I.

INTESTACY a. Policy: Donative Freedom v. Collective Tribe Theory i. Collective Tribe: Avoids waste, preserves resources for others, ensures more equality, eliminates strife between heirs b. General Patterns, Definition of Death i. What happens to a persons property when he dies depends on (1) the type of asset, and (2) whether a valid will was made. 1. Types of Assets: a. Non probate Assets and Probate Assets i. Non-Probate Assets: Passes regardless of whether a valid will was made b. Probate assets: the remainder of the estate that passes through valid will if one made, or passes through intestacy if no will made 2. If no valid will made, intestacy laws apply 3. Why Intestacy? a. Age/Income b. Lack of Property c. Unaware of Importance d. Apathy/Indifference e. Not wanting to face mortality f. Cost, time, effort g. Dont know how to find a lawyer h. Dislike lawyers i. Embarrassment/privacy issues j. Defer hard choices k. Use of Will Substitutes 4. Medieval English canons: a. Male descendant preferred to female descendant; b. Eldest male descendant preferred (primogeniture): c. Ancestors completely excluded; d. Different rules for land and personal property 5. Policy Bases of Intestate Statutes: a. Approximate Decedents Intent (reasonable person standard) b. Govt might want to avoid complicated policy disputes c. Perceived Fair System of Distribution d. Encourage the accumulation of wealth by families ii. You must survive the decedent to receive property 1. Definitions of Death: a. Uniform Determination of Death Act 1: When individual suffers either (1) irreversible cessation of circulation and respiratory functions, or (2) irreversible cessation of all functions of the entire brain. b. 755 ILCS part 50 (UAGA): Death is the irreversible cessation of total brain function. (Unclear whether this def also applies to definition under intestacy) i. May want to look to Illinois courts for purposes of intestacy issues (CL) ii. Janus v. Taraseqicz: Rule: Survivorship is a fact that must be proven by a preponderance of the evidence by the partys whose claim depends on survivorship. 1

1. IL 5/4-1: The property of each person shall be disposed of as if he had survived [the beneficiary.] c. In Utero: i. UPC Sec. 2-104: 120 hours survival requirement related to the children that were conceived before the testator died. ii. 755 ILCS Sec. 5/2-3 (Posthumous Child) iii. Uniform Parentage Act: Article 7: The donor of the genetic material is not a parent of the child that is conceived by means of assisted reproduction. Unless a husband has writing and consents that he is the father, there is no relationship. 1. UPC 2-120/121 2. Simultaneous Death Rules: a. Old USDA (1952) Section 1: If no sufficient evidence of the order of death, presumption that both donor and beneficiary survive each other. Presumption avoid double probate. Revised USDA adopted 120 hour requirement of UPC. b. UPC 2-702 (overrides USDA) : A beneficiary who fails to survive by 120 hours (5 days) is deemed to have predeceased the D. c. 755 ILCS 5/3-1: Follows old USDA. No sufficient evidence of Survivorship. Property should be disposed of as if he had survived. c. Intestacy General Patterns (surviving spouse, descendants; ancestors and collaterals) i. Surviving Spouse 1. Common Law Land: a. Surviving Spouse got nothing b. Dower Right upon surviving husband, widow was entitled to a life estate and 1/3 of real property owned at any time during late husbands life c. Curtesy Right parallel right created in widower; upon surviving wife, he was entitled to life estate in all his wifes property so long as he fathered a child with her. 2. Common Law Personal Property: a. Surviving husband gained wifes property upon marriage b. Surviving Wife got share of husbands property when he died depending on whether he left descendants (if so, her share was reduced) c. Modern Law: d. Most have abolished curtesy and dower e. Trend now is to provide SS with increasing share or entire share of intestate estate ii. Basic Scheme For SS 1. Share of Surviving Spouse: Trend is to increase share of surviving spouse a. UPC 2-102: The intestate share of a Ds SS is: i. The entire estate if: 1. No descendant or parent of the D survives the D (only SS survives); OR 2. All of the Ds surviving descendants are also descendants of the SS, and there is no other descendant of the SS who survives the D (only SS and children of marriage survive) ii. The 1st 300K, plus of any balance of the intestate estate if no descendant of the D survives the D, but a parent of the D survives the D (Parent Survives) 2

iii. The 1st 225K, plus of any balance of the intestate estate if all of the Ds surviving descendants are also descendants of the SS and the SS has one or more surviving descndants who are not descendants of the D (Children of marriage survive and SSs children survive); iv. The 1st 150K, plus of any balance of the intestate estate if one or more of the Ds surviving descendants are not descendants of the SS (Ds has own surviving kids, not SSs kids) 1. Note: Descendants only include blood children except stepchild, foster child, grandchild, or any more remote descendant. b. 755 ILCS 5/2-1: i. If there is a SS and also a descendant of the D 1. of the entire estate to the SS and to the Ds descendants per stirpes ii. If there is no SS, but a descendant of the D 1. The entire estate to the Ds descendants per stirpes iii. If there is a SS, but no descendant of the D 1. The entire estate to the SS iv. If there is no SS or descendant, but a parent, brother, sister or descendant of brother or sister of the D 1. The entire estate to the parents, brothers, and sisters of the D in equal parts, allowing to the surviving parent if one is dead a double portion and to the descendants of a deceased brother or sister per stirpes the portion which the deceased brother or sister would have taken if living. v. If there is no SS, descendant, parent, brother, sister, or descendant of a brother or sister of the D, but a grandparent or descendant of a grandparent of the D 1. See statute p. 5 of Illinois Statute Book vi. If there is no SS, descendant, parent, brother, sister, descendant of a brother or sister or grandparent or descendant of a grandparent of the D 1. See statute vii. If there is no SS, descendant, parent, brother, sister, descendant of a brother or sister, grandparent, descendant of a grandparent, greatgrandparent or descendant of a great-grandparent of the D 1. The entire estate in equal parts to the nearest kindred of the D in equal degree (computing by the rules of the civil law) and without representation viii. If there is no SS and no known kindred of the D 1. See statute iii. Share of Descendants 1. General Concepts a. If descendants, but no SS, entire estate is divided up among descendants b. If descendants and a SS, descendants split up whatever is left of the estate after SSs share c. If no surviving descendants and no SS, estate is divided up among ancestors (parents and collateral relatives) 3

2. UPC 2-103: Any part of the intestate estate not passing to the Ds SS under 2102, or the entire intestate estate if there is no SS, passes in the following order to the individuals designated below who survive the D: (The amount that doesnt go to the surviving spouse, or if there is no surviving spouse) a. To the Ds descendants by representation (Per capita with representation?) 3. 755 ILCS 5/2-1 a. If SS and descendant of the D, of entire estate to SS and to descendants per stirpes b. If no SS but a descendant of the D, the entire estate to the Ds descendants per stirpes 4. Methodology a. STEP 1: ID intestates children b. STEP 2: Determine if any predeceased child left a descendant who outlives intestate c. STEP 3: Ascertain states method of handling multi-generational succession 5. Different Methods/Representation Schemes: a. Per Stirpes (by right of representation) (IL and English Method) i. NOTE: division into shares begins at generational level immediately below D ii. Divided into as many shares as there are: 1. Living children of the designated person AND 2. Deceased children who have descendants living iii. Children of each descendant represent their deceased parent and are moved into his position iv. Equally situated people dont get same cut b. Per Capita with Representation (American Method) i. Note: Division of shares begins at the closest generational level with a descendant of D alive ii. Divide Ds estate into shares at the generational level nearest to D where one or more descendants of the D are alive and provide for rep of any deceased descendant on that level by his or her descendants iii. Like above, but instead of using the children as the root of distribution, use the nearest generation with surviving descendants iv. Go to 1st level with a taker and divide up v. If the takers are of the same generation, then they share equally c. Per Capita at each generation (UPC 2-106) i. Initial division of shares made at level where one or more descendants are alive, but shares of deceased persons on that level are treated as one pot and are dropped down and divided equally among the representatives on the next generational level ii. Equality among like-situated people iii. Pool and divide equally d. Illinois Rule: 5/2-1(a-b) Per stirpes iv. Share of Ancestors and Collaterals (if no SS of D or if SS doesnt take all) 1. Relatives by Affinity (marriage): In-laws generally dont take 2. General Rule: Descendants are preferred to ancestors (e.g. if no descendants, Ds parents divide the part of the estate that doesnt pass to the SS) 4

3. UPC 2-103(a)(2): Any part of the intestate estate not passing to the Ds SS under 2-102, or the entire intestate estate if there is no SS, passes in the following order to the individuals designated below who survive the D: a. If there is no surviving descendant, then to Ds parents equally if both survive, or to the surviving parent; b. If there is no surviving descendant or parent, then to the descendants of the Ds parents or either of them by representation; c. If there is no surviving descendant or parent, or descendant of a parent, but the D is survived by one or more grandparents or descendants of the grandparents, then: i. of the estate passes to Ds paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of Ds paternal grandparents or either of them if both are deceased, the descendants taking by representation; AND ii. the other passes to the Ds maternal relatives in the same manner; iii. BUT, if there is not a surviving grandparent or descendant of a grandparent on either the paternal or maternal side, the entire estate passes to the Ds relatives on the other side in the same manner as the half 4. 755 ILCS 5/2-1(d): If no surviving spouse or descendants, to the parents, brother, and sisters in equal parts, allowing to the surviving parent, if one is dead, a double portion and to the descendants of a deceased sibling per stirpes the portion which the deceased sibling would have taken if living v. Share of Grandparents, Second-Line Collateral, and More Distant Relatives 1. Definition of Collateral: all persons related by blood to the D but not descendants or ancestors are collateral kin 2. No Descendants or Parents: In all Jxns, if no spouse, descendant, or parent, then estate passes to Ds siblings and their descendants 3. If no spouse, descendants, parents or siblings or siblings descendants, the next line of succession varies by jxn: a. Two Methods: i. Parentelic: Divide estate into 2 halves (moieties), and pass halves on through paternal and maternal grandparents (or their surviving descendants) 1. If all four grandparents are alive, to each 2. If three grandparents are alive, to two grandparents and to one grandparent 3. If both grandparents on the same side are deceased, it passes to decedents aunts and uncles or their descendants 4. If no grandparents, it passes to great-grandparents. ii. Degree of Relationship/Next of Kin: Determine heir by counting the degree of kinship b/w D and the heir, and then award the ENTIRE estate to the closest next of kin 1. Start with D counting up to nearest common ancestor b/w D and potential taker 2. Then, count down from the ancestor to the potential taker 3. If tie: a. Civil Law: divide equally among those at same degree of closeness 5

b. Modified civil law: taker with nearest common ancestor to the D takes b. Illinois Rule: Hybrid System ILCS 5/2-1: i. Parentellic up through great-grandparent level with 2 descendants per stirpes. Then switches to degree of relationship or next of kin without any stepping up and you count the numbers. c. UPC 2-103 uses parentelic system with one exception: doesnt go beyond grandparent level. If no heir is found beyond this level, the property escheats to the estate. i. Limit imposed b/c of problem of the laughing heirs, who are very distant heirs d. Bars to Succession: Abandonment, Neglect, and Abuse 4. Ds parents CANNOT take if abandoned D a. UPC 2-114: Parent barred from inheriting in certain circumstances i. (a)(2): Parent barred from inheriting in these circumstances if there is a court order that terminates the relationship 1. Or if the child died before 18 and there is clear and convincing evidence that the parents rights could have been terminated on the basis of unsupported, abandonment or otherwise. b. ILCS 5/2-6.5: Parent Cannot take if neglected child (abuse is missing here) vi. Who is a Surviving Spouse? 1. Divorce The easy case a. UPC 2-802(a): an individual who is divorced from the decedent is not a surviving spouse unless they get married again. b. IL has no statute on this i. May be obvious 2. Desertion, Adultery and Other Misconduct a. Neither UPC nor IL strip spousal rights here b. Some states have statutes that prevent a surviving spouse from getting their elective share and other benefits c. 2-802 Comment explains why the UPC has not proposed the statute. i. POLICY: we dont want that kind of surviving spouse to get that kind of share d. In re Jellech: 3. The Putative Spouse Doctrine a. A person who cohabitated with another who believed in good faith that he/she was married, will qualify as surviving spouse in some jurisdictions. b. NO UPC STATUTE c. 750 ILCS 5/305 4. CL marriages/express or implied Ks a. Some courts say oral, express, or implied agreements to perform H/W duties (i.e. one to provide companionship, housekeeper services in exchange for equal share of P) is enforceable as long as either K didnt include provision to perform sexual relations or such provision is severable. Other courts wont enforce such K. 6

b. Rule (Marvin v. Marvin): A contract between non-marital partners is unenforceable only to the extent that it explicitly rests upon the immoral and illicit consideration of meretricious sexual services. i. Exception: If you can sever that part and still have a valid contract ii. Public Policy: Deter (Illegal) Prostitution c. Jones v. Daly: Couple would live together and travel together as if they were married (but they were gay). Jones would render services as a lover, companion, homemaker, etc. and Daly would bring home the bacon. Daly dies and Jones files suit for half his estate. i. Court found the sexual part not severable d. Whorton v. Dillingham: Similar to above, but they agreed that any portion of the agreement found to be legally unenforceable was severable and the balance of the provisions would remain in full effect. Court found this was okay. 5. Recovery based on status a. Civil Unions: Many states prohibit same-sex couples from getting same benefits as married couples b. 42 USC 1382(c)(d): If you hold yourself out as husband and wife, you can get social security benefits c. Braschi v. Stahl: Man has rent-controlled apartment and his lover moves in. When man dies, landlord wants to raise rent. Plaintiff wants to apply the definition of spouse as used in NY probate code that doesnt include same sex. He won. d. Estate of Cooper: Denied surviving domestic partner the rest of the estate. Also couldnt get elective share because not married. e. Vasquez v. Hawthorne: Trial court awards entire estate to Vasquez recognizing the relationship and providing spousal type rights. vii. Definition of Descendants 1. After born heirs (In utero) a. UPC 2-104: A fetus/baby in gestation at a particular time is treated as living at that time of death as long as they survive the birth by 120 hours. b. 755 ILCS 5/2-3: An after born child of a D shall receive the same share of an estate as if the child had been born in Ds lifetime 2. Half Relatives a. Half relations are treated the same as whole relations in both the UPC and ILCS 3. Adopted Children a. Treated the same as whole-blood relations b. Severance: can adopted kids take through both adopted and natural parents? i. Hall: No, adoption severs right to take from either natural parent, except where spouse of the natural parents adopted child, then child is still considered child of that natural parent. 1. Rationale: Adopted children shouldnt get more rights and privileges than those possessed by natural children c. UPC 2-114 - 119: Adopted child is a descendant of her adopting parent and not her natural parents; BUT, adoption by the spouse of either natural parent doesnt affect relationship b/w child and that natural parent or right of child to take from other natural parent. i. UPC 2-113 prevents child from taking 2x from same relative 7

