- Choice of Law
- Personal Property - location of the domicile
- “domicile” is physical presence in the state with intention to remain permanently
- can only have one domicile at a time
- Real Property - location of the land
- Surviving Spouse - CA Probate Code §6401
- Community property or quasi community property:
- surviving spouse gets 100% of community property unless decedent has willed away his 1/2.
- ex: husband wills 1/2 of community property house to Demi, other
half passes intestate to wife. Demi and wife own house as tenants in
- Separate Property
- wife gets 100% of the separate property if there are no survivors in the “inner circle”
- “inner circle” is children, parents, siblings, nieces and nephews.
- half-bloods are treated as whole bloods
- first look for children, then look for parents, then look for siblings, then look for nieces/nephews.
- wife gets 1/2 of the separate property if:
- decedent leaves only one child or the issue of one child;
- grandchildren take per stirpes, and do not compete with living children.
- there are no surviving children, but there are parents or siblings surviving
- parents take half per capita
- if no parents, siblings take half per capita
- if no siblings, nieces and nephews take per stirpes
- wife gets 1/3 of the separate property if:
- there is more than one surviving child
- surviving children take 2/3 between them
- there is at least one child, but the issue of one or more deceased children
- first surviving generation takes per capita, remaining generations
take per stirpes (i.e. grandchildren split their parent’s share)
- no surviving child, but the grandchildren from two or more deceased children
- first surviving generation takes per capita, remaining generations take per stirpes
- No surviving spouse - CA Probate Code §6402
- If there are children, entire estate to the children.
- If there are no children, entire estate to parents
- If there are no parents, entire estate to siblings/nieces/nephews,
per capita at the first surviving generation, per stirpes thereafter.
- If there are no siblings/nieces/nephews, then entire estate to
grandparents/aunts/uncles, per capita at the first generation, per
- If there are no grandparents/aunts/uncles, then to stepchildren and
their issue, per capita at the first generation, per stirpes thereafter.
- If there are no stepchildren, then entire estate to the “next of
kin” who has the closest common ancestor. (Modified Civil Law Method)
- start with decedent, count up generations through the parents,
grandparents, etc., until you reach a common ancestor. Closest common
- If there are no next of kin, then to the in-laws, per capita at the first generation, per stirpes thereafter.
- If there are no in-laws, then the property escheats to the state.
- Posthumous Heirs - CA Probate Code §6407
- Relatives of the decedent conceived before the decedent’s death,
but born after his death are treated as if they were already born at
the time of decedent’s death and therefore take their intestate share.
- Rebuttable presumption that child born 300 days after decedent’s death was not conceived prior to his death.
- Simultaneous Death - CA Probate Code §220
- If testators die from the same cause and the order of death can not be determined they are said to have died simultaneously.
- Probate both estates as if each had outlived the other.
- keeps property in the bloodline and avoids double taxation issues.
- For life insurance, presumption is that the beneficiary died first.
- For community property, each gets one half of the estate.
- For joint tenants, each gets one half of the estate.
- Adopted child is treated the same as a natural child for purposes of intestate succession from the adoptive parents.
- However, adoption cuts off inheritance from and through the natural parents.
- adopted child can not inherit from the relatives of the natural parents.
- Virtual Adoption
- all of the elements and performance associated with an adoption, except for the lack of a formal certificate
- treated as a legal adoption for purposes of intestate succession.
- Illegitimate Children
- Treated the same as a child born during wedlock for purposes of intestate succession and family allowance in CA.
- Paternity adjudication or acknowledgment by the father is required.
- Artificial Insemination
- Husband of the woman is treated as the natural father for intestate
succession as long as it was part of a medically supervised program
with consent of the husband.
- Murder of the Decedent
- Joint Tenants - if one joint tenant murders the other, the murderer
retains his 1/2 interest as tenant in common with the decedent’s heirs,
but does not get the whole property because the right of survivorship
- Killer is disqualified if the killing was felonious (without legal justification) and intentional
- probate court has the power to make its own determination of intent
and legality regardless of what happens (i.e. acquittal or plea
bargain) in criminal court.
- Transactions Prior to Inheritance Rights
- Advancements - apply only to intestate shares (not wills).
- An inter-vivos gift from the decedent, prior to his intestate death, with the intent that the gift serve as a portion of the recipient’s intestate share.
- It is NOT an advancement if it is NOT in writing:
- signed by the decedent prior to the gift, or
- signed by the recipient (acknowledged) at any time.
- Value of the gift is determined at the time of the gift.
- If the person receiving the advance predeceases the donor, then the
advancement is NOT taken into account when determining the intestate
share of the recipient’s issue.
- The recipient of an advancement has the option to put the
advancement back into the intestate estate, and then take her intestate
- ex: D dies with an estate of $26,000 and three children A, B, and
C. Prior to his death, D gave an advancement of $4,000 to C. C may put
the $4,000 back into the estate “hotchpot” and then get her intestate
share of $10,000 instead. ($26,000+$4,000 =$30,000)/3.
- Other heirs can not force you into a hotchpot.
- NOT a property right, only a hope or wish.
- An assignment of an expectancy can be easily defeated if the testator changes their will.
- Assignment of an expectancy is NOT binding on the assignor’s issue
if the assignor predeceases the testator - the assignee only gets the
inheritance if the assignor actually inherits something.
- Heir contracts with decedent prior to death to release any claim he may have on the estate for money right now.
- if decedent relies on the release as full satisfaction and advancement, then the heir does not take by will or by intestacy.
- Release IS binding on the releasor’s issue because it cuts off the inheritance at the source.
- Release is not effective on an expectancy until the expectancy vests.
- Family Protection
- Community Property - provides no protection for separate property.
- Ex: Wealthy Widow remarries to H. Neither spouse works, so all is
Wealthy Widow’s separate property. WW can leave all of her separate
property to someone else besides H, and H gets nothing.
- Forced Share or Election
- In CA, must expressly (in the will) force your spouse to elect
between their community property right (by intestacy) and an alternate
disposition in the will.
- ex: H owns Blackacre as separate property, and Redacre as community
property. His will might provide that he leaves Blackacre to his wife,
but only if she renounces her community property interest in Redacre so
that it can be left to the son.
- If the election is NOT express, then the spouse will be able to take under the will and exercise her community property rights.
- ex: H has three ranches, R1-R3 that are all community property. H
wills R1 to wife, R2 to son, and R3 to daughter. Wife can elect against
the will, and take all of R1 by intestacy (it falls out of the will),
and half of R2 and R3 (because H can only will away his 1/2 interest).
- Protection against Disinheritance
- Protection of Issue
- Obligation to support a minor child ends at death, so ex-husband
can leave his entire estate to his mother, cutting off the child
support that he was paying.
- In CA, the state can sue the estate for child support.
- Children who are disinherited by a will still take their intestate share (if any).
- ex: D executes a will giving all to his children A and B, but
disinheriting his third child C. If A has no children, and dies before
D, then A’s share falls out of the will and passes intestate on D’s
death. Thus, B will get 3/4 (1/2 from will + 1/4 from half of A’s
share) and C will get 1/4 (other half of A’s share).
- Pretermitted child
- A child born after the execution of a will, but not included
in the will, is presumed to have been inadvertently omitted and
therefore takes his intestate share unless:
- it appears from the face of the will that the omission was intentional (i.e. disinheriting a class of future children)
- if one or more siblings is living at the time of the execution of
the will, and the will leaves substantially all of the estate to the
omitted child’s parent.
- there is a transfer outside of the will in lieu of a testamentary
gift, such as a trust, life insurance, or joint tenancy with the child.
- pretermitted child’s intestate share comes out of any intestate
property, and if that is not enough, then out of the legatee’s shares
on a pro rate basis (abatement).
