WT things i keep missing

will execution vs will validity

• will execution: Writing. Signature, Attestation

• will validity: testamentary capacity (cunningham test) & intent; no UI,ID, fraud, duress

Interested Witnesses - consequences

• Common Law/traditional: entire will fails

• Majority Rule: will probated, but gift purged; many states purge portion of gift that exceeds what IW would’ve received in intestacy

• CA: gift not auto purged, but presumption that gift procured by duress, menace, fraud, or undue influence

• UPC: no interested/disinterested distinction; IW keeps full gift

cy pres

• only for CTs; applies if CT purpose impossible, impracticable, illegal, (UTC adds waste), or purpose unfulfilled; allows purpose to be modified as close as possible to OG’s

• TRADITIONAL: if specific purpose, don’t invoke cy pres; if general, do invoke

• MODERN: cts presume general charitable purpose

• T’s not constrained to put their money to the most efficient use; CP not applied to modify a trust for benefit of one county simply bc other counties had greater needs (buck trust)

NOTE — cts typically do favor CT and want to find CPs

If Fraud, duress, or UI found, what is the remedy?

constructive trust → person who received the property through wrongdoing = trustee and is legally required to hand it over to the person the testator actually intended to benefit, preventing "unjust enrichment"

no contest clause rule

• Majority/UPC: no contest clause unenforceable if contestant had probable cause to support claim (keeps gift even if challenge fails)

• Minority: clause unenforceable for forgery, revocation, or misconduct claims (regardless of probable cause); few states refuse to enforce NC clause entirely.

trust res req

• existent interest, not mere expectancy of future interest; intent to hold specific property in trust!!!

• if S promises to send $200 monthly and "binds" his estate to the obligation → "bind my estate" language INSUFFICIENT bc doesn’t manifest intent to hold specific property in trust

survivorship rules for anti lapse statute

• Common Law + CA (MAJORITY): Survival language = evidence T didn’t want antilapse to apply.

• UPC § 2-603: Survival words alone (“if he survives me”) do not prevent antilapse; reqs additional proof of contrary intent

ademption rules

identity theory (majority & CA): gift is extinguished (adeemed), and the beneficiary takes nothing

• Courts will sometimes avoid ademption by characterizing a bequest as general rather than specific, or by interpreting the will as of the time of death rather than at the time of execution.

intent theory (UPC/minority): beneficiary entitled to replacement (RP/TPP) that T acquired as replacement of adeemed gift OR any unpaid purchase balance (ie cash owed) owed at T's death from the property’s sale

what happens to community property if testator dies with a will but the will is silent about how they want to dispose their community property

CP passes thru intestacy! the property passes according to the state’s default intestacy statutes rather than the will, so surviving spouse takes all CP

Rule for Pretermitted Child

PC (= born or adopted after the will and not provided for in the will) takes intestate share

EXCEPTIONS: 1) omission is intentional; 2) child is provided for outside will; or, 3) T has other kids and left all/substantially all of his estate to other parent of the PC

what happens if beneficiary predeceases testator

traditionally, gift lapses (fails) and falls into residuary estate and pass to intestate heirs

modernly, most states have AL statutes; order = antilapse [kindred/issue], class gift, specific/general gift, residuary gift

purpose of order of intestate succession

prevent laughing heirs from inheriting; Administrative Efficiency

rule for precatory language in will/trust (eg, “i hope” or “i wish”)

generally invalid (unenforceable moral obligation - request ignored and recipient takes property as complete gift), UNLESS the settlor/testator was supporting the beneficiary during the settlor’s lifetime OR will/trust would result in unnatural disposition otherwise

UPC rule on TPP

3 reqs — will expressly refers to the sep list of TPP, list is signed by T, and list describes the items and recipients clearly

NO CASH!!!

how do elections work

• ONLY IN COMMON LAW (sep property states)

• If a decedent’s will leaves the spouse less than the law requires (usu. 1/3), the survivor can "elect" to renounce the will and claim their statutory share instead OR just keep what they receive under the will

• UPC - AUGMENTED ESTATES

charitable trust enforcement umbrella

• TRADITIONAL RULE: state atty general/public official, co-trustees, individuals w special interest can enforce; NEITHER SETTLOR NOR BENEFICIARIES can enforce