d. ILCS 5/2-4: (d) is most important i. An adopted child is a descendant of the adopting parent for purpose of inheritance from or through the adopting parent, UNLESS adopted child is adopted after 18 years old and child never resided with adopting parent before child turned 18, in which case the adopted child can inherit from but not through the adopting parent ii. An adopted child is not a child of a natural parent for purposes of inheritance from or through the natural parent UNLESS: 1. Child adopted by a descendant, spouse of descendants or a great-grandparent of the child (covers grandparents, aunts/uncles, cousins), in which case child can take from or through both natural parents 2. A natural parent of the adopted child died before the child was adopted. e. UPC 2-103: Shares of heirs other than surviving spouse f. Virtual Adoption: A child is given over from natural parents to adoptive parents. Parent dies without will and the child finds out that no formal adoption occurred so he cant inherit. Child has virtual adoption because he was treated as if he was adopted. g. Equitable Adoption: UPC 2-122: 4. Non-marital Children a. UPC 2-117: A parent child relationship exists between a child and a childs genetic parents regardless of the parents status b. UPC 2-114: Marital status of parents irrelevant c. IL 755 ILCS 5/2-2: Take from mom and maternal ancestors as usual, take from dad and paternal ancestors if dad is adjudged to be father d. In Re: Estate of Snodgrass: When the mother of a non-marital child married someone other than the childs father, and the mothers spouse then adopted the child, was the child still the child of the natural father for purposes of inheritance under 5/2-4(d)(1)? Yes. viii. Definition of Ancestors: Adoptive or Surrogate Parents 1. Sperm Donor a. 702 of Uniform Parentage Act: A donor isnt the parent of a child conceived by means of assisted reproduction unless the donor intended to be a parent of the child b. May be contracted around c. Woodward v. Commissioner of SS: Before woodward died of leukemia, he had sperm stored. After he died, appellant gave birth to two children. She wanted social security benefits for the children, but they were denied. i. Court balanced various factors but ultimately a pro-child opinion comes out. 2. Surrogacy a. Whether birthing or genetic mom is parent depends on the jxn b. Surrogacy Agreement: Very common but legal issues often arise. Woman carrying the fertilized egg of another. Carrier will turn the child over to the mother. i. CA says look to intent of parties ii. OH says genetic mom 8

iii. Uniform Status of Assisted Conception Act: Birthing mom is legal mom unless valid surrogacy agreement to the contrary. iv. UPC 2-121: 3. Adoptive parents a. UPC 2-114: Adoptive parents and their kin may take from and through adopted children just as if the child was biological child (except if abandonment) b. ILCS 5/2-4: Same (except if abandonment) i. BUT if the adopted child is over 18 and never resided with the adoptive parent before he turned 18, the child isnt considered a descendant of the adopting parent for purposes of inheriting through adopting parent 4. Same Sex Adoptions a. In re adoption of Tammy: Court said that the natural mother and the adopted mother had post-adoptive rights and the child could inherit under both. 5. Natural Parents who gave their child up for adoption a. UPC 2-114: Natural parent CANNOT take from child b. IL 5/2-4: Natural parent CANNOT take from child, except P that child previously took through parent 6. Adult Adoptions a. 755 ILCS 5/2-4(a) b. Minary v. Citizens Fidelity: When an adult was adopted for the sole purpose of making him or her an heir and claimant to the estate of an ancestor, the practice was an act of subterfuge which thwarted the intent of the ancestor whose property was being distributed and cheated the rightful heirs. Accordingly, the wife was not able to inherit under the will as an heir of decedent. d. Rearranging/Affecting intestate succession: Are heirs stuck with their shares under intestacy statutes? No. i. Why would heirs not want their shares? 1. Saving estate taxes 2. Avoiding creditors 3. Undesirable Property 4. Moral/religious grounds ii. Ways to rearrange intestate succession: 1. Agreement b/w heirs a. UPC 3-912: Private agreements among successors to D binding upon personal rep b. Problem: agreements dont avoid gift tax IRS taxes as receipt and redistribution c. Solution: disclaimers 2. Disclaimers (renunciation): Refusal to take property left by will or property left by intestate statute a. UPC 2-1101-2-1117: Disclaimers valid if: i. In writing; ii. Delivered to proper person; iii. Irrevocable; AND iv. Made within 9 months after Ds death 9

v. NOTE: Disclaimers may not affect the division of an intestate estate: If the descendants of the disclaimant would share in the interest had the disclaimant died before the time of distribution, the disclaimed interest passes to the descendants of the disclaimant who survive the time of distribution b. ILCS 5/2-7: Disclaimers are valid if: i. In writing; ii. Delivered to proper person; AND iii. Irrevocable iv. (If you follow these, the property passes as if the done predeceased the decedent) c. Effect of Disclaimers: i. P passes as if the disclaimer predeceased the D ii. No tax liability if properly disclaimed iii. Avoids all creditors EXCEPT the IRS, and EXCEPT if disclaimed immediately prior to bankruptcy petition (pre-petition) 3. Qualified Disclaimers a. 26 USC 2518: No federal tax liability to a disclaimer as long as there is a qualified disclaimer i. Refusal must be in writing ii. Writing must be received by transferor of interest or personal representative iii. Received within 9 months after transfer was created or date of death b. To avoid tax, must satisfy state probate AND 26 USC 2518 i. Tompkins v. Niles: You can disclaim it even if under IL state law it would be a fraudulent conveyance. ii. Drye v. U.S.: Decedents son was the taker under intestacy. He owed the govt a lot of money and didnt want them to reach the money. Daughter opens a trust and makes father the lifetime beneficiary. Valid disclaimer under AK and valid trust. However, didnt defeat tax lien and the IRS wins. (Supremacy) 1. You cant avoid the IRS! 4. Bankruptcy: Disclaimer made by someone who declared bankruptcy who just inherited a bunch of money a. Pre-Petition: Disclaimer Effective i. If you file disclaimer before bankruptcy, the disclaimer is effective b. Post-Petition Disclaimer Ineffective i. If you have already filed for bankruptcy, disclaimer is ineffective ii. Dont have the authority to say that I dont want these things b/c youve already surrendered control of your property 5. Advancement a. A payment or gift made during Ds life that is intended as an early distribution from intestate estate b. If treated as advancement, the donee must allow its value to be brought into hotchpot if the donee wants to share in the decedents estate (if advancement, heirs share is reduced to compensate for the advanced amount) i. After pulled back into estate, valuation occurs ii. Value as of the time of the gift 10

6.

c. How to ID an advancement: i. CL: any inter vivos gift D gave child is presumed to be an advancement 1. Child may rebut by showing that intended as absolute gift ii. UPC 2-109 (Presumption that absolute gift) 1. An inter vivos transfer of P is an advancement only if: a. The D declared in a contemporaneous writing or the heir acknowledged in writing that the gift is an advancement; or b. The Ds contemporaneous writing or the heirs written acknowledgment otherwise indicates that the gift is to be taken into account in computing the distribution of the Ds estate iii. 755 ILCS 5/2-5: (Presumption that absolute gift) 1. An inter vivos transfer isnt an advancement unless it was so acknowledged in writing by the donor iv. Both UPC and IL require contemporaneous writing by decedent or written acknowledgement by advance v. If advancement exceeds intestate share, advanced person doesnt have to refund any amount he received over the intestate share just stays out of hotchpot vi. Example of how hotchpot works: D leaves no spouse, 3 kids, and an estate worth $50,000. One daughter, A, received an advancement of $10,000. To calculate the shares in estate, the $10,000 gift is added to the $50,000, and then the total of $60,000 is divided by 3. 1. A has already received $10,000 of her share thus, she receives only $10,000 from the estate. Her sibs each take a $20,000 share 2. If A had been given property worth $34,000 as an advancement, A would not have to give back a portion of this amount. Instead, A will stay out of hotchpot and decedents $50,000 will be divided equally between the other two children. Negative Will a. A term in a Ds will directing that a person who otherwise might be an heir shall not take any P by intestate succession i. CL: negative wills invalid 1. Not enough to declare in a will, my son, John, shall receive none of my property, To disinherit John, it is necessary that the entire estate be devised to other persons. ii. UPC 2-101(b): These provisions will be given effect its as if that person predeceased just as they were renouncing iii. IL: No statutory provision on negative wills, but as a general policy courts will want to give effect to the intent of the testator. 1. Look to IL Common Law (Courts)

II.

WILLS a. Will Formalities - Basic Requirements: i. UPC 2-502 1. In writing (no oral wills) 11

ii.

iii.

iv.

v.

vi.

2. Signed by the T or someone else at his discretion and in his conscious presence 3. Attested by two individuals within a reasonable time or acknowledged by notary public ILCS 5/4-3 1. In writing (no oral wills) 2. Signed by the T or someone else at his discretion in his presence 3. Attested by two credible witnesses (no notary option) In re Pavlinkos Estate: Husband and wife wrote wills that left everything to the other. Husband accidentally signed wifes and wife accidentally signed husbands. Court held invalid because not signed by the testator. Why formalities? 1. Avoid fraud a. Make it more difficult for fraudulent claims to be brought and by protecting testators intent as expressed in the properly executed will 2. Ritualistic Purpose: a. Impress upon the T the importance of the occasion thus, justifying the courts conclusion that if formalities met, then T intended will to be operative 3. Channeling Function: a. Formalities create a safe harbor for T. They provide T with assurance that, if complied with, his wishes will be carried out 4. Evidentiary: a. Increase the reliability of the proof presented to the court Presence 1. In some states, the requirement that the witnesses sign in the presence of a T is satisfied only if the T is capable of seeing the witnesses in the act of signing a. In re Groffman: Two witnesses signed in different rooms. Court held that although the testator intended the document to be his will, the decedent did not acknowledge the signature in the presence of two witnesses present at the same time. b. Steven v. Casdorph: Man took his will to the bank to be signed. He signed it in front of one person then took it out to have two tellers sign as witnesses. Court held that this didnt conform to the WV statute and applied strict compliance invalidating the will. 2. Line of Sight Test: T does not actually have to see the witnesses sign but must be able to see them were the T to look a. Exception made for Blind people 3. Conscious Presence Test: Witness is in the presence of the T if the T, through sight, hearing, or general consciousness of events, comprehends that the witness is in the act of signing. 4. UPC 2-502(a) Dispenses altogether with the requirement that the witnesses sign in the Ts presence. T only has to sign or acknowledge the will in the presence of the witnesses. Order of Signing 1. Ex. T started to write his signature in presence of two witnesses, A and B. Before T finished writing, A left the room. In As absence, T completed his signature and B witnessed the will in the Ts presence. A then returned. Both the T and B acknowledged their signatures to A and A then can be singed as the second a. Will cannot be probated because signature is not sufficient since T didnt complete his signature while both witnesses were present. The later 12

acknowledgement doesnt suffice because the T must sign or acknowledge his signature before either of the witnesses attest. 2. Traditional Approach: T has to sign before either witnesses can sign. 3. Modern Approach: A witness may sign the will before the testator signs or acknowledges, as long as all the parties sign the will as part of one ceremony and as long as no one leaves the room during the execution ceremony. a. If Jxn has adopted harmless error doctrine, as long as there is clear and convincing evidence that the decedent intended the document to be his or her will, the order of signing is irrelevant. vii. Addition After Signature 1. Statutes in several states have adopted the Wills Act requirement that the T sign the will at the foot or end thereof a. Ex. Typewritten will is found on which is written in Ts handwriting, below the Ts signature and above the witnesses signatures, the following line: I give Karen my diamond ring 2. If handwritten will was added after the T signed the will, the will would be admitted to probate, and the line would be ineffective as a subsequent unexecuted codicil. viii. Delayed Attestation 1. Must witnesses sign while the T is alive? a. UPC 2-502(a)(3)(A): requires witnesses to sign within a reasonable time 2. Can the same person be a witness and a beneficiary? a. Yes, but not a good idea ix. Relaxation of Formalities 1. UPC 2-503: A revolutionary change in will formalities gives a court the power to dispense with formalities if theres clear and convincing evidence that D intended document to be his will. 2. UPC 2-503 if document not executed with formalities statute, can still be good if harmless error (substantial compliance) 3. Important: Correction of harmless error applies to attested wills as well as to holographic wills 4. Note: Courts, however, try to avoid rewriting wills a. Substantial Compliance: (In re Will of Ranney): Document may not completely satisfy formalities, but have substantial compliance so court honors as will 5. Under this approach, even if a will is not executed in strict compliance with the jxns Wills Act formalities, the court is empowered to probate the will if: a. Clear and convincing evidence shows that the testator intended this document to constitute his or her last will and testament, and b. Clear and convincing evidence shows that the will substantially complies with the statutory will act formalities (UPC 2-503) 6. Analysis: 1st look to see if have literal compliance with formalities; then, look to see if have substantial compliance 7. Rationale: rigid insistence on literal compliance frustrates purposes behind formalities 8. Rule: when formal defects occur, proponents should prove by clear and convincing evidence that the will substantially complies with statutory requirements 13

