive his share or it would get donated to Israel
ii. Court held this was not violation of 14th amendment because it was a private restriction
and it also was not a complete ban on his marriage, it was just for him to receive his
property allocation and he could still get married if to a Jewish girl; clear how important
religion was to decedent
IV. Incentive Trusts
a. Trusts that usually include similar conditions as in Shapira
b. Usually impose conditions to encourage beneficiaries to pursue education; provide moral
incentive; encourage beneficiaries to have productive career
V. Lifetime v. Testamentary Condition
a. Lifetime conditions can be negotiated, testamentary cannot
VI. Partial v. Total Restraints on Marriage
a. Total or general restraint on marriage or aa provision that encourages divorce is void as contrary
to public policy unless the donor’s dominant purpose was to provide support until marriage or in
event of divorce
b. Traditional line of cases still supports that there is an exception to total restraint on marriage where
gift from husband to widow conditional on her not remarrying
c. Partial restraint on marriage is unreasonable if a marriage permitted by the restraint is not likely to
occur
i. Likelihood of marriage is aa factual question, depends on specific circumstances
d. When considering what is contrary to public policy, courts should balance donor’s freedom of
disposition with other social values and effects of dead hand control on subsequent conduct or
personal freedom of others
e. Provisions that are hostile to the family are invalid
i. Provisions trying to destroy family or delaying and prohibiting marriage
VII. Destruction of property at death

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 a. Property passes to someone else at death and it is wasteful to destroy it so don’t like to permit
what becomes someone else’s property
Foundations and Terminology
I. Personal Representative – hen a person dies and probate is necessary, first step is appointment of this
individual to wind up D’s affairs when there is no will
II. Testator – person making a will
III. Testatrix – woman making a will
a. There is movement in law to get rid of female forms of these words and use gender neutral terms
IV. Die testate – die with a will
V. Executor/ executrix are issued letters testamentary when testator dies
VI. If person dies intestate (Without will) then court will appoint an administrator/administratix to
administer the estate
a. They will receive letters of administration
VII. If person dies testate and will is admitted to probate,
a. Long form probate – traditional probate
VIII. “devise” – used when giving real property
IX. “devisee” – recipient of real property
X. “bequeath” – leaving personal property
XI. “legatee” – recipient of personal property
XII. Intestate – died without a will
a. Real property descends to heirs
b. Personal property distributed to next of kin
c. TN statute called statute of descent and distribution
d. Heirs only intestate, not under a will
XIII. Executor Duties
a. Acts as fiduciary; collects and inventories assets; changes title into name of estate; manages assets
while has them; publishes decedent’s death; receives claims of creditors and tax collectors to pay
out of estate’s proceeds; distributes what remains to those entitled to receive it under the will
Probate
I. Core functions
a. Provides evidence of transfer of title to new owners, which makes property marketable again aand
allows new owners to fend off rival claimants
b. Protects creditors by providing procedure for payment of decedent’s debts
c. Distributes decedent’s property to those intended after decedent’s creditors are paid
II. Choice of law
a. Law of state where decedent was domiciled at death governs disposition of real property
b. Law of state where real property located governs disposition of real property
III. Letters
a. Testamentary (to an executor)
b. Administration (to administrator)
c. Authorizes them to act on estate’s behalf
IV. Supervised and Unsupervised Administration
a. Default rule is unsupervised, only difference is that in supervised, personal rep is subject to
continuing authority of probate court while administering estate and unsupervised they are not
V. Forms of Probate
a. Formal probate: executor propounds will and anyone that benefits from the will gets notice that
the will will be probated; if their interests are not served by will, they are cited
i. UPC 3-401 requirements
ii. Have to get will through probate before submitting letters of executor
iii. You get notice if friendly to will
iv. If hostile (intestate beneficiary) you get a citation to show up to complain about the will
and given a specified time to object to will
b. Informal probate:
i. UPC 3-301
ii. Validity of will or determination if intestacy does not need to be litigated unless an
interested party objects

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 iii. This is usually for small estates, get letters on day you come to court, usually there is not
enough money to hassle so the court issues letters testamentary
c. Solemn form: must give notice to people who may object to probate of will
i. Notice to interested parties is given by citation, greater court participation required
d. Common form probate: letters sent immediately and anyone can come within 30 days and contest
the will
i. No notice or process is issued to any person
VI. Creditors
a. Each state has a non claim statute requiring creditors to file claims within specified time period
and claims filed after time period are barred
Professional Responsibility
I. Issues
a. (1) duty of competence owed to client’s intended beneficiaries as well as to client
b. (2) duties in joint rep of multiple persons in same family
II. Cases
a. Simpson
i. Majority rule: attorney is in privity with and owes fiduciary duties to intended
beneficiaries under a will
1. Intended beneficiary can state cause of action by pleading sufficient facts to
establish that attorney has negligently failed to effectuate T’s intent as expressed
to attorney
2. Even beneficiaries that are omitted from will have standing
ii. Minority rule: only privity of k between the drafting attorney and the estate
iii. Where a client has k’d with an attorney to draft a will and client has identified to whom
he wishes estate to pass, that identified beneficiary may enforce terms of k as a third
party beneficiary
b. A v. B
i. Couple has mirror wills: each says to my spouse if they survive me, then the residual and
remainder of estate. If spouse doesn’t survive them, then in equal shares to the children.
ii. Conflict between duty of confidentiality owed by attorney to husband and duty to inform
client wife of material facts
iii. Illegitimate child disqualifies couple from mirror will
iv. Permissive disclosure under 1.6 because husband committing fraud on the wife
III. Privity Defense
a. Theory that under traditional k, only privity of k between direct parties, but in wills there is an
exception to this rule where duty to third party beneficiaries because the person that would be
harmed is dead, and so to disallow bringing of claim is inequitable even though they suffered a
loss
IV. Other Rules
a. Model Rule 1.6 and 1.7
Intestacy
I. Generally
a. Applies where
i. (1) no will
ii. (2) partial will; or
iii. (3) incomplete will
b. Probate property that is not disposed of by the will passes by intestacy
c. There is a default estate plan in intestacy
d. Intent behind statute of descent and distribution is to carry out probable intent of typical intestate
decedent
i. Still favors freedom of disposition
e. Generally favors decedent’s spouse, then descendants, then parents, and then collateral and change
remote kindred
i. However, this model is subject to variance as social norms continue to evolve and change
family relationships

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 f. Majority of states do not have intestacy laws providing for unmarried cohabitating partners or step
relations in a blended family
g. If there are no surviving relations within degree of kinship specified in intestacy statute, then
decedent’s property escheats to state
II. Analysis
a. Figure out who the players are in relation to D
b. For a question on the UPC, see below UPC chart
c. For question Tennessee Spousal Share, look to 31-2-101
d. If D has no spouse and no descendants, then it will go to parents
e. If D has no parents, then to ancestors and other collateral
III. UPC Spousal Share Chart
Facts UPC Authority Disposition
Spouse; No Descendant; No 2-102 (1) (A) Entire intestate estate goes to S
parent
Spouse; Surviving descendants 2-102 (1) (B) Entire intestate estate to spouse
that are also the Surviving
Spouse’s and the Spouse has no
other surviving descendants
Spouse; surviving descendants 2-102 (3) Spouse gets 225,000 plus ½ of
are also the surviving spouse’s the rest of the estate; the other
but the surviving spouse has ½ goes to D’s descendants
other descendants that are not
decedent’s
Spouse; 1 or more surviving 2-102 (4) 150,000 plus ½ of the estate
descendant’s is not the goes to the spouse; the other
surviving spouse’s descendant half goes to D’s descendants
Spouse; no descendants; 2-102 (2) 300,000 plus ¾ of the estate
parents goes to the spouse; other ¼
goes to D’s parents
No spouse; descendants 2-103 (a) (1) Entire intestate estate to D by
per capita at each generation
No spouse; no descendants; 2-103 (a) (2) All to parents
parents
No spouse; no descendants; no 2-103 (a) (3) All to BorS per capita at each
parents; surviving siblings of generation
D, surviving descendants of
D’s parents
No spouse; no descendant; no 2-103 (a) (4) If both paternal and maternal
parent GP, ½ to paternal GP and ½ to
maternal GP (all to 1 if other
has died, or if none, per capita
at each GD generation); or if
survivors only on sides side, all
to GP on that side, or to per
capita at each generation with
GP descendants
No spouse; no descendants; no 2-103 (b) Step-children, or if none, then
parentsl no BoRsl no GP 2-105 it escheats to state, no laughing
heirs

IV. Tennessee Statutes governing intestacy

a. T.C.A. 31-2-101 Intestate Estate
i. When any person dies intestate, after the payment of debts and charges against the estate,
the D’s property passes to D’s heirs as prescribed in the following sections of this

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 chapter. Any part of the estate of a D not effectively disposed of by D’s will passes to D’s
heirs in the same manner
V. Heirship
a. No living person has heirs and heirs can only be identified by reference to applicable intestacy
statute at time of decedent’s death
b. Heirs apparent – people that would inherit property of decedent, if decedent died within next hour
i. Heirs apparent only have expectancy that is contingent on surviving decedent and
defeasible by decedent’s contrary disposition by will, will substitute, or lifetime gift
c. In contrast, people named in wills are devisees, legatees, or beneficiaries
i. Also do not have a legal interest until death
d. Court may recognize equitable interest if transferred for adequate consideration
VI. Choice of Law
a. In intestacy, law of state where decedent was domiciled governs disposition of personal property
b. Law of state where real property located governs disposition of real property
VII. Share of surviving spouse
a. Idea that most people want their estate to go to surviving spouse but not surviving spouse’s
children from previous marriage
b. TN gives SS 1/3 share of estate or the child’s shared, whichever is larger
c. As society evolves, may need to account for share for cohabitating partner but not currently
recognized
d. Intestate succession
i. States generally agree that after the spouse’s share, descendants will take to the exclusion
of ancestors and collateral kindred and that intestacy only favors spouses and blood
relatives
1. Includes adopted persons and person born through assisted reproductive
technology
ii. States generally vary on the size of SS’s shaer and whether survivor must share with
decedent’s descendants or parents as well as the methods for implementing principle of
representation by which predeceased child’s descendants take the child’s share
e. UPC 2-102 says that if all decedent’s descendants are also descendants of the SS and if the SS has
no other descendants so that there are no step-children, then SS takes entire estate to exclusion of
decedent’s descendants
i. If there are no descendants, then ½ states and UPC say that SS shares estate with
decedent’s parents
ii. If no descendant or parent of decedent survives decedent or if all of the surviving
descendants area also descendants of SS and there is no other descendant of SS that
survives the decedent, then SS gets entire estate (2-102)
iii. If no descendant of decedent survives decedent, but decedent’s parent survives, SS gets
300,000 + ¾ of any balance remaining in estate
iv. If all of decedent’s surviving descendants are also SS’s descendants and SS has 1 or more
surviving descendants (step child of decedent), then 225,000 + ½ of estate
v. If 1 or more of decedent’s surviving descendant is not a descendant of the SS, then
150,000 + 12 of balance of estate
VIII. Shares of Descendants
a. In all states, after spouse’s share is set aside, children and descendant’s of decedent’s deceased
children take remainder of decedent’s property to exclusion of everyone else
b. There are 3 key systems of representation
i. English Per Stirpes (TN rule)
1. 1/3 of states follow this
2. Each line of descendants is treated equally
3. Start at the root generation, which is the generation closest to the decedent and
divide property into as many children as there are in that generation
4. Children of each deceased descendant represent their deceased parent and are
moved into their parent’s position beginning at the next generation
5. T.C.A 31-2-106: representation
a. If representatation is called for, such rep shall be per stirpes

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 ii. Modern Per Stirpes (majority)
1. Followed by ½ the states
2. The root generation is the one nearest to the decedent where at least one person
is alive
3. For deceased children in the root generation, their children in the next
generation take their share by representation
iii. Per Capita at Each Generation (1990 UPC)
1. Followed by 12 stataes
2. Same root generation as modern per stirpes, the generation where people are
living
3. Combine all the shares of deceased individuals in the root generation, and then
divide them amongst the living children in the next generation
c. UPC 2-103 governs priority of shares other than for SS and says that
i. (a) any part of the intestate estatae that does not pass to D’s SS under 2-102, or the entire
intestate estate if there is no SS, passes in following order to individuals who survive D:
1. To D’s descendants by representation
2. If no surviving descendant, to D’s parents equally if both survive
3. If no surviving descendant or parent, to descendants of D’s parents or either of
them by rep
4. If no surviving descendant, parent, or descendant of a parent, but D is survived
on both sides by paternal and maternal graandparents or descendants of
grandparents
a. ½ to D’s paternal grandparents equally or all to 1 if survivor, or to
descendants of D’s paternal grandparents or either of them if both are
deceased, the descendants would take by rep; and
b. ½ to D’s maternal grandparents equally, same analysis as above.
5. If no surviving descendant, parent, or descendants of a parent, but D is survivied
by 1 or more graandparents or descendants of grandparents on paternal but not
maternal side, or on maternal side but not paternal side, to D’s relatives on side
with 1 or more surviving members in manner described in 4.
ii. (b) if no taker under (a), but D has
1. 1 deceased spouse who has 1 or more descendants who survive D, the estate or
part of it passes to that spouse’s descendants by rep; (D’s stepchild) or
2. More than 1 deceased spouse who has one or more descendants who survive D,
an equal share of estate passes to each set of descendants by rep (D’s step-
children from different marriages)
d. T.C.A. 31-2-104: share of surviving spouse and heirs
i. (a) the intestate share of the SS is
1. If there is no surviving issue of D, the entire intestate estate, or
2. If there are surviving issue of D, either 1/3, or a child’s share of the entire
intestate estate whichever is greater
ii. (b) the part of the intestate estate that does not pass to the SS under (a) or the entire estate
if there is no SS passes as follows
1. To D’s issue, if they are all of same degree of kinship to D they take equally, but
if of unequal degree, those of more remote degree take by representation
2. If there is no surviving issue, to D’s parent or parents equally
3. If no surviving issue or D’s parents, then to D’s brothers and sisters and their
issue by rep; if no surviving D’s siblings, then issue of siblings take by rep; or
4. If there is no surviving issue, parent, or issue of a parent, but D is survived by 1
or more grandparents or issue of grandparents, ½ of estate passes to paternal
grandparents if both survive or to surviving paternal GP or to GP issue if both
GP are deceased, issue taking equally if they are all of the same degree of
kinship to D, but if of unequal degree those of more remote degree take by rep;
the other ½ passes to maternal relatives in the same manner