• MODERN RULE: everyone above + settlors can enforce; if settlor dies, executor of the settlor’s estate still has a right on behalf of settlor to enforce charitable trust; AND SUBJECT TO FED OVERSIGHT

Issues with enforcement of charitable trusts

AGs devote limited resources to enforcing charitable trusts and usually intervene only when disputes arise; enforcement can also be politicized

individual with special interest

someone who is entitled to receive a benefit under the trust that is not available to the general public; status as potential beneficiary alone = INSUFFICIENT

• standing reqs individual to be receiving a specific, tangible benefit!

• Employees DON’T qualify; benefit = improved work conditions, but thats incidental bc they’re an employee

  • employment is incidental to the trust's charitable purpose

EGs of ppl w/o special interest

Alumni Associations (alumni generally do not have a special interest in a charitable trust that provides scholarships to current or future students; alumni lack a specific, ongoing personal interest that would grant them standing to sue over the management of CT funds); Discretionary Beneficiaries; Competing Charities; general taxpayers

EGs of ppl w special interest

Residents of a Specific Institution (if CT for institution);

Federal Supervision for charitable trusts

IRS and Johnson Amendment (prevents nonprofits & charitable trusts from engaging in partisan political activity)

what is the Johnson Amendment

under fed supervision for CTs. nonprofits and CTs are barred from partisan political activity to ensure assets serve beneficiaries, not political causes

how can settlor revoke inter vivos trust

TRADITIONAL: inter vivos trust presumed irrevocable unless settlor expressly reserved revoke power

MODERN/UTC: inter vivos trust prsumed revocable; can revoke via codicil, will, any other method showing C/C/ evidence of intent

• NOTE — if trust has revoke method indicated, settlor doesn’t have to follow it unless trust says its the exclusive, only method

how are lifetime gifts made?

reqs intent, delivery (manual, constructive, or symbolic), and acceptance

if any of these fails, the gift fails and goes to residuary bens if any, and if not, via IS

semisecret trust remedies

• If SS trust appears in Inter vivos trust: Resulting trust → property returns to settlor or heirs.

• If SS trust appears in will/test. trust: property passes through residuary clause.

how to know whether a creditor can reach trust assets in general?

can reach either principal/income bens $$ if MANDATORY TRUST bc bens right to receive distro’s = property interest

cannot take from bens if DISCRETIONARY TRUST bc beneficiary does not yet have a property right—only an "expectancy"—and therefore has nothing for the creditor to attach

EXCEPTION: support and spendthrift trusts

honorary trust + outcomes

pet care or grave maintenance; non-charitable/capricious purpose; no ascertainable human beneficiary [remember diff rules for pet trusts!]; TRUSTEE HAS NO LEGAL DUTY (they can accept trust order by “honor,” but no legal obligation here

COMMON LAW RULE- if trustee declines, $$ goes to resulting trust

UTC RULE- if trustee declines, ct appts another trustee

remedies for trustee breach

disgorgement of profits, appreciation damages, surcharge, REMOVAL OF TRUSTEE (or co-trustee liablity), denial of compensation

DOL no further inquiry

applies to instances of self-dealing, not COI!!!

4 functions of trusteeship

Distribution Making disbursements of income or principal to the beneficiaries in accordance with the terms of the trust

Investment Implementing a prudent investment program suited to the trust's purpose and the beneficiaries' circumstances

Custodial Earmarking; non-commingling. Taking title and custody of the trust property and properly safeguarding it

Admin. bring claims, inform/account. Recordkeeping, bringing/defending claims, inform/accounting, and making tax and other required filings

name all trustee duties (11)

DOL; prudence; impartiality; account/inform; earmark; commingling; adhere to trust terms; invest; recordkeeping; good faith; monitor other co-trustees

resulting trust

undisposed-of property on a resulting trust for the settlor or the settlor's successors; 3 conditions

• express trust fails (eg, semisecret trust)

• excess corpus

• purchase money resulting trust (you buy something w ur $$ and put under someone else’s name)

what counts as separate property

gifts!!!!!!