9. Rule: If witnesses, w/ intent to attest, sign a self-proving affidavit, but do not sign the will or attestation clause, clear and convincing evidence of their intent should be adduced to establish substantial compliance with statute a. Note: Substantial compliance rule is endorsed by UPC and Restatement (second) of property (donative transfers) x. Harmless Error: Under this approach, if a will is not executed in strict compliance with the jxns Wills Act formalities, the court is empowered to probate the will if clear and convincing evidence shows that the decedent intended the document to constitute his or her last will and testament. (UPC 2-503(1997)) 1. Many have argued that the witness requirement is the least important, and the writing requirement is the most important and the one that cannot be dispensed with under most any scenario. 2. No IL harmless error rule this limits donative freedom 3. POLICY: What was the testators intent? Want to promote freedom of donation. Give what you want to who you want. b. Miscellaneous Points i. Safeguarding Wills 1. Potential difficulties have prompted some attorneys to follow the practice of retaining the clients will in their files. The client is given an unexecuted Xerox copy of the will, on which the location of the original is noted a. However, some states prohibit this practice b/c has appearance of soliciting business 2. Many states have statutes permitting deposit of wills with clerk of probate court ii. Holographic Wills 1. Will written by Ts hand and signed by the T a. Important: Some states do NOT require attesting witnesses b/c not as concerned with fraud since will is in Ts handwriting. 2. Requirements vary for holographic wills, but most states follow UPC a. UPC 2-502(b) and (c): Execution; Witnessed Wills; Holographic Wills i. A will does not comply with subsection (a) is valid as a holographic will, whether or not witnessed, if the signature and material provisions of the document are in the Ts handwriting ii. Material provisions are those provisions that affect the disposition of testators property: the who gets what, any administrative provisions (appointment of personal rep or guardian), and maybe testamentary intent (intent that this document constitutes the persons last will and testament.) iii. Intent that the document constitute the Ts will can be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the Ts handwriting b. No Illinois Statute i. No statutory provision for holographic wills, but must satisfy all of the requirements of 755 ILCS 5/4-3(a) 3. In re Estate of Johnson: Johnson created a will on a standard blank will form where certain provisions were already in print writing and other parts were left blank. Johnson filled in the blank portions with his own handwriting. The trial court held the form did not qualify as a holographic will because the material provisions were not in Johnsons handwriting. 4. Estate of Gonzalez: Never completed second copy that witnesses signed but had filled out first copy; harmless error rule clear and convincing evidence. 14

a. Rule: Printed portions of a will can be incorporated into a holographic will where the trial court finds a testamentary intent, considering all of the evidence in the case. iii. Statutory Form Wills 1. Several states have authorized simple statutory fill in the form wills 2. Statutory wills must be signed and attested in the same manner as any attested will 3. Many statutory fill in wills fail in probate because they are improperly completed or executed 4. Courts dont really like these iv. Will Contests 1. Typically will occur when someone has been disinherited from a will 2. Initial Requirements to Contest a. Standing i. Must have an immediate pecuniary (economic) interest ii. A contingent taker or one with a moral interest isnt sufficient b. When i. Before the proponent of the will successfully gets the will to probate 1. Burden is on the proponent to prove that its valid 2. If its already admitted, burden is on the contestant to prove that its invalid or whatever ii. UPC 3-108: action must be brought within 3 years of Ds death iii. UPC 3-407: A proponent of the will has burden of establishing prima facie proof of execution and the contestants then have the burden of proving a ground or grounds for invalidation of the will iv. IL 5/8-1: Action must be brought within 6 months of Ts death c. Burden i. UPC 3-407: A proponent of the will has burden of establishing prima facie proof of execution and the contestants then have the burden of proving a ground or grounds for invalidation of the will. ii. UPC 3-407: Challenger bears burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake or revocation iii. IL 5/8-1: Challenger bears burden of showing that will is invalid v. Grounds for Contesting the Will 1. Lack of legal capacity a. UPC 2-501: Who May Make a Will i. Must be 18 and of sound mind b. IL 5/4-1: Must be 18 2. Non-compliance with formalities (to combat non compliance, try harmless error or conditional revocation) a. BUT, if harmless error, will is valid i. UPC 2-503: Harmless error: A will that doesnt comply with requirements of 2-502 will be treated as if it does if the proponent of the will establishes by clear and convincing evidence that the D intended the writing to be his will b. 755 ILCS 5/4-3 i. No IL harmless error rule this limits donative freedom c. Defenses to this challenge: 15

i. Holographic Will (In jxns that recognize) 3. Lack of Testamentary Intent a. The intent that the document constitutes the persons last will and testament the intent that this document be probated as the decedents will b. The requirement to have testamentary intent is meant to ensure that only writings that the decedent intended to serve as a will as opposed to drafts or idle thoughts are probated. c. This issue often arises with fill-in-the-blank wills d. UPC 2-502 testamentary intent can be derived from the handwritten material, the non-handwritten provisions, or other extrinsic evidence. e. Estate of Gonzalez: Decedent bought a fill in the blank form will and filled it out. He showed it to his bro and his sister in law and then told them he intended to re-write it more neatly on a second one. Brother signed the first. Brother, his wife, and mother signed the second will form, but the D became sick before copying the testamentary provisions over to the second will. First one offered for probate and court accepted as valid holographic will. f. Estate of Kuralt: Kuralt was married to Petie, but also had intimate affair with Pat Baker. He wrote a valid holographic will in 89 giving all his property in MT to Pat. In 94, he executed an attested will giving all his property to his wife and children. In 97 he began transferring the MT property to Pat, but then got sick. He sent a letter from the hospital telling her that he would make sure she inherited the property. Court wanted to honor the testators intent and looked at Extrinsic evidence such as the letter to determine testamentary intent. 4. [Lack of] Testamentary Capacity (Sound Mind and memory requirement) a. Example of limit on donative freedom b. Mental Competency c. 3 possible tests of determining whether of unsound mind i. (1) Restatement 3d of Property: T must be capable of knowing and understanding in a general way the nature and extent of his P, that natural object of his P, and the disposition that he is making of that P; and he must be able to relate those items to each other 1. Important: Specific requirements for mental capacity are minimal. T does NOT have to have average intelligence 2. Estate of Wright a. Testamentary capacity cannot be destroyed by showing a few isolated acts, foibles, idiosyncrasies, moral, or mental irregularities or departures from the normal UNLESS they bear upon and have influenced the testamentary act b. Fact that a person has been declared incompetent and put under a conservator does not necessarily mean the person has no capacity to execute a will thereafter c. Capacity to make a will requires less competency than the power to make a contract or a gift ii. (2) 3-part test from Fletcher 16

1. Compare mental and physical condition of T before and immediately after execution of will; 2. Is the character of the testamentary scheme reasonable (e.g. consistent with family history); AND 3. Pecuniary condition of the Ts heirs (are the poorest given more) iii. (3) Insane delusion v. Mistake/Mere False Belief Existence of insane delusion can in some cases prove testamentary capacity; must distinguish from mere false belief; need linkage between delusion and disposition of property in will (causation) 1. Insane Delusion: Belief that is not susceptible to correction by presenting the T with evidence indicating the falsity of the belief a. Impairs testamentary capacity b. This is a legal, not a psychiatric, concept c. In Re Honingman: Man under belief that his wife was cheating on him. Created will leaving bare minimum to his wife. Court applied Rational person test and held that testator suffered from insane delusion. 2. Mistake/False Belief: belief that is susceptible to correction if T is told the truth a. Does not impair testamentary capacity 3. Majority Rule: Delusion is insane even if there is some factual basis for it if a rational person in the Ts situation could not have drawn the conclusion reached by the T a. E.g. a wrong belief that wife is cheating on you is ok, but a paranoid delusion that wife is cheating on you is not ok 4. Important: only part of will caused by insane delusion fails. If the entire will is caused by the insane delusion, the entire will fails. When a Ts mind is so warped by an unfounded belief that the T cant make a rational distribution of the P 5. UPC 2-501: T must be of sound mind 6. IL 5/4-1: T must be of sound mind and sound memory d. Cases: i. In re Strittmater: Didnt know who she would have left property to had she not had paranoia; should legal definition of intent be based on judges opinions of social norms (which is what happened here)? 1. Rule: If a will is a product of an insane delusion, it will be not probated. ii. In re Honingman: Man allowed for wife to have smallest share possible under the law and remainder was left to siblings based on suspicions of wifes infidelity. Infidelity was insane delusion because she wasnt cheating on him. 1. Rule: If a person persistently believes facts which have so real existence, except in his imagination, and against all evidence and probability, and conducts himself, however 17

logically, upon the assumption of their existence, he is, so far as they are concerned, under a morbid delusion and delusion is insanity. iii. Wilson v. Lane evidence that a testator was eccentric, elderly and feeble at the time she signed her will by itself is not indicative of a lack of testamentary capacity. iv. Kostic v. Chaplain: v. Breeden v. Stone: an objector to a will may challenge a testators capacity based on both or either of the Cunningham and insane delusions test. vi. Fletcher v. DeLoach: e. Burden of Proof: i. Majority approach is that once a proponent offers prima facie proof that a will was duly executed, it creates a rebuttable presumption the testator had testamentary capacity and the burden is on the contestant to prove a lack of testamentary capacity. 5. Duress: a. Occurs where the wrongdoer performs, or threatens to perform, a wrongful act that coerces the donor into making a donative transfer he or she would not have otherwise made. (Goes with Undue Influence). 6. Undue Influence: a. Defect in testamentary capacity that may render a will invalid b. Tests for determining presence of UI i. (1) Regular Test: Focus is on what the T intended ii. (2) Moral Standard Test: Two part test that focuses on the conduct of the influencer (Ramsey v. Taylor) 1. Is there a Confidential Relationship? a. Fiduciary arises from settled category of fiduciary obligation (attorney-client) b. Reliant question of fact; relationship based on special trust and confidence (doctor-patient) c. Dominant Subservient question of fact; donor was subservient to the alleged wrongdoers d. ***Caretaker Relationship/Dependency leaving substantial devise to voluntary caretaker isnt basis for invalidating will unless there are suspicious circumstances showing it wasnt the testators free and independent intent e. Any one circumstance is enough for presumption to arise that there is undue influence 2. Is there existence of Suspicious Circumstances? a. 7 factors indicating suspicious circumstances: i. Procurement did the beneficiary participate in preparation of will? ii. Was there independent advice of an attorney? iii. Was will made in secrecy or haste? iv. Was there an unexplained change in Ts attitude toward others? v. Was there a change in Ts disposition plan? 18

vi. It is an unnatural or an unjust gift? vii. Susceptibility to Influence iii. (3) Other Approach Three Element Burden Shifting (Lakatosh) 1. In many jxns, the presumption of undue influence arises if: a. There was a confidential relationship between the defendant and the testator; b. The defendant receives the bulk of the testators estate; and c. The testator was of weakened intellect. 2. If these requirements are satisfied, a presumption of UI arises and the burden shifts to the defendant to rebut the presumption. a. Estate of Lakatosh Jacobs befriended Rose Lakatosh who was in her 70s and having trouble remembering things. She became dependent on him and gave him POA over her affairs. She executed will giving all but $1000 of her $268,000 estate to him. Attorney who drafted was his cousin. Court found there was a confidential relationship between them and that Rose was of weakened intellect. Roger was unable to overcome the presumption of undue influence. iv. Caretaker Relationship (easy undue influence case) 1. Restatement 3rd Section 8.3: A Ts decision to leave a substantial devise to a voluntary caregiver is not by itself a basis for invalidating the will in the absence of suspicious circumstances tending to show that it was not the product of the Ts free will a. This mixes 2 tests b. Another Exception: If the client received independent legal advice c. In re Will of Moses: Lawyer couldnt overcome presumption of undue influence because getting independent counsel wasnt enough. i. Rule: A presumption of UI arises when an attorney with whom the testator had a continuing fiduciary relationship is a beneficiary under the will, which is not necessarily overcome simply because the will was actually drawn up by an independent attorney with whom the testator consulted on his or her own. vi. No-Contest Clauses: No contest provides that a beneficiary who contests the will shall take nothing, or a token amount, in lieu of the provisions made for the beneficiary in will 1. Majority Position: Enforce no-contest clause UNLESS there is probable cause for contest a. Probable cause rule is adopted by UPC 2-517 and 3-905 2. Minority Position: Enforce no-contest clause UNLESS the contestant alleges forgery or subsequent revocation by a later will or codicil OR the beneficiary is contesting a provision benefitting the drafter of the will or any witnesses thereto a. Think probable cause rule encourages litigation and shifts balance unduly in favor of contestants vii. Bequests to Attorneys 19