- if the child is born before the execution of the will, he is
not pretermitted, unless he was omitted because of a mistaken belief by
the testator that the child was dead.
- only applies to CHILDREN not grandchildren - grandchildren are not protected by pretermission statute
- Pretermitted Spouse
- A spouse married after the execution of the will, but not
included in the will, is presumed to have been inadvertently omitted
and therefore takes ALL of the community property and her intestate
share up to a 1/2 forced share of the separate property unless:
- it appears from the face of the will that the omission was intentional
- there is a transfer outside of the will in lieu of a testamentary gift, such as a trust, life insurance, or joint tenancy
- there is a valid, written waiver by the wife of her interest in the estate (i.e. satisfaction).
- Examples of Pretermission:
- H, while he is single, makes out a will: “All to my brother A.” He
then marries W and has a child C. H then takes out a life insurance
policy in favor of W. At his death, H’s estate consists of $50,000
separate property, $25,000 community property. The estate will be
distributed as follows:
- W is not pretermitted because of the insurance policy, so she takes
only $12,500 which is the 1/2 of the community property that H could
not will to A.
- C is pretermitted so he takes his intestate share of 1/2 of the separate property, or $25,000
- A gets the 1/2 of the community property that H could will away to
him ($12,500) plus the remaining 1/2 of the separate property not owed
to C ($25,000).
- H and W1 marry and W1 gets pregnant. H is not aware of the
pregnancy and divorces W to marry W2, changing his will to leave
everything to W2. W1 then gives birth to H’s first child C1. H and W2
then have a second child, C2. H then dies. H’s estate will be divided
- W2 gets all of the community property.
- C1 is pretermitted and so takes his 1/3 intestate share
- C2 is NOT pretermitted because substantially all of H’s estate was left to his mother.
- Fear of Hell Statutes
- Not recognized in CA. Dealt with under the undue influence doctrine.
- Presumption that if you gave your estate to charity within six
months of your death that the church exerted undue influence on you.
- Execution of Wills
- Requirements of a Will under the Statute of Wills
- Must be in writing
- any reasonably permanent writing will do (i.e. lipstick on a wall)
- Must be signed by the testator.
- must be the complete act intended as the signature (if testator
dies before completing the signature, the will is invalid because we
can’t tell whether he stopped because he was dead, or because he
changed his mind)
- Initials, Nicknames, First Name Only, are all OK as long as they are the complete act intended.
- signature by proxy is OK is done at the request of and in the presence of the testator.
- CA does not require the will be signed at the very end, but some jurisdictions do (logical end or physical end).
- Must be authenticated or signed in the presence of two or more witnesses.
- testator does not need to sign in the presence of the witnesses if he acknowledges his signature to them
- witnesses must understand that this is the testator’s will or else
their signature is invalid - “publication” of will by testator by act
or by word
- “in the presence of” means either:
- in the line of sight - see the pen touch the paper; or
- within the conscious presence and awareness - close in proximity and time, and a continuous ceremony.
- witnesses may sign before the testator as long as there is one
continuous ceremony with very little time between witnessing and
execution by the testator.
- Requirements of a Witness
- Must be competent at the time of the signing (not a problem if they later become insane).
- Witness can not have a pecuniary interest in the will
- the spouse of a legatee in the will is an interested witness,
unless the inheritance is treated as separate property by the wife (as
in CA) - problem in non-community property states where there is a
- an executor is not an interested witness even though she will receive a statutory fee.
- a child is not normally an interested witness merely because her parent is a legatee under the will.
- Purging Statutes
- if an interested witness signs the will, then she is presumed to
have exerted undue influence on the testator, unless she is a
supernumerary witness (i.e. a third witness where only two were
- if the presumption of undue influence is not rebutted, then the
interested witness takes no more than their intestate share, and any
bequest in excess of the intestate share is “purged” to the residuary
clause if any, or passes by intestacy.
- Testamentary Intent - need unequivocal present testamentary intent
- Sham Wills - A joke will is not valid because it lacks the requisite intent
- Drafts of wills are not valid.
- Signing the wrong will is invalid.
- but where a husband and wife executed reciprocal wills at the same
time and mistakenly signed each other’s wills, the court allowed both
wills for equitable reasons.
- Condition vs. Motive
- a will that expressly requires the existence of a certain condition to be valid is only valid if the condition comes to pass.
- ex: Upon leaving for Mt. Everest, the climber says that “if I die
on Mt. Everest, all to my friend Joe.” - valid only if climber dies on
- however, a will that merely expresses a motive for making a will is
valid regardless of whether the testator dies as a result of the thing
that motivated him to make the will in the first place.
- ex: Upon leaving for Mt. Everest, the climber says that “I am
afraid that I might die on the mountain, and so I am making out this
will - all to my wife.” - valid even if climber survives Mt. Everest
and later dies in a car accident.
- Holographic Wills
- Informal Will Requirements
- all material provisions must be in the testator’s handwriting.
- In CA, the use of pre-printed forms is allowed as long as there are
handwritten parts, even though it means that not all of the material
provisions are in the testator’s handwriting.
- Handwriting does not include videotapes or audiotapes, or other electronic media.
- other printed matter on the holograph is treated as surplusage
- must be “signed” by the testator
- writing and signing by proxy is unlikely to be acceptable due to potential for fraud.
- Signature can come anywhere, not just at the end
- ex: “I Glen, give everything to Demi” - “Glen” is sufficient signature if in his own handwriting.
- No date is required, but a signed, dated formally executed will is presumed to control over an unsigned holograph.
- Testator must be competent at the time the holograph was written.
- Oral Wills
- no longer recognized in CA
- only used for servicemen in wartime in contemplation of death, when death occurs within 24 hours.
- one of the two required witnesses must have been requested by the decedent.
- Will must have some physical connection or internal sense of
connection to prevent additional pages from being slipped in, as well
as to ensure that all pages are present.
- ex: stapled, numbered, initialed pages with sentences that continue from the end of one page to the start of the other.
- Normally used to modify, revoke, or republish an existing will, whether or not the existing will was valid.
- ex: Valid will gives car to A, ring to B, and blackacre to C. A
valid codicil then gives the car to D, and the ring to E. Result is
that D gets the car by the codicil, E gets the ring by the codicil, and
C gets blackacre by the original will which was reaffirmed to the
extend that it was not amended by the codicil.
- Must be executed with the same formalities as any other will (formal or holograph)
- A codicil that republishes a will brings that will current up to the date of the codicil -
- might turn a pretermitted heir into a disinherited heir
- treated as if you read your entire will, and those things that were not changed were reaffirmed.
- ex: Valid will says “all the stock I now own to my son.” The
testator at that time has 5,000 shares. Later, Testator acquires more
stock, and executes a codicil which does not amend this provision. Son
is entitled to all shares owned at the time of the codicil.
- Incorporation by Reference
- Document must be in existence at the time of the execution of the will or codicil which incorporates the document by reference.
- ex: can not incorporate a document dated 2/15/97 into a will dated
2/14/97, unless there was a typo and you can prove to the court that
the document was already in existence.
- however, if the writing did not exist at the time of the execution
of the original will, but did exist at the time of execution of a valid
codicil, then it corrects the defective incorporation.
- Must be sufficient identification to identify the document incorporated with reasonable certainty.
- Must express present intent to incorporate (not just mention it in
passing) in the will - words of futurity (I will make a separate memo)
are insufficient but may be cured by a later codicil.
- Holograph may include printed matter by reference.
- Facts of Independent Significance
- A will may dispose of property in accordance with documents or
events that are outside the will if the document or event has an
independent significance apart from the testamentary distribution.
