wills and trusts essay outline
Gingiss keeps a “conformed” copy, thats a text copy indicating who signed and where. What if A is single until more than 9 months after the interest is created. b. 2. Each witness signs & print & addresses by his signature. Ks to Make Wills: Majority: If a party leaves a will that’s not in accord with the K for that will, will will be probated but K law imposes constructive trust would be on the estate Via v Putnam (FL 1995 –p323): Minority view Pretermited wife takes before K Creditors who are 3d Party Beneficiaries of a Mutual Will K not to Revoke the will. x��[�o�8/�����VEQ�Gna I��.��b�>����v�-�$9Nﯿ�!%��i)�hbK3"��7C�f����{�xȦ���8���D�)g2��M�������������f��{��[�6��M{���v3=>F���1�=�$M��Χ�KZ�ƙ�t2��H�! Then either if #2 is destroyed, 1 is revived… or 3. Mitigated by Rule against Perpetuities: Puts an effective limit on the dead hand of 100yrs or so. The other ? Haynes v. FNSB of NJ – Old woman moves in with her daughter(1 0f 2), and using her living younger daughter’s attorney to redraft her will leaving more to the living side. You can’t use adult adoption to bind someone else’s estate. Participation by the beneficiary in procurement of the will 2. The court goes with the D. UPC allows proof that murder took place in probate, even if a criminal conviction was not obtained, and thus inheritance would not pass. Thus the will could not be executed. Devise – leaving real property to devisees Bequeath – leaving personal property to legatees For intestate succession – Real property descends to heirs, while personal property is distributed to next of kin. No one would restrict all of their assets in order to pay out $200 a month Brainard – future profits do not constitute a res This is the majority rule, and the minority rule is that as long as there’s intent, there’s a trust even with no res (see Speelman) If a person purports to declare himself trustee of an interest not in existence or if he purports to transfer such an interest to another in trust, no trust arises even when the interest comes into existence in the absence of a manifestation of intention at that time Speelman v. Pascal – Where Pascal had exclusive rights (a license) from the Shaw estate to make a musical version of Pygmalion, court held that Pascal could transfer an enforceable right to percentages to accrue to Pascal on the production of a stage or film version of a musical play based on “Pygmalion.” Here, plaintiff wins a share of the future royalties, which is the opposite outcome from Brainard Beneficiaries (Bs): equitable interests Trust needs one or more Bs to whom trustee owns fiduciary duty They can be unborn or unascertained at trust’s creation However, trust can fail if Bs are too indefinite to be ascertained at time trust goes into effect Clark v. Campbell – Where testator created a trust for the bequest for the benefit of his “friends,” the court assesses whether “friends” is a definite and ascertainable enough class of beneficiaries for this private trust (since refers to “trustees” in the ninth clause, cannot be said to be a gift), Held that the word “friends,” unlike “relations,” has no accepted statutory or other controlling limitations and therefore is not definite or ascertainable enough to qualify this as a private trust. Undue influence generally requires 3 prerequisites: 1. The presumption can often be overcome by evidence of Independent other Counsel But not always: In Re Will of Moses (MS 1969 –p188) Ct finds 3d party lawyer not independent enough to rebut presumption b/c lawyer didn’t investigate thoroughly LESSON for the Unwary: If ever asked to draft a will which does NOT go to the Natural Objects of Bounty ASK: Do you have such blood relatives Why are you disinheriting them Who is the guy this is all going it And put it in the will Red Flags for Undue influence Challenges: Age differences Class Differences Race Differences Same Sex In Re Kaufman’s Will (NY 1964 –p193): court upholds undue influence verdict where wealthy man left all for younger lover Alternatives for people in position of Moses and Kaufman Trust Higher std. Scope of Duty: Some states find it to express or disinherited B’s, others to any potential beneficiary. At the hearing the will must be proved by affidavit of the witnesses, or testimony. When she died, Greenhalge distributed property as per her amended wills, codicils, the memorandum, and some of the notebook. 5. Father claimed it was a custodianship, daughter (who won) claimed it was a trust Intent to make a gift means intent to impose the duties of a trustee Hebrew U. v. Nye – The difference between giving a gift and making a trust is that to intend to make a gift, you don’t need to intend to impose duties. ” This allows changes to the trust without getting witnesses. Court held the will invalid. It is possible to leave a will such that the testator can reference outside documents, and change them later without the formalities of a will, and have them incorporated into the will. UPC 2-507 – A will is revoked by subsequent will that revokes it, or by an act on the original will, such as burning it. Classical, English Per Stirpes (Divide at the first generation) 2. Wills and Trusts are often tested separately on the Multistate Essay Exam. B. Gingiss’s Elements: 1. 