1. Not illegal, but there is a rebuttable presumption of undue influence when an attorney-drafter receives a legacy UNLESS attorney-drafter is related to the T 2. Presumption is rebutted only by clear and convincing evidence provided by atty. 3. In re Will of Moses: Moses was having sex with a younger male attorney. She made a will devising almost all of her property to him through another independent attorney. Her sister contested on the ground of undue influence. Court held that there was undue influence even though he didnt draft the will. He had the fiduciary duty to advise her about the potential for undue influence. a. POLICY: This case is criticized for being sexist (court doesnt like nontraditional relationship) 4. Is it unethical for lawyer to be drafter and a beneficiary? a. ABA Model Rule of Professional Conduct 1.8: An attorney shall NOT prepare an instrument giving the L or a person related to the L as parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where client is related to donee. c. Slayer Rules when donee kills donor to get estate (in re estate of Mahoney) i. 3 Different Approaches: 1. (1) Legal title and equitable title pass to murderer anyway a. Policy: Dont want to use probate law to punish crimes 2. (2) Does NOT pass to murderer in equity murderer considered to have predeceased T so P goes to next of kin 3. (3) Constructive Trust (legal fiction) technically, goes to murderer, but really, goes to next of kin; murderer holds P in trust for next of kin ii. UPC 2-803: Has same effect as revocation; murderer considered to have predeceased T 1. An individual who feloniously and intentionally kills the decedent forfeits all benefits under this article w/r/t the decedents estate 2. If the decedent dies intestate, the decedents intestate estate passes as if the killer disclaimed his or her intestate share a. NOTE: UPC bars killer from succeeding to non-probate as well as probate property 3. Is criminal conviction required? a. Criminal conviction of a felonious and intentional killing is conclusive b. However, acquittal does not preclude the acquitted individual from being regarded as the decedents killer under this statute i. In the absence of a conviction, upon application of an interested person, the court must determine whether, under the preponderance of evidence standard, individual would be found criminally accountable for killing 1. If so, individual barred iii. 755 ILCS 5/2-6: A person who intentionally and unjustifiably causes the death of another shall not receive any property, benefit, or other interest by reason of the death, whether as heir, legatee, beneficiary, joint tenant, survivor, appointee or in any other capacityThe property, benefit, or other interest shall pass as if the person causing the death died before the decedent, provided that w/r/t joint tenancy property the interest possessed prior to the death by the person causing the death shall not be diminished by the application of this section. d. Revocation of Wills i. Wills only become irrevocable upon death ii. Like the making of a will, statutory compliance is essential for a valid revocation 20

iii. Three (3) main ways to revoke: R by operation of law; R by physical act; R by subsequent writing 1. Revocation By Operation of Law: Some post-execution event happens to trigger the application of a revocation statute; no extrinsic evidence allowed to show R a. Rationale: If T had known about the event when he drafted the will, then legislature thinks that he would have changed his will to accommodate this event b. Examples: i. Marriage of T: Allow R to include a not-included spouse 1. Most states have statutes giving the spouse her intestate share UNLESS it appears from will that omission was intentional or spouse is provided for in will or by a will substitute with intent that the transfer be in lieu of a testamentary provision. 2. Spouse takes an elective/force share as opposed to what he/she would receive under intestacy statute; applies even if T wanted to exclude spouse from will (whether have intentional or unintentional disinheritance) 3. UPC 2-201 2-214 4. Elective Share Statutes: a. UPC 2-301: Puts SS in same place as SS of intestate D as to that portion of the Ts estate, if any, that isnt devised to a child of the T born before the T marries the SS and who isnt a child of the SS or is devised to a descendant of such a child, UNLESS: i. It appears from the will that the will was made in contemplation of the Ds marriage to the SS ii. The will expresses its intention to be effective notwithstanding any subsequent marriage; or iii. The D provided for the spouse by nonprobate transfer 5. ILCS 5/2-8: Spouse may elect to take 1/3 of the estate if T leaves descendants, of estate if T leaves NO descendants. 6. Beneficiaries under the will now have their shares cut down because the spouse takes his elective share. a. Their gifts under the will are partially revoked. ii. Divorce, Annulment of T: Most testators would want to exclude the divorced. 1. No longer valid and the former spouse is treated as if she/he predeceased the testator. 2. UPC 2-804(d): Revokes provisions to former spouse and all relatives of former spouse 3. IL 5/4-7(b): Revokes provisions to former spouse iii. Pretermitted Heirs: (children born after creation of will and omitted inadvertently) 1. Will is not revised to account for after-born children. Most modern statutes provide, unless explicitly excluded, they 21

iv.

v.

vi.

vii.

viii.

protect the inadvertently excluded heirs and give them a statutory share. Sometimes an equal share as other children. 2. UPC 2-302: If only child, omitted child is entitled to receive the same share as if the T died intestate, unless the will devised all or substantially all of the estate to the other parent of the omitted child. a. If T had at least one child when will was executed, omitted after born heir is entitled to share equally in what was devised to Ts then living child b. Above dont apply if its clear from the will that child was intentionally omitted, or child is otherwise provided for 3. IL 5/4-10: Child is entitled to receive the same share as if the T died intestate unless it is clear from the will that child was intentionally omitted, or the child is otherwise provided for Death of Beneficiary 1. Automatic revocation b/c cannot leave P to sort out who predeceased 2. May also apply to situations where someone is deemed predeceased (like disclaimer or renunciation) 3. Anti-Lapse Statutes: Provide an alternate taker to avoid a gift failing entirely. a. Generally, only protects family members. 4. UPC 2-603: (Doesnt apply to every predeceasing situation, only a certain class (relatives)). If a devisee fails to survive the T and is a grandparent, a descendant of a grandparent, or a stepchild of the T, the gift goes to the devisees surviving descendants, if any, by representation. 5. IL 5/4-11: Devise goes to the devisees descendants. Beneficiary Killed T: 1. Generally, beneficiary prevented from taking by statute. If state doesnt have statute, courts look to common law and equitable remedies i.e. constructive trust 2. UPC 2-803 3. IL 5/2-6 4. See Slayer Rules above Alienation: Property devised to someone in will, but T gives property to someone else during Ts life 1. Inter vivos gift prevails over devised gift; testamentary gift revoked by operation of law Elapse of Time during which value of estate changes 1. Immense change in the value of the estate 2. You give money to your kids and then the value of the estate goes up. There is no alteration of the present given. The extra money that is left over will go through intestacy. So, you are partially intestate. 3. UPC 2-804: No revocation 4. ILCS 5/4-7: No revocation Change in feeling toward beneficiary 22

1. Change in circumstance, so nothing is revoked 2. Either you revise your will or dont make specific gifts without residuary clause 3. Ex. Left nothing to your son because youre mad at him. Many years later forgave son, but never revised will. Will gets probated as drafted and son gets nothing. 4. UPC 2-804: No revocation 5. ILCS 5/4-7: No revocation 2. Revocation by Physical Act a. Proof problems: When was will destroyed? Why? By Whom? Was real will destroyed? b. Requirements: i. Capacity to revoke; 1. Sound, mind and memory (must be able to know what youre doing) ii. Intent to revoke; AND iii. Sufficient Physical Act iv. (need simultaneous existence of all 3 requirements) c. Statutes i. UPC 2-507: A will may be revoked by burning, tearing, canceling, obliterating, or destroying the will or any part of it if the T: 1. Performed the act with the intent and for the purpose of revoking the will or part OR 2. If another individual performed the act in the Ts conscious presence and by the Ts discretion 3. Allows for partial revocation ii. ILCS 5/4-7: 1. A will may be revoked by burning, canceling, tearing or obliterating it by the T or by some person in his presence and by his direction and consent 2. No partial revocation by physical act. Alterations only allowed upon re-execution and attestation (must go through all formalities) d. HYPO: Testator calls attorney and says rip up the will. He says he does it. Sufficient physical act or not? Is this conscious? i. Argument can be made both ways. Violates conscious presence. e. Harrison v. Bird: attorney rips up will in front of secretary and sends pieces with letter to testator; statute requires it be in the presence; but court believes she got rid of pieces of the will (rebuttable presumption i. LOST WILL Rule: If evidence establishes that T had possession of will before her death, but will is not found among her personal effects after death, a rebuttable presumption arises that she destroyed the will f. Thompson v. Royall: Wrote on the back of the will and codicil that this will is null and void and signed it. Case is anti-testators intent. i. Rule: Revocation of a will by cancellation is not accomplished unless the written words of the document are mutilated or otherwise impaired. g. LaCroix v. Senecal: The doctrine of Dependent Relative Revocation sustains a gift by will when such gift has been revoked in a codicil that 23

substantially reaffirms the gift but is void by reasons of a subscribing witness. h. Estate of Alburn: Where a will is mistakenly revoked in the belief that an earlier revoked will would be revived, the doctrine of DRR may be applied to revive the mistakenly revoked will. i. Estate of Tolin: Tolin executed a will devising his estate to his friend. Copy of the will was given to him. He later executed a codicil and changed the beneficiary from Craig to another person. Attorney kept original and gave Tolin a photocopy. He dies later on. Six months before death, he advised his neighbor that he made a mistake and wished to revoke the codicil. Attorney told him that he could do that by tearing up the original codicil. They tore up the photocopy version with the intent to revoke the codicil. After death, attorney finds out this was not the original will. i. Court found this insufficient to revoke the original will and codicil. Court wants to give effect to his intent so they impose constructive trust. j. Rule: If T destroys copy of will in her presence, a rebuttable presumption arises that she has revoked her will and all duplicates, even though a duplicate exists that is not in her possession i. Proponent of will has burden of rebutting the presumption k. Rule: If written words are used for purpose of revoking will, they must be so placed as to physically affect written portion of will, not merely on blank parts of paper on which will is written i. Important: UPC does NOT require words of cancelation to touch words of will 3. R by Subsequent Writing: May be done via new will, amendment to an existing will, or a document expressly revoking will a. If a subsequent will makes a complete disposition of the testators estate without expressly revoking the prior will, its presumed to replace the prior will and revoke it by inconsistency. b. If a subsequent will doesnt make a complete disposition of the testators estate, it isnt presumed to revoke the prior will but is viewed as supplementing it. i. Property not disposed of in the codicil is disposed in accordance with the prior will. c. May be express or implied through inconsistency i. Express: this will hereby revokes all prior wills and codicils 1. UPC 2-507(a)(1) 2. Preferred Method 3. IL 5/4(a)(2), (4) ii. Implied: through inconsistency 1. Example: Testators 2000 will leaves guitar (tiger) to craftsman and everything else to wife; in 2002, testator executed a valid codicil that bequeathed same guitar to daughter, Trixie, and a first edition Silver Surfer comic book to friend, Sunshine; codicil does not include any language specifically revoking 2000 will a. Gift of guitar to craftsman is revoked by inconsistency so Trixie gets guitar 24

b. Gift of comic book to wife is revoked by inconsistency so Sunshine gets comic book 2. UPC 2 -507(b), (c), and (d) 3. 755 ILCS 5/4-7(a)(3) d. Codicil: A will that merely amends an existing will rather than completely replacing it. UPC 2-507(b)-(d) e. Statutes: i. UPC 2-507: A will is revoked in whole or part by executing a subsequent will that revokes a previous will in whole or in part expressly or by inconsistency 1. If a subsequent will doesnt expressly revoke a previous will, the execution of a subsequent will revokes the previous will by inconsistency if the T intended the subsequent will to replace rather than supplement previous will 2. T is presumed to have revoked will if the subsequent will makes a complete disposition of the Ts estate a. Rebuttable by clear and convincing evidence 3. T is presumed to have partially revoked will if subsequent will doesnt make a complete disposition of the Ts estate. Original will valid to extent not inconsistent with subsequent will ii. 755 ILCS 5/4-7: A will may be revoked by: 1. the execution of a later will declaring the revocation, 2. by a later will to the extent that it is inconsistent with prior will, or 3. by execution of an instrument declaring the revocation and signed and attested in the manner required for creation of a will e. Revival: Reinstatement of a Previously Revoked Will i. NOTE: Discuss all the possibilities a. Will # 1 is in effect; b. Will #2 is in effect; or c. Intestacy (no will at all) ii. Common Fact Pattern: T executes will # 1. Subsequently, T executes will #2, which revokes will # 1 by an express clause or by inconsistency. Later, T revokes will #2. Is will # 1 revived? iii. ILCS 5/4-7(c): Revival 1. To revive a will entirely revoked, the T must re-execute and attest 2. A partially revoked will is revived by revocation of the subsequent will iv. UPC 2-509: Revival 1. If a subsequent will that wholly revoked a previous will is revoked, the previous will remains revoked unless it is evident that the T intended to revive the will 2. If a subsequent will that only partially revoked a previous will is itself revoked, the previous will is revived and takes effect as if there had been no revocation v. Partial v. Full Revocation 1. If prior will is fully revoked, it can only be reinstated by re-execution and attestation 2. If prior will is partially revoked by an instrument that is later revoked, do NOT need to re-execution and attestation 25

vi. Conditional Revocation (CR) Use this powerful tool to avoid inequality 1. Can be express or implied a. Express: I revoke my will if X becomes president b. Implied: allows courts under certain circumstances to ignore revocation (a.k.a. dependent relative revocation) i. When T purports to revoke his will upon a mistaken assumption of law or fact, the revocation is ineffective if T would not have revoked his will had he known truth ii. Courts will assume Ts revocation was conditional (on existence of fact or effectiveness of new disposition) and since condition failed, T did not intend revocation to take effect at all iii. Rationale: Carry out Ts presumed intent iv. 2 Situations: A court will treat a purported revocation as a condition revocation where: 1. T revoked under a material mistake of fact; OR a. E.g. Testator thought son died at sea, but son is alive 2. T was mistaken as to the effectiveness of an alternate or new disposition that the T intended to substitute for the revoked one but that turned out to be invalid a. E.g. Testator failed to comply with statutory formalities 2. This is an equitable doctrine; will be applied at the courts discretion vii. Implied Conditional Revocation (aka Dependent Relative Revocation) 1. A court will imply that there is a condition to the revocation a. Permits a court, under some circumstances, to disregard a purported apparent revocation of the will 2. Will apply the doctrine when: a. A will is revoked by a testator under some mistake of material fact; b. Someone wanted to give it to his son, but he thought his son was dead when he really wasnt. c. When the testator intends a substitute provision to take effect, but for some reason it does not d. Ts second will is invalid for failure to comply with formalities. In a jxn where you can look the other way, this applies 3. EXAMPLE PROBLEM: a. T executed valid will 1, leaving the entire estate to his friend Sunshine. On 5/1/2000, T tore up will #1 and executed Will #2, which made $40,000 gift to nephew and left the rest of the estate to Sunshine. Will #2 is not valid because of a problem with attestation and formality. Testator is survived by Sunshine, nephew and a son. What is the proper distribution? i. Intestacy son gets everything ii. DRR Common law doctrine and rarely there are statutes on it. T would not have revoked will # 1 had he known Will # 2 was going to fail. iii. KEY What was the testators intent and is will #1 closer to his intent than the alternative of intestacy? Yes. f. Post-Execution Events i. Classifications of devises 1. Specific Devise: particularly IDs asset 26

a. To Becca, I leave my macbook 2. General Devise: $$$ or P payable from general assets of estate; no particular assets 3. Demonstrative Devise: Money or property payable first from designated source, secondarily from general assets of estate a. To my friend Scott $10,000 from savings account at Chase, or if the account is insufficient, then from my estate generally 4. Residuary Devise: Balance of the estate not otherwise disposed of a. To my professor, 1/3 of the balance of my estate b. 2 Types of Ademption: Issue is what, if anything, does the beneficiary take? ii. Ademption By Extinction 1. A Specific devise is ineffective (adeemed) if T does something w/ P so that T doesnt own it at his death you cannot give away what you dont own 2. Important: only applies to specific devises of real and personal property 3. 2 ways to determine if specific devise is adeemed: a. Identity Theory Traditional Rule i. If P is not there, person doesnt get the P ii. Will NOT consider intent (irrebuttable presumption arises that the testator intended to revoke the gift) iii. B/c this may seem unfair, some courts attempt to avoid result by: 1. Reclassifying specific devise as general 2. Finding that devise merely changed in form, not substance 3. Construing meaning of the will as of the time of death rather than as of the time of execution iv. POLICY: Courts seem to be going to extraordinary lengths to apply legal fictions to have an equitable result b. Intent Theory Modern rule and UPC 2-606 i. Jxn still follows the identity approach, but exempts property that was transferred through an act that is involuntary as to the testator, and/or that was made without the testators knowledge and consent. ii. Will consider Intent iii. Mild presumption against ademption, but includes 6 exceptions courts can follow when specific P is not in the Ts estate 1. Party claiming ademption has burden of proof 2. Grants specific devisee either the specifically devised P in Ts estate or: a. The balance of the purchase price if sold; b. Any condemnation award for a taking of the P; c. Any proceeds unpaid at death on recovery for injury to P; d. Any P owned by T at death acquired by foreclosure; e. Any real P or tangible personal P owned by the T at death which the T acquired as a replacement for specifically devised real P or tangible personal P; f. If not covered above, $ devised equal to the value of the P on its date of disposition but only if the T didnt intend ademption of the devise 27