- ex: I give $1,000 to each of my brothers-in-law - valid even though
they might change if the testator remarries, because remarriage has an
independent significance apart from distributing property upon his
- ex: I give to X all of the items that are in my safe deposit box -
valid even though the contents might change because the safe deposit
box has other independent significance apart from giving away property
- If there is no independent significance, then the bequest fails for
lack of compliance with the formalities of the statute of wills (i.e.
witnessing, signing, etc.)
- ex: I give $1,000 to each person on a list that I will place in my
top drawer - invalid because the list has no other independent
significance apart from distributing property on the testator’s death.
- no incorporation by reference because of words of futurity.
- ex: I give my estate according to the lists inside my safety
deposit box - not a fact of independent significance - maybe
incorporation by reference if the list already existed.
- ex: I give all my property in accordance with my wife’s will - if
wife has a will, then it is incorporation by reference, if wife does
not have a will, then once she does, it is a fact of independent
significance because the wife’s will has a purpose apart from
distributing the husband’s property.
- Interpretation of Will Provisions
- Admissibility Extrinsic Evidence
- Patent Ambiguity - ambiguity that is on the face of the will itself
- NO extrinsic evidence allowed to interpret the ambiguity because it was not needed to discover the ambiguity
- give words their plain and simple meaning
- ex: “I have one brother, Al. All to my brother Rob”. Ambiguity is
on the face of the will. No extrinsic evidence will be allowed to show
that the testator meant to give the estate to someone else because the
bequest is not susceptible to two meanings. Court will probably delete
the word “Rob”.
- Latent Ambiguity - ambiguity that is disclosed by extrinsic evidence
- extrinsic evidence IS allowed to interpret the ambiguity because it was used to discover the ambiguity
- ex: “all to my friend, R. H. Simpson”. R.H. Simpson exists, but the
friend is named H.R. Simpson. Extrinsic evidence revealed the existence
of ambiguity, so it is used to determine that H.R. Simpson was
- California Rule - extrinsic evidence is always admissible but it
can not be used to give meaning to a word if it is not reasonably
susceptible to such meaning.
- Mistakes that induce Testator to dispose of property differently
- Mistake must be on the face of the will (showing Testator’s mistaken belief)
- ex: “because my first son died in the war...” is mistake on the
face of the will if the first son is still alive and returns home.
(note that in any event the son would be pretermitted).
- Alternate disposition must be on the face of the will (what Testator would have done but for the mistaken belief)
- ex: “Since my son is dead, I give his share of blackacre to my
daughter.” - alternate disposition is to give the living son a share of
- Counter-ex: On his death bed, Nurse tells T that his wife has died,
and convinces T to leave everything to Nurse. Wife is really still
alive. Although there is no mistake or alternate disposition on the
face of the will, this would be dealt with under the theory of active
- Methods of revocation
- by operation of law:
- ex: pretermission, forced shares, election of community property rights, etc.
- dissolution or annulment of marriage revokes gift to your spouse in
CA unless otherwise provided in the will (legal separation is not
sufficient) - remarriage reinstates the bequest if it still exists.
- by physical act by testator with intent to revoke
- ex: burning, tearing, obliterating, lost original - but this only
raises the presumption of revocation, may still prove that someone else
did it or that intent was not present.
- physical act and intent must occur at the same time - i.e. can tear
up will by accident, and then later say “well, that’s OK, I don’t like
that will anymore anyway.”
- a simple statement such as “I hereby revoke all previous wills and codicils” is sufficient and recommended.
- a proxy can destroy a will in the testator’s presence and with the testator’s direction
- counter-ex: can’t tell lawyer over the phone to tear up the
original - not in the “presence” of testator - lawyer could be
defrauding testator by ripping up blank piece of paper.
- difficult to prove intent of a dead person
- writing intended to revoke an existing will must touch the words of
the will, not on the back or in the margins - unless it is all in the
handwriting of the testator and also signed, in which case it may be a
valid holograph which revokes the will.
- Partial Revocation
- Testator may cross out a single bequest, and that bequest then goes
to the residuary clause, if any, or falls out of the will to intestacy.
- ex: T lines out the words “$100,000 to Demi” - The bequest is revoked.
- Testator may NOT change a bequest by lining it out and then
replacing it UNLESS the interlineation is also in testator’s
handwriting and signed (valid holograph)
- ex: Will says “$100,000 to Demi”. T lines out Demi, and writes in
“Pat” - valid revocation of gift to Demi because there was a physical
act coupled with intent to revoke, but NOT a valid substitution of
“Pat” unless it was holographically signed.
- Partial Decreasing Revocation -
- ex: Will says “$100,000 to Demi”. T crosses out last “0” making it
$10,000. Valid partial decreasing revocation because of a physical act
with intent to revoke.
- counter-ex: may NOT write in an extra zero.
- counter-ex: may NOT cross out entire $100,000 and then put $10,000
unless it was holographically signed because this would operate as a
revocation of the entire bequest.
- Dependent Relative Revocation
- If a attempt to INCREASE the bequest to a legatee is declared
invalid due to lack of compliance with the statute of wills (i.e.
crossed out $100 and put $1,000), then the previous gift is revived on
the theory that you would not have crossed out the existing gift but
for your belief that the new gift would be valid (if you were willing
to give them $1,000, then you are clearly willing to let them still
have the $100).
- does not apply to decreasing gifts.
- ex: Will says “blackacre to A
for life then to B”.
This is an invalid unsigned attempt to increase A’s estate to a fee
simple. But it is also a valid partial decreasing revocation of
eliminating B’s interest altogether. Might argue DRR for A, with
remainder to pass by residuary clause, if any.
- Revival of revoked will
- A valid subsequent instrument may revive a previously revoked will
merely by incorporating it by reference or stating that it is revived.
- If the subsequent instrument is not valid, then the revival of the
previously revoked will depends on the testator’s intent by other
- ex: Valid Will #1 was revoked by Valid Will #2. Then Testator
destroys Will #2 with intent to revoke, and writes an invalid unsigned
holograph that says: “This is a codicil to my first will, I give my car
to A.” - The codicil was insufficient to revive Will #1 on its own, but
it may serve as some evidence of intent to revive. Also may argue
dependent relative revocation - but for the belief that the codicil
would be valid, the Will #2 would not have been revoked.
- Will Contracts
- Contracts to make a will are enforceable under a contract theory.
- ex: T contracts with N to be his nurse in T’s declining years in
return for T leaving N a portion of his estate. If T then breaches and
leaves his estate all to X, N may have an action for damages in quantum
meruit, or even express contract.
- ex: Husband wills all of his property to his wife in reliance on an
agreement with the wife that upon her death, she will leave his share
of the community property to a daughter from a former marriage. If the
wife breaches the contract, then as a third party beneficiary, the
daughter may bring a contract action against the wife.
- Joint Will
- two or more people execute one instrument intended to serve as the will of either or both.
- assumption is that there is a contract involved
- Mutual Will
- two or more people (husband and wife) execute separate but related wills.
- assumption that there is a contract involved unless carefully negated by specific language
- Constructional Problems in Estate Distribution
- Payments for expenses of administration, funeral, family allowance,
judgments, liens, etc. must come off the top of the estate. If there is
not enough residue of the estate to pay, then individual bequests must
- Specific Bequests - a bequest of a particular piece of property
- ex: “my school ring to A”, or “100 shares of my XYZ corp. stock.” (stock exists in the estate).
- if stock splits after the will is executed, then the
specific bequest becomes 200 shares for 2 for 1 split, 300 for 3 for 1,
etc., maintaining percentage ownership in corporation.
- specific bequests are adeemed by extinction if the asset is sold, destroyed or otherwise disposed of prior to testator’s death.