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 a. If there are no surviving GP or issue of GP on either paternal or
maternal side, entire estate passes to relatives on other side in same
manner as the ½
IX. Shares of Ancestors and Collaterals
a. Parents
i. If D is survived by descendant, then d’s ancestors and collaterals do not take
ii. In ½ states under UPC, if there are no descendants, then D’s parents take after spouse’s
share deducted
iii. In other 1/2 , spouse takes to exclusion of D’s parents (TN rule)
b. Other ancestors and collaterals
i. Collateral kindred – persons who are related to D by blood but who are not descendants
or ancestors
ii. First line collaterals – descendants of D’s parents, other than D and D’s descendants (D’s
brothers and sisters)
iii. Second Line Collaterals – Descendants of D’s grandparents, other than D’s parents and
their descendants (D’s aunts and uncles)
iv. If D is not survived by a spouse, descendant, or parent, then intestate property passes to
D’s brothers and sisters and their descendants
1. Children of brothers and sisters take by rep
v. If there are no first line collaterals, states use 1 of 2 systems
1. Parentelic system: the intestate estate passes to grandparents and their
descendants and if non, to great grandparents and their descendants, and so on
a. Each parent’s side takes half
2. Degree of relationship system (minority)
a. The intestate estate passes to closest of kin, counting degrees of kinship
b. To figure out degree, count steps up from the decedent to the nearest
common ancestors and then count steps down from common ancestor
to claimant
c. Total steps is the degree of relationship
c. Laughing heirs
i. Distant relatives so far removed from D that they likely didn’t know him and suffer no
loss upon learning of his death
ii. Many states revised rules of intestacy to exclude laughing heirs drawing line at
grandparents and their heirs
d. Step-Children and In Laws
i. Recent change to include stepchildren as potential heirs, see above under UPC 2-103 (b)
ii. Few states allow in laws to inherit but not many
e. Half-bloods
i. Traditionally excluded
ii. Majority of states (TN rule) and under UPC treat a relative of a half blood the same as a
relative of a whole blood
1. T.C.A 31-2-107: kindred of blood
a. Relatives of half blood inherit the same share they would inherit if they
were of the whole blood
iii. Scottish rule is that a half blood is given a half share and is followed by FL and TX
iv. In MI, half blood takes only when no whole blood relatives of same degree
v. OK, half bloods excluded when whole blood kindred in same degree, inheritance came to
D by an ancestor and the half blood is not descendant of the ancestor
f. Escheat
i. Property escheats to state if D leaves no survivors entitled to take under intestacy statute
ii. T.C.A 31-2-110: if there is no taker under this chapter, the intestate estate shall escheat to
the state of TN under provisions of chapter 6 in this title
X. Negative Will
a. Traditionally could not disinherit someone through declaration in will, would have to devise entire
state to other people

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 i. If partial intestacy because a will did not make complete disposition, the party D tried to
disinherit would take a share of intestate property as an heir of D
b. Modern rule: UPC 2-101 (b) that permits a negative will by way of express disinheritance
provision
i. Barred heir treated as if he disclaimed his share (treated having predeceased D)
XI. Adoption
a. Majority rule (TN rule) that an adopted child inherits from adoptive relatives and also from
genetic relatives if the child is adopted by a step-parent
i. Meaning that you can still inherit from your natural parents and then also your step-
parent
b. Minority rule: in a few states, adopted child inherits from both adoptive parents and genetic
parents and their relatives
c. Minority rule: in other states, adopted child inherits from only adoptive parents and their relatives
d. 2008 Amendment to UPC focuses on determination of whether there is a parent child relationship
for inheritance between parents and children
i. If parent child relationship exists then parent is a parent and child is a child for purposes
of intestate succession
ii. Adoption: parent child relationship exists between adopted child and adoptive parent, not
between adopted child and genetic parent, but there are several exceptions
e. T.C.A. 31-2-105: parent child relationship
i. (a) if for purposes of intestate succession, a relationship of parent and child must be
established to determine succession by through or from a person
1. An adopted person is the child of an adopting present and not of the natural
parents except that adoption of child by spouse of natural parent has no effect on
relationship between child and that natural parent and
2. In cases not covered by (a) (1), a person born out of wedlock is a child of the
mother. That person is also child of the father if
a. Natural parents participated in marriage ceremony before or after birth
of child even though attempted marriage is void;
b. The paternity is established by an adjudication before father’s death or
is established after by clear and convincing proof, but paternity under
this section is ineffective to qualify the father or father’s kindred to
inherit through or from the child unless father has openly treated child
as his and has not refused to support child
f. T.C.A. 36-1-121
i. Signing of a final order of adoption terminates any exiting guardianship orders and
establishes that from that date the relationship of parent and child between adoptive
parents and adopted child as if adopted child had been born to adoptive parents and
adopted child shall be deemed lawful child of such parents, the same as if child has been
born to the parents, for all legal consequences and incidents of biological relation of
parents and children
ii. Adopted child and child’s descendants shall be able to inherit and otherwise receive title
to real and personal property from adoptive parents and their descendants and of
succeeding to the rights of either parent or parent’s descendants in such property. the
adopted child shall have same rights to lineal and collateral kindred.
iii. (e) an adopted child shall not inherit real or personal property from biological parent or
relative when relationship between them has been terminated by final adoption order nor
shall such biological parent or relative inherit from the child.
g. Adult Adoption
i. Most intestacy statutes do not distinguish between adoption of minor and adoption of
adult
ii. However, some states say that an adult adoption for purpose of inheritance is okay as
long as the adopted party is not a lover, but varies by state
iii. Only people with standing to challenge validity of a will are those who would take if will
were not valid (intestacy); to gain standing to challenge will, the D’s collateral must first
overturn any adoption by D

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 h. Adoption within wills and trusts
i. Adopted children entitled to take under will or trust of adoptive parent as if it was a
biological child
ii. There is a question of whether adopted child can take a gift from a donor that was not the
adoptive parent to “children” “issue” “descendants” or “heirs”
1. Stranger to the adoption rule: adopted child presumptively barred from taking
gift if donor not adoptive parent; could not be overcome by evidence that donor
intended to include child in the gift
2. Modern rule: exception to stranger to adoption rule
a. Adopted child can take if adopted before donor’s death
b. Theory that donor knew of child and must have contemplated child’s
inclusion
c. Most states presumptively include the child
d. Rule of construction yields to contrary expression of intent
i. Cases
i. Hall v. Valladingham
1. Facts: Four children were adopted by their stepfather after their natural father
died and their mother remarried. When their natural father’s brother died
intestate, they claimed they were entitled to receive some of the estate.
2. Rule: An adopted child has no right to inherit from the estate of a natural parent
who dies intestate, and cannot inherit through the natural parent by way of
representation.
ii. Minary v. Citizens Fidelity Bank and Trust Co
1. Facts: Decedent died, leaving a will devising residuary estate in trust to pay
income to her husband and their three sons for their lives; after trust terminated,
the remaining was to be distributing to decedent’s then surviving heirs. One of
the sons married and adopted his wife.
2. Rule: Adoption of an adult for the purpose of bringing that person under the
provisions of a preexisting testamentary instrument when he clearly was not
intended to be so covered should not be permitted and we do not view this as
doing any great violence to the intent and purpose of our adoption laws.
3. 2 ways of stopping son’s wife from taking
a. (1) stranger to the adoption rule: makes adopted child only able to
adopt from adoptive parent but not gifts from others in the family, it
does not flow down like it would to natural child unless proven to
override it
b. (2) intent of tedtator needs to be carried out: letting wife inherit would
be straying from intent as it is clear what decedent wants
4. Onlu give inheritance to people the decedent contemplated giving it to, not to
adopted wives because this was not contemplated by the D
5. Since rule at time of case was stranger to adoption rule, adopted children were
not included in gifts
iii. O’Neal v. Wilkes
1. Facts: Hattie’s mother died, and she lived with an aunt for four years after
mother’s death. Then she was given to a woman in Savannah, Georgia to raise
her. Then she was taken to another paternal aunt’s home. This aunt let another
couple adopt her. She lvied with the couple until the father died. An
administrator was appointed to decedent’s estate and child denied any interest.
2. Rule: A contract to adopt may not be enforced unless it was entered by a person
with legal authority to consent to the child’s adoption.
3. Child loses because ther had to have been an agreement between the natural and
adoptiveparent, nad here the individual di dnot have authority to authorize the
adoption
4. The law requires an adoption contract
5. If the child had the kind of relationship required to authorize adoption, she
probably would not have needed the adoption

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 XII. Post-Humous Children
a. Uniform parentage act establishes rebuttable presumption that a child born to a woman within 300
days after the death of her husband is a child of that husband
b. If child born to wife within 280 days after husband’s death, child is presumed his and is his heir
c. If born more than 280 days after his death, burden shifts to child to prove parentage
d. There is a trend toward allowing posthumous proof of paternity by DNA evidence
e. TN rule: if conceived before death, they take as if lived with D alive 31-2-108
XIII. Non Marital Children
a. All states permit inheritance now by nm father which traditionally not allowed
b. Must establish paternity
XIV. Reproductive Technology Children
a. Born and concerned after death of one or both of child’s genetic parents
b. Since marriage terminates at death, a posthumously conceived child is necessarily a non marital
child
c. Cases
i. Woodward
1. Facts: husband diagnosed with leukemia, thought he might be sterile, gave
sperm before treatments. He died, wife used sperm and had twin daughters.
2. Rule: In limited circumstances, a child resulting from posthumous reproduction
may enjoy inhertitance rights of issue under MA law.
3. Considering best interest of child, state’s interest in orerly admin of estates, and
reproductive rights of genetic parent and question of father’s consent
4. Father must affirmatively consent in writing or by clear and convincing
evidence to posthumous reproduction and support any resulting child, child must
be in utero within 36 months or born not later than 45 months after the father’s
death
XV. Opposite Sex Couples and Surrogacy
a. Majority rule is that k governs, must perform in state where it is legal
b. States have different rules governing surrogacy agreement because state has an interest in
protecting mother, child, and intended parents
c. 2008 UPC says thata parent is the birth mother and someone else who assists in reproduction and
is part of child’s life within 2 years
d. UPC 2-121 says in absence of court order to contrary, surrogate does not have parent child
relationship with child unless no one else does. An intended parent of child has a parent child
relationship with child if person functioned as a parent of this child within 2 years of the child’s
birth
XVI. Advancements
a. At common law, any lifetime gift from D to child wasa presumed to be advancement of child’s
intestate share
i. Burden on child to prove D didn’t mean to gift to be counted against child’s share of
estate
ii. Idea that parent wanted to equally distribute between children and could only be done if
lifetime gifts taken into account
iii. If child predeceased parent, what parent had given child is deducted from shares of
child’s descendants if other children of parent survive
iv. When calculating this, add what was given during lifetime to the estate and divide it by
the number of takers, then subtract the share given from the specific taker’s share
b. Modern: many states have reversed CL presumption of advancement
i. Lifetime gifts now presumed not to be an advancement unless it is shown to have been
intended as such
ii. UPC requires intention to make an advancement be declaring in writing signed by parent
or child
1. If child doesn’t survive parent, advancement not taken into account in
determining child’s descendants shares
c. Will can contain provision instructing certain lifetime gifts and distributions be taken into account
when making later distributions

10
 Simultaneous Death
I. Background
a. USDA was old standard
i. Prove person survived decedent by sufficient evidence, and if cannot then neither
inherited from other
ii. If insured and 3rd party beneficiary died simult. Then proceeds distributed as if insured
survived beneficiary
b. 1993 USDA amended
i. Heir, devisee, or life insurance beneficiary who fails to survive their spouse by 120 hours
(5 days) deemed to have predeceased the decedent
ii. Survivorship must be established by clear and convincing evidence
II. Tennessee Statutes
a. T.C.A 31-3-102
i. Where title to property depends on priority of death and there is no sufficient evidence
that the persons have died other than simultaneously, then the property of each shall be
disposed of as if the person had survived
b. TCA 31-3-103
i. Where 2 or more beneficiaries designated to take successively under another person’s
disposition of peropty and there is no sufficient evidence that they have died other than at
the same time, the property shall be divided into as many equal portions as there are
successive beneficiaries and these shall be distributed respectively to those who would
have taken in event that each designated beneficiary had survived
c. TCA 31-3-105
i. Where insured and beneficiary have died and no sufficient evidence to show it was other
than simult. Proceeds shall be distributed as if insured survived beneficiary
d. TCA 31-3-120
i. When individual fails to survive D by 120 hours they are deemed to have predeceased D.
if it is not established by C and C that devisee survived D by 120 hours, it is deemed that
such individual fails to survive for the required period.
Bars to Succession
I. Unworthy Heirs
a. Essentially slayer rules and voluntary disclaimers
II. Slayer Rule
a. Application of law of restitution and unjust enrichment
b. UPC 2-803 bars slayer from succeeding to probate and non probate property
c. Mahoney Case
i. Facts: Decedent’s wife shot and killed him. Decedent did not have any issue and was
survived by his wife and his parents. His father was estate administrator.
ii. Rule: In cases of slayers, the slayer is deemed a constructive trustee, and the trustee is
compelled to convey the property to the heirs or next of kin; there is an exception for an
insane slayer, or a slayer with a vested interest in the property to which entitled if no
killing had occurred. Slayer should not be permitted to improve his position by the
killing, but not compelled to surrender property to which he would have been entitled if
there had been no killing.
iii. Court notes 3 possible standards
1. (1) leave property in slayer’s hands in spite of the crime because otherwise
punishing the person twice for their crime
a. Rooted in feudal taking of land, considered primitive
2. (2) since (1) does not make people ahppy, (2) id not to give to slayer and to treat
slayer as though they predeceased the slayed person and property descends to
whoever would take next
3. (3) most popular: legal title goes to slayer but slayer is forced to hold the title in
constructive trust, they won’t manage property. any distribution of property goes
to entitled people as if trustee has predeceased
III. Disclaimers
a. TN says have to disclaim within 9 months

11
 b. Disclaim for taxes so if you disclaim instead of tranasfer you don’t have to pay income tax since
never had it
c. Disclaim for creditors, because they cannot reach disclaimed property in most states
d. Common Law
i. Intestate successor could not keep property from passing to him, would have to take it
and then transfer to next heir
e. Modern law
i. Disclaimer treated as having predeceased D
Wills: Due Execution
I. Wills Act
a. Provision in probate code of every state that prescribes rules for making valid will
b. Longstanding CL doctrine
c. Implements principle of freedom of disposition by ensuring T’s probate property distributed in
accordance with actual intent rather than presumed intent of intestacy
II. Policy
a. Worst evidence rule
b. Issue of authenticity
c. Wills act
i. Ensures standardized forms, impresses significant, protects T from manipulative
III. History
a. Wills Act
i. Only required 2 witnesses
ii. Required both W’s be present when will was signed
iii. Required will be signed at foot “subscription”
b. Statute of Fraud
i. Required written will signed by T in presence of 3 W’s for disposition of land
1. Didn’t have to present at same time as T, T didn’t have to sign at end of doc
IV. UPC 2-502 Execution; Witnessed or Notarized Wills; Holographic Wills
a. (a) [Witnessed or Notarized Wills] except as otherwise provided in subsection (b) and in Sections
2-503, 2-506, 2-513, a will must be:
i. (1) in writing
ii. (2) signed by the testator or in the testator’s name by some other individual in the
testator’s conscious presence and by the testator’s direction; and
iii. (3) either:
1. (A) signed by at least 2 individuals, each of whom signed w/in a reasonable time
after the individual witnessed either the signing of the will as described in
paragraph 2 or the testator’s acknowledgement of that signature or
acknowledgment of the will; or
2. (B) acknowledged by the testator before a notary public or other individual
authorized by law to take acknowledgments
b. (b) [Holographic Wills] a will that doesn’t comply w/ subsection (a) is valid as a holographic
will, whether or not witnessed, if the signature and material portions of the document are in the
testator’s handwriting
c. (c) [Extrinsic Evidence] intent that a document constitute the testator’s will can be established by
extrinsic evidence, including, for holographic wills, portions of the document that are not in the
testator’s handwriting
V. Core Formalities
a. Writing
b. Signature
c. Attestation
VI. Functions of Formalities
a. Evidentiary
b. Channeling
c. Cautionary
d. Protective
VII. Strict Compliance

