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Wills and Trusts
Santa Clara University School of Law
Schneider, Eric C.

Wills and trusts – Spring 2006 – Prof. SCHNEIDER

Introduction.. 1
I. The Right to Inherit or Devise. 1
A. Consists of two rights:1
B. Right to Devise is constitutionally protected and cannot be totally abolished. 1
C. Right to Inherit is not constitutionally protected but there cannot be total restraint1
II. Transfer of Decedent’s Estate. 2
A. Non-Probate Property. 2
B. Probate Property. 2
C. Probate Procedure:2
D. Hypos: Necessity of Probate. 3
E. Avoiding Probate:3
F. Necessity of Probate. 5
G. Hypos: Necessity of Probate (page 39)6
III. Things to learn from Howard Brown’s will: (pp. 43)6
IV. Professional Responsibility. 6
Intestacy.. 8
I. The Share of the Spouse. 8
A. Who is a spouse?. 8
B. Share of Surviving Spouse under UPC. 9
C. Share of Surviving Spouse under CPC. 9
D. Hypos: Intestate Shares. 10
II. Simultaneous Death.. 11
A. The Requirement of Survival11
B. Survival Under the CPC. 12
III. Shares of Descendants. 12
A. Representation:12
B. Three types of distribution. 12
C. Hypos: Distrobution. 13
D. Distribution After Spouse’s Share. 13
E. Negative Disinheritance:13
IV. Shares of Ancestors and Collaterals. 13
A. Generally. 14
B. Descendants. 14
C. Collaterals. 14
D. Where there are no first line collaterals, (two main approaches)14
E. Laughing Heirs: distant blood relatives.14
V. Shares of Half Bloods. 15
B. Hypos: Shares of Half-Bloods:15
VI. Shares of Children. 15
A. Adopted Children. 15
B. Hypos: Adopted Children. 16
C. Posthumous Children:16
D. Children of Surrogate Parents:17
E. Children of Same Sex Partners:17
F. Children Switched at Birth:17
G. Virtual/Equitable Adoption. 17
H. Adult Adoption. 18
I. Hypos: Shares of Collaterals.19
J. Non-marital/”out -of-wedlock” Children (aka bastards)19
K. Posthumously-Conceived Children. 20
L. Hypos: Posthumously Conceived Children. 21
VII. Miscellaneous. 21
A. Advancements. 21
B. Expectancy. 22
C. Managing Minor’s Property:22
VIII. Bars to Succession. 22
A. Homicide. 22
B. Hypos: Homicide. 24
C. Abuse of an Elder or Dependent Adult24
D. Disclaimer24
E. Hypo: Disclaimer25
Wills. 26
I. Capacity and Contests. 26
A. Mental Capacity. 26
B. Insane Delusion. 26
C. Undue Influence. 27
D. “No Contest Clauses”. 29
E. Fraud. 30
F. Hypos: Fraud (p188)30
G. Duress. 30
H. Tortious Interference with Inheritance. 31
II. Formal Requirements. 31
A. Reasons for Formalities. 31
B. Writing:31
C. Signed by T. 32
D. Place of Signature. 32
E. Attesting witnesses. 32
F. Hypos: Attestation of A Will (p.208)34
G. Hypos: Purging Statutes. 35
H. Order or signing. 35
I. Self-Proving affidavit:35
J. Applicable Law:36
III. Relaxing the Formal Requirments. 36
A. Powers of a Conservator36
B. UPC 2-503: Dispensing power (pg. 226)36
C. Constructive Trust36
D. Substantial compliance. 36
E. Hypos: Substantial compliance. 36
IV. Holographic Wills. 37
B. Hypos: Holographic Wills. 39
C. Safeguarding Will:39
V. Revocation. 39
A. By subsequent writing. 39
B. By subsequent acts. 40
C. Hypos: Codicils. 43
D. Hypos: Revocation. 43
E. Hypos: Revocation by Operation of Law.. 43
VI. Dependant Relative Revocation (DRR)44
A. Generally. 44
B. Elements. 44
C. Hypos: Dependent Relative Revocation. 45
VII. Revival. 45
A. Automatic Revival (common law)46
B. Reexecution or Republication by Codicil (minority rule)46
C. Presumption Against Revival (majority rule)46
D. Partial Revocation Giving Rise to Revival?. 46
E. Third Wills (CPC)46
F. Hypos: Revival46
VIII. Components of Will. 46
A. Integration. 46
B. Codicil47
C. Republication by Codicil47
D. Incorporation by Reference:47
E. Hypos: Incorporation of A Will48
F. Acts of Independent Significance:49
G. Hypos: Acts of Independent Significance. 49
IX. Contracts Relating to Wills. 50
A. Applicable Law: Law of Contracts. 50
B. Contract to Make a Gift by Will50
C. Hypos: Contract to Make a Will51
D. Contract Not to Revoke (Bad Idea!)51