- ex: T wills blackacre to A, and the residuary to B. If T then sells
Blackacre and buys whiteacre, B takes all because the specific bequest
of Blackacre was adeemed by extinction.
- counter-ex: if T wills his 1957 Chevy to A, but the Chevy is
totaled in an auto wreck before T dies, then A gets the proceeds of the
- General Bequests - a bequest payable from the general assets of the estate.
- ex: “$1,000 to A” or “100 shares of XYZ corp. stock to A” -
executor must go out and purchase 100 shares of XYZ out of the general
assets if the estate has none. (note absence of the word “my”)
- general bequests do not adeem.
- Demonstrative Bequests - a bequest payable from a specific source
- ex: “$1,000 from the Swiss Account to A”, or “$500 from the
proceeds of the sale of my car” - if there is not enough money in the
source, the executor must make up the difference out of the general
assets of the estate - if there is money left over, it goes to the
residuary or intestate.
- demonstrative bequests do not adeem.
- When there is not enough money to satisfy the estate’s obligations, the bequests abate in the following order:
- any bequests identified by the testator as ones that should be abated first. (testator’s intent)
- any intestate property
- any residual property
- all other property on a pro-rata basis, except that specific bequests are last to abate.
- will may provide that a bequest of a piece of property is to be
made free and clear of any liens - executor must pay off the mortgage
before transferring title to the legatee.
- Satisfaction - do not confuse with advancement
- A testator may give an inter-vivos gift to one of the legatees in
the will as partial or full satisfaction of the testamentary gift.
- Requirements of satisfaction
- the intent of the testator must be in WRITING at the time of the gift; or
- the recipient acknowledges in WRITING, at any time, that the gift is in satisfaction of his testamentary rights
- The gift is valued as of the time it is given.
- Class Gifts
- A gift of an aggregate amount to an uncertain group of people at the time the gift is made.
- ex: “$10,000 to my nephews”
- counter-ex: “$10,000 to my nephews Huey, Dewey and Louie” is NOT a class gift because in names certain persons.
- Class takes title as tenants in common
- Determination of members of the class - rule of convenience
- class closes at the time of the testator’s death as long as the class has at least one member.
- ex: T wills “$10,000 to my nephews.” Even if T has siblings that
survive him (who could have more sons), the class closes at T’s death
for convenience of settling the estate.
- If the legatee predeceases the testator, the gift lapses (passes intestate) unless:
- the gift was made to one of testator’s “kindred”; AND
- the “kindred” has left issue who can step up to take deceased legatee’s share per stirpes.
- Kindred is defined as blood relatives
- For Residuary clauses:
- majority rule: if a residuary legatee predeceases the testator, his share falls out of the residuary into intestacy.
- CA rule - minority rule - residuary clause has a “dragnet” effect,
and any remaining residuary legatees split the deceased legatee’s share.
- For class gifts
- majority rule: if a member of the class predeceases the testator,
and he is kindred to the testator, and he has issue, then the issue
steps up to take per stirpes, otherwise his share passes to the residue
or by intestacy
- CA minority rule: if a member of the class predeceases the
testator, and he is kindred to the testator, and he has issue, then the
issue steps up to take per stirpes, otherwise his share is split up
among the remaining members of the class.
- Probate of Wills
- Anyone with a financial interest in the estate can offer the will for probate
- If a valid later will is found after the first will is probated,
then the legatees may have to disgorge the property, but a good faith
BFP is protected
- Types of Probate
- Informal - $5,000 or less
- no notice required to be given to other beneficiaries.
- other beneficiaries can attack the will later
- Formal - larger estates
- notice required
- all parties are represented so a contest can not be raised after the property is distributed
- takes longer
- Standing to challenge a will
- must have a direct pecuniary interest in the outcome of the will challenge
- counter-ex: creditors and executors can not challenge because they get paid first either way
- counter-ex: in CA, inheritance is separate property so a legatee’s spouse does not have standing to challenge the will
- counter-ex: H leaves $10,000 to wife in will, but her intestate
share is also $10,000 - wife does not have standing because she gets
the same amount either way.
- No-Contest Clauses
- strictly construed by the court because they discourage meritorious claims
- however, they prevent airing the testator’s dirty laundry after he is dead
- need good faith and probable cause to challenge a will without triggering the no-contest clause
- counter-ex: Son was left little in will by mother, who put a no
contest clause in the will. Son brings a creditor’s claim against
mother’s estate for services rendered during her life. Court found that
this was an indirect attack on the will, frivolously attempting to get
around the no contest clause, and therefore son forfeited.
- Testamentary Capacity - low standard
- Age - must be chronologically 18 years old (not necessarily 18 mentally) and capable of understanding at the time of execution:
- the nature and extent of your property;
- the natural objects of your bounty (who are your inner circle); and
- the distribution that is being made (who gets what).
- Insane Delusion
- An unreasonable belief in certain facts which are not true, and
which belief is held beyond all reason, evidence and probability.
- ex: Weird Harold says “I’m going to the mountains to meet with the
UFOs, and when they take me, I want my estate to go to you for the
purpose of informing people about UFO’s.” - may not rise to the level
of insane delusion because many people believe in UFOs.
- An insane delusion does NOT invalidate a will if the testator does not act on it in disposing of his testamentary property.
- ex: T believes he is Abraham Lincoln. T leaves all his property to
his wife. Will is valid because the insane delusion did not affect the
disposition of his property.
- Although insane delusion is easy to persuade the jury at trial, it is likely to be overturned on appeal.
- Undue Influence
- Such influence is exerted that the testator’s will is overcome by the will of the person exerting the influence.
- Begging and pleading and kissing up do not normally rise to the level of undue influence.
- Can show undue influence in two ways:
- Long way:
- highly susceptible testator (old, alone, sick)
- opportunity to influence for a wrongful purpose (spends lots of time with testator alone, secrecy and haste)
- disposition to do a wrongful act (character of influencer); and
- an un-natural disposition of the property (not to inner circle or very unbalanced, sudden change of attitude)
- short way:
- confidential relationship (atty.-client, parent-child, doctor-patient); and
- un-natural disposition of the property
- Attorneys should not do relatives’ wills because of confidential relationship.
- Will provisions induced by fraud are invalid
- ex: Husband is already married to wife #1, and commits bigamy by
marrying wife #2. Wife #2 leaves her entire estate to Husband. But for
the Husband’s fraud, the Wife #2 would not have given him her entire
- Equitable Trusts arising from operation of law
- Purchase Money Resulting Trust
- If A gives O purchase money for blackacre, but directs O to
transfer the property to B, then a purchase money resulting trust
arises with B as trustee and A as beneficiary, UNLESS:
- B is a natural object of A’s bounty (inner circle), in which case it is a presumed gift to B.
- ex: parents buy condo for daughter at college and instruct the
seller to title the condo to the daughter - presumed to be a gift to
- Prevents B’s unjust enrichment - B must transfer title to A on demand
- Does not apply to loans, because there is an intent to pay back the loan.
- Statute of Frauds writing requirement does not apply because it is an equitable remedy.
- Constructive Trusts
- Imposed on property as an equitable remedy to prevent unjust enrichment of the constructive trustee.
- ex: Heirs by force prevent T from executing a will on her death
bed, thus allowing T’s property to pass intestate to the heirs. Court
will place constructive trust on the property for the benefit of the
persons named in the unexecuted will to prevent heirs from being
unjustly enriched by their wrongful act. Heirs duty under the trust is
to pass title to legatees.
- Active Trusts vs. Passive Trusts
- A trust will exist only as long as is required to carry out its
active purpose. When there are no active duties for the trustee to
perform, the statute of uses executes the trust, and title vests in the
beneficiaries free of the trust.