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 a. Will must be executed in strict compliance with all formal requirements of applicable wills act
i. In writing, signed by T, 2 W’s, and any other requirements
b. Guards against false positive
i. Spurious finding of authenticity
c. Might create false negative
i. Establishing conclusive presumption of invalidity for imperfectly executed instrument
d. T.C.A. 32-1-104 Execution Requirements
i. The execution of a will, other than a holographic or nuncupative will, must be by the
signature of the testator and of at least two (2) witnesses as follows: 
1.  (1)  The testator shall signify to the attesting witnesses that the instrument is the
testator's will and either: 
a. (A)  The testator sign; 
b.  (B)  Acknowledge the testator's signature already made; or 
c.  (C)  At the testator's direction and in the testator's presence have
someone else sign the testator's name; and 
d. (D)  In any of the above cases the act must be done in the presence of
two (2) or more attesting witnesses
2.  (2)  The attesting witnesses must sign: 
a.  (A)  In the presence of the testator; and 
b. (B)  In the presence of each other
VIII. Attestation clause
a. Clause that recites will was duly executed in accordance with particulars of applicable wills act
b. This is not required in any state, but it creates a rebuttable presumption of due execution
IX. Cases
a. Groffman
i. Widow was decedent’s 2nd wife
ii. Will left decedent’s property in trust for widow’s property and remainder of estate to
decedent’s daughter and step-daughter
iii. Widow didn’t get what she thought she would, so she tried to overturn the will
iv. Widow and decedent were at a party and decedent turned to friends and asked them to
witness the will, lawyer was not present
v. Witness 1 went to the next room and signed
vi. Witness 2 when to the next room and signed after witness 1
vii. Testator had already signed the will
viii. Will was deemed invalid because it violated the presence requirement
b. Stevens
i. Facts: Mr. and Mrs. Casdorph took Homer Miller to the bank so he could execute his
will. At the bank, Miller asked Pauley, a bank EE, to witness the execution. After Miller
signed the will, Pauley took it to two other bank EEs for purpose of each signing will as
witnesses. They both signed the will, but they did not see Mr Miller sign the will, amd
Miller did not go with Pauley to the separate work areas. Miller died, and his will left
bulk of estate to Casdorph. Stevenes filed this action, they would share in estate under
intestacy.
ii. Rule: Mere intent by testator to execute written will is insufficient; actual execution of
written will must comply with the state Wills Act. Under WV Wills Act, will must be in
writing, signed by testator, and must make signature or acknowledge will in presence of
at least two competent witnesses present at the same tme and witnesses must sign will in
testator’s presence and each other’s presence.
iii. Here, witness did not actually see testator sign his will and he did not acknowledge his
signature to either witness
iv. The testator did not see either witness sign his will, and they did not acknowledge to
testator that their signatures were on the will, or acknowledge to each other
X. Presence Requirement
a. Line of sight test
i. Requirement that W’s sign in presence of T is satisfied only if T is capable of seeing W
in act of signing

13
 ii. T doesn’t actually have to see W sign but must be able to see them were T to look
iii. Exception for blind T: test is whether T would have been able to see witnesses sign if T
had sight
b. Conscious presence test
i. W is in presence of T if T through sight, hearing, or general consciousness of events,
comprehends that W is in act of signing
c. UPC
i. For T who directs another person to sign on T’s behalf, UPC requires conscious presence
XI. Signature Requirement
a. T required to sign will
b. Handwritten test containing T’s full name at end of doc will almost always satisfy
c. TN allows electronic signature
d. Signature by market, with assistance or by another can be sufficient
e. Order of signing
i. Generally T must sign will before W’s attest but if all sign as part of single transaction,
exact order of signing not crucial
f. In TN, you can sign a will and acknowledge it later, but have to acknowledge it to 2 W’s together
at same time, cannot acknowledge to 1 W at a time; this is also modern law
i. CL said no couldn’t do this
g. Subscription requirement
i. Some states still follow this
ii. If handwriting appears below signature, if done after T signed will, will admitted to
probate but last provision struck as ineffective
1. If done before T signed, will wouldn’t satisfy subscription requirement
XII. Interested Witness
a. Common law allowed will attested by interested W to be admitted to probate, but voided any W’s
share under will
b. Modern: most purge benefit that interested W would receive under will that is greater than what
received in intestacy
c. If will witnessed by sufficient number of disinterested W’s, interested W is supernumerary and
may take full devise
d. UPC doesn’t require that any witness be disinterested
e. Majority rule (TN): will can be probated even if there are interested W’s but interested W will lose
anything in excess of what would take in intestacy
f. Minority rule: interested witness loses all devised to them
g. T.C.A. 32-1-103 Interested Witness
i. b)  No will is invalidated because attested by an interested witness, but any interested
witness shall, unless the will is also attested by two (2) disinterested witnesses, forfeit so
much of the provisions therein made for the interested witness as in the aggregate
exceeds in value, as of the date of the testator's death, what the interested witness would
have received had the testator died intestate. 
ii. (c)  No attesting witness is interested unless the will gives to the attesting witness some
personal and beneficial interest.
XIII. Executing a will
a. Choice of law same as intestacy
b. Most states have statute that recognizes will is valaid if executed with formalities required by
either state where T was domiciled at death, state where will was executed, or state where T was
domiciled when the will was executed
c. Look at procedure in outline for executing will
XIV. Self Proving Affidavit
a. Affidavit (sworn declaration under oath) that all W’s make, swearing as to will’s due execution
b. 2 types under UPC 2-504
i. One step self proving affidavit
1. Combined attestation clause plus self proving affidavit, T and W sign only once
ii. Separate self proving affidavit
1. Affidavit affixed to will already signed and attested

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 2. Affidavit must be signed by T and W in front of a noraty after T and W have
signed the will
3. More states use this than one step affidavit
c. UPC 3-406
i. If will is self proved, questions of due execution may not be contested unless evidence of
fraud or forgery affecting acknowledgement or affidavit
1. This doesn’t limit contests on other grounds
d. TCA 32-2-110: affidavit of witnesses to prove the will (self-proving affidavit)
i. Any or all of the attesting witnesses to any will may, at the request of the testator or, after
the testator's death, at the request of the executor or any person interested under the will,
make and sign an affidavit before any officer authorized to administer oaths in or out of
this state, stating the facts to which they would be required to testify in court to prove the
will, which affidavit shall be written on the will or, if that is impracticable, on some paper
attached to the will, and the sworn statement of any such witness so taken shall be
accepted by the court of probate when the will is not contested as if it had been taken
before the court.
e. TCA 32-2-104: proof
i. (a) Written wills with witnesses, when not contested, shall be proved by at least one of
the subscribing witnesses, if living. Every last will and testament, written or nuncupative,
when contested, shall be proved by all the living witnesses, if to be found, and by such
other persons as may be produced to support it.
ii. (b) Upon petition of any interested party, the court, in its discretion, may permit the proof
of any subscribing witness who is outside of the state or county or who is unable to
testify in person, to be taken by interrogatories or deposition in the same manner as
provided in chancery cases. For the purpose of taking interrogatories or depositions a
photostatic copy of the original will may be furnished to the witness, or in the discretion
of the court, the original will may be withdrawn and used in the manner prescribed by §
32-2-103.
f. Case
i. Chastain
1. Facts: Decedent’s daughter filed petition for administration of his estate;
claimed he died intestate and that she was sole surviving heir; she sought
appointment as administrator of estate as well as waiver of bond and inventory;
Patterson’s requests were granted the day she filed petition, and letters of
administration were issued. Subsequently, two of Decedent’s grandchildren filed
a motion for bond, inventory, and accounting of decedent’s estate, alleging that
Patterson had falsely sworn to being sole heir, that Decedent had two
predeceased sons, and that 6 surviving issue of the sons were decedent’s heirs
and entitled to share of estate under intestacy. Patterson then deposited the two
page document with the trial court, which named decedent’s grandchildren and
great grand children and left them his knife collection and remaining insurance
money. Will left the remainder of his estate to Patterson and named her as
executrix. Decedent’s initials, witnesses initials, and date were on the first page
of the will. The second page had all three witnesses names, but not decedent’s.
Decedent’s and witnesses signed separate one page document that Patterson
submitted with the will.
2. Rule: A testator must sign the will, not a wholly separate document, courts will
sustain a will as legally executed if it can be done consistently with statutory
requirements, but may not ignore statutory mandates in deference to a testator’s
intent.
3. T did not sign on first page of will, only signed on the affidavit
XV. Safaeguarding Will
a. Ethical issues will attorney’s keeping wills, but generally should keep will in attorney’s vault
XVI. Ad Hoc Relief From Strict Compliance

15
 a. Some courts sometimes excuse or correct defect in execution to avoid harsh consequences of strict
compliance
b. Cases
i. Pavlinko
1. Facts: PAvlinko and his wife did not speak English well. They both had a
lawyer draw up their wills, but Hellen’s will was signed by the husband, and
Hellen signed the will prepared for the husband; they signed each other’s wills
2. Rule: Once a court starts to ignore or alter or rewrite or make exceptions to
clear, plain, and unmistakable provisions of the wills act in order to accomplish
equity and justice in that particular case, the wills act will become a meaningless
scrap of paper and door opened wide to fraudulent claims.
3. Court adheres strictly to due execution requirements and holds that will must be
inwriting and signed by T at the end, so will was null and denied probate
4. Court also said to decide in favor of residuary legatee would require the entire
will to be rewritten and titles substituted
5. In 8 states, anticipated beneficiaries are precluded from suing attorney in this
case, but in every other state could bring it
a. Idea that precluded based on lack of privity with the deceased
6. Language of will unambiguous, court caananot alter or rewrite to makes
exceptions to provisions of Wills Act, would make act meaningless
ii. Snide
1. Facts: Harvey and Rose Snide intended to execute mutual wills at a common
execution ceremony. Each executed the will intended for the other by mistake.
Snide offered the instrument Harvey actually signed for probate.
2. Rule: Testamentary intent attaches to testamentary scheme it reflects, instead of
irrevocably to the document prepared.
3. Court found that this was a case of genuine mistake; found that the provisions in
the will were identical other than their names
4. Court held T must have had testamentary intent and he did because he intended
to execute an identical document
5. Court found no risk of fraud here; doc was undoubtedly genuine
6. The holding from this case is very narrow, only applies to reciprocal wills where
mistake is names
7. Narrow ruling: only applies to indentical mutual wills simultaneously executed
with statutory formality
8. Substantial compliance pretty much only applies to switched wills
c. Curing Defective Execution and reformation in a switched wills error
i. Probate instrument D intended to sign but did not
1. Issue that instrument was not signed by D, probating unsigned doc requires
abandoning strict compliance for substantial compliance or harmless error
2. Probate will D actually signed and reform terms to make sense
a. If reformation had been allowed in above cases, court would have just
subbed correct name
XVII. Substantial Compliance (minority rule)
a. Key Q is whether manner in which instrument was executed satisfied purposes of Will Act
b. Test
i. (1) does noncomplying doc express D’s testamentary intent?
ii. (2) does its form sufficiently approximate Wills Act formality to enable court to conlude
that it serves purposes of Wills Act?
c. Case
i. In Re Ranny
1. T’s lawyer meant to include at end of will a one step self-proving affidavit, but
mistakenly used language of a two-step affidavit instead
2. When T and witnesses signed affidavit before notary who notarized it, they had
not first execute the will as the affidavit declared, so the sigatures did nto
comply with the requirements

16
 3. Court held will could be probated if it substantially complied to wills act with
clear and convincing evidence
4. Court probated will after finding that the conduct was close enough
XVIII. Harmless Error (minority rule)
a. Power to validate will based on evidence of intent
b. UPC 2-502
i. Although a document or writing added upon a document was not executed in compliance
with 2-502, the document or writing is treated as if it had been executed in compliance w/
that section if the proponent of the document or writing established by clear and
convincing evidence that the decedent intended the document or writing to constitute
1. (1) the decedent’s will,
2. (2) a partial or complete revocation of the will,
3. (3) an addition to or an alteration of the will, or
4. (4) a partial or complete revival or his formerly revoked will or of a formerly
revoked portion of the will
c. Cases
i. In re estate of hall:
1. Facts: Testator and wife drafted joint will, and asked lawyer if draft could stand
in as will until attorney sent them the completed version. Attorney said it would
be valid if they signed the draft and he notarized it. Wife testified that no one
else was in the office at the time to serve as attesting witness. The will was
signed and notarized without any witnesses present. After joint will was signed,
testator instructed his wife to tear up his original will. When testator died, his
wife offered the joint will for informal probate. Testator’s daughter objected to
informal probate and requested formal probate of original will.
2. Rule: In Montana, for a will to be valid two people typically must witness
testator signing and then sign the will themselves, but there is a provision if two
people do not properly witness the document, then it can still be treated as if
properly executed if the proponent of the document establishes by clear and
convincing evidence that the decedent intended document to be the decedent’s
will.
3. Court probates will because wife proved intent by clear and convincing evidence
since her husband instructed his wife to tear up the old will
ii. In Re Macool
1. Facts: woman wanted to change her will; she went to attorney and he drafted
changed will, but she died an hour after she left without seeing the drafted will.
2. Rule: For writing to be admitted into probate as.a will, proponent of writing
intended to constitute such a will must prove by clear and convincing evidence
htat the decedent actually reviewed document in question and gave their final
assent to it.
3. Here, court found there were discrepancies in note given to court that were not
included in T’s draft will; since no way to tell if these were significant omissions
or not, court held note should not be admitted to probate
4. This state did adopt the harmless error rule, but here failed by clear and
convincing evidence to show that this was T’s final intent
5. There is distinction between T altering her will and intending to make this her
final will
6. There is clear and convincing evidence of her intent to change her will, but not
that she intended this draft to be her final will
d. What can you leave out and still get relief?
i. Witnesses
ii. If you have at least 1 witness you are in a good position and you may even be okay if you
have no witnesses, but if you don’t have T signature or a written doc, then it is very hard
for court to accept missing requirements
XIX. Substantial Compliance v. Harmless Error
a. Substantial compliance

17
 i. Trying to majorly comply, just missing something, see how many of Wills Act met
b. Harmless error
i. Look at intent of T based on actions, no compliance but T’s intent
ii. Need clear and convincing evidence, not a checklist
XX. Electronic Wills
a. In Re Castro
i. Facts: Testator had his brother write and draft a will on his Samsung galaxy notes tab.
Three people witnessed it, and saw him sign it. The brother filed application to probate
after the testator died. No one contested the admittance of the will.
ii. Court found that definition of writing included a document on a phone
iii. Here the doc was electronically signed by T, and witnesses
iv. There was no attestation clause, so court found that it was not properly attested (almost
certainly incorrect that court held not properly attested because attestation normally just
means witnesses required to sign document) but court applied harmless error statute to
find that by clear and convincing evidence, T intended document to be his last will and
testament, it was signed in presence of 2 witnesses, and testator signed it
v. Note was also password protected and kept in the possession of the brothers
vi. Really was in strict compliance, but since court misapplied attestation (since attestation
clause not required for valid will), it applied harmless error
XXI. Notarized Wills
a. Only in a few states but allowed by UPC
XXII. Holographic Wills
a. Witten by T’s hand and signed by T
i. Doesn’t have to be attested by witnesses
b. ½ states follow them, TN does
c. Pros and Cons
d. Conditional wills are usually construed that condition can be ignored and will is valid even if the
condition does not happen
e. T.C.A. 32-1-105
i. No witness to a holographic will is necessary, but the signature and all its material
provisions must be in the handwriting of the testator and the testator's handwriting must
be proved by two (2) witnesses.
f. Cases
i. Kimmel
1. Facts: decedent sent a letter to his two sons, instructing that if anything should
happen to him, that he wants to them keep all the money in the bank, home, post
office stamps, and valuable papers.
2. Rule: a letter of testamentary intent is considered a will.
3. “if anything happens” was provision in the document which demonstrates
testamentary intent since apparent that gifts were to be given as dispositive gifts
4. “Father” was sufficient signature since it was method employed by him in
signing all letters and it was signed as a finished doc
ii. In re Gonzalez
1. Facts: Decedent went to visit family and wanted to prepare his will before he
left. He showed family two copies of a preprinted will form. He had handwritten
his testamentary wishes on the first copy, and one witness saw him sign the
document. No witnesses signed the document. Decedent also presented two
witnesses with blank copy of the form, and witness testified decedent was
planning on copying the information onto the blank form, and he asked three
witnesses to sign, and they did. Decedent became suddenly ill and died. Three of
decedent’s children petitioned to probate the will. Two of decedent’s children
moved for SJ that will was not valid holographic will.
2. Rule: the printed portions of a will form can be incorporated into holographic
will where trialc court finds testamentary intent considering all the evidence in
the case.