3. In re Estate of Anton: Court extended the modified intention approach to include transfers by an attorney-infact without the knowledge of the testator. c. Ways to avoid the identity approach: i. Reclassification of Devise: Classify the devise as general or demonstrative rather than specific ii. Mere change in form: Classify inter vivos disposition as a change in form, not substance 1. Court will substitute assets 2. Ex. I leave my 2004 Car to my son. Before I die I have a 2010 car. 3. Even though its apparently a specific devise, this is just a substituted asset and you give him the 2010 vehicle iii. Time of Death Construction: construe meaning of will as of the time of death rather than as of the time of execution 1. Ex. I leave my home at Trump Tower # 3001 to my son, but at my death, I have moved floors 2. If you look at the gift of primary residence at the time of death to son, you can give the new residence rather than not giving him anything iv. Create Exceptions: 1. E.g. if the conservator of an incompetent or insane person transfers the item, most cases have held the legacy NOT adeemed on theory that ademption requires a voluntary act of the testator iii. Ademption By Satisfaction 1. T gives to the beneficiary inter vivos a gift made in the will (just a change in timing of gift). Issue is whether the inter vivos transfer should count against the beneficiarys testamentary share of the estate a. This is like doctrine of advancements under intestacy law b. Ex. Grandma gives money before she dies so that she can see you enjoy the money 2. Important: Only applies to general bequests and, in some states, to residuary and demonstrative gifts a. In all states, satisfaction depends upon the intention of T 3. Issue: Satisfaction of testamentary devise or separate lifetime gift? 4. Common Law Rule: If T is a parent of beneficiary and after the execution of the will, transfers to the beneficiary P of a similar nature to that given by the will, there is a rebuttable presumption that the gift is in satisfaction of gift made by will a. E.g. Ts will bequests $50,000 to her son, S, and her residuary estate to her daughter, D. After executing will, T gives S $30,000. There is a presumption that gift was in partial satisfaction of legacy, so that S will only take $20,000 at Ts death b. UPC 2-609: Unless there is writing to the contrary, the gift is treated as a separate lifetime gift, not the satisfaction of a testamentary devise i. IL is silent on ademption by satisfaction, but they do have an advancement statute iv. Abatement: When there arent enough assets in estate to fund all the specific and general devises, some of the gifts of some beneficiaries are abated 28

1. Unless the will provides for this contingency, statutes step in with default rules to determine how gifts are abated a. Devises ordinarily abate in the following order: i. Residuary devises are reduced ii. General devises are reduced iii. Specific and demonstrative devises are reduced pro rata 2. UPC 3-902: Shares of distributes are reduced/abated in the following order: a. P not disposed of in the will b. Residuary devises c. General devises d. Specific devises 3. 755 ILCS 5/24-3: Shares of distributes are reduced/abated as follows: a. specific devises are paid first, on a pro rata basis b. general devises are paid next, on a pro rata basis 4. Abatement Example: a. KCs will left his guitar to his manager, $8,000 to his mother, $4,000 in trust for his daughter, Francine and the rest of his estate to his wife Courtney. Assume that the guitar is worth $6,000 and the other estate assets total $24,000 for a grand total of $30,000. Debts total $15,000. Which beneficiaries share go to pay off the creditors, and who gets what after the pay off? i. Residuary Estate is worth $12,000 and that goes first to pay off the creditors ii. Mother and Daughter need to pay off the extra $3,0000 of debt iii. Specific Devise gets exactly what was left to him (Guitar) iv. Mom gets $6,000, Francine gets $3,000 and Courtney gets nothing v. Predeceasing Beneficiaries Lapse and Anti-Lapse 1. Lapse: If a beneficiary fails to survive the testator, the gift is said to lapse 2. At CL, if the T didnt provide for an alternate taker, a. And the devise is specific or general, then the P goes into the residuary estate b. And the devise is residuary, then the heirs of the T take by intestacy 3. If no alternate beneficiaries are named, anti-lapse statutes provide alternate taker a. UPC 2-603: Substitute Gift. If a devisee fails to survive the T and is a grandparent, a descendant of a grandparent, or a stepchild of the T, i. The gift goes to the devisees surviving descendants, if any, by representation b. IL 5/4-11: Unless the T provided otherwise in his will, if the legacy of a present or future interest is to a descendant of the T who dies before or after the T, the descendants of the legatee living when the legacy is to take effect in possession or enjoyment, take per stirpes the estate so bequeathed. c. Hypo: In her will, Mrs. Fisher leaves her record collection to her son, Nate with the residuary estate to be divided equally between her other two children, David and Claire. Nate predeceases Mrs. Fisher, leaving a wife and a daughter. What happens to the record collection under the UPC? d. If theres no alternate taker provided for under the will, if the predeceasing category is under the UPC, the rules would provide for an alternate taker. e. 2-603(b), Comments 2 and 3: Goes to Nates daughter rather than the residuary takers (goes along with the idea that there has to be an explicit 29

III.

alternate taker to override the rules, just a general residuary clause is not sufficient. Will Substitutes (non-probate transfer) a. Things to think about: 1. Is there a lifetime transfer of anything? 2. Is there something being transferred now? 3. Might be gift-taxes due 4. How difficult is it to revoke or amend the will substitute? When compared with amending, revising a will. b. Common Will Substitutes (The Big Four) i. Life Insurance: A K b/w owner of the policy and the insurer where insurer promises to pay a stated amount to the beneficiary when the insured dies 1. There may be more people involved in the K, insured isnt always the owner of the policy 2. This is a WS because, irrespective of whether you have a will or not, you will still have life insurance because it flows outside of the will and cannot be overridden by the will. ii. Pension Accounts: To the extent that a pension account isnt exhausted at the time of the retired employees death, it is payable to a designated beneficiary 1. Employee benefit arrangements, retirement arrangements, often involve matching 2. If you die before its all paid out, the proceeds go somewhere (whoever you select) a. You select according to the terms, however they say 3. This has nothing to do with the will. You can say whatever you want in the will about the pension, but the actual designator will get it.) iii. Joint Accounts 1. Bank accounts in which I have set up an account, but at my death if there is anything left, I have told the bank that I want it payable to someone. 2. They will substitute this as outside of the will 3. Two ways to look at this: a. Payable upon death account (K with bank) b. Totten Trust Court looked at arrangement and said it was more like a trust where the depositor is the trustee and lifetime beneficiary with the future interest (remainder) held by another beneficiary. i. Depositor sets up a Totten account by depositing money in the account in the name of the depositor for the benefit of the beneficiary. ii. Arose out of K law c. UPC and UTC have abandoned any consequence to whether you call it a POD or Totten Trust. 4. UPC 60212: Joint accounts enjoy a presumption in favor of survivorship. May be rebutted if account expressly states, no survivorship features. iv. Revocable Trusts: Legal title is separated from the beneficial interest. The trustee keeps legal title, while the settlor gets the beneficial interest. 1. Settlor retains a lifetime interest in the trust and beneficiaries get the remainder, if any, when the settlor dies. The settlor may revoke or amend at any time. 2. Might want to avoid probate b/c probate is public record c. Reasons for Using Will Substitutes i. Increase understandability ii. Single subject specific; makes it less complicated 30

Isolate from contest (or minimize vulnerability from challenge) Protect from creditors Change with less difficulty You can just fill out forms, a lot easier than drafting up codicils Retain flexibility Minimize Taxes Enhance Privacy Probate matters are public Reduce Planning/Administrative Expenses Accelerate Asset Distribution Provided non-estate planning benefits 1. Schmidt v. Sheet Metal Workers: Dad had a pension and said he wanted his son to be the beneficiary. They received the wrong form to fill out. Because he didnt correctly change the beneficiary, the default rules apply and the son and daughter take equally. 2. Although the son argued that the conversation indicated intent, he still didnt win. 3. POLICY: Different than probate because doesnt focus on intent, focuses on formalities. d. Revocation of Will Substitutes i. By Will 1. UTC 602 : Revoking/amending a trust. a. May revoke a trust by substantial compliance 2. But this is probably not available for other will substitutes ii. Revoking Life Insurance by Will 1. McCarthy v. Aetna Life Ins.: Issue was whether a decedent insured may change the life insurance policy by means of a testamentary position when the policy set out other means for change. Strict compliance. 2. Superwill 3. By statute, the state legislature says you can change the beneficiaries of nonprobate assets through your will 4. POLICY: Recognition that it should be easier to effectuate their intent 5. Smith v. Lewis: Malpractice claim. An attorneys standard of care includes the duty to conduct a reasonable investigation of the applicable law before providing a client with his advice. iii. Upon Divorce 1. Clymer v. Mayo: Couple was married for 25 years and got divorced. Issue was whether the Mass. Revocation on divorce statute applied to trust provisions. Court held the will is revoked and trust has two parts. Statute revokes the non probate trust provisions in favor of a former spouse. (When the trust is funded during life, you are earning income and getting statements, so you should know to change the beneficiary.) 2. BUT NOT SO for employee benefit plans a. Egelhoff: ERISA preempts statute revocation of divorce states. ERISA only revokes provisions to dormer-spouse if employee remarried 3. ERISA Preemption: a. 29 USC 1144: ERISA shall supersede any and all state laws insofar as they may now or hereafter relate to any employee benefit plan covered by ERISA b. 29 USC 1055(a): In the case of a vested participant who dies before the annuity starting date and who has a surviving spouse, a qualified pre31

iii. iv. v. vi. vii. viii. ix. x. xi. xii. xiii.

retirement survivor annuity shall be provided to the surviving spouse of such participant. 4. Statutes: a. UPC 2-804(b): Divorce revokes any revocable disposition made by a divorced individual to his former spouse in a will and/or will substitute and to former spouses relatives (except for ERISA plans employee must remarry!) b. 760 ILCS 35-1: Revokes any provisions to former spouse for will substitutes (Except for ERISA plans) e. Limitations on Disposition i. Spouses Elective Share: Provides to the surviving spouse a choice as to take a statutorily provided share in lieu of what is provided under the will. 1. All states except GA have a forced share that protects a SS who is disinherited 2. Rationale: a. Support Theory: Society shouldnt allow a former spouse to be left without support i. We dont want this person to become a ward of the state b. Partnership Theory: Rewards spouse for at-home work and missed opportunities i. There is entitled here to a certain share of the spouses estate to get what he/she is entitled to 3. Methods of Calculating/Jxns: a. Community-Property States: i. Adopts a partnership theory of marriage and divide up the property during marriage ii. All P acquired during marriage vests with each spouse iii. Duration of marriage doesnt matter b. Separate-Property states (755 ICLS 5/1-8) i. All P acquired during marriage vests with him who acquired it ii. But, spouse gets 1/3 of P if the T leaves a descendant, if no descendants left iii. Duration of marriage doesnt affect iv. Important: Illinois is a separate-property state 1. Elective share renunciation of will by spouse c. UPC: Accrual-Type Elective Share i. Doesnt actually distinguish between those assets that are owned by the decedent before the marriage and those that come into the marriage ii. 2-203, 2-203: The provisions in augmented estate is 30%. After 5 years of marriage, we are going to presume that 30% of the decedents assets came in during the marriage and 70% after. 1. After 15 years of marriage, it is presumed that 100% of the assets came in during marriage. iii. Goals 1. Equalize assets in long-term marriages 2. Reduce or eliminate elective shares for short term marriages, late in life iv. Methodology: 1. Determine the augmented estate by adding (2-203): a. 2-204: Decedents net probate estate 32

b. 2-205: Decedents non-probate transfers to others c. 2-206: Decedents non-probate transfers to surviving spouse d. 2-207(a)(1): Surviving spouses assets e. 2-207(a)(2): Surviving spouses non-probate transfers to others 2. Determine the elective share % by reference to the length of marriage a. Table 2-202, p. 43 3. Multiply the ES% by the amount of the augmented estate 4. Determine the source from which the elective share is payable a. Subtract (((SSs non-probate assets +SSs assets) * twice the ES%)) + (Ds net probate estate +Ds nonprobate transfer to SS)) from above answer. This is the amount the SS gets from D. 5. If SSs total is less than 50k, determine what additional amount is available under supplemental elective share a. Add the amount the SS gets from D to SSs assets. SS get supplement of (50k this number) 6. Do NOT forget that total amount SS has equals what gets from D + her own assets d. Who qualifies as a surviving spouse? i. Cooper: Ct denied SS status to Ds gay boyfriend e. P Subject to Elective Share i. Exemptions and Allowance 1. UPC 2-401 2-405: Allows a homestead allowance, family allowance during the period of administration up to approx. 43l 2. 755 ILCS 5/15-1: Provides for a minimum of 10k during the administration period +5k for each child ii. Inter vivos transfers 1. UPC: includes in augmented estate 2. IL: inter vivos transfers are NOT part of probate estate unless intent to defraud f. Incapacitated Surviving Spouse i. UPC 2-212: Elective share payable from Ds probate estate and non-probate transfers to others goes into a Custodial Trust. On Death of SS, the remaining P goes back to predeceased spouses residuary heirs g. Waiver i. UPC 2-213: Permits waiver pre- or post-marriage, by written K; however, if voluntary or unconscionable at the time of execution waiver not enforceable. ii. No IL provision h. Probate Exemptions and Allowances i. UPC 2-401 2-405 ii. Illinois Spouse and Child awards iii. 755 ILCS 5/15-1 and 2 ii. Pretermitted Heir 33