- ex: Trust to pay the income to A for life, and then the remainder
to B. At A’s death, the trust becomes passive because the trustee has
no other duty than to transfer title to B. Thus, the trust terminates.
- Things that are not a trust:
- A normal contract for insurance is not a trust - it is a contract
for the insurer to pay a certain sum to the beneficiary upon the
happening of a triggering event.
- A normal pension contract is not a trust - it is a contract for the company to pay the employee a certain sum upon retirement.
- A person can not hold a debt in trust that the person owes to a creditor because nobody could enforce the trust if the person did not pay (can’t sue himself for breach).
- Elements of a Trust
- Basic requirements for a trust:
- A settlor or trustor with the present unequivocal intent to create a trust.
- ex: H leaves $50,000 to Friend. “I want Friend to take care of my
wife.” Since Friend is not in the inner circle, strong presumption that
H had intent to create a legal obligation in the Friend, otherwise he
would have given the money to wife outright.
- counter-ex: H leaves property to W as “her absolute estate”, with
the “request” that she pass the property to his heirs on her death. Fee
simple created with no trust because there is no present intent to
create a trust - “request” is precatory language which did not legally
obligate W to do anything.
- counter-ex: S says that next week he will set up a trust in favor
of A. No present intent, words of futurity. A has no remedy unless
under a contract theory there was some consideration for the promise.
- A trust res or corpus
- there must be “delivery” of the res or corpus - can be constructive
delivery of a trust deed to escrow agent unless the settlor retains the
right to revoke from the escrow agent.
- A trustee with positive duties to perform and a fiduciary duty to someone
- anyone who can hold legal title to property can be a trustee,
except the court will transfer title to a person with the capacity to
contract if the named trustee is a minor or incompetent.
- testamentary trust will not fail for want of a trustee - court will assign one if not named or if named one dies
- however, the court will not appoint a trustee in an inter-vivos private trust is the settlor is still alive.
- trustee can NOT be both settlor and sole beneficiary because he
can’t sue himself, but as long as there is a remainder beneficiary, a
settlor may become the trustee of his own property to pay income to
himself for life and the remainder to B.
- A beneficiary to receive the benefit of the trust
- A valid trust purpose.
- Duties of A Trustee
- Highest fiduciary duty imposed by law
- must administer the trust solely for the benefit of the beneficiaries.
- self-dealing is prohibited unless the trust expressly provides that
the trustee can transact with the trust, and then the transaction must
- Must preserve the trust property and make it productive
- duty to both the income beneficiary to get the best income and the remainder beneficiary to preserve the corpus.
- ex: a vacant lot is not productive, and the trustee must sell it and invest the proceeds productively or develop it.
- Duty to segregate and earmark the trust property
- can not co-mingle the trust property with private funds
- ex: trustee must maintain a fence between the trust property sheep and neighboring sheep.
- Duty to keep accurate accounts/records.
- Duty to make decisions rather than delegate them to agents.
- prudent investor rule - trustee must invest with the care that a
prudent investor would use, unless the trust document relieves him of
this standard by providing more discretion.
- If trustee violates his duties, he loses his compensation as
trustee, and becomes personally liable for losses, and may also be
- Trust Property
- Trust property can be real, personal, tangible or intangible, a vested future interest, etc.
- ex: S gives Patent to T in trust for A for life, remainder to B. B
may then set up a trust to put his vested remainder in trust to C.
- majority rule is that contingent future interests also may be placed in trust.
- ex: S gives Patent to T in trust for A for life, remainder to B if
B survives A. B may still put his contingent remainder interest in
trust to C.
- Trust property may not be a speculative interest in property.
- ex: S gives “all profits from future record sales” in trust to T
for the benefit of A. Not a valid trust because the corpus is not yet
in existence, it is only speculative. (also maybe a present intent
- however, CA may have allow symbolic or constructive possession of the future profits if there is a tangible product that is likely to produce such profits.
- ex: if in the above example, S already has the record and is
marketing it, there is symbolic possession of the profits and the trust
is valid in CA.
- counter-ex: if S does not already have the record, and has not even
signed a record contract, then there is no tangible product that is
likely to produce such profits.
- A beneficiary does not need to know that he is a beneficiary for the trust to be valid.
- A beneficiary may refuse to accept the beneficial interest in the trust.
- Unborn children are valid beneficiaries - guardian ad litem may be appointed to protect their interests
- ex: S to T in trust for A for life, remainder to A’s children. Even
if A has no children at the time the trust is created, it is valid. But
if A dies without children, a resulting trust to S results.
- For private trusts, beneficiaries must be specifically named
an in existence at the time the trust is created or capable of being
ascertained within the period of the rule against perpetuities.
- CA allows corporations and unincorporated associations to be beneficiaries.
- Class Designations
- class designations such as “brothers”, “sisters”, are okay.
- class designation “family” will be interpreted as limited to the bloodline.
- class designation “relatives” will be interpreted as limited to the inner circle.
- class designation of “those most deserving” or “friends” is too ambiguous and not capable of being ascertained.
- Powers of Appointment - power of appointee to designate beneficiary - shifting use.
- General power of appointment
- holder can exercise the power in favor of themselves, their estate, their creditors, or their estate’s creditors.
- taxable to the holder
- Special power of appointment
- holder can not exercise the power in favor of himself, his estate, creditors, etc.
- not taxable to the holder
- ex: S to T in trust to pay the income to A for life, T to then pay
the principle to such person as A may appoint by a writing during A’s
lifetime or by A’s will.
- If A fails to exercise the power of appointment, then principle
goes back to S’s estate as taker in default as a resulting trust,
unless the trust provides for an alternate taker in default in case of
failure to appoint.
- The people who are appointed from the pool of potential beneficiaries are called “appointees.”
- Trust Purpose
- Trust can be made for any lawful purpose for which a contract may be made.
- Two tests:
- Subjective motive (dominant intent of Settlor)
- Probable effect test (more objective)
- Purpose must not be against public policy
- ex: S gives house in trust to T for 10 years, with T’s duty is to
brick up the house. Against public policy to waste land. Dead hand
control - nobody alive to suffer the private consequences of having his
house bricked up.
- ex: S gives house in trust to T for the payment of income to A as
long as he remains married to his present wife, but if he divorces,
then he gets the entire principle free of the trust. Invalid as an
incentive to divorce. (however, it might be argued that it is
maintenance due to lack of two incomes).
- Restraints - dead hand control
- a gift contingent upon not marrying anyone is invalid as against public policy
- a gift contingent upon marrying from a select group, or at a select
time are valid only if they do not reduce the sphere of permissible
marriages so much that it would make marriage unlikely (partial
- a gift contingent upon getting a clergyman’s approval before
marriage is valid unless the clergyman unreasonably withholds his
- restraints on re-marriage are okay.
- if a beneficiary does not know about a certain restraint, then it
is not necessarily invalid because it had no effect on the
- temporary or partial restraints are more likely to be upheld.
- Creation of Trusts
- Minors can not create trust because they do not have the capacity to contract.
- must be delivery of the trust corpus.
- in a testamentary trust, the issue is whether the will is valid, not really a delivery problem
- in an inter-vivos trust, there must be at least constructive
delivery (irrevocable placement with an escrow agent) or delivery of
keys to safe deposit box, etc.
- Majority view - trust is irrevocable unless otherwise specified.
- Minority view -CA - trust is revocable unless otherwise specified.
- Revocable trusts may be taxed to the settlor because he retains control over them
- Real Property as the Trust Corpus
- Statute of frauds requires a writing, unless with the consent of
the settlor, the beneficiary takes possession and makes improvements
- Settlor must sign writing either before or at the time of creation of the trust.
