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Trusts and Wills
South Texas College of Law Houston
Jenkins, Helen Bishop

Professor Jenkins Fall 2001


1. Testate – to die with a valid will.
2. Intestate – to die w/o a valid will. Distribution governed by statutes of descent and distribution.
3. Will – testamentary instrument describing how testator intends to dispose of his/her property at their death. It’s revocable during the testator’s lifetime.
a. Holographic will – handwritten, no witnesses, signed by testator. May not sign but simply state: “I, Joe Blow, do hereby . . .” The mention of his name is enough.
b. Oral will – valid will for disposition of personal property only and valid only if made during t’s last illness, 3+ witnesses and probated w/in 6 months. Possibly longer if statement is committed to writing w/in 6 days.)
c. Attested will –
i. Signed by the T
ii. 2 witnesses over 14
iii. Witnesses must sign in t’s presence;
(1) Line of sight test – t must actually see the attestation
(2) Conscious presence (Texas) – t could have readily seen the attestation by some slight physical exertion. Eg w/in the same room but didn’t see personally. Out of room, no good, if t couldn’t see from where he was situated.
(3) No required order of signatures but must be signed contemporaneously.
4. Codicil – amendment to a will. Requires proper execution.
5. Probate – state probate courts have jurisdiction over all matters “appertaining to” or “incident to” an estate. Probate is the proceeding in which an instrument is judicially determined to be the duly executed last will of the decedent or, if no will, to determine statutory heirs.
a. Petition – request for certain action, the reason and condition/value of the estate
b. Notice to interested parties – legatees (personal property), devisees (real property) or heirs (intestate) and all unpaid creditors.
c. Hearing
d. Judicial confirmation
6. Non-probate property – transfer of property at death outside the will
a. Joint tenancy
b. Life insurance
c. Contracts w/ payable on death provisions
d. Interests in trusts – trustee holds property for the benefit of named beneficiaries per the terms of the trust instrument. Decedent may have testamentary power over the assets in the trust. Will may be admitted to probate but the trust assets aren’t. They’re distributed by trustee outside of court supervision.
7. Requirements for a valid will
a. Testamentary intent – showing that t intended the will to take effect on date of his/her death.
i. “I leave all to John. Al” – too indefinite
ii. “I leave all to John when I’m not here anymore. Al” – little better but still a matter of construction.
iii. Cannot go outside the 4 corners of the document to determine testamentary intent.
iv. Must be apparent intent to take effect @ death, eg use of words “will,” “testator”
b. Capacity – testator knows the nature and character of his/her property, knows who it should go to and nature and effect of the will. Not necessarily competence. Incompetence not conclusive showing or incapacity – only evidence of it.
c. Must be 18+, married, or in armed forces and of sound mind.

d. No undue influence
8. In terrorem clause (no contest clause) – “If anyone challenges this will, they’ll receive nothing.” In Texas, if the challenge is reasonable, court will give no effect to the clause.
a. Hypo: Uncle died and left $2 million to his shack-up honey who was 20 years younger. She encouraged him to change his will. Issues:
i Does nephew have standing to sue? Factors to look at:
1. Relationship to testator
2. Where’s the other will
3. Strength of the relationship between the uncle and nephew
4. Intestate succession statute
5. Are his parents alive?
i Usufruct – right to use and enjoy another’s property w/o damaging it or diminishing it.
9. County court and probate court are synonymous. County judge and probate judge are synonymous.
10. Distributee – beneficiary under a will or under intestate succession.
11. Estate – denotes the real and personal property of a decedent.
12. Heirs – those persons, including the surviving spouse, who are entitled under the statutes of descent and distribution to the estate of a decedent who dies intestate.
13. Incapacitated means
a. A minor
b. An adult who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter, or to manage their own financial affairs.
c. A person who must have a guardian appointed to receive funds due the person from any governmental source
14. Independent executor means the personal representative of an estate under independent administration. Includes independent administrator.
15. Interested persons means heirs, devisees, spouses, creditors, or any others having a property right in, or claim against, the estate being administered; and anyone interested in the welfare of a minor or incapacitated ward

undament right.
2. Shelley: State can’t enforce a racially restrictive testamentary gift.
3. Issue: Is T asking the state to enforce a restraint on marriage?
4. Court: No. T is not asking the state to enforce a prohibition on A’s right to marry. A can marry anyone he wants. If he wants the money, he needs to satisfy the condition. Had T asked the state to enjoin A from marrying someone, different result.
5. Evans: T left park land to city Z for whites only. Court held the gift invalid b/c T asked the city to enforce the restriction. The enforcement board resigned. Is it now private action? No. Even the private action of this board enforcing the restriction amounts to state action. Board is a state agent b/c it performs a state-like function.
6. Here, T is simply at the state’s whim will and fancy in providing a mechanism for dissolution of the estate. No enforcement.
(b) Public Policy: Total restraint is void; partial restraint is reasonable to ask A to marry w/in a certain religion.
1. Hackett: Divorce decree required mother to raise a child w/in Catholic faith. Held invalid. It’s religion.

2. Court: Partial restraint on marriage different from absolute requirement to stay w/in faith ie divorce conditioned on religion.
3. In re Clayton: Upheld gift conditioned upon not marrying a person of a certain religious faith. Held to be a partial restraint on marriage.
4. Drace: Invalidated gift conditioned on remaining faithful to a particular religion..
(c) Reasonableness:
1. Maddox test: T to A if she marries member of a particular society; no gift over. Held to be in terrorem ie threat. T’s condition was unreasonable b/c the society had very few eligible bachelors.
Restatement (Second): restraint to induce a person to marry w/in a religious faith is valid, if and only if, under the circumstances, the restraint does not unreasonably limit the transferee’s opportunity to marry. Whether transferee is reasonably lim