1. When child born after will is executed, is not provided for 2. SEE POST-EXECUTION EVENTS, ABOVE FOR IL AND UPC iii. Omitted Spouse 1. Will drafted before D got married; never updated to reflect the marriage 2. SEE POST-EXECUTION EVENTS, ABOVE FOR IL AND UPC f. Will Contracts i. Reason for discussion: these restrict donative freedom ii. 2 Types: 1. Ks Not to Revoke a Will a. Arises when a party agrees not to revoke a will or a provision in a will b. Often arises with childless couples and couples with children from a prior marriage c. Threshold Issues: i. Proving or disproving existence of the K, especially when no writing exists ii. Avoiding the SoF when K is oral iii. Most but not all Jxns hold that elective share provisions take priority over will Ks d. Vocab: i. Joint Will: A single testamentary instrument that contains the wills of two (or more) persons, usually husband and wife. Typically will provide that on the death of the first party, all of his or her property goes to the surviving party to the joint will, and upon the death of the surviving party, all of the second-to-dies property goes to some agreed upon beneficiary or beneficiaries. ii. Reciprocal or Mutual Wills: Separate testamentary instruments that contain parallel dispositive provisions e. UPC 2-514: Contracts Concerning Succession i. A contract to make a will or devise, or not to revoke a will or devise, or to die intestatemay be established only by (i) provisions of a will stating the material provisions of the contract; (ii) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract; (iii) a writing signed by the decedent evidencing the contract. ii. The execution of a joint or mutual will(s) doesnt create a presumption of a K not to revoke the will(s). The surviving party is free to dispose of all of his or her property, including the property received by virtue of the first partys death, as the surviving party sees fit. f. Junot v. Estate of Gilliam: Issue was whether the existence of mutual and reciprocal wills gave rise to an enforceable contract not to revoke. g. Via v. Putnam: Husband and wife wrote mutual wills providing all property to SS and all property of SS to children. Included contract not to revoke. Husband died and wife remarried. When she died, her spouse claimed spousal protection rights in her property. Children sued claiming that the surviving wifes marriage breached the contract not to revoke and, as creditors, they were entitled to take before the new husbands spousal protection claims. Court adopted minority approach and held that as a matter of public policy, spousal protection wins. i. Court rule no, that there must be something more. 34

h. 750 ILCS 80 (IL Statute of Frauds) i. Ks that cannot be completed within one year, or Ks for the sale of an interest in land must be memorialized in writing i. UPC 2-205: Net of Creditors Claims. i. Creditors take before beneficiaries in the will, spouses claiming spouse protection take before beneficiaries in the will, and creditors claims are satisfied before spousal protection claims are satisfied. j. Misc. Issues i. Whether a survivor has a right to consume or make gifts of P subject to a will K 1. Schwartz some courts held that can set aside substantial gifts ii. What P is covered b a will K, specifically does it include P acquired by a SS after D died? 1. Drafting issue iii. Whether such a K may lapse 1. Majority View: Ks not to revoke may not lapse 2. What if the beneficiaries of the contract predecease the surviving testator? a. Minority view is that it stays in the estate of the second spouse to die (maybe intestacy or residuary clause) 2. Contracts to Devise a. Green v. Richmond: D was rep of Maxwell. There was an oral contract where he would bequeath all of his stuff at deal. Contract alleged that he would give all of his stuff to her in consideration of caring for him. They were not married. Several times over the 8 years, he reaffirms this agreement. Either he left no will or she was left out. She sues. No contracts because of statute of frauds. b. Often arise in elder care and other service Ks c. Almost always this is when someone agrees they will give everything when they die if the other person takes care of them (Undue Influence Issue) d. In many states, a contract to make a will must be in writing i. In these states, if promisee is not entitled to sue for specific performance, then promisee entitled to receive value to D of services rendered e.g. quantum meruit ii. Actions for quantum merit/restitution are allowed as long as K wasnt illegal e. In some states, an oral K to make a will is specifically enforceable provided the terms are proved by clear and convincing evidence, the rendition of services is wholly referable to the K, and the services are of such peculiar value to the promisor as not to be estimated or compensable by any pecuniary standard iii. Combination Wills (See joint wills above) g. Resolving Mistakes or Ambiguities in Wills i. Context some evidence exists that what is reflected in the terms of the will does not constitute the testators true intentions. ii. Mistake 35

1. 2 types of mistake: a. Straight Scrivener Error: Accidental omission by scrivener or typist b. Mistake of inducement/fact: Testator makes disposition based on mistaken belief e.g. thinks his son died in accident, but son is alive 2. Conventional Rule: Upon showing of mistake by clear and convincing evidence, courts will reform lifetime instruments to prevent unjust enrichment, but NOT to reform wills a. Courts will not reform wills b/c want to protect against fraud 3. Plain Meaning Rule: If terms of will are clear and unambiguous, courts will NOT reform will even though it contains a mistake that is inconsistent with testators intent a. Extrinsic Evidence is not allowed b. EXCEPTION: If there is a scriveners error i. If a scriveners error has mislead T into executing a will on belief that it will be valid notwithstanding Ts subsequent marriage, extrinsic Evidence of that error is admissible to establish the intent of the T that his or her will is valid notwithstanding the subsequent marriage. ii. If the scriveners error and its effect on the Ts intent are established by clear and convincing evidence, then they will be sufficient to establish that provision has been made in such will for such contingency c. An inflexible rule of construction, with parallel rule of inadmissibility of extrinsic evidence to establish contrary testator intent d. Criticized for being harsh and for not making much sense whos plain meaning? The courts? The Ts? e. Applies to both mistakes and ambiguities f. Harris Trust & Savings v. MacLean plain meaning in Illinois g. He uses words that by definition incorporate adoptees. Those that oppose distribution to the adoptees were trying to bring in extrinsic evidence to say that this isnt true. h. Erickson v. Erickson scriveners error? i. P is the daughter of Decedent. Decedent made will that included wife who he married 2 days later. He dies 8 years later. Court adopted the scriveners error doctrine, ruling that if there is clear and convincing evidence of the scriveners error and clear and convincing evidence of its effect upon the testators intent, the evidence should be admitted. j. Reforming to Correct Mistakes k. 2-805: Clear and Convincing evidence what the testators intention was and that the terms were governed by a mistake of fact. 4. Exceptions to rule that court will not cure mistakes in wills: a. Courts can strike out a mistaken description b. Courts may remedy a mistaken belief about a member of the family by calling it an insane delusion c. Courts may remedy mistake in the revocation of wills under the doctrine of Dependent Relative Revocation d. Recently, some courts have remedied mistakes by scrivener iii. Ambiguity: An uncertainty in meaning that is revealed by terms of will itself or by extrinsic evidence other than direct E of Ts intention that contradicts that plain meaning of the text 36

1. Construe text in accordance with Ts intention a. Will consider extrinsic E 2. Important: If there is no ambiguity, the plain meaning rule applies (except for mistakes) 3. 2 types of ambiguities: a. Patent Ambiguity (obvious): Appears on the face of the will i. E.g. I give my green blub-blub to my son, George or I give my guitar to______ 1. At common law, the gift would fail because no extrinsic evidence to ascertain meaning 2. Today, courts allow extrinsic E b. Latent Ambiguity (hidden): does not appear on face of the will, but appears when terms of will are applied to Ts P or designated beneficiaries (only appears w/ extrinsic E) i. E.g. I leave my custom guitar to my wife Trixie. This is ambiguous because his wifes name is Debbie and his daughters name is Trixie. 1. At common law, courts would allow extrinsic evidence 2. Today, courts allow extrinsic evidence, except that Ts own declaration of his intent of the wills meaning isnt admissible 3. Courts will not add words to a will or rewrite the will c. Equivocation: A latent ambiguity where the description fits 2 or more P interests or beneficiaries i. Extrinsic E allowed to supply meaning ii. Mahoney v. Grainger: 1. Testatrix told her atty that she wanted to leave the residue of her estate to her 25 or so first cousins equally. She told atty they were her nearest relatives. But, her maternal aunt was her nearest relative. Atty drafted will to say heirs at law. When will was admitted to probate, court applied plain meaning law and gave aunt everything. EE was not admissible to establish a meaning for the phrase heirs at law. iii. A court might be reluctant to take extrinsic evidence because its not efficient. iv. Arnheiter v. Arnheiter: If there equivocation, reforming by deleting words is ok. Deleted the number of the street so that the house could be admitted into probate. d. Misdescription of Property or Person i. Arises where the description of an object or person in the will appears fine on the face of the will, but when the court goes to apply it, no object or person matches the exact description, but one exists that almost matches the description. ii. Courts use extrinsic evidence to establish the misdescription and to determine which words in the will to strike, but courts do not insert any words to correct the description. iii. Modern Rule: 1. Restatement 3d does away with distinction b/w patent and latent ambiguities Restatement 3d of Property, 12.1 37

a. Ambiguity an uncertainty in meaning that is revealed by the text or by extrinsic E other than direct E of intention contradicting the plain meaning of the text b. Resolved by construing the text of the document in accordance w/ donors intention c. Court may consider all relevant E, whether direct or circumstantial d. Donors intention must be established by a preponderance of the E e. E of the Ts direct declarations of intent may be considered in resolving ambiguities e. No Ambiguity i. E.g. I leave all of my property to Dr. K. However, wife claims that husband was supposed to leave his property to her 1. At CL, courts would NOT allow extrinsic evidence 2. Today, courts will NOT allow extrinsic evidence iv. EXAM NOTE: How would you go about resolving one of these issues whether in practice or elsewhere? 1. Identify the situation and decide whether its a mistake or an ambiguity (Argue both sides and consequences) 2. If its a mistake, at CL we have more problems. Any extrinsic evidence will vary the terms. 3. If we can argue this is an ambiguity, knowing that when we characterize it, even at common law we can admit extrinsic evidence. v. Blackletter Laws: 1. Restatement 3d of Property - 10.1 a. Donors intention determines the meaning of a donative document and is given effect to the maximum extent allowed by law 2. 11.1 Ambiguity: An uncertainty in meaning that is revealed by the text or by extrinsic evidence other than direct evidence of intention contradicting the meaning of the text 3. 11.2 ambiguity is resolved by construing the text of the document in accordance with the donors intention, to the extent the donors intention is established by a preponderance of the evidence 4. 10.2/Comment f; 11.2, comment d: Evidence of the testators direct declarations of intent may be considered in resolving ambiguities of any type, patent or latent 5. 11.1 Comments B and C: Direct evidence of intention contradicting the plain meaning of the text does not establish a latent ambiguity ELDER AND DISABILITY LAW a. Elder Law Generally i. Advocacy for the Aging Issues 1. Age and Disability Discrimination Suits 2. EEOC Enforced; Private causes of action 3. Laws that make it illegal to discriminate against a person based on race, age, religion, sex, disability or genetic information 4. Employers with at least 15 employees are covered by this if its age discrimination, must be 20 employees 5. Consumer Credit Protection/Fraud Actions 38

IV.