- Beneficiary may acknowledge the trust at any time.
- Personal Property as Trust Corpus - Oral declaration of trust is sufficient, no writing requirement
- Secret and Semi-Secret Trusts
- Secret Trust
- Where a devise is made absolute on its face, but outside of the
document, an express or implied promise is made to hold it in trust for
- ex: S wills blackacre to T. T orally promises S that he will hold in trust for A. - Secret trust
- need clear and convincing extrinsic evidence to show that a trust
existed - if successful, a constructive trust is put on the property in
favor of the secret beneficiary.
- Semi-Secret Trust
- where a devise is made in trust, but no beneficiary or other terms are provided.
- ex: S to T in trust “to be distributed as we have previously discussed” - resulting trust to the estate.
- Majority Rule - creates a resulting trust in the settlor’s estate - passes by residuary clause or intestacy.
- rationale - no extrinsic evidence was needed to discover the ambiguity, so it should not be allowed to interpret it.
- Minority Rule - extrinsic evidence is allowed to determine who the intended beneficiary is.
- rationale - if the property can pass under a secret trust, it should also pass under a semi-secret trust.
- Inter-vivos trusts
- Requires a present transfer of the trust property coupled with present intent to create a trust
- can’t use words of futurity
- ex: W declares intent to give library to Hebrew University. While
packing up the library, W dies. Present intent existed, but there was a
lack of delivery. Court found constructive delivery in the delivery of
a memorandum listing the contents of the library plus detrimental
reliance by the University.
- Not subject to the probate court.
- Requirements of a Trust Writing
- Must set forth with reasonable definiteness:
- the trustee
- the beneficiaries
- the trust property
- and the present intent to create a trust.
- Oral Trusts for the Settlor
- Need to show active fraud by the trustee to impose a constructive
trust on property when the promise of a resulting trust was oral.
- if the trustee fully intended to reconvey at the time of the
creation of the oral trust, but later changed his mind, there is no
fraud, only moral turpitude and the court will not intervene.
- Restatement §182 - Restitution
- where the owner of an interest in land transfers inter-vivos to
another in oral trust in favor of the transferor, or upon an oral
agreement to reconvey the land to the transferor, and the trust is
unenforceable because of the statute of frauds, then a constructive
trust will be placed on the land if:
- the transfer was procured by fraud, duress or undue influence; OR
- there was a confidential relationship (i.e. atty.-client) between the transferor and the transferee; OR
- the transfer was made as security for an indebtedness of the transferor (i.e. a mortgage).
- Oral Trusts for a Third Party
- need to show:
- the transfer was procured by fraud, duress or undue influence; OR
- there was a confidential relationship (i.e. atty.-client) between the transferor and the transferee; OR
- the transfer was made in contemplation of death.
- Revocable Trusts
- A trust is not invalid merely because the settlor reserves the right to revoke at any time.
- However, when the settlor exerts excessive control and dominion
over the trust assets, the trust is invalid - it is really an agency
that ends at the settlor’s death.
- ex: O sets up trust where he is the life beneficiary of the income,
and bank is trustee. O retains the right to revoke or amend (OK), but
also makes frequent withdrawals and deposits of property to the trust,
keeping a tablet of revocation forms handy, uses the trust assets as
collateral on personal loans, etc. Trust is invalid.
- Totten Trust - Settlor creates revocable trust in a bank account
where A is beneficiary, and if Settlor dies, then A gets the money, but
if A dies, then the trust fails for a lack of beneficiary.
- need delivery of a document of ownership (i.e. passbook) to A for there to be a complete gift.
- a will can revoke a totten trust if it shows sufficient intent to do so
- creditor can reach a totten trust because the owner can reach it.
- Pay on Death Account (POD) - not generally valid
- an account that by its terms transfers automatically to a recipient - invalid as against the statute of wills.
- passes by residuary clause if any or intestate
- Life Insurance Trust
- two ways to create it:
- person who is trustee is named as the payee under the life
insurance policy to hold the proceeds in trust for a trust beneficiary.
- Assign the policy to the trustee
- Funded vs. Unfunded Insurance Trust
- Funded Insurance Trust - the money to pay the premiums is provided
in the trust assets, and the trustee pays the premiums on behalf of the
- Unfunded Insurance Trust - the money to pay the premiums is NOT in
the trust, and so there is no trust property because the future
proceeds are not available yet. (can argue symbolic possession in CA)
- Trusts to Defeat Forced Share
- Since a pretermitted spouse or child must get his intestate share
from the estate, and a trust is not part of an estate, the pretermitted
spouse or child is unable to touch the trust assets.
- requires that the transfer of the estate into the trust be a good
faith divestment of control and enjoyment of the property, otherwise
the transfer is illusory and does not defeat an omitted heir’s claim.
- settlor can prevent illusory transfer by providing for a remainderperson.
- Totten trust may also be used to defeat a forced share.
- Modern rule is that a trust where the settlor retains a general power of appointment is only illusory and therefore invalid.
- Pour-Over Trusts
- Testator’s will provides that certain assets (or entire estate)
will “pour over” into an existing trust at testator’s death and become
part of the trust corpus.
- The will and trust are still valid even though the testator may
reserve the right to amend the existing trust (and thus change the
disposition of his property) after the will is executed.
- Justified under the doctrine of facts of independent significance -
the pre-existing trust had a purpose other than to distribute property
on testator’s death.
- Nature of the Beneficiary’s Interest
- Beneficiary has a cause of action against the trustee in the nature of an equitable property right.
- When a trustee is in doubt about beneficiary’s rights or his own or
how to manage the trust, the trustee can go to court for a judicial
declaration of rights.
- Discretion of the Trustee
- Simple Discretion
- ex: “Trustee has discretion to pay A so much of the income the trustee determines.”
- Trustee must act with:
- good faith
- proper motive
- Sole or Absolute Discretion
- ex: “Trustee has sole or absolute discretion to pay A so much of the income as the trustee determines.”
- Trustee must still act with
- good faith
- proper motives
- However, if a trustee has “sole” discretion, but the trust document
also provides guidance for how that discretion is to be exercised, the
trustee must follow the guidance.
- There must be at least one non-discretionary duty of the trustee,
like “remainder to B” otherwise, nobody would have standing to sue to
enforce the trust.
- Problems arise when the language used is ambiguous and can be argued either way.
- “Support and Maintenance”
- Trustee is not required to take into account the other sources of
income in determining whether to pay out money for “support and
maintenance” unless otherwise stated in the trust document.
- when a person remarries, support and maintenance includes the care of their new family.
- Transferability of Beneficiary’s Interest
- In general, a beneficiary can transfer their equitable interest in
the trust property to the same extent that they can transfer other
property - only can transfer what you have.
- life beneficiary can only transfer life estate in income, not the principal
- if trustee has discretion to withhold income from the beneficiary, then the assignee can not force trustee to pay, either.
- Trustee must make payment to the assignee once he receives notice of the assignment.
- Assignment to multiple persons
- majority rule - first in time, even if the assignment was gratuitous
- justification is that once the first assignment is made, the beneficiary had no further interest to transfer.
- however, later assignees can sue for damages from fraud.
- minority rule - first to notify trustee of the assignment (race-notice)
- Creditor’s Rights
- If the beneficiary can reach it, then the beneficiary’s creditors also can reach it, unless there is a spendthrift provision
- Creditor must exhaust all other assets before going after the
trust, and can not reach the principle if debtor is the income
- Creditor can force a sale of the trust assets to pay the beneficiary’s debt.