3. American, Modern (Divide at the first generation where someone is alive) 3. Probate code section 51 looks solely at the time of execution and attestation of the will. Chapter 3. Son lost. Sometimes now we do a single signature for both the will and the notary. To A for life, then to A’s widow, then to A’s descendants who reach 21. disabled. Independent advice (not the usual lawyer) 3. Langbien – 11. Formal: if not married, no rights, bar none. Sin: disincentive for cheating Difficulties of proof (still exist) Modern – can be rebutted by clear and convincing evidence (out at sea, etc.) A videotape does not qualify, even if the tape is signed & sealed. Additions to a will in many states require an additional signature at the bottom. Slayer retains his title to inheritance, statutes alone control. If he is adopted, he takes by intestacy anyway even if will is overturned. Incorporation By Reference (Much like 2, except the prior document is not a valid will. ) UPC 2-502 allows testamentary intent to be drawn from typed portions of a will. 3. Courts will appoint a guardian if none is listed in the parents’ will. (You can’t say “Gee, if we can’t find one, we’ll just probate the other. In Virginia, they are ? Shares of Ancestors & Collaterals If A dies w/o spouse or descendants, it goes to the descendants of A’s parents. Divide at first generation where there is someone alive Per Capita by Generation: About 11 States Begin at first generation where person is alive; combine shares of dead folks; distribute their shares equally among those alive in next generation Equally near, equally dear. Test for validity of POA If the class of beneficiaries is so described that some person might reasonably be said to answer the description, the power is valid as long as you name a donee (e.g., for “friends” is OK). State has interest in making males establish paternity Where a woman has kids, and then marries a man, the subsequent marriage presumption kicks in and says they are his kids. Debts like this all over… When they died the servants were neglected. That person received the bulk of the testator’s property 3. In the UK and a couple states, the revocation of a prior will is also invalid when the later will is revoked (so an earlier will can be revived this way. ) Republication by Codicil – Where a testator has a first will, then revokes it under a second, then makes a codicil to the first, the first is considered republished if such was the testator’s intent. Fiduciary Duty: Hotz v Minyard (SC 1991 – p66): Watch out when you are a “family” lawyer, you may have a fiduciary duty to a B and so be held to a higher STD, and thus be conflicted out of writing your client, T’s, will. The court in Wilhoit strikes down a payable on death designation in a K because it lacks the formalities of a will. Everybody was present at the law office for this will signing & got a copy. (Though list should have equaled symbolic delivery.) In a few jurisdictions, the lawyer cannot get his attorney fees in addition to the Rep fees. 2. the disposition he is making 3. how these elements relate so as to form an orderly plan for the disposition of his property . T \ˆ T \ˆ ˆÌ ó© • ˆÌ ó© ó© « j ôÈ Ğ T T LÌ \ˆ ˆ `쫺gà P† � Ò ÄË 2 lÌ 9Í 0 iÍ öË V ñÒ İŸ î ñÒ d LÌ h h T T T T ñÒ T LÌ 7‰ \ “Œ f ó© ù� ì å� 7‰ 7‰ 7‰ ®Ì ®Ì h h ä} Lƒ Ë© ( h h Lƒ Another law school course outline brought to you by: The Internet Legal Resource Guide HYPERLINK "http://www.ilrg.com" http://www.ilrg.com ILRG Law School Course Outlines Archive HYPERLINK "http://outlines.ilrg.com" http://outlines.ilrg.com LawRunner: A Legal Research Tool HYPERLINK "http://www.lawrunner.com" http://www.lawrunner.com OUTLINE DETAILS: Author: Anonymous School: University of Chicago School of Law Course: Trusts and Estates Year: Fall 2002 Professor: Adrienne Davis Text: Wills, Trusts, and Estates, 6th Ed. Death can be expensive. 3. To effectively limit this to the kids then married scenario, the UPC requires the husband to have his name on the birth certificate (from before marriage) and also subsequently undertake to support the child. Origin: 1540 Statute of Wills – Previously all property passed by primogeniture with significant incidents to the Lord. C. Components of a Will Integration, Incorporation by Reference, Act of Independent Significance, Repub. Estate of Alburn – (292) Alburn had a will drawn in Milwaukee, and a later will done in Kankekee Illinois. The court held that it was not totally unreasonable, she had money, and thus he may have had another reason for leaving her out of the will. Pour-Over Will – Will that lists a few bequests and leaves the rest to whatever revocable trust that you operate. The court held that the statute protecting surviving spouses was controlling. o each side. Legal custodianship is granted by the court 4. States moving away, and a number have adopted the opposite presumption, anything not expressly an advancement is a gift. Judicial approval is required to relieve Rep of liability unless statute or time limits protect him. She dies, leaving all to her “husband” which she doesn’t actually have. Every state has laws like this, UGMA (p. 133) Form instrument, easy and efficient, given $$ to X as custodian for Y. Adopted Children – generally given all the rights of blood children upon adoption, this tends to also remove rights of inheritance from blood parents. Doctor A. H. Marshall – Uber christian fellow who’s politics were quite nuts. Social Changes Blended Families Access to Private Law: Gay Marriages and succession.


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