Construction of Wills. 53
I. Mistake or Ambiguous Language. 53
A. Traditional approach:53
B. Modern approach:53
II. Death of Beneficiary Before Death of Testator. 54
A. Lapse Generally (CPC 21109/Common law)54
B. Failed Transfers (CPC 21111(a))54
C. Anti Lapse Statutes. 55
D. Hypos: anti-lapse statutes. 56
E. Non-Probate Transfers:56
III. Changes in Property after Execution of Will. 56
A. Ademption (CPC 21133)56
B. Abatement (CPC 21402)57
C. Exoneration (CPC 21131)57
D. Satisfaction (CPC 21135)57
E. Partial satisfaction:58
Will Substitutes. 59
I. Generally. 59
II. Revocable Inter Vivos Trust. 59
A. Foundation. 59
B. Formalities:59
C. Creation (two ways)60
D. Revocation. 60
E. Creditors. 61
III. (Irrevocable) Testamentary Trusts – created by will.61
IV. Pour-Over Wills. 61
A. Generally. 61
B. UPC 2-511 Uniform Testamentary Addition to Trust Act (UTATA) (pg. 311):61
C. CPC 6300:62
D. No-contest clauses:62
E. Unified Trusts. 62
F. Hypos: Pour Over Wills. 63
V. Life Ins., Pension Accts., Bank Accts., and Other POD Arrangements. 63
A. Life Insurance/POD Provisions. 63
B. Pension Accounts. 64
C. Multiple Party Bank Accounts. 65
D. Planning for Incapacity. 66
E. Directives re: Health Care and Disposition of Body. 66
Trusts. 67
I. Characteristics. 67
A. Introduction. 67
B. Hypos: Revocable Trusts. 68
II. Creation. 68
A. Intent to create. 68
B. Hypos: Creation of a Trust70
C. Necessity of Trust Property “res”. 70
D. Hypos: Necessity of Res. 71
E. Necessity of trust beneficiaries. 72
F. Hypos: Trust Beneficiaries. 73
G. Necessity of written instrument73
III. Rights of Beneficiaries to Distributions From the Trust. 74
A. Discretionary Trusts. 74
B. Exculpatory Clauses. 75
IV. Rights of Beneficiary’s Creditors. 76
A. To Discretionary Trust76
B. To Support Trust (trust supplies an ascertainable support standard)77
C. Spendthrift trusts:77
D. Attempts to shield assets. 78
E. Trust for persons on Medicaid. 79
V. Modification & Termination of Trusts. 79
A. Claflin doctrine/CPC 15403:79
B. Modification:79
C. Hypos: Trust Modification. 80
D. Termination. 80
E. Trustee removal81

Introduction
I. The Right to Inherit or Devise
A. Consists of two rights:
1. right to inherit
2. right to devise
B. Right to Devise is constitutionally protected and cannot be totally abolished
1. The traditional question existed as to whether we have the natural right to devise property. At one time, devise was considered a statutory creation and therefore nothing in the Constitution forbid the legislature from limiting, conditioning or even abolishing the power of testamentary disposition over property. However Hodel overturned that
2. Hodel v. Irving: states have the right to regulate the descent and devise of property as long as they do not totally abolish the right to pass on property. A total abolishment is a taking and compensation is due.
3. The right to devise property is a stick in the bundle of rights.
C. Right to Inherit is not constitutionally protected but there cannot be total restraint
1. Congress can regulate descent and devise but cannot abolish both devise and descent.
2. The right to inherit can be limited by the states or by the will itself, which can impose partial, but NOT total, restraints on the rights of the beneficiary.
3. Restrictions held Unconstitutional
a. Total restraints – Babbit, which required that the descendent only be allowed to devise to another fractional owner, was held unconstitutional taking because it was too restrictive and unlikely to include a living descendent of the deceased.
b. Restraints against Public Policy – Restrictions that prohibit marriage or encourage disruption of a family relationship, such as encouraging divorce or ordering brothers and sisters not to communicate are usually invalid, for public policy reasons
4. Shapiro: Restriction that son had to marry a Jewish girl within 7 years in order to inherit was constitutional, because it was only a partial restraint
a. Possible theories to apply to restrictive will terms:
i. Reasonable Choice: if so, it is a constitutional partial (not total) restraint
ii. Uncertainty test: the courts will interpret the testator’s intent beyond what is expressed in the will if the term is ambiguous
iii. Social utility test: if testator makes weird devise, court may chose not to enforce if public policy outweighs wishes of deceased
iv. Judicial Cy Press: if the person comes close enough, it might be sufficient to satisfy the requirements in the will, depending on the circumstances. It maintains the condition, but just modifies it a little.
b. We have to apply a Standard of Reasonableness…for example, a judge threw out a requirement saying that the heir had to polish the brass bed, as too vague.
c. Wills ordering the destruction of property at death are not upheld for considerations of waste, diminished tax revenues, and disrupting the community. However, it’s a close call where the property has less economic value but embodies other rights of the testator – privacy, authorship, etc.
II. Transfer of Decedent’s Estate
A. Non-Probate Property
1. All property passing under an instrument other than a will, such as a contract.
a. Joint tenancy property (both real and personal)
b. Tenancy by the entirety
c. Funds on deposit in valid survivorship bank account
d. Life Insurance
e. contracts with payable -on-death provisions (PODs)
f. interests in trust: where the trustee holds the property for the benefit of the named beneficiaries. The property is distributed to the beneficiaries by the trustee in accordance with the terms of the trust instrument created during the lifetime of the decedent. There are no court proceedings.
g. Cars: most states, transfer of title allowed by going to DMC and filing an affidavit. CAVC 5910 allows the surviving spouse to take the car if the decedent dies intestate. Spouse may transfer the vehicle to another person.
B. Probate Property
1. Probate property is all property that passes under the decedent’s will or by intestacy
2. Probate: in the U.S. the deceased’s property does not pass immediately on death but goes into the estate and the estate goes through probate. It performs three functions:
a. provides evidence of transfer of title to the new owners by a probated will or decree of intestate succession
b. protects creditors by requiring payment of debts
c. distributes the decedent’s property to those intended after the creditors are paid
C. Probate Procedure:
1. Jurisdiction:
a. Domiciliary jx/primary jx: Law of the T’s domicile at death deter

