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Trusts and Estates
Rutgers University, Newark School of Law
Hernandez, Tonya K.

Trusts & Estates Spring ’09 Tanya Hernandez

· CHAPTER 1 – Introduction to wills trusts and estates
o Historical perspective
§ power to transfer at death is not natural right
o Government cannot abrogate right completely
o It is a right to transfer not to receive
o Dead Hand Control
§ conditions a gift to a beneficiary upon a beneficiary behaving in a certain way
§ Valid Conditions
· do not violate public policy
§ Invalid Conditions
· Absolute restraints on marriage
o But partial restraints okay
§ reasonable time, even religious background
· Cannot force someone to remain member of certain religion
· Encourage divorce/separation
· Promoting family strife
· Property destruction directive
o Who takes decedents Property?
§ A will disposes of probate property only
§ Probate is the default
§ Non Probate
· Joint tenancy with right of survivorship
· Life insurance
o modern trend includes all pod contracts
· Legal Life estates and remainders
· Intervivos trusts
· Non probate property goes to those named in the instrument
§ Probate Property
· If no will passes through intestacy
o Probate Process
§ provides for orderly transfer of title for the decedents property
§ ensures that creditors receiv notice and opp to present claims
§ extinguishes claims of creditors who do not timely file claims
§ property is properly distributed
§ Opening Probate
· present decedents death certificate
· ancillary jd is for real estate owned in a different jd from domicile
o Personal Reps duties
§ Inventory decedents assets
§ Give notice and pay creditors
§ Distribute decedents probate property
o Costs and delays of probate – ties property up
o Probate is necessary for titled property
o Avoiding Probate
§ nontitled and small estates
o Purpose of EP is to give effect to T’s intent
o Avoid estate taxes
o Avoid Probate
§ Couples
· Joint Tenancy
· Intervivos trusts – by placing real property in IV trust avoids ancillaryprobate
· POD contracts
o Professional responsibility
§ Tort theory – must prove negligence
§ Contract theory – must show privity of contract
§ Common Law approach
· Tort – no duty to beneficiaries
· Contract – No privity with beneficiaries
§ Modern Trend
· Tort – duty to beneficiaries
· Contract – privity to beneficiaries
§ Alternative grounds for finding duty
· T’s atty may owe a duty to third parties if the atty has ongoing atty-client relationship with the 3rd party and the 3rd party has special confidence in the atty
o Intro
§ Property not disposed of via non probate transfers falls to probate (if will then according to terms, if none then via intestacy)
§ Heir – must survive decedent
· While T is alive he has only heirs apparent
§ Expectancy – heir expects to inherit something
· this is not a property interest
· Not transferrable
§ Personal property is distributed according to distribution statute of state where decedent was domiciled at death
§ Real Property – according to laws of state where property was located
o Qualifying as surviving spouse
§ Must be Married, no cohabitants, common law can qualify, no putative spouses (one already married to another), separated but still married counts as spouses, if abandoned some states say not SS
· Chapter 3 – Testamentary Capacity
o over 18
o Sound mind
§ must have ability to know
· natural objects of bounty
· nature and extent of property
· nature of tesamentary act
· must know how all factors relate
§ low threshold
· atty has legal duty to assure competent
· witnesses must satsify that test is sound mind before attesting
· burden is on contestants
o capacities
§ contract > testamentary > marriage
o lawyer cannot draft will for unsound person
o Defects:
§ insane delusion
§ undue influence
§ fraud
o Insane delusion
§ false sense of reality adhered to despite all evidence to contrary
§ Majority
· rational person test – rational person could not have reached conclusion
§ Minority
· factual basis test – any basis means not insane
§ Traumatic Event
· if life changing event changes perspective then more likely to rule as insane delusion
o prostate cancer, suspected wife cheated, held insane delusion
§ Causation
· the insane delusion must cause the testator to get rid of property in way otherwise wouldn’t have
· But for analysis – strong argument that

Common Law Approach to Witness Wills
§ Attested Will is witnessed and signed
§ Typical Statute
· writing
· signed
· at foot
· by T
· or another
· in his presence
· two or more witnesses
· present at same time
· who attest
· and subscribe
· in T’s presence
§ Judicial approach under Common Law
· absolute strict compliance
· if any deficiency then the document is not valid
§ Typical Formalities
· Writing
· Signature – anything T intends as his signature
· Signing by another – T must instruct in Ts presence at his expressed direction
o mark is ok as long as that is what was intended
· Witnesses – at least two witnesses
o T need not sign in front of witnesses but must acknowledge that it is his signature in front of both at same time
· Presence
o Two approaches
§ Line of sight – second party must see or have opportunity to see
· if had looked at moment would have seen
§ Conscious presence test – can party tell from sight, sound, or general awareness that act is occurring
· Order of signing
o traditional – T must sign before witnesses
o Modern – witness can sign before T but no one can leave room during ceremony
· Writing Below Signature
· Delayed Attestation
o depends on jurisdiction, either no or within reasonable time
o Interested Witness
§ Historically – must be two disinterested witnesses
§ common law – interested witness = invalid will
§ Void interested witnesses gift
§ Purging approach – does away with that which the witness took in excess
· Excess
o how much W would take if will not valid
o how much W takes in will
o if latter amount is greater then purge
§ Rebuttable presumption of misconduct
· There is only a rebuttable presumption of misconduct which W can rebut
· if cannot rebut then purge