- Renunciation of an intestate inheritance is considered a gift to
the estate because title automatically vests by operation of law
- Renunciation of a testamentary gift prevents title from ever
vesting in the legatee, rather the property relates back to the time of
death of the testator and passes by the residuary clause if any or by
- A beneficiary/legatee can renounce unless he has taken some action
of dominion or control, or delay inconsistent with renunciation.
- Can not partially renounce a gift if it was intended by the donor to be taken as a whole.
- i.e. can take only the beneficial portion of the gift and renounce
the portion that is a burden if the testator wanted them kept as a
single aggregate gift.
- Spendthrift Trust Provisions
- provide that the trust is not subject to the beneficiary’s creditors or attempts to alienate it.
- protects the desires of the donor
- Tort vs. Contract Creditors
- a tort victim is an involuntary creditor, and so a public policy
argument exists for allowing him to reach the assets of a spendthrift
- a contract creditor is a voluntary creditor and so he can exercise more vigilance to avoid having an unsecured loan or services.
- Persons who can reach the assets of a spendthrift trust
- The government can reach trust to satisfy taxes
- Wife and child can reach trust for spousal support and child support
- Persons who expend money protecting the trust can recover in quantum meruit (i.e. attorneys).
- persons who provide necessary services (medical, emergency supplies, etc.) to the beneficiary can recover in quantum meruit
- some states put a limit on how much of the trust can be sheltered from creditors
- A person “authorized” by the beneficiary to receive the income (not an assignment) - revocable authorization
- Can not set up a spendthrift provision for yourself to shelter your own assets from your creditors.
- Trust Format
- Four basic types:
- Simple Mandatory Trust
- ex: O to T in trust to distribute all income to A, remainder to B
- no flexibility or discretion on the part of the trustee
- Mandatory Spray or Sprinkle Discretionary Trust
- ex: O to T in trust to distribute all income among a class in such amounts as the trustee determines, remainder to B
- trustee has the flexibility in determining how much to give to whom, but still must distribute all of the income currently.
- Discretionary Accumulation Trust
- ex: O to T in trust to accumulate income or pay such income to A in T’s discretion
- more flexible, T may accumulate income if A can’t use it or doesn’t need it - avoids taxation
- Discretionary Spray or Sprinkle and Accumulation Trust
- ex: O to T in trust to accumulate income or distribute such income among a class in such amounts as T determines.
- most flexible.
- Protective Trusts - usually found in jurisdiction
- Trust includes a forfeiture restraint that changes the nature of
the trust from a mandatory trust to an absolute discretionary trust if
the beneficiary tries to alienate his interest or if creditors try to
- Provides discipline to the beneficiary to behave responsibly
because it cuts off the income to the beneficiary as well as the
- Contrast with a spendthrift provision which does not punish the beneficiary for fiscal irresponsibility.
- Modification and Termination of Trusts
- Reservation of the power to revoke a trust also includes the lesser power of amending the trust (but not vice-versa).
- Requirements to Terminate a Trust
- A trust can be terminated if all of the beneficiaries,
unless termination would frustrate a material trust purpose, in which
case you need the settlor’s consent as well (tough if settlor is dead).
- a beneficiary who induced the trustee to terminate the trust is
estopped from later bringing an action against the trustee for breach.
- class beneficiaries such as unborn children can have their interests represented by the appointment of a guardian ad litem.
- counter-ex: widow is life beneficiary, remainder to her children who were living when she died.
Can NOT terminate trust with only the widow or her children represented
because if NO children outlive the widow, then there is a resulting
trust back to the estate. Need guardian ad litem for the heirs of the
estate? Lewis case.
- ex: son is the sole beneficiary of a trust that has a payment
schedule. Son comes before the court to terminate the trust. Court does
not allow termination because it would frustrate the material trust purpose of the settlor in disciplining the beneficiary. - Clafin doctrine
- If the trust document gives the trustee discretion to terminate the trust, he may do so unilaterally
- Doctrine of Worthier Title applies to inter-vivos trusts
- A grant of the remainder to the “heirs” used to be treated
as a reversion back to the estate because it was considered more worthy
to inherit through the bloodline (inner circle).
- Modern trend is to abolish the rule.
- A rule of construction that raises a rebuttable presumption that a
reversion was actually intended - but can introduce evidence that the
settlor actually wanted it to go to the “heirs”.
- Judicial Power to Modify or Terminate Trusts
- “Dispositive” provisions - determine who the beneficiaries are and
what their interests are (i.e. how much money they get from income,
- Courts are unwilling to deviate from dispositive provisions
- ex: In a mandatory trust, income beneficiary falls on hard times
and needs more money for support. Trustee not allowed to invade
principle for the income beneficiary because that would decrease the
- “Administrative” provisions - determine the powers and duties of the trustee
- courts are more willing to deviate from administrative provisions if you can prove:
- there is a real emergency; or
- there was a good faith belief that there was a real emergency and
no enough opportunity to go before the court to ask for guidance; or
- an unforeseen change in circumstances that threatens the trust purpose; or
- ex: settlor requires that the trustee invest in a certain stock. If that stock goes down the tubes, taking the trust with it, the
court may allow a deviation to sell that stock based on an implied
power to sell (settlor would not have insisted that the trust die
rather than sell this particular stock).
- against public policy
- ex: court allowed deviation from requirement that buildings on land
not exceed three stories or be leased for greater than one year terms
because it was a waste of land - dead hand.
- court will generally only deviate as little as is necessary to correct the problem
- ex: Two trust “advisors” in a trust had veto power over the
trustee’s decisions. One of the advisors was acting irrationally, but
the other was acting properly. Court removed only the bad advisor
rather than striking the “advisor” provision out of the trust entirely.
- Court will not allow deviations merely because another investment would be more profitable.
- ex: settlor required that the trust only invest in Grade AA bonds
or better, but no stocks. Even though there is a lower return, the
risks involved with the stock market were known to the settlor and it
was his intent to avoid stocks.
- inflation is generally something that the settlor can foresee.
- Charitable Trusts
- Valid purposes for a charitable trust - Mnemonic (GOPHER)
- Other (general benefit of community, public)
- Charitable trusts may exist in perpetuity, but the title to the
trust property must vest in the trustee during the period of the rule
- Testator’s subjective intent in creating the trust is irrelevant.
The effect of the trust is what determines whether it is charitable or
- ex: S creates a charitable trust to have a public golf course built
next door to his house, for the selfish purpose that he doesn’t want to
have to walk very far. Still a valid charitable trust.
- The class of beneficiaries must be indefinite, otherwise it is a private trust.
- ex: “for the purpose of paying law professors’ (or dean’s) salaries
at USD” - valid charitable trust to a class, not a specific person
- counter-ex: “for the purpose of paying Prof. Spearman’s salary” -
invalid as a charitable trust, but valid as a private trust to a
- Examples of valid charitable trusts:
- trust for the establishment of a school where the doctrines of communism are taught and practiced.
- trust to advocate a change in the law by non-violent, legal means.
- trust to pay support to the widows of policeman who will be killed on duty this coming year (in the future)
- Examples of invalid charitable trusts
- trust for the benefit of the Republican Party - not a government organization, not charitable organization, etc.
- trust to set up an alternate alphabet where letters have only one pronunciation - not for the benefit of community or education?
- trust to pay support to the widows of policemen who were killed in
the last year - beneficiaries are not indefinite because we know which
persons they are and the class will not change composition.
- trust for the establishment of a public park that has no public
access - insufficient benefit to the public, more benefit to those who
are near enough to access it.
- any trust for an illegal purpose or which induces criminal action
- any trust that is against public policy
- ex: segregated park
- Honorary Trusts
- Trustee is not under a mandatory duty, but is on his honor.