roperty as tenants in common
c. UPC 3-312 to 3-222: the residuary devisees may petition for universal succession and the court will grant it if the necessary parties are included and that the estate is not subject to any current contest or difficultly (No state has adopted this yet)
d. CPC 13500-13650, Limited Universal Succession Rule: property that passes to the surviving spouse (domestic partners not covered) by intestacy or will is not subject to administration unless requested. The spouse can dispose of property as desired but is liable to creditors up to the fair market value of the property at the date of the decedent’s death (CPC 13551)
i. With a small estate, kids don’t usually force probate because it costs too much. Better to settle between family members if kids are adults. If minors, mom can still opt for no probate, but runs risk of kids trying to claim money when they turn 18.
F. Necessity of Probate
1. Will:
a. Probate required (see above)
2. Trust:
a. Probate not required
b. Basic setup of a trust:
i. Deed in trust: Settlor transfers legal title to Trustee and equitable title to Beneficiary.
ii. Declaration in trust (or “self-settled” trust): Settlor declares equitable title in the Beneficiary, but retains legal title.
3. Trust with payable on death provision:
a. Probate not required.
b. Basic setup: A places property “In trust with income to A for life, then to S” (S is A’s son, for example).
4. Trust with testamentary power of appointment:
a. Probate is required regarding the effectiveness of the power of appointment, but the property itself is not probated.
b. Basic setup: A places property in trust “with income to A for life with testamentary power of appointment in A”
G. Hypos: Necessity of Probate (page 39)
1. Small estate with automobiles, furniture, tangible personal property. Probate not required, potential summary proceeding is possible with agreement of family members. Most states have transfer by affidavit for automobiles. (Cal Veh Code 15910). Some of the accounts listed may have joint interest in wife, which would further reduce the amount of the estate.
2. Where ½ of deceased’s real and personal property is automatic to spouse, and children share the rest, ¼ to each of the two children.
3. Real property solely in the name of the decedent will almost always have to be probated to clear the title. CA allows quickie probate under CPC 13500, but surviving spouse will remain liable for decedent’s debts
4. “It is best in any situation to make some provision for future property, through a will or through a trust and a will with a pour-over provision.
III. Things to learn from Howard Brown’s will: (pp. 43)
1. Wills that call for executor to pay off “just debts” – Case law says this includes mortgages
2. Always leave an alternate executor in case that person predeceases you
3. The property going to his children should have been given to X in trust of the children, that way he could avoid expensive guardianship if he and his wife die before they reach majority
4. Always consider joint and survivor arrangements and inter vivos trusts as alternatives to wills that simply make an outright distribution of an entire estate to one person
5. Everything in the decedent’s name alone will have to go through probate, like his mother’s house and stocks
IV. Professional Responsibility
1. Simpson v. Calivas:
a. Lawyers drafting wills are responsible to the will beneficiaries for legal malpractice even though no privity of contract with them
b. the “plain meaning rule” of contact law is abandoned in probate courts, under CPC 2101, extrinsic evidence on actual testator’s intent is allowed in Probate Court.
i. However, the jxs are SPLIT as to whether the court in a malpractice action can admit evidence about testator’s intent beyond what’s’ admissible in the probate court.
ii. Extrinsic evidence allowed ONLY 1) when will is ambiguous 2) the rules of construction gives no insight. If both are satisfied, then the court may look at surrounding circumstances, but not to prior oral agreements.
2. General Duty of Care in CA
Attorney assumes an obligation to his client to undertake reasonable research in an effort to ascertain relevant legal principles and