trusts and estates attack outline
(unless they are against public policy) In re Estate of Brown >>> Remaining Material Purpose >>> Decedent wanted to leave his entire estate in trust for the education of his nephew Woolson’s children, then the income to Woolson and his wife for support for life so that they might live in the style and manner that they were accustomed during the remainder of their natural lives (this is the material purpose that would not be fulfilled if allowed to terminate), then the principal to Woolson’s children. In Wilhoit, the POD B was the ded’s brother. Minority: In a minority of JDs courts enforce no-contest clauses unless the contestant alleges forgery or subsequent revocation by a later will or codicil or the benef is contesting a provision benefiting the drafter of the will or any witness thereto. This relationship extends to every parent and child, regardless of marital status of the parents Under the UPC, a parent/child relationship outside of marriage is presumed to exist b/n a father and a child if: the father receives the child into his home and openly holds out the child as his natural child while the child is a minor, or The father acknowledges his paternity in a writing filed with an appropriate court or administrative agency If father/child relationship is presumed, an action to determine its existence may be brought at any time. Miller - Fall 1998, Asofsky and Goldring - Spring 2008 if you assume that if husband had died while married to wife or divorced her and did nothing to change the stock designation, then the wife would probably take, although the husband’s heirs could bring suit If PODs weren’t permissible in this state and you wanted to avoid it, could you just set up a joint tenancy with the right of survivorship and then say you had no intent to create it? It allows him discretionary authority as to the manner only in which the property shall be distributed pursuant to her intentions. Scott - Spring 2006 However, a pre-printed form with no wits = no intent unless you can dredge up substantial compliance or dispensing power. RTs do not avoid taxes, however, just probate. Stevenson - Spring 2005, Guggenheim - Fall 2011 STANDARDS OF PROOF (An aside on Civil Practice) Deciding no sufficient evidence. the court hires an atty to make sure that Harrell’s rights are taken care of. Intestate Disclaimer >>> at common law you cannot disclaim, it passes by operation of law. Copyright Overview - n/a, Ayotte - Fall 2011 Slain - Fall 2009 Then if he had MC, did he operate under an ID? Latham >>> where probate cannot do justice by refusing probate, the will may be probated and then a court of equity can impose a Constructive Trust on the wrongdoer, compelling the wrongdoer to surrender the property acquired by the wrongful conduct. Life Insurance >>> paid to benef upon receipt of death certificate. Decedent left her estate to Father Divine in a will. The B designation of a Totten T may be revoked by will and a new B named. A “B” doesn’t mean an unascertained B not mentioned in the will. Generally, if the state has a provision it will be one or the other, states don’t usually have both. The will provided a lengthy explanation as to why Julian and his descendants were left out. Acts of Independent Significance Doctrine permitting extrinsic evid to identify the will benef or property passing under the will. In a custodianship, no accounting is required unless a petition for accounting were filed no later than 2 years after the end of P’s minority. e.g. Because the trust has a corpus, which is a property interest, which will be effected if the trust is revoked. In re Estate of Smith >>> widow gave 84 year old atty request that her estate was to be left jointly to her step-son and step-daughter. In re Estate of Smith >>> widow gave 84 year old atty request that her estate was to be left jointly to her step-son and step-daughter. CUSTODIANSHIP A custodian is a person given property to hold for the benefit of a minor under the Uniform Transfers to Minors Act (1983) or Uniform Gifts to Minors Act (1956, revised 1966) Custodianship was set up to give gifts to minors who can’t manage these gifts given to them the problem here is that you have to turn the money over to the child at age 21 this is much more flexible than a guardianship but still not flexible enough A devise or gift may be made under a state’s act thereby eliminating the necessity of drafting a trust instrument, hence creation of a custodianship is quite simple. Dissent would hold that O’Neal fully performed the K over the course of many years or a lifetime and can sufficiently establish the existence of the K to adopt. The evidence that the wife was independently wealthy and the brothers and sisters of the decedent were not, so he would sanely wish to leave his estate to his brothers and sisters. Slain - Fall 2005 SIMULTANEOUS DEATH OF SPOUSES A person cannot take as an heir or will benef unless he survives the ded for at least an instant of time. 2-509a >>> if a subsequent will that WHOLLY revoked the previous will is itself revoked, the presumption is that the previous will remains revoked. Defendant father in this case took plaintiff’s property as custodian as opposed to trustee. The writing was no more than a promise to make similar gifts in the future and as such is unenforceable. This changes the rule presently applicable to Totten Ts. Kumm - Fall 2001 Schaffer - Fall 1998 Capra - Spring 2007 Choi - Fall 2006 No letter dated March 25 was found. Slain - Spring 2000 Bederman - Fall 1995 Disclaimed interest devolves as if the disclaimant had predeceased the ded. UTMA section 14 >>> the custodian has discretionary power to expend as much or all of the custodial property as he deems advisable for the benefit of the minor without court order or regard to: the duty of the custodian personally or any other person to support the