- Usually used for a trust that does not quite qualify as charitable - usually involves pets
- ex: a trust to take care of stray cats in La Jolla.
- ex: a trust to maintain someone’s gravesite
- Honorary trusts ARE subject to the Rule Against Perpetuities.
- The heirs who would take if the trust failed will generally keep an
eye on the trustee because if he fails to perform, then they get the
- Attorney General is usually responsible for enforcing charitable
trusts, but a person can have standing to sue if he can show that his
damages are different in nature and extent than the public at large
(i.e. you have special damages because you were to receive a specific
benefit - but you have to name the Attorney General as a party).
- state action (14th amendment) issue is always an issue because the
state enforces the trust. So anything that violates the 14th amendment
may not be allowed (i.e. trust for white park only)
- Doctrine of Cy-Pres - literally “as close as possible”
- A “saving” device applied to a charitable trust to keep it alive when its original purpose has been frustrated.
- Court tries to redirect the trust as closely as possible to the original intent of the settlor.
- ex: a trust for the treatment of children with polio became
frustrated after the invention of the polio vaccine, so the court gave
the majority of the trust money for the treatment of other respiratory
- Checklist for application of cy pres:
- There must be a valid charitable trust
- the original trust purpose must have become illegal, impractical or impossible to carry out
- the settlor must have had a charitable intent (subjective) otherwise a resulting trust is created
- if there is an alternate disposition in the trust, then it will
control unless the alternate disposition is a private trust (mixed
trusts are disfavored and court will sever them).
- the longer the time between the creation of the trust and its failure, the more likely the court is to apply cy pres
- Supervision of a Charitable Trust
- action requires majority vote of trustees, as opposed to the unanimous vote required for private trusts.
- Fiduciary Office of the Trustee
- Settlor can name any person he wants to be the trustee - his intent
controls, and court will not remove trustee without good and sufficient
- ex: settlor names his mistress as trustee and wife objects. Too bad.
- ex: wife named as trustee, mother-in-law is a beneficiary and she
hates wife. Too Bad. Court will not remove the trustee for mere
animosity unless it has an adverse effect on the trust
- if trustee takes a position adverse to the trust, then the court will remove him for conflict of interest
- ex: trustee buys property adjacent to the trust property
- no further inquiry rule - once trustee has an antagonistic position, he is removed whether or not harm to the trust resulted.
- settlor may provide in the trust instrument that the beneficiary has the right to remove the trustee for any reason.
- Fee schedules are used in many states, but the lawyer trustee still
may not charge an unreasonable fee under the rules of professional
- Trustee’s Duties to the beneficiaries
- make the trust property productive
- not to make a personal profit
- trust may provide for self dealing with the consent of all
beneficiaries, but the transaction still must be “fair” (i.e.
beneficiaries can not ‘ratify’ an unfair transaction).
- if a bank has a trust department, it must have a “Chinese wall”
between the trustees and the business persons to prevent self-dealing.
- not to enter into a contract extending beyond the term of the trust unless “absolutely necessary” to carry out trust purpose
- not to take a position antagonistic to the trust (loyalty)
- not to delegate administrative decisions or duties (unless clerical, and then he must still supervise)
- not to negligently select, supervise or retain bad employees
- to keep accurate accounts
- retain control over and preserve the corpus
- earmark and segregate property
- but failure to earmark is not actionable unless it causes the damage
- ex: if stock is not properly earmarked to the trust, and it goes
down in value in the market, it is not because of the failure to
- Liability of Trustees
- generally trustees will be strictly liable and personally liable for damage done to the trust.
- ex: poorly educated trustee delegated duties to an unethical
lawyer. Trustee was held personally liable, even though she was poorly
educated - creates a “floor” standard that can not be violated
regardless of education/intelligence
- it does not matter if the trustee was acting in good faith if her actions fell below the standard of care
- the settlor may relieve the trustee of some liability for his duties, but can not relieve him of all liability for any breach
- Must both actively participate in the administration of the trust
- passive trustees are not allowed
- joint and several liability between co-trustees
- no “splitting” of duties is allowed.
- Trustee is not liable for actions of third parties unless he was also at fault.
- ex: as a successor trustee, it would be negligent not to ask the
outgoing trustee for an accounting to make sure that there were no
breaches, otherwise the successor may be liable if a breach by the
first trustee was later discovered.
- general rule - the difference between the principle and income of
the trust as breached, and as it would have been in the absence of
- beneficiary has the option of ratifying any breaches that are
beneficial to him, and still demanding restoration of the damages from
any breach that is detrimental to him.
- ex: trust says not to invest in stock. Trustee invests $5,000 in XYZ stock and then later invests $5,000 in ABC stock.
- in the case of a “single” breach where both purchases of
stock were part of the same overall transaction, the trustee can
“offset” the damages and may escape liability.
- if, however, there were two separate transactions, and thus a “double”
breach, the losses can not be offset against the gains. Beneficiary can
ratify the first breach if XYZ stock goes up, and still demand
restoration of the $5,000 if ABC stock goes down.
- if there is an intervening proper transaction, then it is a double breach
- generally, court looks to whatever punishes the trustee more
- Exculpatory Clauses
- Settlor may relieve the trustee for liability for his negligent actions, but not for his gross negligence or willful misconduct
- Trustee’s Liability to Third Parties
- General rule is that third party must sue the trustee in his personal capacity, and not as in his capacity as trustee.
- trustee pays damages out of his own pocket for his screw-ups.
- this includes tort liability for negligence, unless the settlor has relieved him of liability for his own negligence.
- it is gross negligence for the trustee not to have insurance for the trust property
- Exceptions to general rule:
- if a trustee has acted with due care and skill and within the scope
of his office, but nevertheless breaches a contract, the trustee may be
indemnified out of the trust assets.
- if the trustee is bankrupt and the trust has received a benefit,
the third party may recover restitution damages to prevent unjust
enrichment of the trust.
- if there is an exculpatory clause, relieving the trustee of
liability for his negligence, then trustee can seek reimbursement from
- Third Party’s Liability to the Trust
- Third party has no duty to inquire whether a trustee has the authority to transfer title to him for a negotiable instrument
- However, if the third party has actual knowledge that the trustee
is breaching the trust in dealing with him, then he is liable along
with the trustee for the transaction.
- Third party does have a duty to inquire whether a trustee has the
authority to transfer title to him for non-negotiable property such as
- if third party is BFP for value, he takes the legal title to the property free of the trust, and cuts off the beneficiary.
- if the third party is not a BFP, he can still raise the affirmative defenses of laches or estoppel.
- Improvements and Repairs
- Improvements and repairs are generally paid out of rent for the building.
- if purchased at a premium, the trustee must amortize the premium
over the term of the bond in order to preserve the trust principle,
thereby shorting the income beneficiary by a certain amount each month.
- if purchased at a discount, there is no need to amortize, the income beneficiary gets all the income.
- Timing of beneficiary’s income
- Beneficiaries are entitled to income from the day that the asset becomes part of the trust
- For rents, the common law rule is that rents do not accrue so a
rent due at the end of the month would all go to income even if the
property were acquired somewhere in the middle of the month.
- Some jurisdictions allow rents to accrue, meaning that the portion
of the rent that represents the part of the month before the property
was acquired goes to principle, and the part after goes to income.
- Dividends do not accrue. They are paid as income on the date distributed.
- mortgage payments - principle of mortgage payment is charge to
principle of trust, interest of mortgage payment is charged to income
- ordinary income taxes - charged to income
- capital gains taxes - charged to principal
- ordinary repairs - paid from income
- insurance on real property - charged to income
- real estate taxes - charged to principal
- stock broker fees - charged to principal
- trustee fees - apportioned between principal and income