18
 3. Here, decedent’s handwritten words could be read in the context of the
preprinted words, so court found valid HG will
4. This cannot be admitted as an attested will because no witnesses had signed it, if
T signed it after witnesses, it would fail the wills act because the presence
requirement would not be met
a. Under UPC order of signing is not important, could be admitted as
attested will if T signed after witnesses on the same doc
5. Court discusses 2 approaches
a. (1) preprinted language and handwriting determine intent
b. (2) ignore preprinted words and handwriting alone must show T’s
intent
c. 3 generational statutes (See below) show how much of T’s handwriting
had to establish will
g. Signature and Handwriting Requirement
1. (1) first generation: requires holograph be entirely written, signed, and dated in
T’s handwriting; HG struck down even if included only 1 or 2 printed words
(really voids preprinted forms)
2. (2) 2nd generation: only the signature and material provisions of the will must be
in T’s handwriting; HG will should be valid even if immaterial parts like date or
introductory wording are printed or stamped;
a. Surplusage theory: handwritten portion of instrument should be given
effect as valid HG will if it makes sense without the printed text
3. (3) 3rd generation: material portions must be in T’s handwriting, can use will
form as evidence to interpret handwritten portions, can cite language of the form
a. Change from provisions to portions to ensure that words identifying the
property and devisee were in T’s own handwriting, but didn’t require
else
4. TN is a second generation jurisdiction
h. Extrinsic Evidence
i. In re estate of Kuralt (decided on harmless error)
1. Facts: Kuralt mailed holographic will to mistress leaving her property in
Montana. After that, he executed a formal will. After that, two weeks before he
died, he sent a letter to mistress again expressing his intent to leave her the
property.
2. Rule: The testator’s intent must be honored.
3. Court here applies harmless error standard and says there must be clear and
convincing evidence of T’s intent for doc to be his will
4. Court focuses on “inherit” and holds this makes it a will
5. If facts adequately demonstrate D intended letter to effect transfer of specific
property, but not all of his property, upon his death, letter is testamentary and
may be enforced as HG codivil to D’s will
Wills: Revocation
I. Background
a. Wills are ambulatory, and so subject to be changed until T’s death
b. Types of revocation
i. By writing or physical act
ii. Dependent relative revocation
iii. Revival of revoked wills
iv. Revocation by operation of law
II. Revocation by writing or physical act
a. Writing can be express or implied
b. Modern view is to treat a subsequent will that does not expressly revoke a prior will but
completely disposes of T’s estate as presumptively revoking prior will by inconsistency
i. if subsequent will does not make complete disposition of T’s estate, it is a codicil, and
any property not disposed of under the codicil is disposed of in accordance with prior will
ii. codicil: testamentary instrument that supplements, rather than replaces, an earlier will

19
 1. when inconsistencies between codicil and earlier will, codicil supersedes earlier
will
c. UPC
i. A will or any part thereof is revoked
1. (1) by executing a subsequent will that revokes the previous will or part
expressly or by inconsistency; or
2. (2) by performing a revocatory act on the will if T performed the act with the
intent and for purposes of revoking the will or part or if another individual
performed the act in T’s conscious presence and by T’s direction. For purposes
of this section, revocatory act on the will includes burning, tearing, canceling,
obliterating, or destroying the will or any part of it. A burning, tearing, canceling
is a revocatory act on the will whether or not it touched any words on the will
d. Tennessee
i. TCA 32-1-201
1. A will or any part thereof is revoked by: 
a. A subsequent will, other than a nuncupative will, that revokes the prior
will or part expressly or by inconsistency; 
b. Document of revocation, executed with all the formalities of an attested
will or a holographic will, but not a nuncupative will, that revokes the
prior will or part expressly; 
c. Being burned, torn, cancelled, obliterated or destroyed, with the intent
and for the purpose of revoking it, by the testator or by another person
in the testator's presence and by the testator's direction; or 
d. Both the subsequent marriage and the birth of a child of the testator, but
divorce or annulment of the subsequent marriage does not revive a
prior will.
e. Formality
i. Thompson v. Royall
1. Facts: Decedent executed a will and codicil; then instructed her attorneys to tear
it up, but decided to keep it as a memorandum if she decided to make another
will.
2. Rule: Revocation of will by cancellation within meaning of the statute
contemplates marks of lines across written parts of instruments or physical
defacement with intent to revoke.
3. Tearing up a document, without more, is insufficient to revoke, T must have
either mutilated, deface, or erased the text of the document
4. T would have won under the UPC because nothing in UPC requires writing to
deface the whole document, but in this state’s probate code, it did so T loses
5. Cout holds that since this was not destroyed or damanges, it did not satisfy
intention to revoke
f. Presumption of Physical Act Revocation
i. Harrison v. Bird
1. Facts: Decedent executed will, then instructed attorney to tear it up. Attorney
did and sent it back to decedent. After she died, the torn will couldn’t be found,
and beneficiary of will petitioned for probate of will.
2. Rule: if evidence establishes that decedent had possession of will before her
death but it wasn’t found among her personal effects after death, presumption
that she destroyed will, but it is rebuttable and burden of rebutting presumption
is on proponent of will.
3. Here, court deems will has been destroyed because it cannot be found, NOT
because it has been torn up
4. Tearing up still not enough to revoke will, but here, as it could not be found after
T’s death, there is a presumption that T destroyed it, and so she dies intestate
5. Presumption of revocation when a will last known to be in T’s possession
cannot be found or is found in a mutilated condition, law presumes it cannot be
found because T destroyed it with intent to revoke

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 6. This presumption is followed in TN presumption of destroyed if cannot find it,
this presumption is rebuttable
g. Harmless error in revocation
i. In re estate of Stoker
1. Facts: decedent executed will and named executor of his estate and
beneficiaries of estate. Someone objected and brought handwritten will that had
been executed after the formal will.
2. Rule: No particular words are necessary to show testamentary intent as long as
record demonstrates that decedent intended document to be his or her lsat will
and testament.
3. Original will directs money to trust, but daughter comes forward with 2005
handwritten will that revokes the trust
4. Ex-GF named in will gets nothing under the formal will, everything goes to his
kids
5. Court applied harmless error in holding that it was his intent since he had peed
on it and tried to destroy it
III. Dependent Relative Revocation
a. What is it? If T would not have revoked old will had she known revocation was ineffective,
revocation is disregarded and destroyed and prior will is probated
b. Restatement (third) of property
i. A partial or complete revocation of a will is presumptively ineffective if T made the
revocation
1. (1) in connection with an attempt to achieve a dispositive objective that fails
under applicable law; or
2. (2) because of a false assumption of law, or because of a false belief about an
objective fact that is either recited in the revoking instrument or established by C
and C evidence
c. Only applies where alternative will fails and can see language between the 2 or where mistake can
be proved by C and C
d. TN
e. Cases:
i. Laacroix v. Senecal
1. Facts: testator had prior will but then made codicil clarifying the name of
beneficiary in the prior will, and codicil was witnessed by husband of person
named in codicil, so codicil was ineffective.
2. Rule: When a testator repeats the same dispositive plan in a new will,
revocation of the old one by the new is inseparably related to and dependent on
the legal effectiveness of the new. Where intention to revoke is conditional and
the condition is not fulfilled, revocation is not effective. If testator cancels or
destroys a will with present intetion of making a new one and new will is not
made or made but is ineffective, presumption testator preferred old will to
intestacy, and old will will be admitted to probate unless evidence overcomes
presumption.
3. Mistake here was interested witness and T’s intent to change something but she
wasn’t able to change it
4. Mistake of her intention which was that codicil would completely amend the
will, but it doesn’t
IV. Revival of Revoked Wills
a. What is it? Governs reinstatement of previously revoked will
b. UPC 2-509 says that
i. If a subsequent will that wholly revoked a previous will is revoked by a revocatory act
the previous will remains revoked unless it is revived; the previous will is revived if it is
evidence from the circumstance fo the revocation of the subsequent will or from the T’s
contemporary or subsequent declarations that T intened the previous will to take effect as
executed

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 ii. If a subsequent will that partly revoked a previous will is revoked by a revocatory act a
revoked part of the previous will is revived unless evidence from circumstances of
revocation of subsequent will of from T’s contemporary of subsequent declarations that T
did not intended revoked part to take effect as executed
iii. If subsequent will that revoked previous will in whole or in part is revoked by another
later will, the previous will remains revoked in whole or in part unless it or its revoked
part is revived. Previous will or revoked part is revived to extent it appears from the
terms of the later will that the T intended the previous will to take effect
c. TN Revocation under TN law
i. Can revoke using another will, a holographic will, or other instrument complying with
wills act; can also revoke by inconsistency; can also revoke by physical act but cannot do
it in part
d. Question of revival arises usually when T executes W1; T then executes W2, which expressly
revokes W1 or does so by inconsistency; Later, T revokes W2, commonly by physical act; if
doctrine of revivsl applies, previously revoked W1 is valid (“revived”) without having to be re-
executed or republished by a later codicil
e. Revival under the UPC is that if a subsequent will wholly revoked the prior will and is itself
revoked by physical act, the presumption is that the prior will remains revoked; if a subsequent
will partially revoked the prior will is revoked by physical act, then the presumption is that the
previous will is revived; if a subsequent will (W2) that revoked a prior will (W1) is revoked by
another, later will (W3), then the prior will (W1) is revived to the extent indicated by later will
(W3)
f. Majority of states hold that upon revocation of W2, W1 is revived if T intended it to be
i. Intent may be shown from circumstnaces surrounding revocation of W2 or from T’s
contemporaneous or subsequent oral declarations that W1 is to take effect
g. Minority of states take view that a revoked will cannot be revived unless it is re-executed with T
formalities or republished by being referred to in a later duly executed will
V. Revocation by operation of law
a. In all states, divorce presumptively revokes any provision in D’s will for D’s divorced spouse
i. TCA 32-1-202: revocation by divorc
1. (a)  If after executing a will the testator is divorced or the testator's marriage
annulled, the divorce or annulment revokes any disposition or appointment of
property made by the will to the former spouse, any provision conferring a
general or special power of appointment on the former spouse, and any
nomination of the former spouse as executor, trustee, conservator or guardian,
unless the will expressly provides otherwise.
2. (b)  Property prevented from passing to a former spouse because of revocation
by divorce or annulment passes as if the former spouse failed to survive the
decedent but § 32-3-105 shall not apply. Other provisions conferring some
power or office on the former spouse are interpreted as if the spouse failed to
survive the decedent.
3. (c)  If provisions are revoked solely by this section, they are revived by the
testator's remarriage to the former spouse.
4. (d)  For purposes of this section, divorce or annulment means any divorce or
annulment that would exclude the spouse as a surviving spouse within the
meaning of § 31-1-102(b). A decree of separation that does not terminate the
status of husband and wife is not a divorce for purposes of this section.
5. (e)  No change of circumstances other than as described in this and § 32-1-201
revokes a will.
b. In most states, divorce does not presumptively revoke non probate transfers
i. UPC does but this is minority position
c. Marriage
i. Majority rule: premarital will remains valid despite subsequent marriage, but surviving
spouse whom D married after executing his will may take intestate share of D’s estate
unless will indicates omission was intentional or spouse is provided for in will
ii. Minority: marriage revokes a will

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 d. Birth of kids
i. Old rule: marriagea followed by birth of kids revoked will executed before marriage
ii. Majority rule: pretermitted child statutes give child born after execution of parent’s will
and not mentioned in will, share of child’s estate under UPC 2-302
Wills: Components
I. Integration
a. All papers present at time of execution and intended to be part of the will are trated as part of the
will
i. Usually obvious becuaase bound together, numbered, or sufficient connection of
language carrying over from one page to another to show progression
ii. Best idea to bind will and have T initial each page
b. Case
i. Rigsby
1. Facts: Decedent’s sister is appealing an order admitting one page holographic
will to probate. Second page was found in ledger but was not fastened to first
page. First page was signed, second page was not and was a list of personal
property and who to give to.
2. Rule: Where instrument offered consists of more than one sheet of paper, it
must be made clearly apparent that the testator intended that together they
should constitute the last will and testament of the testator.
3. Court says the 2nd page is not included in the will and said that where more than
1 page, it must be clearly apparent that T intended it to be part of his will
II. Republication by Codicil
a. Validly executed will treated as re-executed (republished) as of date of codicil
b. If T revoked will 1 with W2 but then executed codicil to W1, then W2 is revoked by implication
III. Incorporation by Reference
a. Allows writing in existence but not present at time of execution and not itself executed with
testamentary formalities to be absorbed into T’s will
b. Test
i. Writing must be in existence when will is executed
ii. Must be able to identify writing with sufficient specificity; and
iii. Must be clear T wants to incorporate by reference
c. Followed by majority of states
d. UPC personal property provision where T can dispose of PP by separate writing even if prepared
after will executed, TN does NOT follow this
e. Cases
i. Clark v. Greenhalge
1. Facts: Decedent duly executed a will, which included provision for
memorandum disposing of additional property. There was a memorandum, and
also a notebook listing property left to specific individuals. One of the property
pieces was a picture. Cousin refused to give picture to intended recipient
because he said the notebook was not incorporated by reference into testator’s
will since there was already a memorandum and he did not know about it.
2. Rule: properly executed will may incorporate by reference into its provisions
any document or paper that was not executed or witnessed, whether it is in the
form of a list or memo, if it was in existence at the time of the will and is
identified by clear and satisfactory proof as the paper referred to in the will.
3. Between time T created document and the time of the will, T changes several
things including who will get the painting
4. T makes 2 codicils to the will
5. T can make a list of property T wants to go to but this is not binding on executor
unless incorporated by reference to the will
6. Here, list begins before the will and T continues to change the list after the will,
so the whole notebook is going until T dies
7. Executor adheres to will and distributes some of property in memo, but not the
painting, to the friend

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 8. The memo comes in, but cannot get it in with incorporation by reference bc the
entire notebook was not in existence when the will was written
9. However, when T executed the codicils, it republished the will, at which point
the farm painting was left to the friend, so the memo comes in and the friend
gets the painting
10. If sufficient evidence establishes that an informal doc, such as list or memo, is
the doc referenced in the will, that doc may be incorporated by ref into will
provided it was in existence at time will was executed. If such doc was in
existence at time codicil was executed, and codicil ratifies language referencing
informal doc, the doc may be incorporated by reference
f. Incorporating printed text into HG will
i. Johnson v. Johnson
1. T, a lawyer, prepared 3 typewritten paragraphs stating that the document was
T’s will and making various bequests
2. The typed text was not signed by T or witnessed and it appeared to end mid-
sentence
3. Beneath the typed text, T wrote by hand: to my brother I give $10. T then
signed, dated the doc
4. Court held that the valid holographic codicil incorporated prior will by reference
and republished and validated the prior will as of the date of the codicil, which
gave effect to T’s intent
5. Goodwin says this case is wrongly decided and to not cite in support of position
IV. Acts of Independent Significance
a. UPC 2-513: Events of Independent Significance
i. A will may dispose of property by reference to acts and events that have significance
apart from their effect on the dispositions made by the will, whether they occur before or
after the execution of the will or before or after the testator’s death. The execution or
revocation of another individual’s will is such an event
b. Example:
i. T’s will devises the car she owns at her death to her nephew, N, and gives $1,000 to each
person in her employ at her death
ii. When will executed, T owns old Toyota; T trades it for BMW shortly before death (now
owns 50k car instead of 20k car)
iii. 1 yr before death, T fires 2 long-time employees and hires 3 new ones
iv. The new employees get the money and the nephew gets the BMW
V. Tennessee Statute:
a. T.C.A. 32-3-101
i. A will shall be construed, in reference to the real and personal estate comprised in it, to
speak and take effect as if it had been executed immediately before the death of the
testator, and shall convey all the real estate belonging to the testator, or in which the
testator had any interest at the testator's decease, unless a contrary intention appear by its
words in context.