minor, OR any other income or property of the minor which may be applicable or available for that purpose The custodian is required to transfer remaining property to the minor at attainment of age 21, or to the estate if he dies first. Some legislatures have moved in the opposite direction permitting step-children to inherit when the decedent leaves no blood relatives. Kurtz - Spring 1995 “to A for the use and benefit of B, during his natural life, if said B should leave children in lawful wedlock it shall go to them” (this creates a trust). Whether a spendthrift clause prevents tort creditor’s from reaching the trust is not settled In most states a restraint on involuntary alienation alone is invalid as against public policy; the public policy being that if the beneficiary can voluntarily transfer his interests, his creditor’s can reach it. Batchelder - Fall 2005 What acts constitute the exercise of discretion of TEE? Mortmain statutes allowed descendants to contest the will and have it voided thereby defeating the intent of the testator. they don’t get witnesses. Chase - Spring 2012 If a testator adopts a child, the testator’s collaterals cannot contest the will since they now can inherit nothing through intestacy. Estreicher - Fall 2003 Courts won’t rectify a atty’s mistake and penalize the intestate heirs. Richards - Fall 2005 They used the DDRR. Knapp - Spring 1998 These are not followed by a majority of JDs. P sues to probate the will to which P was a beneficiary. If the trust property is real property, the Statute of Frauds requires a written instrument for a declaration of trust. REASONING: What is needed to revoke a will physically? This discouraged Cappy from ever asking the lawyer for any more money and as a result, Cappy ended up deeding the property to his stepdaughter and her husband in return for a life estate. This type of revocation may only be overcome by express terms of the instrument, not by extrinsic evid, as was allowed in Clymer v. Mayo. Hershkoff - 2011 Reese - Spring 2009 Capra - Spring 2007.2 A fraudulently procured inheritance or bequest is invalid only if testator would not have left the inheritance or made the bequest had the testator known the facts. There were no other changes to her estate plan. Kahan - n/a lawyer tore the will into pieces and mailed them to decedent with letter stating what he had done and that the will had been revoked. Previous wills, possibly. Pension Trusts – ERISA requires that “each pension plan covered by the act shall provide that benefits provided under the plan may not be assigned or alienated, but such benefits may be reached for child support, alimony or marital property rights. n/a - n/a, Friedman - Fall 2012 Schechter - Fall 2001 This is also relevant to the burden of going forward, usually if the person with the burden of proof proves their burden then the burden of going forward shifts to the other party In this type of situation, should there be a presumption of undue influence? Richards - Fall 2005.2 Every JD has representation Majority Rule, Modern Per Stirpes, Per Capita Representation >>> UPC 2-103 provides that if issue of a ded “are all of the same degree of kinship to the ded then they take equally, but if of unequal degree, then those of more remote degree take by representation. Unless the presumption is rebutted, B holds title on a resulting trust for A. >>>YES<<< ISSUE: may a SS take an elective share when her claims are in conflict with claims under a K to convey by will? Malamud - Spring 2009, Christianson - n/a After such exercise by a TEE, creditor may seize the property awarded to the B while it remains in the hands of the TEE. Lot of good problems here (pg. In re Honigman >>> ded thought that his wife was having an affair. Latham v. Father Divine (Constructive Trust) >>> Constructive Trust imposed where Testator was prevented from executing a will. >>>NO<<< ISSUE: does a TEE have the responsibility to administer a T solely in the interest of the B of the T, and to prove that any expenditures made were made for the T purposes? ELECTIVE SHARE UPC section 2-202 A says that a spouse of 12 year only gets 3% of the ded’s estate. UPC §6-215 expressly permits the decedent’s creditors to reach POD bank accounts and joint bank accounts, if the probate estate is insufficient. Ded functioned as a business person in society. The property of each person shall be disposed of as if he had survived If there is suff evid that one party survived the other, even for a brief period of time, the USDA does not apply. HOLOGRAPHIC WILLS A holographic will is: Dated at the top (the last written document prevails) Written by the testator’s hand, AND Signed by him Attesting witnesses are not required. THE POWER OF THE DEAD HAND AND ITS LIMITATIONS Shapira v. Union National Bank >>> ded’s will said that P, his son, could only inherit if he was married to a Jewish girl whose parents were both Jewish at the date of ded’s death or within 7 years thereafter. The layout of the MEE Attack outline is SUPER clear and clean. >>>YES<<< REASONING: generally, the BOP lies with the person attacking the will. Where do you look to find out? AND Attestation clauses, which facilitate probate by providing prima facie evidence that the testator voluntarily signed the will in the presence of the witnesses. INTESTACY Person dies without a will The person’s property is devised according to the intestacy statute of the state of the person’s residency. Gillers - Fall 2013 Revesz - Fall 2005 Don’t forget that there is a presumption that no one dies intestate. The hospital said that stanley died first so the life insurance policies went to theresa’s estate through intestacy statutes. Property that passes under an instrument other than a will which became effective before death including: JT with ROS >>> ded’s interest vanishes at death.


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