6. Many elderly persons are more vulnerable to consumer fraud 7. Truth and Lending Act 8. Door to Door Salesman rule 9. Planning for Incapacity 10. What if something happens to me and I cannot make decisions on my own? 11. Health Care powers of attorney and living wills b. Medicare i. Health Insurance for aged and disabled people ii. Federal program iii. No financial need requirement, but have age requirement of over 65 iv. Hospital Insurance - Funded through FICA v. Supplemental voluntary, administered through Medicare but they charge premiums and they cover more vi. Limits: 1. Part A doesnt include all health services that regular people need, glasses, hearing aids 2. Part B is premiums and not everyone could afford them 3. Neither A nor B nor D cover the long-term health care for more immediate short term crises 4. For people without money, if they have any savings they are wiped out in the first year if they have catastrophic health issues 5. Part D is governmentally funded. Private plan to supplement for prescription drug costs. 6. Donut Hole For first set of money there was coverage, then you would hit a limit and there was a gap between that and what they would cover as you get higher. a. Obamacare provides for drug discounts for those in the donut hole. By 2020, Obamacare will eliminate the donut hole. c. Medicaid i. Joint Federal and State program ii. Pays some health care costs of the needy iii. 45 USC 1396(a), et. seq. iv. While no age requirement, there is a financial need requirement. State establishes eligibility rules 1. Funded through FICA v. Middle class have interest in qualifying for Medicaid so create Medicaid qualifying trusts 1. Medicaid qualifying trusts (discretionary trusts): Trust created to transfer assets so that the transferee can qualify for Medicaid a. Isolate assets so you qualify 2. Cases: a. NYSBA: Court enjoined department of justice from enforcing statute that made it a crime for an attorney to counsel a client about creating a qualifying trust on 1st A grounds. Granny goes to jail act. b. Myers: Court held that a state might not consider discretionary trusts assets as part of beneficiarys available resources b/c trustee has discretion whether to pay any funds c. ObamaCare and Medicaid and Medicare d. Obamacare extends Medicaid coverage to cover those at or below the federal policy line e. Raising the bar to include 600,000 more people 39

f. The consequence of states not agreeing to this is that they will lose federal funding of Medicaid which is most of the cost of the program vi. 760 ILCS 5/15.1: If a discretionary trust is created for the benefit of a disabled individual, the individual does not need to pay the state back for any public aid unless: 1. Trust was created by the individual or with individuals own property AND 2. Trust violates federal Medicaid reimbursement rules 3. If the trust was created by the individual or with his own P, he will also have to pay the state for any other outstanding service charges at death d. ADVANCE HEALTH CARE DIRECTIVES: If something happens to me and Im not in a position to make medical health care decisions for myself, who do I want to make those decisions? i. Living Will: A legal document that provides specific treatment (or non treatment) instructions in the event that individual becomes terminally ill or left in a persistent vegetative state 1. ILCS 35/1: People have a fundamental right to control decisions relating to the rendering of their own medical care, including decisions to have death delaying procedures withheld or withdrawn in instances of a terminal condition 2. Living wills must be signed and with 2 witnesses 3. Pregnancy exception: living will requesting no treatment is invalid for pregnant women 4. Uniform Health Care Decisions Act (1993): Comprehensive legislation that confirms right of a competent individual to decide all aspects of his or her own healthy, care in all circumstances, including the right to decline health care or to direct that healthy care be discontinued, even if death ensues. ii. Durable Power of Attorney (DPOA) 1. A written instrument authorizing an agent to make any health care decision the principle could have made while having capacity 2. Different from ordinary POAs which terminate on incapacity of the principal. This one continues until principal dies. a. This makes it more flexible: Allows agent to respond flexibly to changing circumstances when the patients wishes arent known. 3. Requirements a. Uniform Health Care Decision Act i. POAs must be in writing, except for decisions by surrogates ii. Surrogates are proved by statute when the person cant make the decision for himself. Provides a hierarchy of people to talk to. This is in the absence of a living will that addresses the issue. In the absence of a durable health care POA also. b. ILCS 45/4-1: Illinois Power of Attorney Act - Provides immunity for health care providers that in good faith abide by the DPOA c. Health Care Surrogate Act 755 ILCS 40/1 d. Private decision making is 40/20 e. Order of priority guardian, spouse, adult son or daughter of the patient, parent of the patient, any adult brother, adult grandchild, patient guardian of the estate f. Ex. What if you have an unmarried couple who lived together for 25 years? That person would be 7th on the list. (Reason to have a durable health care POA). iii. Cases 40

1. Franzen: Court held that the scope of an agents authority didnt include the authority to revoke a trust b/c such authority wasnt specifically set out in agency agreement. Authority to revoke a trust is narrowly construed. 2. Cruzan: In the absence of a DPOA or living will, presumption that disabled individual wants death-delaying procedures unless one can show opposite intent by clear and convincing evidence iv. Euthanasia: Terminating life-assisting treatment is deemed passive; assisting suicide is deemed active. 1. 720 ILCS 5/12-31: A person commits the offense of inducement to commit suicide when he or she does either of the following: a. coerces another to commit suicide and the other person commits or attempts suicide as a direct result of the coercion, and he or she exercises substantial control over the other person through: i. control of the other persons physical location or circumstances; ii. Use of psychological pressure; or iii. Use of actual or ostensible religious, political, social, philosophical, or other principles, iv. With knowledge that another person intends to commit or attempt suicide, intentionally 1. Offers and provides the physical means by which another person commits or attempts to commit suicide, or 2. Participates in a physical act by which another person commits or attempts to commit suicide. b. Washington v. Glucksburg: Four physicians, NPO and patients who would aid in assisted suicide of terminally ill patients. Washington statute disallowed physician-assisted suicide. The constitutional argument was that it went against legislative history and public policy and due process and right of liberty as preserved. c. Court applies rational basis test. V. TRUSTS a. Trust i. A fiduciary relationship with respect to P in which one person (trustee) holds P for the benefit of another person (beneficiary), w/ specific duties attaching to the manner in which the trustee deals with the P ii. A trust divides title to P into a legal interest, held by the trustee and an equitable interest, held by the beneficiary iii. Functionally equivalent to a will iv. No statutory formalities b. Trust parties: i. Person who creates trust = settlor, trustor, creator c. Why create a trust? i. Tax advantages can maximize gift tax exclusion, can shift obligation to person with lower tax bracket 1. #1 on IRS use of scams. Misuse of trust. Avoid income tax liability and hide assets from creditors, including the IRS. 2. BUT, were talking about for estate planning. ii. Asset management 1. Separate management of property from enjoyment of the property 2. Maybe beneficiary is disabled or a child 3. Maybe necessity for having exertise in managing assets 41

4. Maybe someone taking over the assets (settlor makes himself the trustee) iii. Privacy iv. Facilitate the division of P ownership among different concurrent or successive owners 1. Provide so my kids will enjoy the benefits of this property, but when they die, I want to prove that their kids will have the benefits v. Avoid probate 1. Assets put into lifetime revocable trust will stay out of probate (preserves privacy interests) d. Important Distinctions B/w Trusts: i. Express or Direct v. Implied (resulting or constructive) trust 1. Express Trust: Arises from intention of settlor 2. Implied Trust: Arises by operation of law a. Resulting Trust: Trust that arises by operation of law in one of two situations: (1) where an express trust fails or makes an incomplete disposition, or (2) where one person pays the purchase price for P and causes title to P to be taken in the name of another person who is not a natural object of the purchasers bounty this creates a purchase money resulting trust b. Constructive Trust: Flexible remedy imposed in a wide variety of situations to prevent unjust enrichment i. A constructive trustee is under a duty to convey P to another on ground that retention of P would be wrongful ii. Requirements for imposition of constructive trust are: (1) a confidential or fiduciary relationship; (2) an express or implied promise by the transferee; (3) a transfer of property in reliance on the promise; and (4) unjust enrichment of the transferee ii. Active v. Passive (Dry/Naked) 1. Active: Trustee has specific duties to perform 2. Passive: Trustee has nothing to do a. Invalid because a trust requires that trustee have at least a minimal duty b. Exception: life insurance, which is a valid, passive trust iii. Living/Inter Vivos v. Testamentary 1. Distinction depends on when trust was created 2. Living/Inter vivos = created during life time 3. Testamentary = created at death and through will iv. Private v. Charitable 1. Based on the purpose of trust 2. Private = for own purposes 3. Charitable = goes to fund scholarships, etc. v. Revocable v. Irrevocable 1. Whether settlor/creator can terminate it 2. R Settlor can either take back the property or terminate the trust 3. Irrevocable cannot a. Often used for tax planning vi. Mandatory v. Discretionary 1. Refers to powers of trustee does trustee have to follow specific instructions or does he have discretion 2. Dont forget that trustee always has fiduciary duties e. Requirements for a valid express trust 42

i. Intent to create a trust: 1. Settlor must intend to create a trust that imposes a legal duty to dispose of P, rather than a moral obligation that is unenforceable at law (intent to split interests and give trustee fiduciary duties) a. No special words needed to create trust through ii. Trust Property: Settlor must place some identifiable P into the trust 1. Could be $1 or any interest in P that can be transferred e.g. contingent remainders, leasehold interests, royalties, and life insurance policies can be put in trust 2. No trust property is required for an inter vivos trust if the settlor executes a pourover will 3. Unthank: Court found no trust b/c no res or corpus. A promise to make a gift in the future is not a res (trust property) 4. Brainard: Court found no trust b/c no res. Future profits cannot constitute a res iii. Must have a trustee who holds legal title 1. However, a trust will NOT fail if a trustee resigns; will NOT fail for lack of a trustee (UTC 704, 705; 760 ILCS 5/2(2), etc.) a. Trustee needs consent of beneficiaries to resign 2. Marsman: Trustee has duty to inquire into the beneficiarys financial situation in a discretionary trust iv. Must have an ascertainable beneficiary so s/o has standing to bring suit 1. Can be the settlor, but usually the third party 2. Unborn beneficiaries are ok 3. Unascertainable beneficiaries may be ok, may fail if you cannot ascertain the beneficiaries a. 2 Different Rules: i. Clark case: Beneficiaries under a trust may be designated by class, but such a class must be capable of delineation; there must be a definite group or class of people capable of delineation. 1. friends are not capable of delineation 2. Contrast with power of appointment beneficiaries a. Here, test is whether beneficiary class described so that at least one person exists who meets the description ii. UTC 402: A beneficiary is definite if the beneficiary can be ascertained now or in the future, subject to any applicable RAP. A power in a trustee to select a beneficiary from an indefinite class is valid. If the power isnt exercised within a reasonable time, the power fails and the P subject to the power passes to the persons who would have taken the P had the power not been conferred. b. Pets as Beneficiaries i. UPC 2-907: The trust for the care of a pet is valid as a trust. The trust terminates when no living animal is covered by the trust. ii. UTC 408: A trust to care for a pet may be enforced by a person named in the trust or a person appointed in the trust c. Standards for Power of Appointment v. Trust i. Power of Appointment: Not have to identify definite class of persons 1. Test of Validity: if the class of beneficiaries is so described that some person might reasonably be said to answer the 43

description, the power is valid. An appointment is invalid, however, if it cannot be determined whether the appointee answers the description 2. Discretionary, non fiduciary power ii. Trust: Must identify definite class of persons 1. Fiduciary power 2. Different standards b/c trustees have fiduciary duties v. Settlor must have capacity 1. Settlor must have capacity at the time he creates the trust. He can THEN become incapacitated, but need to be a legal trustee with capacity vi. Trust must have a permissible purpose 1. Cant be illegal or against public policy vii. Trust must comply with the SoF (Writing Requirement) 1. Almost no formalities to create trusts; oral trusts ok 2. However, formalities imposed by SoF a. Trust must be in writing when it falls within the SoF (e.g. if trust holds land); OR b. When it is created in a will. In latter, must comply with will formalities. c. If not complied with, courts may find a constructive trust in interest of equity (e.g. when have confidential relationship, like mom and son) viii. Duration (Cannot violate the RAP) 1. Cant be too far removed from the time it was created 2. We dont want dead people controlling property for too long 3. Classic fact pattern; creation of successive interests ix. Consideration 1. Not needed could be entirely gratuitous f. Statutes i. Uniform Trust Code (UTC) 402 Requirements for Valid, Express Trust. A trust is created if: 1. The settlor has capacity; 2. The settlor indicates an intention to create the trust; 3. The trust has a definite beneficiary or is a charitable trust, a trust for the care of an animal; or trust for non-charitable purposes; a. A beneficiary is definite if the beneficiary can be ascertained now or in the future, subject to any applicable RAP b. A power in a trustee to select a beneficiary from an indefinite class is valid. If the power isnt exercised within a reasonable time, the power fails and the P subject to the power passes to the persons who have taken the P had the power not been conferred. 4. Trustee has duties to perform; AND a. A trust will not fail if a trustee resigns 5. Same person is not sole trustee and sole beneficiary; ii. UTC 401 Methods of Creating Trust 1. Transfer of property in lifetime or by will 2. Declaration by trustee (settlor) re: identifiable property 3. Exercise of power of appointment a. You can say when I die, I want to give the right to choose the next enjoyer for someone else b. I give my son, at my death, the power to choose who to give my iTunes library to, but he cannot give it to himself or his estate 44

c. Just giving someone the right to choose who will get the property iii. UTC 404 Trust Purposes: 1. No illegal purposes, purposes against public policy, or impossible purposes iv. UTC 405 Charitable purposes; enforcement 1. Charitable trusts okay v. UTC 406 Trusts created under fraud or duress are void vi. UTC 407 Oral trusts are valid (unless statutes state otherwise); however, must be established by clear and convincing evidence vii. Illinois Statutes 1. 760 ILCS 5 - Trusts and Trustees Act 2. 5/2(1) Definition of Trust a. Trust means a trust created by will, deed, agreement, declaration, or other written instrument 3. 5/2(2) Definition of Trustee a. Trustee means trustee or any successor or added trustee of trust, whether appointed by or pursuant to the instrument creating the trust, by order of court or otherwise, and includes an individual or a corporation qualified to administer trusts in this state 4. 740 ILCS 80 Frauds Act 5. 80/9 Express trusts to be in writing; resulting and constructive trusts provable by Parole a. all declarations or creations of trusts shall be manifested and proved by some writing signed by the party who is by law enabled to declare such a trust, or by his last will in writing; or else they shall be utterly void and have no effect. g. Trustees i. Restatement 3d Trusts, 14: A trust will not fail for lack of a trustee ii. Also UTC 704 and 705; Illinois ILCS 5/2(2); 5/12; 5/13 and 5/14 1. Suggests what can be done to avoid having a void in a trusteeship 2. If they cant agree, go to court and have a trustee appointed 3. UTC suggests, even if you dont give consent, as long as you give notice youre out 4. Illinois Rule: Rejecting common law and how to fill vacancy in 5/13 a. 5/14 powers and duties of the successor. Proves that you would never get a trustee to take over if that person would be liable for the prior trustees bad actions 5. Requirement of Trust Beneficiaries 6. Could be contingent h. Different Types of Trusts i. Honorary Trusts 1. Not a legally valid trust. Trust that binds only the conscience of the trustee. Court will recognize it so long as the trustee agrees to go along with the terms. There is no beneficiary capable of coming into court. 2. This would not violate the RAP because the money wouldnt last that long ii. Secret and Semi-Secret Trusts 1. Extrinsic evidence that the person holding the gift is really just a trustee 2. Both are invalid in IL, and IL courts apply constructive trusts 3. Secret: Will devises P to an individual, but doesnt indicate an intent to create a trust. Then a third party appears to claim a beneficial interest. 45