Contracts Relating to a Will

I. Generally
a. Can exercise freedom of k to bind self to particular exercise of freedom of disposition at death
through k to make a will or to not revoke a will
b. K law, not law of wills applies; k beneficiary must sue under k law and prove valid k
c. Usually in premarital or divorce agreement
II. K to make a will
a. Example:
i. T agrees in k w/ A to leave everything to A at T’s death if A takes care of T for life. T
executes a will leaving her estate to A. Then, A changes and decides not to care for T. T
rescinds the k. Upon T’s death, is A entitled to take under T’s will?
ii. Court held A entitled to take under the will BUT A liable to T’s heirs in restitution
b. UPC 2-514

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 i. Contracts concerning succession
1. A k to make a will or devise, or not to revoke a will or devise, or to die intestate,
if executed after the effective date of this article, may be established only by
a. (i) provisions of a will stating material provisions of the k,
b. (ii) an express reference in a will to a k and extrinsic evidence proving
the terms of the k, or
c. (iii) a writing signed by the decedent evidencing the k
2. The execution of a joint will or mutual wills doesn’t create a presumption of a
contract not to revoke the will or wills
III. K not to revoke a will
a. TCA 32-3-107: contracts to make or revoke wills
i. (a)  A contract to make a will or devise, or not to revoke a will or devise, or to die
intestate can be established only by: 
1.  (1)  Provisions of a will stating material provisions of the contract; 
2. (2)  An express reference in a will to a contract and extrinsic evidence proving
the terms of the contract; o
3.    (3)  A writing signed by the decedent evidencing the contract.
ii. (b)  The execution of a joint will or mutual wills does not create a presumption of a
contract to make a will, or to refrain from revoking a will.
IV. Cases
a. Keith v. Lulos
i. Facts: couple had mutual wills that left estate to each other and then to both children
equally. They also had a insurance policy that names both children as primary
beneficiaries, each with 50% share of proceeds. After husband passed, wife changed will
and insurance policy so that daughter (L) got everything.
ii. Issue: whether the original wills of the couple were irrevocable, reciprocal wills (whether
there was a contractual agreement to not change/revoke will)
iii. Holding: The wills were not irrevocable, reciprocal wills/there was no k
1. Keith provided no independent evidence or testimony to prove the contractual
nature of the wills
iv. Analysis:
1. Wills are generally unilaterally revocable and modifiable
a. Not irrevocable or unalterable just b/c it’s a mirror will
2. Proof of contractual nature of agreement between testators must be clear and
convincing
a. May expressly appear in language of the instrument, be supplied by
competent witnesses who testify to admissions of the testators, may
result as an implication from circumstances and relations of the parties
3. Other cases found reciprocal wills to be irrevocable ks b/c drafting attorney
testified the parties intended to draft reciprocal, irrevocable wills they didn’t
do that here
Wills: Capacity
I. Generally
a. Even where will was executed with proper formalities, it can be contested on grounds it was not
voluntary becase T incapacity or undue influence, fraud, duress, or fraud of another r
b. Unexecuted will can’t be probated but decedent’s frustrated intent can be honored in restitution,
preventing unjust enrichment, by imposing a constructive trust in favor of decedent’s intended
beneficiary
c. Goal: balance risk of giving effect to an involuntary act of testation w/ risk of denying effect to a
voluntary one
II. Mental Capacity
a. Required level is minimal
b. Testator must be capable of knowing and understanding in a general way (Cunningham test)
i. (1) the nature and extent of his property
ii. (2) the natural objects of his bounty
iii. (3) the disposition that he is making of that property, and must be capable of

25
 iv. (4) relating these elements to one another and forming an orderly desire regarding
the disposition of the property
v. (some states require you to understand the significance of the act)
c. Test for testamentary capacity is one of capability (not actual knowledge)
d. comparing capacity standards
i. most states: capacity to make a will requires less mental capacity than to make a k or
complete an irrevocable lifetime gift
ii. modern view: lower standard of capacity applicable to making of a will also applies to
the making of a revocable trust or other will substitute revocable until death
iii. a person may be under conservatorship therefore without capacity to execute a deed, but
the person may nonetheless write a valid will during a lucid interval
iv. greater mental ability required to make a will than is required for marriage
e. Cases
i. Wright
1. facts: Lorenzo B. Wright had Grace Thomas draw up his will. The will left his
property to his friend, daughter, and granddaughter. Additionally, Wright left
one dollar each to several other individuals. Wright passed away on May 2,
1933, and a petition to admit his will to probate was filed. Wright’s daughter
contested the will. At the hearing, Thomas and the two subscribing witnesses
testified that they each thought Wright was of unsound mind when he signed the
will. As support, Thomas testified that she thought the will was odd because it
gave one dollar each to several individuals. She also testified that she had
considered Wright to be odd for a long time. The two subscribing witnesses only
said they had thought Wright had not been of sound mind for a long time before
the will was made. Several other family members and acquaintances of Wright
also testified that they believed Wright was of unsound mind. The testimony of
these witnesses highlighted instances of abnormal behavior, including that he
ran out of his house only partially clothed on several occasions, he picked out
silverware from garbage, and he would fake his death to scare his neighbors.
2. issue: did he have capacity?
3. holding: yes; scattered abnormal behavior doesn’t indicate lack of capacity
4. Gives us the classic formulation of the capacity to make a will (see above )
Court takes a generous view; says he has capacity
5. here, no evidence that Wright didn’t understand or know about these
requirements
6. Witnesses to the will not seen as given valid testimony re his lack of capacity
(they were either lying when they were witnesses or are lying now)
7. Real estate agent drafting the will highly unethical (unauthorized practice of
law)
ii. Wilson
1. Facts: Katherine Lane, as executrix of Jewel Jones Greer’s will, offered her will
for probate. The will distributed the estate in equal shares to 16 blood relatives
and Lane, Greer’s caregiver before her death. Wilson filed a caveat claiming that
Greer lacked testamentary capacity. At a trial in Jasper County Superior Court,
the evidence included testimony that Greer was eccentric and feeble, but still of
sound mind at the time of executing her will. The evidence also showed,
however, that Greer may have been suffering from Alzheimer’s or senile
dementia and that a petition for guardianship of Greer was filed by Lane a few
months after the will was executed. The petition claimed that Greer was no
longer capable of managing her own affairs and her incapacity was caused by
Alzheimer’s-related dementia. An expert, whose report indicated that Greer may
have early to mid-stage dementia related to Alzheimer’s disease, admitted that
he had only reviewed her medical records and had not actually examined her.
2. Left property to 17 people; 16 were blood relations but the 17th was her caretaker
3. Intestate heir is the one who alleged Greer lacked capacity
4. Guardianship petition doesn’t indicate lack of capacity

26
 5. Was in early stages of Alzheimer’s but will still probated
6. Capacity calls for a fact-intensive inquiry
III. Insane Delusion
a. To prevail in insane delusion case, need to show:
i. Testator was under an insane delusion
1. Insane delusion=a persistent belief in that which had no existence in fact, and
which is adhered to against all evidence”
ii. The will or some part thereof was a product of the insane delusion
b. Cases
i. Strittmater’s Estate
1. Facts:This case is an appeal from a court order admitting to probate the will of
Louisa Street meter. Appellant's challenge the order on the ground that she was
insane. There was evidence from T’s physician that she had split personality
disorder. T had a good relationship with her parents but totally flipped out after
they died and said she hated her parents. She left her estate to the national
woman’s party.
2. Court found insane delusion since she left nothing to her blood relativs and
everything to the feminist party, and the condition was hating men
3. Insane delusion is that you have an idea that is so powerful you cannot see
anything beyond that idea
4. T’s idea here was that men were really bad, which is why she left money to
women’s party
5. T can set conditions, but this is very different because it is based on an insane
delusion
6. Concern of if T suffered abuse here
ii. Breeden
1. Facts: Spicer Breeden committed suicide on March 19, 1996, two days after he
was involved in a fatal hit-and-run accident. Shortly before committing suicide,
Breeden scribbled a brief holographic will giving “everything I have” to Sydney
Stone (respondent), specifying the addresses of his real property as well as
stocks, bonds, jewelry and clothes. Previously in 1991, Breeden had executed a
formal will and a holographic codicil. These documents left his estate to various
people, not including Stone. Nor did the documents include Breeden’s father,
Vic Breeden, Sr. (petitioner) and sister, Holly Connell (petitioner). Various
people, including Breeden’s sister, father and brother, Vic Breeden, Jr.
(petitioner), filed exceptions to the holographic will claiming Breeden lacked
testamentary capacity. Evidence was offered to show that Breeden had been
using cocaine and alcohol for several years prior to his death and that he had
consumed both cocaine and substantial alcohol on the night of his death.
Testimony indicated that Breeden had drastic mood swings and had paranoid
fears about threats against himself and his dog. Some handwriting experts
testified that Breeden possessed the motor skills to write his will and some of
Breeden’s friends testified that he had previously stated his intention to exclude
his family from his will.
2. Issue: did Breeden have capacity?/ If a testator was suffering from insane
delusions at the time of executing his will, but the delusions did not impact the
distribution of his estate and the testator was otherwise of sound mind, must the
will be set aside for lack of testamentary capacity?
3. Holding: No. Unless there is a causal relationship between the testator’s insane
delusions and the distribution of the estate, or the testator otherwise lacked a
sound mind, the will cannot be set aside for lack of testamentary capacity due to
insanity. Neither Breeden’s chronic substance abuse or the anxiety that led him
to commit suicide deprived him of testamentary capacity.
4. Problem w/ trying to probate the note as a holographic will?  not dated,
doesn’t mention death or anything about a will; but is helpful that he signed it
and wrote it all himself

27
 5. Family appeals on grounds lower court incorrectly applied the doctrines
6. Note that made in conjunction w/ suicide; suicide suggests not of sound mind at
that moment
7. Need to distinguish insane delusion from capacity
a. This case relies on insane delusion
8. Could pass test for capacity even while on a lot of coke
9. 2 elements of insane delusion
a. (1) Is there a factual basis for the fear or idea?/was it an insane
delusion?
i. Here, the family had hired people to snoop on him so there
was a factual basis for his fear/idea that someone was
watching him
ii. Majority rule: even if some basis in fact, if a reasonable
person would not have persisted in that idea then can be a
finding of insane delusion/ you may continue in court
iii. Minority rule: there must be no basis in fact
b. (2) causation/did the insane delusion affect the will or part thereof?
i. Majority: does it materially affect the disposition?
1. If it doesn’t, then you lose on causation
ii. Minority: any unnatural disposition constitutes causation
1. Here, the natural disposition would have been to his
family
2. Any disposition that’s too far from the intestacy
statute will be deemed unnatural
c. Mental Capacity and Insane Delusion not mutually exclusive, meed sound mind anad absence of
insane delusion
IV. Undue Influence
a. influence that we think thwarts the other person’s autonomy (overcomes their free will and causes
them to make a donative transfer they would not have otherwise made)
b. To have undue influence in the law, you need, usually, some aspect of coercion (but not physical-
that would be duress)
c. Undue influence cases are very fact-intensive and since we assume the testator wanted to die
testate, the contestant has to show either direct or indirect undue influence
i. Direct undue influence: threatening to stop caring for them if they don’t leave you
everything
ii. Indirect undue influence: steering them to a lawyer who you know will put your interests
above the testator’s
iii. Also have to show confidential relationship (per UPC)
1. Is there a breach or abuse of trust?
2. Incl. fiduciary, reliant, or dominant-submissive relationships
d. Burden of proof
i. Must prove it directly
1. Show basically coercion/intimidation/manipulation
ii. Burden on proponent (the person wants the will to be probated) to show prima facie
evidence of due execution; burden then shifts to contestant to show lack of capacity
iii. Only those who stand to benefit if they successfully contest a will have standing
iv. R3d requires you show suspicious circumstances
v. Prevailing rule is that a contestant has burden of proving that the will was procured by
undue influence; trier of fact may infer undue influence from circumstantial evidence
showing that the donor was susceptible to undue influence, the alleged wrongdoer had an
opportunity to exert undue influence; the alleged wrongdoer had a disposition to exert
undue influence, and there was a result appearing to be the effect of the undue influence
e. Cases
i. Sharis
1. Facts: Spinelli (defendant) moved in with his elderly grandmother, Alice Sharis,
and her husband. During this time, Spinelli gained nearly complete control of

28
 Alice’s checking account. Alice also signed a durable power of attorney,
prepared by Spinelli, that gave Spinelli broad powers. Spinelli later contacted an
attorney and requested that he draft a will for Alice. The attorney did not meet
with Alice—he had a brief phone call with Alice, and then assigned the actual
drafting of the will to his associate. The associate communicated only with
Spinelli, not Alice. No attorney reviewed the terms of the will in person with
Alice. Spinelli took Alice to the nursing home where her husband was a patient.
Alice executed the will there, with nursing home staff as witnesses. Spinelli was
not present in the room at the time of execution. The employees who witnessed
the will did not observe any behavior that caused them to question whether
Alice executed the will out of her own free will. The will provided that, should
Alice’s husband predecease her, Alice’s house and all of the assets and property
within the house would go to Spinelli. The will also held that all of Alice’s stock
and securities were to go to Spinelli. Alice’s husband died shortly afterward, and
Alice died a year later. Before Alice’s death, nobody else in Alice’s family was
aware that she had executed a will. The trial judge found that Alice did not have
an especially close relationship with Spinelli; Alice actually questioned why
Spinelli needed to live with her and why he had stayed so long. One of Alice’s
daughters (plaintiff) brought suit, arguing that the will was invalid due to undue
influence.
2. Grandson exploits grandmother
a. Grandson was a fiduciary b/c POA
3. Court finds that grandson did exert undue influence
4. Might not have found undue influence if grandmother had communicated with
lawyer and shaped the will that way herself (would have been seen as
compensation for care)
ii. Moses
1. Facts: After becoming a widow for the third time, Fannie Traylor Moses
commenced a sexual relationship with her friend, Clarence Holland (proponent),
an attorney 15 years younger than her. Moses’ relationship with Holland
continued until her death. When Holland sought to probate Moses’ last will,
which devised most of her estate to Holland, her closest surviving blood relative,
an elder sister (contestant), challenged probate of the will claiming undue
influence. Holland defended against the undue influence claim primarily on the
ground that Moses had the “independent advice and counsel” of Dan Shell, the
attorney who drafted her will. Shell did not know about, and did not inquire
about, Moses’ relationship with Holland, with whom Shell had no prior
connection. Nor did Shell have any connection to Moses other than drafting her
will according to her wishes. Although evidence showed that Moses may have
been an alcoholic at the time, Shell testified that Moses was not intoxicated,
understood what she was doing and, prior to executing the will, had requested
corrections to ensure one of her more valuable properties went to Holland. Other
than inquiring as to Moses’ marital status, whether she had children, and the
value of her properties and suggesting she describe her property more
accurately, Shell did not otherwise advise or counsel Moses on her chosen estate
distribution. Testimony also indicated that Moses was a good businesswoman
who managed a commercial property, apartment buildings and a 480-acre farm
until her death. Testimony portrayed her as independent and indicated that her
lifestyle had estranged her from her sisters. Finding undue influence, the
chancery court denied probate. 
2. Holding: To overcome the presumption of undue influence where a testator
leaves her estate to a person with whom she has a confidential or fiduciary
relationship, must the attorney drafting the will have counseled testator
regarding disposition of her estate to the person with whom she has such a
relationship?  yes
3. Opinion is demeaning to Moses and maybe the dissent is more persuasive

