Select Page

Trusts and Estates
Southern Illinois University School of Law
Drennan, William A.

Professor William Drennan’s Trusts and Estates Outline, Fall 2010
Creation of Wills
1.      Formalities
a.       Illinois requires that will must be in writing; NO holographic wills.
                                                       i.            No reservation of right to revoke.
                                                     ii.            Beneficiary has no future interest; only a mere expectancy of inheritance.
                                                   iii.             Codicil: Amendment to a will (Included in a will) 755 ILCS 5/1-2.18
                                                   iv.            If you have a will, must file it w/in 30 days of their death or be charged w/ felony.
                                                     v.            Will does not need to dispose of property; can just make legal alterations.
                                                   vi.            Eillis:    Signed at a place w/in the “scope of testator’s vision”
                                                 vii.            Clarkson: W/out effort or change of position, see both and the act of attestation.
                                               viii.            DeMaris: W/in the presence of the testator; not just vision; totality of senses.
• UPC does not require tetator to witness the signing, but must w/in a reasonable time!!
b.      27 states DO permit holographic wills
                                                       i.            Valid if entirely in testator’s handwriting
                                                     ii.            No witnesses required
                                                   iii.            Signed by the testator
c.       While testator must be able to see the witness sign, but the witnesses DO NOT NEED TO SEE THE TESTATOR SIGN!!!
d.      The witnesses need not see EACH OTHER SIGN.
e.       The witnesses do not need to know it is a will they are witnessing signed; NO PUBLICATION REQUIRED!
Pros / Cons of Formalities
Safe Harbor Provisions
Channeling or standardizing the practices
Certainty of the outcome
Seriousness is encouraged, less chance of frivolous alterations.
Effectuate the intent of the testator
Avoid the unjust enrichment of wrong parties
Should not penalize for ignorance of the law
        * (trap for the unwary)
2.      Testamentary Capacity
a.       Mental Requirements to make a will in Illinois [Sound mind and body] 755 ILCS 5/4-1
Butler Factors as well as statutory now:
a.       Understand the nature of the act;
b.      Know the nature and character of your property;
c.       Know natural objects of your bounty (who your relatives are); and
d.      Make a disposition according to a plan formalized in your own mind.
b.      Undue Influence
                                                       i.            Existing confidential relation
                                                     ii.            Substitution of another’s will for that of the testator.
                                                   iii.            Susceptability to influence
                                                   iv.            Lack of independent advice or counsel.
1.      In Re Olson: Will contest after leaving property to a charity
a.      Attorneys for a charity also drafted the will.
b.      Attorney was interested in the charity, therefore he was an interested party. Improper for him to draft a will in which he was a beneficiary.
c.       Fraud
                                                       i.            In The Inducement
                                                     ii.            In Factum
3.      Model Rules of Professional Conduct
a.       Rule 1.8: An attorney should not accept gifts through a will he drafts.
b.      An attorney should not draft an instrument which leaves money or gifts to family or close familiar relationships
c.       New York: Attorney naming self in a will as the executor must disclose (In some states):
                                                       i.            Almost anyone can serve as an executor,
                                                     ii.            Executors receive a statutorily set commission,
                                                   iii.            Attorney is entitled to both attorney’s fees & executor’s fees.
d.      In Illinois: 755 ILCS 5/27-1, 27-2.
                                                       i.            Representative is entitled to “Reasonable compensation for his work.”
                                                     ii.            Attorney for representative is entitled to same.
4.      Beneficiaries
a.       755 ILCS 5/4-6, Where more than required witnesses are present and some are also beneficiaries, you still must have two (2) disinterested witnesses.
                                                       i.            The interest given to the beneficiary is void; the will is still valid.
                                                     ii.            The person may still receive under the will; may still testify; just still need two more witnesses.
                                                   iii.            Exception: Where the interested witness receives under the will the same as they would through intestecy, the statute does not apply; they could still be one of the two (2) required witnesses.
b.      Parsons Case: Where a witness disclaims that she is interested / receiving under the will, she is treated as though she predeceased the testator. 755 ILCS 5/2-7(d).
                                                       i.            Disclaimer must be made before the will is executed; If disclaimed afterward, the witness’s attestation is invalid. Therefore, to promote the ultimate goal of preventing fraud, Courts must keep strict rules, even though they may result in unfavorable decisions.
c.       In Illinois, you may not profit from killing someone under a will, but you still take your portion under intestacy.
d.      Sky Dancer Case: Statute allowed the validity of wills, even where they did not strictly comply with the form. There was a problem, because the attestation was signed a year and a half before the will.
                                                       i.            Under some states’ laws, with clear & convincing evidence of the decedent’s intent one may admit a will into probate which otherwise does not sufficiently comply with the statutory requirements. NOT IN ILLINOIS
                                                     ii.            Even in those states, there must be at a minimum some substantial compliance.
e.       Estate of Hall: Battle over which will is valid. First will was torn-up after drafting of the second will. Some jurisdications permit “Joint Wills.” Where the will was rough and had scribbles all over it, but the signatures and all formalities were properly adhered to, even without ‘cleaning up the draft’, the will was still a valid testemant.
5.      Attestation Clause
a.       Prima Facie proof that the will was properly attested to.
b.      Goes above the witness’s signature. (Corpak, P. 75 for example)
c.       Burden of proving the will is valid is on the proponent of the will. 755 § 5/6-4
d.      Ways to prove the validity of the will:
                                                       i.            Testimony upon every entry of a will to probate
                                                     ii.            Attestation clause attached to the will, stating that this is valid.
                                                   iii.            Affidavit attached to the will stating that things were valid, if not all done simultaneously.
e.       Must say that witness was present and signed in the presence of the testator, OR if the testator later shows it to the attestor and attestor confi