4. Semi-Secret: Will indicates that an individual is to hold the legacy in trust but doesnt ID the beneficiary iii. Spendthrift Trusts protects donors freedom 1. Trusts with a disabling restraint that prohibits voluntary or involuntary alienation of the beneficial interests a. Disabling restraint: the restraint invalidates the attempted alienation b. A forfeiture restraint, in contrast, automatically triggers a termination of the interest in an attempted alienation (with the consequence of reversion or alternate taker). Contained in protective trusts. 2. Both trust corpus and income are protected 3. Commonly used by wealthy to pass on $ to heirs likely to squander it or run up large debts and have it seized by creditors 4. Spendthrift language: The interest of my son Kramer in this trust shall not be subject to the claims of his creditors or others, or to any legal process, and it may not be transferred by him or otherwise voluntarily or involuntarily aleianted or encumbered. a. In IL theres a presumption of a spendthrift trust if the settlor isnt the beneficiary 5. Enforceability: a. UTC 501 and 502 - Rights of beneficiarys creditor or assignee and spendthrift provision i. Spendthrift trust must prevent creditors AND beneficiaries from alienating interests ii. Applies to both income and corpus iii. No applicable when beneficiary is the settlor b/c this prevents fraud b. UTC 503 Exceptions to Spendthrift Provision, i. Spendthrift provision in unenforceable if beneficiarys child, spouse, or former spouse who has a judgment or court order against the beneficiary for maintenance or support ii. Spendthrift provision is unenforceable if judgment creditor who has provided services for the protection of a beneficiarys interest in the trust iii. Spendthrift provision is unenforceable against claim of this State or the United States c. 5/2-1403 Judgment Debtor as Beneficiary of Trust i. presumption of spendthrift trust if beneficiary is not settlor 1. exception: Spendthrift provision is unenforceable if settlor owes child support iv. Discretionary Trusts (not mandatory) 1. A trust that leaves to the trustees discretion whether, and in what amounts, to pay income or principal or both to the beneficiaries 2. Commonly used to provide for offspring that are young when the settlor creates the trust and settlor doesnt know what their specific needs will be in the future 3. Discretionary Language: Trustee shall use the income and principal of this trust in the trustees full and complete discretion for the benefit of my two loving children, Lyle and Eric. a. Possibility that beneficiary wont get anything 4. Note: Trustee doesnt have absolute discretion. He must use good faith, honesty and fair dealing, consistent with settlors intention 46

v. Support Trusts 1. A trust that directs the trustee to use income and/or principal as needed for support of beneficiary 2. Commonly used when settlor wants to take care of some of offsprings particular/basic needs (e.g. disabled child) 3. Beneficiary cannot assign interest 4. Interest usually cannot be reached by creditors because inconsistent with settlors intent 5. Support Language: the trustee shall pay to or apply for the benefit of my minor children, Jack and Kelly, so much of the net income and so much of the principal of the trust property as the trustee in his sole discretion deems advisable for the beneficiarys health, education, maintenance, and support. The trustee is not required to treat each child equally, and the trustee need not consider the beneficiarys other resources and income in making distribution decisions. vi. Protective Trust 1. An ordinary express trust that automatically converts to a type of discretionary trust if the beneficiary should attempt to alienate it or creditors attempt to reach the beneficiarys interest. 2. Protective Language: Income payable for life to my son Kramer, but if he should attempt to sell, transfer or assign any part of his interest in trust, income is payable to him solely and exclusively at the full and complete discretion of Trustee Newman. 3. Disabling Restraint means that restraint invalidates the attempted alienation, whereas 4. Forfeiture Restraint means the attempted alienation automatically triggers a termination of the interest (with consequence of reversion or alternate taker) i. Fiduciary Duties (Associated with role of trustee) i. Duties of the Trustee in General 1. Hold and preserve the trust assets 2. Administer them solely in the interests of the beneficaires 3. Carry out the terms of the trust 4. Exceptions? a. Impossibility hold in stock of circuit city doesnt exist anymore b. Illegality invest in all the farms that are growing pot in IL (this is illegal) c. Changed circumstances invest in real estate brokerage firms to take advantage of the market. d. Look for restrictions as well ii. Specific Duties 1. Duty of Loyalty a. Must administer the trust solely in the interests of the beneficiaries and may not place himself in a position so that performance of any duties can be affected by the trustees personal interests b. Burden is on the trustee to show that he did not take advantage of his position, not the beneficiaries burden c. Implied in law d. Examples of breaches: i. Selling trusts which the trustee has an interest ii. Sale of trust property to a third party with the understanding that a reconveyance will go back to trustee (self-dealing) iii. Using trust assets for the trustees own purposes 47

iv. No commission, bonus or any compensation from outside party for performing any act that is in the trusteeship 2. Is fairness of transaction a factor? a. In re Gleesons Will i. Good faith, honesty, absence of loss to trust are irrelevant ii. No further inquiry rule (inferred disloyalty from self-dealing) 3. Duty to Account a. To keep clear, current and accurate records b. Must provide accounting at least annually i. Or upon request of beneficiary 4. Duty of Produce a. Objective standard i. Harvard v. Armory trustees are to observe how men of prudence, discretion, and intelligence manage their own affairs, not in regard to speculation, but in regard to the permanent disposition of their funds, considering the probably income, as well as the probable safety of the capital to be invested. b. Illinois Prudent Investor Rule 760 ILCS Sec. 5/5 i. Trustee has a duty to invest and manage trust assets as a prudent investor would considering the purposes, terms, distribution requirements, and other circumstances of the trust. This standard requires the exercise of reasonable care, skill, and caution, and is to be applied to investments not in isolation, but in the context of a trust portfolio as a whole and as a aprt of an overall investment strategy that should incorporate risk and return objectives reasonably to the trust. 5(a)(1). c. UTC 804 5. Other duties a. Duty to preserve trust property; b. Duty to Defend actions c. Duty to enforce claims d. Duty not to delegate e. Duty to deal impartially with beneficiaries i. UTC 803 Impartiality ii. Has to be based on a prudent examination of needs, not favoritism. iii. Cant be in bad faith or because of nonobjective reasons 6. Co-Trustees a. 3 or more, unanimity b. UTC 703: If they cant reach a unanimous decision, they can act by majority c. B) if vacancy occurs, the remaining trustee may act for the trust d. Default rules VI. PRESENT AND FUTRE INTERESTS 1. There are 4 present possessory estates: a. Fee simple i. FS absolute: Interest not subject to termination, never followed by a future interest (FI) 1. I give my condo in Chicago to my daughter Trixie ii. FS defeasible: Interest isnt absolute, it terminates upon the happening of an event 1. FS determinablea FS estate subject to a limitation or special limitation (i.e. it automatically terminates if a specified event happens) 48

a. Limitation: possessory interest that terminates naturally (e.g. so long as she is alive) b. Special limitation: possessory interest that terminates upon an event not certain to happen (e.g. so long as she never marries a liberal) c. 2 FI can follow a FSD: i. Possibility of Reverter: upon the happening of the event, P goes back to original owner 1. My condo to my daughter T so long as she never marries a liberal; and if she does marry a liberal, the condo comes back to me. ii. Executory interest: upon the happening of the event, P goes to a 3P 1. My condo to my daughter T so long as she never marries a liberal; and if she does marry a liberal, condo goes to the Federalist Society. 2. FS subject to a condition subsequent: a fee estate subject to divestment in favor of a reversionary interest called a right of entry a. My condo in HA to Trixie, but if she marries a libertarian, I have a right to take it back. 3. FS subject to an executory limitation: a fee estate subject to divestment in favor of a non-reversionary future interest called an executory interest a. My condo in HA to Trixie, but if she marries a libertarian, to the Federalist Society 4. 2-step analysis: a. (1) Is the language imitational (so long as)? i. If so, then FS determinable. ii. If not, then ask b. (2) Who holds the future interest? i. If grantor, then FS subject to condition subsequent. ii. If 3d party, then FS subject to executory limitation. b. Fee tail: interest that terminates when the last person in the line of the donees issue (or last living descendant) dies c. Life estate: interest that terminates on the death of the donee (or, if LE per autre vie, it terminated on the death of someone other than the donor) (e.g. To Trixie for life) d. Term of years: interest that terminates at the end of a stated period (e.g. To Trixie for 20 years) 2. Future interests: a. 2 main types: i. Reversionary (may go back to transferor) 1. Reversion a. A FI retained by transferor or his successor when he transfers less than entire estate b. Always vested c. My condo in HA to my daughter T so long as she shall live. 2. Possibility of reverter a. A FI retained by the transferor when he transfers out estate of the same size as he originally had subject to a limitation b. My condo in HA to my daughter T so long as she doesnt marry a communist. 49

3. Right of entry a. A FI created in a transferor when he transfers out an estate subject to a condition subsequent and provides his right to reclaim upon the happening of the event b. My condo in HA to my daughter T. But if she marries a communist, I have the right to take the P back. ii. Non-reversionary (may go to 3P) 1. Remainder a. A FI created in a transferee that becomes possessory if at all upon the natural termination of the preceding vested estate b. My condo in HA to Trixie for life, then to the ASPCA. 2. Executory interest a. A FI created in a transferee that becomes possessory by cutting short (divesting) the prior vested interest, except when it follows a fee simple determinable b/c these FIs terminate naturally b. My condo in HA to T, but if she marries a hippie, then to the ASPCA. i. ASPCA has an executory interest ii. T has fee simple subject to executory limitation c. My condo in HA to T so long as she doesnt marry a liberal, and if she does, to the ASPCA. i. ASPCA has executory interest ii. T has fee simple determinable b. Categories of vesting: i. Indefeasibly vested 1. An estate not subject to any conditions/limitations and certain to become a FSA at some time in future 2. Only remainders and reversions can be indefeasibly vested 3. My condo to T for life. a. Transferor has an indefeasibly vested reverter 4. My condo to T for life, then to ASPCA. a. ASPCA has an indefeasibly vested remainder. ii. Vested subject to defeasance 1. Interest subject to a condition subsequent or a limitation 2. Only remainders and reversions can be VSD 3. A remainder subject to a condition precedent is NOT VSD (its contingent), but a remainder subject to a condition subsequent is VSD a. Condition precedent=something happens before so can come into possession 4. Example: My condo to T for life, remainder to my friend Bob, but if Bob fails to survive T, to my friend P. a. T has LE b. Bob: Remainder vested subject to defeasment (b/c subject to CSgot P but could lose it!) c. Phil: Contingent executory interest (b/c subject to CPcutting short Bs interest) 5. Example: My condo to T for life, remainder to Bob if he survives T. a. T: LE b. Bob: Contingent remainder subject to CP c. Transferor: Reversion subject to defeasement. Why? This is subject to CP of Bob failing to outlive T 50

iii. Vested subject to open: a remainder that is not subject to a CP, and it is possible for additional persons to become class members 1. My condo to T for life, remainder to her children. iv. Contingent: subject to condition precedent (toif language) 1. Applies to EIs, Possibilities of reverter, Rights of entry, and some remainders, BUT NOT reversions a. RULE: All reversions are vested 2. Doesnt cut off someones vested interest 3. My condo to T for life, remainder to B if he survives T. a. T: LE b. Bob: contingent remainder subject to CP c. Transferor: vested reversion subject to defeasance 4. My condo to T for life, remainder to B, but if B fails to survive T, to P. a. T: LE b. Bob: vested remainder subject to defeasment c. Transferor: contingent executory interest 3. RULE AGAINST PERPETUITIES 4. Definition: a. RULE: No FI is valid unless it vests or fails to vest, no later than 21 years after some life in being at the creation of the interest. b. A rule that prohibits FIs from vesting too remotely c. Policy: to prevent dead people from controlling their property forever or indefinitely 5. Analysis: a. Step 1: WHEN TO USE RAP? i. Only applies to non-vested FIs: 1. Contingent remainders 2. Executory interests 3. Vested remainders subject to open b. Step 2: MEASURING LIFEgo through possibilities one at a time i. Can be anyone so long as in existence at time FI is created ii. Outsiders are always wantingDO NOT USE OUTSIDERS iii. As a practical matter, only consider lives in being that are connected w/ interest (INSIDERS) 6. Examples: a. Condo to T for life, R to B if he survives T i. Tlife estate so RAP does not apply ii. GrantorReversion so RAP does not apply iii. BCR subject to CP so RAP applies 1. Validating life=T b/c when T dies, Bs interest either vests or fails to vest 2. No violation of RAP b. Condo to T for life, R to 1st child to graduate school. T has one child, S. i. TLE ii. SCR subject to CP so RAP applies iii. Other childrenunborn childrenCR subject to CP so RAP applies iv. Grantorreversion v. Validating life? 1. TNOwhat if T dies w/ child whos unborn and graduates art school in more than 21 years 51

2. SNOis S dies, S wont get P but could have unborn child who graduates in more than 21 3. GrantorNOsame reason vi. Violates RAP! c. Income from my shares in Noodle King to T, corpus at his death to Ts 1st child when he reaches the age of 25. T has no children. i. T could have kid and die. Then, it would be more than 21 years before kid turned 25. ii. WATCH OUT WHEN SEE 25! d. Time of Creation issue e. Case of Fertile Octogenarianperson assumed to be able to bear children until death f. Unborn widow 7. Drafting Tips to avoid RAP: a. Savings Clauses i. 2 parts: 1. (1) Perpetuality Component: part that terminates trust at right time 2. (2) Gift-over-component: establishes alternate takers b. Perpetuities Reforms i. Wait-and-see approachlets see what happens 1. If vests remotely, then violates RAP; if not, then no violation ii. Specific Statutory Repair 1. 765 ILCS 305anticipates every crazy possibility and says whether violates RAP iii. Reform the Document: courts could rewrite will 1. Problem: courts dislike rewriting wills a.

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