29
 4. Addresses how lawyer has a fiduciary relationship and that raised questions of
undue influence
5. Having another attorney write the will didn’t cure the problem b/c attorney only
acted as a scrivener
6. They underestimated Moses but the case is important b/c it addresses the idea of
vulnerability
iii. Lipper
1. Facts: Sophie Block died at the age of 81, 22 days after executing her final will,
which left her estate to her two children from a second marriage, Frank Lipper
and Irene Lipper Dover (defendants), and disinherited her deceased son’s
children, Julian Weslow, Jr., Julia Weslow Fortson, and Alice Weslow Sale
(Weslows) (plaintiffs). Block’s son, Frank Lipper, an attorney and a beneficiary
whose inheritance was increased by the exclusion of the Weslows as
beneficiaries, drafted the will. Paragraph nine of the will explained that Block
was disinheriting the Weslows because she had a distant and unpleasant
relationship with her daughter-in-law and the Weslow grandchildren who did
not visit her and infrequently sent her cards or flowers, while her children, Frank
and Irene, took care of her and her husband who were in failing health. The
Weslows challenged the will claiming undue influence by Frank Lipper.
Evidence showed that Frank Lipper, in addition to drafting the disputed will, had
a contentious relationship with his deceased half-brother who was the Weslows’
father. Additionally, evidence showed that Frank lived next door to Block and
had a key to her house. The Weslows pointed to this evidence to assert that
Frank had the motive and opportunity to intercept cards and flowers they sent to
Block. The evidence also showed that the will was not read to Block before she
signed and that the recitations of her reasons for disinheriting the Weslows
contained inconsistencies. However, a witness testified that Block had told her
of her intention to disinherit the Weslows a few years prior to execution of the
will. Three other witnesses also testified that subsequent to executing her will,
Block said she intended to disinherit the Weslows for reasons consistent with
paragraph nine of her will.
2. Issue: Where contestants of a will have shown that a beneficiary of the will had
the opportunity and motive to unduly influence the testator’s testamentary plan,
must the contestants also prove that the beneficiary substituted his wishes for the
testator’s preferred testamentary plan?
3. Holding: Yes. Showing that a confidential relationship existed between the
testator and a beneficiary of the will where the beneficiary had the motive and
opportunity to unduly influence the testator’s testamentary plan is just a
preliminary showing. To prove undue influence and set aside the will, the
contestants must further prove that undue influence occurred by showing that
the beneficiary substituted his wishes for the testator’s intended testamentary
plan. Found that Frank did not exert undue influence
4. Suspicious circumstances
a. Frank had access to Sophie’s house and lived next door (had more
access)
b. Frank drafted the will himself and was also a beneficiary of the will
c. Would have been better to have an independent person draft the will
5. Article 8 makes it look like they expected the will to be contested
a. No contest clause
b. This wasn’t an effective no-contest clause b/c the grandchildren
weren’t going to get anything
c. Note: no contest clauses are NOT enforceable if there’s a colorable
f. Confidential relationship
i. Ordinarily person is free to favor his own interests to detriment of others, but sometimes
in confidential relationships, the law requires a person to be other regarding because of
potential for abuse of trust

30
 ii. Confidential relationship triggers presumption of undue influence
iii. Under restatement, confidential relationship embraces 3 distinct relationships: fiduciary,
reliant, or dominant-subserviant
1. Fiduciary: where confidential relationship arises from settled category of
fidicuary obligation; attorney in this type of relationship with client
2. Reliant: question of fact; contestant must establish that there was relationship
based on special trust and confidence, like if donor was accustomed to be guided
by judgment or advice of alleged wrongdoer or justified in placing confidence in
belief that alleged wrongdoer would act in donor’s interest; relationship between
financial advosr and customer or doctor and patient
3. Dominant-subserviant: question of fact; contestant must establish that donor was
subservient to alleged wrongdoer’s dominant influence; hired caregiver and ill
or feeble donor or between adult child and ill or feeble parent
g. Suspicious Circumstances
i. Can often be satisfied by showing that influencer procured new will
ii. Additionally trigger to presumption of undue influence
iii. Common examples
1. Extent to which donor was in weakened condition
2. Extent to which alleged wrongdoer participated in prep or procurement of will
3. Whether donor received independent advice from attorny
4. Whether will was prepared in secrecy or haste
5. Whether donor’s attitude toward others had changed by reason of their
relationship with the alleged wrongdoer
6. Where decided discrepancy between new and previous wills
7. Whether continuity of purpose running through former wills indicating settled
intent in disposition of T’s property
8. Whether disposition of T’s property is such that reasonable person would regard
it as unnatural, unjust, or unfair
h. In most states, if presumption of undue influence is triggered by suspicious circumstances or
confidential relationship, the burden shifts to proponent to come forward with rebuttal evidence
and in absence of such evidence, the contestant is entitled to JMOL based on inference of undue
influence arising from circumstances
i. Bequests to Attorneys
i. Presumption of undue influence in most states unless lawyer is closely related to T
ii. MRPC 1.8
j. Avoiding will contest
i. Look to outline p. 46
V. Duress
a. When undue influence crosses line into coercion
b. More physical component
c. Cases
i. Father Divine
1. Facts: testator Mary Lyon nine left and will which gave her whole estate to
defendant father divine he was the leader of the religious Colts and two to
corporate defendants who were connected with the Colts and to an individual
who was one of the colds active followers. The will was contested by the
testator’s first cousins. The well was probated under compromise agreement by
the terms of which the defendants received a large sound from the estate. After
making the well at the decedent said on several occasions that she wanted to
revoke the will and executed a new will where to first cousins would receive a
substantial portion of her estate, and that shortly before her death she had
attorneys draft any well in which the plaintiffs were named as we get tees for a
substantial amount, and that by reason of the foster presentations from executing
the new well, and before the decedents dad to see it again expressed her
determination executed a new will which favored their first cousins, and that the
defendants can start to kill and did kill her by means of a surgical operation

31
 performed by Dr. hybrid finance without the consent or knowledge of any of the
testator’s relatives.
VI. Fraud
a. In the execution
i. When misrep doc to T that T is signing
1. Giving T wrong doc to sign
ii. Misrep what will says
1. Telling T you changed disposition they asked for but actually didn’t
b. In the inducement
i. When willfully provide T with wrong info/ misrep
ii. Diff from undue influence because T retains free will here
c. Both forms often pled together
d. Test
i. (1) intent to deceive T
ii. (2) causation
1. Disposition would not have been the same or wouldn’t have been made at all
otherwise
VII. Tortious Interference
a. Must prove conduct was tortious in itself (UI, duress, fraud)
b. Not challenging probate or validity of will
c. To pled intentional intereference with expectancy of inheritances, must allege
i. (1) existence of expectancy
ii. (20 intentional interference with capacity through tortious conduct
iii. (3) causaction
iv. (4) damages
d. Cases
i. Schilling
1. Lower court said Herrera didn’t have to notify Schilling (brother) of his sister’s
death and probate notifies only those who would benefit under intestacy (he was
a collateral; there must have been people who were closer); he didn’t exhaust
remedies in probate
2. Since probate court didn’t offer remedy, brother sued in tort  intentional
Interference w/ expectancy of inheritance
3. Palsgraf: tort plaintiff sues in her own right for a wrong personal to her and not
as the vicarious beneficiary of a breach of duty to another
a. To have standing to bring a tort, must have experienced foreseeable
harm
4. Issue here is that harm to brother wasn’t foreseeable; he wasn’t the foreseeable
victim (he didn’t have a right to inherit, he just had an expectancy)
5. Makes claim against caregiver that he otherwise would have inherited
6. If had stayed in probate court, could have brought claim for undue influence
7. Held: Schilling’s claim NOT barred

Wills: Construction
I. Generally
a. Process of determining what meaning should be attributed to will; donor’s intent is controlling
consideration
II. Rules
a. Majority of states follow 2 rule
i. (1) plain meaning/ no extrinsic evidence
1. Extrsinic evidence may be admitted to resolve certain ambiguities but plain
meaning of words of will cannot be disturbed by evidence that T intended
another meaning
ii. (2) No reformation
1. Courts may not reform will to correct mistaken term to reflect what T intended
will to say

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 III. Cases
a. Mahoney
i. Facts: Helen A. Sullivan, an unmarried sixty-four year old school teacher, hired an
attorney 10 days before her death to draft a will for her. When he asked who she wanted
to leave the residue of her estate to and who her closest relatives were, she said she had
twenty-five first cousins who she wanted to share the residue equally. Her attorney
drafted a will that left the residue of her estate to her “heirs at law living at the time of my
decease . . . . to be divided among them equally, share and share alike.” The attorney read
the will to Sullivan and she signed it. However, when Sullivan died, her sole heir at law
was her maternal aunt. Some of Sullivan’s first cousins filed a petition for distribution of
a legacy, which the probate court denied, holding that the language “heirs at law” was not
ambiguous, and therefore testimony of Sullivan’s stated intentions could not be
introduced to prove the meaning of the language used in the will.
ii. Issue: Where the language of a will is not ambiguous or susceptible to different
meanings, may testimony be offered as evidence of the intention of the testator in
interpreting the meaning of that language?
iii. Holding: No. Unless there is a latent ambiguity in a will’s language, extrinsic evidence
of the testator’s intentions as to that language may not be offered to prove its meaning. 
iv. Will left the residue to the heirs at law living at time of decease  problem w/ this was
that her only heir at law was her aunt but outside evidence said she wanted to split it
equally between her cousins
v. No ambiguity here b/c “heirs at law” is a term of art and has a clear legal meaning
vi. It incorporates by reference the intestacy statute
vii. Cousins wanted to introduce the attorney’s notes to show was she really meant but court
holds that the external evidence can’t be let in (it says what is says)
viii. Majority rule!!  called the “plain meaning rule” or the “no reformation rule” or the “no
extrinsic evidence rule”
ix. Some room to argue that testator meant to leave property to her cousins based on line “to
be divided among them equally, share and share alike,” but this didn’t prevail
b. Cole
i. Ambiguity re how much money was supposed to be left to the friend since it said “two
hundred thousand ($25,00)”
ii. Number mix up happened when lawyer copied from a previous will (client had wanted
friend to get 25k)
iii. Court lets in the evidence from the attorney and ignores the distinction between patent
and latent ambiguities while doing so
IV. Ambiguities
a. Patent
i. Ambiguity is obvious on face of will language says “two hundred thousand (25k)”
1. Common law says no relief, bequest simply fails
2. Court confined to the four corners of will even if as a result the ambiguous
devise faials and property passes by intestacy
3. Courts increasingly inclined to admit extrinsic evidence to resolve patent
ambiguity
b. Latent
i. Only when the terms of will are applied to facts does it manifest
1. Common law granted relief for equivocation and personal usage
2. Equivocation: more than 1 person with same name, evidence let in to show court
there is more than 1 person with that name and then figure out the correct person
3. Personal usage:
a. Nicknames
c. Sometimes courts ignore the distinction and use a patent as a latent to let evidence in
V. Correcting Mistakes without reformation
a. Courts sometimes correct mistake under pretense of using extrinsic evidence to construe
supposedly ambiguous term
b. Cases

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 i. Arnheiter
1. Executor asked court to reform the will to correct address
a. If court refuses to reform the will the bequest would fail
2. Court applied falsa demonstration non nocet court said an erroneous
description should not vitiate the will
a. But is this really just a mere erroneous description?  doesn’t seem
like it since the exact address determines which property we’re dealing
w/; the court trivializes it so that it can grant relief
ii. Gibbs
1. Robert J. mentioned in will but they meant it to go to Robert W. and he had
never lived at address in will
2. Court says can disregard middle initial (and other “mere details of
identification”)
VI. Minoirty Rule: Reformation
a. Openly reform mistaken term in a will
b. V Growing number of courts willing to reform mistaken term in a will and to do so openly
c. UPC provides that court may reform terms of a governing instrument even if unambiguous, to
conform the terms to T’s intention if proved by C and C evidence what T’s intention was and that
the terms of governing instrument were aaffected by mistake of fact or law, whether in expression
or inducement
d. if language is unambiguous, need C and C evidence to overturn
e. if language is ambiguous, starts with preponderance of evidence, UPC says will only change
unambiguous wills with C and C
f. when language is clear, can treat intention to change will as a mistake like if died unexpectedly
before changed
g. unambiguous language that speaks to intent to change is a mistake of fact, not going to fix this \
h. Cases
i. In re Estate of Duke
1. Facts: testator prepared a holographic will when he is 72 years old leaving on
his property to his wife Beatrice Duke he was 58 years old. He also wrote that
his wife died at the same time as he dead that is the state was to be fully divided
with half donated to the city of hope in the name and memory of his sister and
the other have to be donated to the Jewish national fund to plant trees the well
appointed his wife as the executor of the only change ever made to the will was
the addition of him and his wife are green and all their assets for community
property. His wife died in 2002, but the will is not changes like the new
executor. Testator died in 2007 leaving a spouse or child. The two charities
petition the court to probate the will. However the Family moved for summary
judgment. The family does not challenge the validity of the will but rather assert
that the estate must past nine test and see because the testator did not predecease
his wife nor did they die the same moment and there is no provision in the will
for disposition of the estate in the event that the testator survived his wife. In
opposition to charities offered evidence to prove that the testator intended the
will to provide that in the event his wife was not alive to inherit the estate when
he died that the estate will be distributed to the charities.
2. Rule: and on ambiguous will may be reforms to conform to the testator’s intent
is clear and convincing evidence establishes that the will contains a mistake in
the testator’s expression of intent at the time the will was drafted and also
establishes the testator’s actual specific intent at this time the will as drafted.
3. Court differentiated aa mistake in rendering T’s actual intent at time he wrote
will from mistake in failing to subsequently modify will to account for
subsequent change in that intent
i. Reformation of a will requires C and C evidence of mistake in rendering T’s actual intent at time
of making the will