b.      Not exclusive control / in harness shop
2.      755 ILCS 5/4-7:
a.       Testator must destroy the will himself or in the presence of one doing it. Cannot write a letter asking someone else to do it.
b.      Campbell v. Griefen: Attny kept will in a lock box at his office and did not inform the client that the will could not be destroyed by him.
3.      Safeguarding the Will
a.       Not a good idea for attorney to keep the will.
b.      755 ILCS 5/6-1(b): Anyone willfully destroying a will is a theaf guilty of class 3 felony.
4.      Contracts to Make a Will
a.       You can contract to make a will, refrain from making a will, agreement to die intestate, agreement to revoke a will.
b.      Breach: Remedy is a constructive trust.
                                        i.            I promise to leave you Blackacre. They decide not to. Sue to enforce the contract…..can’t get money, just Blackacre.
                                      ii.            Service Provider: Lady down the street agrees to care for testator during last years in exchange for some divestment upon death.
1.      Even in absence of a contract, there is quantum meruit.
c.       Oursler v. Armstrong: Two wills made by husband and wife, leaving everything to each other and if predeceased, equally among all 4 children. Wife’s said everything to husband, but if predeseaced, property from children, to all 4 children equally.
Will Substitutes
Will substitutes are broken into two categories: (1) PERFECT / PURE: Those like a will, where you can revoke or do anything during lifetime. (2) IMPERFECT: Like joint tenancy. In the meantime, the drafter is restricted in flexibility to use or transfer the property.
1.     Lifetime Gifts
a.       755 ILCS § 25/1: Three elements to make a gift in ILLINOIS:
                                              i.            Donative Intent
1.      Present intent, not going to make gift tomorrow.
2.      Even if you ask the donee if you can hold on to a gift, this shows intent to give now.
                                            ii.            Delivery
1.      Real, constructive, or symbolic
                                          iii.            Acceptance by the Donee
b.      Gifts to minors
                                              i.            Uniform Gifts to Minors Act (UTMA)
                                            ii.            Allows minors to receive a trust for their benefit, but becomes unrestricted by grantor at 18 or 21.
2.     Joint-Tenant/Ownership w/ right of survivorship & Tenancy by the entirety
Gross v. Gross: Father conveyed three separate deeds of real estate to his son. After re-marrying, he seeks to revoke of declare the deeds null and void. He originally sought to avoid probate by executing the deed. Recording even strengthened the presumption that the gift indicated donative intent and delivery. Father claimed that by not giving the deed, he did not effect delivery. Court rejects this theory.
Holding: Father did not overcome the presumption that an executed & recorded deed shows delivery and present intent to transfer property to the son. Testimony alone is not enough.