Lapse and Anti-Lapse

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 I. Applies
a. Even if a will is unambiguous and terms not affected by mistake, the gap between execution and
T’s death may cause interpretive challenges
b. If devisee does not survive T, devise fails and is said to have lapsed
c. Common Law rule
i. Gift made by will is subject to condition that devisee survive T unless T specifies
otherwise
d. However, nearly every state has enacted an antilaapse statute to prevent the lapse from occurring
e. Common law rule applies if the will does not provide otherwise and if no AL statute applies
f. If no AL, then it lapses
II. Lapse
a. If a specific or general devise lapses and devise falls into the residue of the estate
i. The executor will pay debts of estate and then whatever is left over is split between
beneficaires
b. If a residuary devise lapses, heirs of T take by intestacy
i. If only a share of a residuary devise lapses, such as when 1 of 2 residuary devisees
predecease T, the lapsed share passes by intestacy to T’s heirs instead of to remaining
devisees
1. No residue of a residue rule where dead resid beneficiary’s gift would pass by
intestacy and remaining resid would take their own share
2. If no no residue of residue, then the lapsed shares of the remaining residuary
devisees
a. TCA 32-3-112

c. Class Gift
i. If devise is to a class of people, and one class member predeceases T, the surviving
members of the class divide the gift
ii. a gift to a group of people who have something in common
iii. Presumptively a class if just use group label (ex: to my brothers)
iv. If want to be cautious: to my brothers, x, y and z, whom I intent to be treated as a class
v. If class gift to your sisters (x and y) and x is dead and y can show it’s class gift y gets
all of the devise
vi. If not class gift, would pass by anti-lapse statute (or by intestacy)
vii. Common law rule: class splits the gift
viii. Majority AL: is that deceased class member’s share goes to the dead class members
descendant
ix. Minority AL: deceased class member’s share goes to its descendants only if the person
was alive at time will was executed
x. Case
1. Dawson
a. Facts: testator has 1/5 interest in farmland that she wants to go to her
husband’s nephews (remainder goes to her friends); 1 of the nephews
predeceases; other nephew assumes he will get all of the 1/5 interest
(he thought it was a class gift); residuary legatees argue that deceased
nephew’s share should lapse and fall to them
i. Anti-lapse statute in this state doesn’t apply b/c it’s the statute
that requires the protected person to be descended from the
testator but the nephews obviously were not
b. Extrinsic evidence allowed in to clarify a latent ambiguity
i. Let in how she got land (from her husband) and that she
wanted the land to go back to her husband’s family
c. Holding: share of deceased nephew lapsed and fell into the residue
i. Found the nephews weren’t a class b/c there were more people
w/ same degree of relationship but they weren’t named in the
will as part of that group
xi. TCA 32-3-104: death of class member

35
 1. Where a bequest, devise, conveyance, transfer or gift is made to a class of
persons subject to fluctuation by increase or diminution of its number in
consequence of future births or deaths, and the time of payment, distribution,
vestiture or enjoyment is fixed at a subsequent period or on the happening of a
future event, and any member of the class dies before the arrival of that period
or the happening of that event, and has issue surviving when the period arrives
or the event happens, that issue shall take the share of the property that the
member so dying would take if living, unless a clear intention to the contrary is
manifested by the will, deed or other instrument.
d. Case
i. Russell
1. Facts: Georgia Hembree is appealing from judgment entered determining that
under Thelma’s will, all of the residue of her estate should be distributed to
Chester Quinn. Thelma died leaving a validly executed holographic will on a
small card, which left everything she owned to Chester and Roxy Russell. On
the back of the card, she left the gold and diamonds to Georgia. Chester was
close friend and companion of testator. Roxy was the tesator’s pet dog and was
alive when she executed the will, but died before the testator. Georgia was
testator’s niece and only heir-at-law. Plaintiff is petitioning for determination of
heirship. She claims that Roxy was the dog and that leaving ½ estate to the dog
was void and that she was entitled to it as only heir at law.
2. Court allows nieces to take dog’s share, T meant for this to go to person and
dog as tenants in common
3. Court finds latent ambiguity since they didn’t know who Roxy was
4. Gift to Roxy named void, Roxy’s ½ goes to niece
III. AntiLapse Statutes
a. There is presumed intent to defeat lapse
b. Three rules
i. Devisee must be descendant of T
ii. Devisee must be a descendant of T’s grandparents (majority rule) (includes first cousins)
iii. Devisee does not have to be related to T, beneficiary can be anyone
1. TN rule
2. Super minority rule
c. If property does not lapse, it goes to the deceased beneficiary’s issue
d. Opting out of anti lapse statutes
i. Traditionally, words of survivorship but that is no longer majority
e. TCA 32-3-105: death of devisee before death of testator (Anti-lapse statute)
i. (a)  Whenever the devisee or legatee or any member of a class to which an immediate
devise or bequest is made, dies before the testator, or is dead at the making of the will,
leaving issue that survives the testator, the issue shall take the estate or interest devised or
bequeathed that the devisee or legatee or the member of the class, as the case may be,
would have taken, had that person survived the testator, unless a different disposition
thereof is made or required by the will.
IV. Words of survivorship
a. Majority rule: can opt out of AL statute by words of survivorship
b. Minority and UPC: Do not establish an intention contrary to AL
c. Routolo v. Tietjen
i. Facts: Swanson died with a will that left half of his residuary estate to his stepdaughter,
Hazel Brennan, “if she survives me.” Hazel Brennan died 17 days before Swanson,
survived by her daughter, Kathleen Smaldone (defendant). Swanson’s heirs-at-law
(plaintiffs) challenged Smaldone’s right under the Connecticut antilapse statute to receive
the bequest that Brennan would have received if she had survived Swanson. The
Connecticut antilapse statute provided that if certain relatives, including a stepchild,
predecease the testator and “no provision has been made in the will for such
contingency,” then the issue of the predeceased devisee will receive the gift intended for
the predeceased devisee. 

36
 ii. Issue: does the CT anti-lapse statute apply to Hazel’s share? (if so, that ½ of the estate
would go to her daughter; if not, then that share would pass by intestacy)/Where a devise
in a will includes language of survivorship, such as “if she survives me,” does this
language adequately indicate that the testator intended to negate operation of the antilapse
statute?
iii. Holding: No. Language of survivorship alone does not establish that the testator included
this language to provide for the contingency that the devisee would predecease the
testator, making the antilapse statute inapplicable. 
iv. Q1: does Hazel fall w/in the protected class? (the group to whom the statute applies)
v. Most states don’t incl. step-children in anti-lapse statues that apply to descendants, but
CT is minority and incl. step-children
vi. Q2: is “if she survives me” enough to cut off the antilapse statute?
1. Court criticizes such language as boilerplate and cites assumption that people
want to avoid intestacy
vii. Court said anti-lapse statute applied anyway (took minority position); Hazel’s share went
to Hazel’s daughter
V. Analysis
a. (1) does an anti lapse statute apply?
i. Does the person meet the requisite relation to T?
1. If yes, distribute to beneficiary’s descendants
2. If no, is the gift part of a class gift?
a. If yes, reallocate the class member’s share among the other class
members
b. If no, is the lapsed devise specific or general?
i. It will fall into residue
ii. If no, is it residuary?
1. Does the state follow no residue of a residue rule?
a. If yes, distribute to T’s heirs by intestacy
b. If no, distribute to other residuary legatees
or if none, to heirs by intestacy
b. (2) AL statute doesn’t apply, but is there a class gift?
i.
Ademption
I. Generally
a. Applies to changes in property after execution of will
i. If will included specific devise of an item in property but the T sold or gave item away
before T’s death, it is subject to ademption by extinction doctrine of common law,
meaning that the devisee would not get anything and the gift would fall away
1. Only applies to specific devise like my car, my property at X
ii. Does not apply to general devise, so if T intends to confer a benefit out of general
property of the estate ather than to give particular asset, this is not adeemed and other
property must be sold to satisfy it
iii. Does not apply to demonstrative devise, which is a general devise that is payable from
specific source
1. 100k to be paid from proceeds of apple stok this is not adeemed
iv. Does not apply to residuary devise, which is the portion of T’s estate that is not otherwise
effectively devised by other parts of the will
II. Traditional Theory of Ademption
a. If specifically devised item is not in T’s estate, gift is extinguished
III. New intent theory of ademption
a. If specifically devised item is not in T’s estate, beneficiary may still be entited to replacement
value if beneficiary can show this is what T would have wanted
b. Recognized by UPC 2-606
IV. Cases
a. Anton

37
 i. Facts: Mary (testator) had devised ½ interest in duplex to Gretchen (step-daughter), but
in later age her mental capacity declined and to support her living expenses, her daughter
Nancy (acting under POA), started selling Mary’s assets to pay for retirement home for
Mary. When all other assets were sold and couldn’t access principal of the trust, Nancy
sold the duplex and started using proceeds to fund Mary. When Mary died, there was still
around $100k remaining from sale of duplex
ii. Issue: whether the sale of specifically devised property by attorney-in-fact (acting under
POA) before the death of the testator resulted in ademption of a specific property bequest
(does Gretchen have an interest in the 100k or has there been an ademption b/c of the
sale?)
iii. Holding: sale of duplex did not cause ademption to the extent of the proceeds remaining
at time of death
iv. Analysis:
1. “ademption occurs where a testator had knowledge of a transaction involving a
specific devise, realizes the effect of the transaction on his estate plan, and has
an opportunity to revise the will. Where these elements are not present, no
ademption occurs. The focus of analysis is on the testator and whether the
testator has made a deliberate decision not to revise the will, and not on the
nature of the agency causing the involuntary act.”
v. Mary did not have precise knowledge re the sale of the duplex, so no ademption b/c she
was not aware of the specific action

Abatement
I. Arises when estate lacks sufficient assets to pay D’s debts as well as all devisees
a. Executor must satisfy all of T’s debts first
b. First reduce residuary devisees share
c. Second, reduce general devisees share
d. Third, reduce specific and demonstrative devisees share and these are reduced pro rata
II. Process
a. If will is silent, default procedure is (1) exhaust residuary estate first; (2) exhaust general bequests
and devisees next; (3) exhaust specific bequests and devises pro rataa; pay off residuary legatee
very last
Non Probate Property
I. Generally
a. There are 3 ways other than intestacy that things can pass from 1 generation to the next
i. By will
ii. By operation of law (joint tenants with right of survivorship)
iii. By contract (trust)
II. Transfers by Contract
a. Includes insurance policies
b. Even though does not comply with the due execution requirements, we trust that insurance
companies have incentive to make it work
c. Revocable Trusts
i. Either revocable or irrevocable
ii. Resembles will since it can be drafted precisely to donor’s liking and is not inherently
asset specific but may be funded with any or all of donor’s property
iii. It is ambulatory
iv. Gives beneficiaries no rights until death of the donor
v. Can be created by deed of trust where settlor transfers to trustee the property to be held in
trust and on settlor’s death the trust property is distributed or held in further trust in
accordance with terms of the terms in interim, settlor is free to revoke trust and take back
trust property
vi. Can also be created by declaration of trust where settlor declares himself to be trustee of
certain property for his own benefit during his life and then remainder to pass at death in
accordance with terms of declaration
vii. Benefits of revocable trust

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 1. Not subject to probate
2. Privacy
3. Continuity in property management upon settlor’s death
4. Better for multistate estate planning
5. More difficult to succeed in contesting trust for lack of capacity or undue
influence
viii. Case
1. Farkus v. Williams
a. Facts: Albert B. Farkas died without a will, but certificates of stock in
Investors Mutual, Inc. (IMI) were found in a safe-deposit box after his
death. IMI held four declarations of trust that Farkas had executed and
submitted with his applications to purchase the stock. The declarations
of trust were identical except for the dates and provided that the stock
certificates were to be issued in Farkas’s name, “as trustee for Richard
J. Williams as beneficiary.” Williams (defendant) was an employee in
Farkas’s veterinary practice for many years. The trust declarations also
provided that Farkas, as settlor, was to receive all of the cash dividends
during his lifetime and that he had the right to change the beneficiary or
revoke the trust. As sole trustee, Farkas had the power to “vote, sell,
redeem, exchange or otherwise deal in or with the stock” and the right
as settlor to retain the proceeds of any sale or transfer. The declarations
further provided that Williams, as beneficiary of the trust, would
receive the assets of the trust upon Farkas’s death. However, the trust
would be automatically revoked if Williams predeceased Farkas.
Additionally, the declarations provided that any change or revocation
of the trusts was not effective as to the IMI stock unless and until
written notice was delivered to IMI. Farkas’s heirs-at-law (plaintiffs),
acting as administrators of Farkas's intestate estate, asked the court to
declare the declarations of trust testamentary. The heirs-at-law asserted
that Farkas retained complete control over the trust during his lifetime.
They further asserted that the trusts were invalid because they were not
executed with the required formalities of a will, thus making the shares
of IMI stock part of the intestate estate.
b. Issue: Is a trust an attempted testamentary disposition if the trust
beneficiary who receives the assets of the trust after the settlor’s death
also receives a present interest in the trust during the settlor’s lifetime
and the extent of the settlor’s control over the trust is not consistent
with absolute ownership?
c. Holding: A trust is not an attempted testamentary disposition if the
trust beneficiary who receives the assets of the trust after the settlor’s
death also receives a present interest in the trust during the settlor’s
lifetime and the extent of the settlor’s control over the trust is not
consistent with absolute ownership. Rather, the trust is a valid inter
vivos transfer. 
d. Grantor is, at start, also beneficiary and trustee
e. Issue: are the trust assets part of the probate estate? Did the settlor
actually give them away? Was enough done to create the trust?
f. Share of stock; F writes on it: for the benefit of W; F died; family tried
to say that no transfer was ever made (he didn’t surrender enough)
g. Holding: yes, transfer occurred. The fact that the paper never left F’s
control doesn’t matter b/c once he wrote “for W” on the share, he could
only take it back by certain procedures
h. He encumbered the property w/ certain formalities
i. This was important becaauase if it was in trust it would go to one
beneficiary and it if was a will it would go to another beneficiary
d. Inter vivos trust

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 i. A k between grantor and trustee enforceable by beneficiary against the trustee in a court
of equity
ii. Historically, 15th and 16th centirues in England had courts of equity and courts of law
iii. Trustee is an agent subject to very high standard of care
iv. When assets are transferred in trust to trustee, trustee holds in fee simple and court of law
can only trustee, but court of equity can see expected beneficiaries as well
v. Revocable trust also known as a testamentary substitute
e. Revoking or Amending Revocable Trust
i. Majority view that a revocable trust can be amended or revoked in any manner that
clearly manifests settlor’s intent to do so, unless trust specifically says a particular
method or amendment or revocation and makes it exclusive
ii. Cases
1. Patterson
a. Facts: Creates revocable trust; amends in 2006 to eliminate one of her
sons; lower court said invalid amendment
b. Holding: amendment good
c. There was no specific method described in the trust re how she was
supposed to change the trust
d. Issue: can you amend trust that is changing beneficiary’s interest w/out
first revoking it entirely
e. Prof. says this is landmark b/c…
f. UPC says can change revocable trust if changes it in accordance w/
trust terms or if no terms then can change however you want as long as
there’s clear and convincing evidence of testator’s intent to revoke
g. Compare w/ old law that said you gave the beneficiary a vested right
and so couldn’t change it unless got rid of trust
f. Constraints via law of wills
i. Cases
1. State Street
a. Re creditor’s rights
b. Decedent created a revocable trust and funded it w/ shares of closely
held corps; also executed a will that pours assets into the trust;
borrowed 70k from bank via unsecured loan; dies
c. Issue: can the bank recover from the trust since there’s no money in the
estate?
d. Holding: yes; if you can reach an asset in life you can reach it in
death
e. Wasn’t a fraudulent conveyance
f. Bank could have accessed the funds during life (b/c a revocable trust)
g. This is the majority rule
h. Also note: trust assets have longer SOL than probate assets
ii. Clymer v. Mayo
1. Mayo executed will, life insurance policy, retirement and made husband
beneficiary; later made new will and trust and again made trust primary
beneficiary and had residue pour over into residuary trust (“pour over will”) and
changes beneficiary under assets to be the trust ; trust agreement made 5 specific
bequests and the balance to go to husband for life then to her nieces and then to
charity
a. Residue mayo for life husband nieces charity
b. Later, divorces husband
2. Issue: is the trust valid?
3. Mayo’s parents are the one who bring this to challenge b/c they want the divorce
to revoke it all (They would inherit under intestacy)
4. Result: trust valid even though Mayo never funded it b/c it will be the
beneficiary of the life insurance
5. Holding: husband’s interest revoked by the divorce

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 a. Since his interest was revoked it went straight to the nieces
6. This result is the minority position
a. UPC supports it (divorce revoking non-probate assets)
7. Compare w/ majority rule: divorce won’t revoke Nonprobate instruments
g. Pour Overs
i. TATA (testamentary addition to trust act)
1. TN has adopted this
2. Provides: pour over of assets from will to a revocable trust regardless of whether
the trust is created before, concurrently with, or after the will
ii. If jurisdiction hasn’t adopted TATA, must use incorporation by reference (trust must
exist before will) OR acts of independent significance (make trust active)
1. Incorporation by reference method
a. Will can incorporate by reference a document in existence at the time
the will is executed (but not amendments to the document after the will
is executed)
2. Acts of independent significance method
a. Will can dispose of property by reference to a trust that disposes of
property transferred to the trust during life
b. Ok if trust not in existence when executed, but must be made and have
some property in it before testator’s death
3. ^neither of these methods would permit a pour over into an unfunded revocable
trust drafted or amended after execution of the will
h. Life Insurance
i. Term insurance
1. =k obligates insurance co to pay the named beneficiary if insured dies w/in
policy term
ii. Whole life insurance
1. Combines life insurance w/ savings plan; policy eventually paid up and no
further premiums owed
iii. Cases
1. Cook
a. Douglas and Doris (couple) get a divorce; no mention in the filings re
his life insurance policy (Doris was the beneficiary); Douglas stops
paying the premiums on it; sometimes when that happened the life
insurance co will just lower the value of the policy; policy says you can
only change beneficiary by notice to company but no one notifies the
company; Douglas later marries Margaret & has son; he later does a
holographic will in which he purports to bequeath policy them
b. Issue: who gets the insurance?
c. Holding: Doris gets it b/c he didn’t notify insurance co and the
insurance k governs
i. Majority position
d. 2 other ways the son could have prevailed and gotten the policy
i. UPC 6-101: unless the insurance k expressly precludes it, the
will could bequeath the policy (minority)
ii. UPC 2-804: divorce will revoke insurance k (minority)
i. Pay on Death Accounts
i. Multiple Party Bank Accounts
1. Joint survivor accounts, savings accounts, payable on death accounts, etc.
2. Tax reasons why people who aren’t married shouldn’t enter into tenancy in
common accounts (would both be paying tax on it)
3. When 2 people are sharing these accounts, 3 possible interpretations:
a. (1) either party is to use the acct during life and the survivor is to get
balance at death
i. Joint tenancy acct

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 b. (2) one party funds the trust but there’s an understanding that the other
not to use the money during life but will get the balance at funder’s
death
c. (3) A funds the acct and B is to use it during life but B is not to get the
balance at death
4. Question: who gets the money?
a. Majority: you presume donative intent (that the person putting the
money in the acct wants the other people to have to on death) unless
there’s clear and convincing evidence to the contrary
b. UPC: during life, a joint acct belongs in proportion to both parties w/
respect to their contributions unless we have clear and convincing
evidence otherwise
i. Pro rata ownership
ii. Reverses common law
5. Why are we ok w/ payable on death contracts not following the same formalities
as wills?  the institutional context gives people a sense of security
j. TCA 32-3-106: TN version of TATA
i. (a)  (1)  A devise or bequest, the validity of which is determinable by the law of this state,
may be made by a will to the trustee or trustees of a trust established or to be established
by the testator or by the testator and some other person or persons or by some other
person or persons (including a funded or unfunded life insurance trust, although the
trustor has reserved any or all rights of ownership of the insurance contracts) if the trust is
identified in the testator's will and its terms are set forth in a written instrument (other
than a will) executed before or concurrently with the execution of the testator's will or in
the valid last will of a person who has predeceased the testator (regardless of the
existence, size or character of the corpus of the trust). 
ii.  (2)  The devise or bequest shall not be invalid because the trust is amendable or
revocable, or both, or because the trust was amended after the execution of the will or
after the death of the testator. 
iii.  (3)  Unless the testator's will provides otherwise, the property so devised or bequeathed: 
1.  (A)  Shall not be deemed to be held under a testamentary trust of the testator but
shall become a part of the trust to which it is given; and 
2.  (B)  Shall be administered and disposed of in accordance with the provisions of
the instrument or will setting forth the terms of the trust, including any
amendments thereto made before the death of the testator (regardless of whether
made before or after the execution of the testator's will) and, if the testator's will
so provides, including any amendments to the trust made after the death of the
testator
iv.  (4)  A revocation or termination of the trust before the death of the testator shall cause
the devise or bequest to lapse.
Protection of Spouse
I. Generally
a. Marriage was traditionally viewed as partnership
b. In all but 1 separate property state, a SS is entitled to an elective or forced share which is typically
1/3
i. In separate property states, spouses earn all earnings and acquisitions from earnings
during marriage separately
ii. Stresses individual’s autonomy over her earnings
iii. In 40 of 41 separate property states, the surviving spouse is given an elective share of D’s
property
iv. Typically the spouse’s share is 1/3 of all D’s probate property plus certain non probate
transfers
c. In community property states, each spouse already owns all earnings during marriage in equal and
undivided shares
i. In these states, there is no elective share because surviving spouse already owns half
couple’s community property

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 ii. When spouse dies, community dissolves and deceased spouse owns ½ and SS owns ½
iii. Views marriage as economic partnership
d. Children
i. In US, surviving child does not have rights to mandatory share in the decedent parent’s
estate
1. It protects child who is accidentally omitted from will, but D can overcome this
by express language in will intentionally leaving child out
II. Common Law
a. Under common law, if titled in your name, it is your property and you control what becomes of
that property at death
i. Separate property
b. In all common law states, SS gets election against the trust, meaning can choose not to take what
is left in the trust and instead take what is given to them under the law, spouse then becomes
creditor of estate and is paid out of residue
III. Marriage as Partnership v. Marriage as Support
a. Marriage as partnership (prevailing view)
i. SS contributed to D’s acquisition of wealth
ii. Points toward giving SS ½ of D’s property acquired during marriage, mirroring outcome
of community property state
iii. Economic rights of each spouse are seen as deriving from unspoken marital bargain
under which partners agree that each is to enjoy a ½ interest in fruits of the marriage
b. Marriage as support obligation
i. Justifies smaller percentage than partnership but it is applied to all of D’s property
IV. Accepting a life estate
a. Once elective share amount is determined, SS usually is credited with value of all other interests
received under the will
i. If amounts do not satisfy the elective share, then difference must be made up by pro rata
contributions from all other beneficiaries, which is majority rule, or from residuary estate
b. Under partnership theory, SS does not have to accept the life estate D left SS in partial satisfaction
of the elective share
i. Idea that SS should have complete dominion over survivor’s share of partnership
property
ii. Majority rule that if SS renounces life estate and elects fee simple sharae, she is not
charged for value of the life estate
c. Under support theory, SS does have to accept life estate D left SS in partial satisfaction of elective
share because SS requires support only during life
V. Cases
a. Sullivan
i. Husband makes inter vivos trust and makes himself sole trustee; wants it to go to 2 guys
at his death and said he intentionally disinherited his wife and wants residue of estate to
go into inter vivos pour-over trust
ii. Wife tries to argue that the trust is an invalid testamentary instrument; says not executed
w/ formalities required under the wills act and as a will substitute it cannot work
1. (this is before the UTATA so couldn’t have fallen back on that)
iii. Wife says she wants to elect against the trust and the will (saying spouse w/ right of
election is creditor)
iv. Holding: spouse w/ right of election can access trust in the same way creditors can; if the
trust retained control over the trust during his life and could use the assets of his own
trust for his own benefit-the trust is included in the estate assets for purposes of the right
of election
v. Court says trust was not testamentary in character and that husband created a valid inter
vivos trust; precedent denied surviving spouse’s right to reach asset’s in decedent’s trust,
but the court said they would abandon this rule for the future rule that assets of inter
vivos trusts be considered as part of the estate subject to elective share; Policy that
divorced spouses should not be treated the same as spouses who remained married at the
time of D’s death

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 b. In Re Myers
i. K dies in 2009; H survives her; assets incl. 3 POD accts that she leaves to the daughters;
leaves real estate and other assets to H (they owned as joint tenants); H elects against the
will
ii. Issue: are the POD assets supposed to be included in the estate assets for purpose of
spousal right of election?
iii. Holding: POD assets not included (the legislature has amended the statute to incl. certain
things in estate such as revocable trust but no mention of POD accts so deferred to
legislature)
iv.
VI. TCA 31-4-101: right to elective share
a. (a) 
i. (1)  The surviving spouse of an intestate decedent who elects against taking an intestate
share, or a surviving spouse who elects against a decedent's will, has a right of election,
unless limited by subsection (c), to take an elective-share amount equal to the value of the
decedent's net estate as defined in subsection (b), determined by the length of time the
surviving spouse and the decedent were married to each other, in accordance with the
following schedule: 
ii.   (2)  For purposes of determining the total number of years to be applied to the
computation provided in subdivision (a)(1), the number of years persons are married to
the same person shall be combined. The years do not have to be consecutive, but may be
separated by divorce. All years married shall be counted toward the total number of years
for purposes of this section. 
b. (b)  The value of the net estate includes all of the decedent's real property, notwithstanding § 31-2-
103, and personal property subject to disposition under the provisions of the decedent's will or the
laws of intestate succession, reduced by the following: secured debts to the extent that secured
creditors are entitled to realize on the applicable collateral, funeral and administration expenses,
and award of exempt property, homestead allowance and year's support allowance. The net estate
does not include any assets over which the decedent held a power of appointment, whether
exercised or not, unless the decedent exercises the power of appointment to direct the assets to be
paid to the decedent's personal representative for administration as part of the decedent's probate
estate. 
c. (c)  After the elective-share amount has been determined in accordance with subsections (a) and
(b), the amount payable to the surviving spouse by the estate shall be reduced by the value of all
assets includable in the decedent's gross estate that were transferred, or deemed transferred, to the
surviving spouse or that were for the benefit of the surviving spouse, but excluding the homestead
allowance, exempt property and year's support allowance. For purposes of this subsection (c), the
decedent's gross estate shall be determined by the court in the same manner as for inheritance tax
purposes pursuant to title 67, chapter 8, part 3, except that the value of any life estate or trust for
the lifetime benefit of the surviving spouse shall be actuarially determined.
d. (d)  The elective-share amount payable to the surviving spouse is exempt from the claims of
unsecured creditors of the decedent's estate and, notwithstanding § 30-2-614(b) or (e), shall not be
allocated to any United States or any state estate, inheritance or other death transfer tax if the
elective share amount qualifies for and is used as a marital deduction in determining the decedent's
death tax liability under any applicable estate, inheritance or other death transfer tax statute.
Trusts and Trustees
I. Generally
a. A trust is a k between the grantor and the trustee enforceable by beneficiary in a court of equity
b. Trust is all about the trustee
c. Revocable trust: will substitute
i. During the life of the grantor, the grantor has the right to revoke it or change it and has
right to the $
d. Irrevocable trust
i. Trustee usually professional manager (manages the assets; distributes assets to
beneficiaries in accordance w/ the terms)
ii. Meant to be a safety net for the family

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 e. Beneficiaries are vulnerable; depend on trustee and can be harmed by trustee’s malfeasance
f. Over time, powers of the trustee have been broadened
g. This area of the law still very moralistic
h. Pg 395: fiduciaries held to the highest standard of honor
II. Application
a. 3 parties
i. Grantor/settlor/donor
1. Person who creates the trust
2. Usually source of funds that go into the trust
ii. Trustee
1. Responsible for managing assets in trust and distributing trust assets to
beneficiary
iii. Beneficiary
1. Named in trust
b. Rules of trust meant to protect beneficiary
III. Cases
a. Hartman case
i. G has a will; will contains a trust; G names 2 sons in laws to be executor and trustee
ii. Directions in instrument to sell farm and divide the proceeds equally; sold the farm to a
beneficiary but the beneficiary is buying it for the wife of the trustee (trustee basically
deemed to have bought the property)
iii. Plaintiff tries to claim that sale was done fraudulently (it wasn’t) BUT plaintiff CAN void
the transaction by claiming that they violated duty of loyalty by engaging in self-dealing
iv. Wrong b/c as fiduciary shouldn’t put yourself in a position to benefit personally
v. Takeaway: cannot self-deal as trustee
vi. Facts of transaction (like if you paid a fair price) don’t matter
1. 3 exceptions:
a. (1) If no one else would be willing to buy the land, for example, can get
the court to authorize it, or
b. (2) if settlor authorizes it in trust agreement it’s ok too, or Must be a
very specific authorization
c. (3) do full disclosure and get all other beneficiaries to approve and then
get court to bless it too
b. In re Gleeson’s Will
i. G named Colebrook trustee but also leases farmland to him while living
ii. Held: C’s good faith and honesty and the fact that the trust didn’t lose anything by the set
up didn’t matter; C was guilty of self-dealing b/c must be either trustee or beneficiary, not
both
iii. Also an issue b/c no way to pursue recourse if breach of fiduciary duty b/c you are the
guarantor
iv. No further inquiry rule
1. If you’re deemed guilty of self-dealing, the no further inquiry rule kicks in
there’s no further investigation and you have to go to court
c. Rothko
i. Estate included around 800 paintings;
ii. Primary beneficiary was Rothko Foundation
iii. Named 3 guys as executors: R, S, L
iv. Court said what they did was manifestly wrong and indeed shocking
1. w/in 3 weeks they self-dealt by selling 90% of the artwork and sold for way
underprice then went to art gallery and the executors received a large amt of the
commission
v. daughter brought the suit under old statute; if you left more than ½ your estate to charity
your family could bring suit to retain more of it
vi. Rothko foundation not the plaintiff b/c represented by AG; the 3 executors also control
the foundation (this is why the foundation didn’t bring suit)
vii. Conflict of interest?  similar to self-dealing but diff remedy

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 1. Conflict b/c the executors are (1) an artist, (2) in charge of the art gallery, (3) a
professor, so at least 2 of the 3 had something to gain by underselling to the
gallery
2. L (the prof) was at fault b/c when you know that your co-executors are
breaching their duties you have a duty to intervene
3. cannot delegate; you are liable for what your co-trustees do
viii. Focus of this case: remedy what to the executors owe for this?  they owe the FMV of
the art that was siphoned out of the estate
ix. Old rule: if multiple trustees everyone had to agree in order to act
1. Would create a hassle to get all 3 to agree; can slow things down (this can be
detrimental to the trust when asset mgmt needs to be responsive)
x. New rule: majority
1. If you’re in the minority and you think the majority is making the wrong
decision, you object in writing and put it with the record of the trust (otherwise
you are just as liable as the rest of them)
IV. Duties of fiduciary/trustee
a. Loyalty
b. Care
i. Manage the trust like a prudent person would manage his own affairs
c. Impartiality
i. Mandatory trust (“all income to my daughter”) ***note that income is a term of art in the
world of trusts**
ii. Discretionary trust (you make distributions at discretion of trustee to certain
beneficiaries) (ex: you ask trustee for money for new glasses)
V. Custodial and administrative functions
a. Duty to collect trust property
i. Ex: if racehorses in the trust, the trustee should educate self re how to care for racehorses
and if the accommodations for the horses are appropriate
b. Earmark the trust property
i. Label the property so that it’s clear that the property belongs to the trust
ii. Make sure it’s not comingled w/ trustee money (this is a breach, which would make the
trustee a guarantor)
VI. Exculpation clauses
a. Can you release trustee from liability in the trust agreement?
b. Presumptively unenforceable (cannot exonerate trustee from core duties; such duties are inherent
to the nature and purpose of a trust)

46