1. TERMINOLOGY:a. Donative freedom – the ability of the owner to absolutely control what happens to his property.b. Heirs – The people who take land through intestate succession. Even if you have will and name someone else to

receive property, that group of people appropriately called heirs and take if something is wrong. c. Probate v. Administration - Probate is process of having will declared valid. Administration starts after probate,

pay off creditors, open account, distribute funds, etc. There is administration whether or not you die testate. But no probate if die intestate.

d. Pure will substitutes – life insurance, pension accounts, joint accounts and revocable trusts, when properly created, functionally indistinguishable from will. Owner has complete lifetime dominion and can name/change beneficiaries up to death.

e. Imperfect will substitutes – c/l joint tenancy transfer property w/o probate. Effect lifetime transfers – cotenants acquires irrevocable interest during owner’s life.

f. Survival – UPC – any individual who fails to survive decedent by 120 hours by clear and convincing evidence is deemed to have predeceased. At common law only had to survive an instant. (GA: 120 hrs, no evidence req’t).

i. Uniform Simultaneous Death Act: When no evidence of who died first, property disposed as if each had survived the other (each read out of the other’s wills)

g. Children – includes adopted children (are children of adopting, not natural parent) and children in gestation who are born alive. OCGA and UPC adoption terminates relationship w/ natural parents, creates it for adoptive parents.

i. Stranger to the adoption rule – abrogated by UPC. Used to say that when people affected by the adoption did not expressly intend for the adoption to affect them, they are referred to as “stangers to the adoption” and therefore, may not have the adopted people inherit from them or they get to inherit from the adopted. “The adopting parent shouldn’t be permitted to determine the beneficiaries of a gift made by a person who didn’t participate in the adoption. UPC and GA do not follow this rule – adopted people and adoptive relatives all have full rights.

ii. Children born out of wedlock – OCGA – may inherit some as legitimate from/through mother, siblings,. May NOT inherit from/through father, other children of father, etc. unless court entered order declaring child legitimate, court order establishes parternity, father signed sworn stmt attesting to paternity, father signed birth certificate or clear convincing evidence he is father. Rebuttable presumption of paternity if genetic testing says 97% probable.

iii. Inheritance from child – if out of wedlock, OCGA applies rules above. UPC says inheritance by parent precluded unless that natural parent has openly treated child as theirs and has not refused support.

2. DONATIVE FREEDOMa. Shapira v. Union Nat’l Bank (p. 14) - A gift conditioned upon the beneficiary marrying within a particular religious

class or faith is reasonable.

INTESTATE SUCCESSION:b. UPC – Intestate share of surviving spouse is the entire estate if D has no parents/descendants alive OR all surviving

descendents also descendants of surviving spouse and no other descendant of surviving spouse survives D.i. Surviving spouse gets first $300k + 75% if parent but no descendant survives D.

ii. Surviving spouse gets first $225k + 50% if all D’s descendents are spouse’s also, and spouse has at least 1 surviving descendant not of D.

iii. Surviving spouse gets first $150k + 50% if D has any surviving descendants not of spouse. All children split equally.

c. OCGA – Spouse sole heir if none of D’s descendents survive him (no mention of parents).i. If D has descendants survive (even if child w/ spouse), spouse and children share equally. Spouse gets at

least 1/3.d. Probate/Nonprobate Distinction

i. Problem (pg. 8): Of the following assets, which would be subject to probate administration at G’s death, assuming that G died first, survived by A?

1. Which of the assets would be subject to probate admin at G’s death if A died first, survived by G?a. (1) Car: Title in G Subject to Probateb. (2) Bank accounts:

i. Checking account: Joint title in G and A ii. Savings account: Title in G Subject to Probate

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Spouse

c. (3) LMN Mutual Fund: Title in G and A as equal tenants in common Subject to Probate (ONLY G’s half)

e. HYPOS:i. Decedent survived by their spouse. Decedent has no living children or parents (no one in ascending or

descending line). Spouse is sole-surviving heir and takes everything. ii. Decedent and spouse had three children.

1. UPC – spouse gets everything. 2. GA – surviving spouse gets 1/3, the three children split the other 2/3. GA code starts out saying

spouse shares with children, spouse guaranteed at least 1/3.iii. Decedent has one child w/ ex and 3 children w/ SS.

1. UPC – Current spouse gets $150K plus ½ of whatever’s left. All 4 children split the ½ of whatever’s left. Step-children treated the same as regular children.

2. GA – Current spouse still gets 1/3, all 4 children split the other 2/3. iv. Same as above, but surviving spouse was also previously married and had a child. (So couple had 5

children, each had a child by separate marriage)1. GA – Current spouse still gets 1/3, decedent’s 4 children split the remaining 2/3. Spouse’s child

from previous marriage is not one of decedent’s heirs.2. UPC – Current spouse gets $150K plus ½ of whatever’s left. Same 4 children split, spouse’s

former child gets nothing.a. UPC – If decedent’s child from previous marriage wasn’t in the picture, current spouse

gets $150K plus ½ of whatever’s left. 2-102(3) – that all of decedent’s children are with her, and she has other child, gets her more.

v. Decedent is dead. Spouse survives. No children. Decedent’s parent(s) still alive. 1. UPC – Spouse gets first $200k plus ¾ of whatever’s left. Parents get the other ¼.2. GA – Spouse gets everything.

vi. Decedent with SS and child of decedent and surviving spouse1. UPC – spouse gets everything2. GA: surviving spouse and child would split equally

vii. SS, child of decedent and surviving spouse, child of decedent and ex1. UPC 2-102(4): first $150k + ½ of balance of estate to SS2. GA: divided equally b/w SS and each of the children

f. Ways of counting where children take in place of their deceased parents:i. Per Stirpes (GA) – Steps:

1. Divide estate into primary shares at the generation nearest to the the decedent (i.e. children). If child dead and left no descendants, excluded.

2. Allocate the primary shares – one share to each child (alive or dead).3. Divide and subdivide each primary share allocated to the living descendants of a deceased child.

ii. Per Capita at each generation (w/ representation) (UPC) – Steps:1. Divide estate into primary shares at nearest generation to decedent containing at least one living

member. 2. Allocate one primary share to each living member of the primary-share generation.3. Combine remaining primary shares, if any, into single share and distribute among decedent’s

descendants g. Problem (p. 36)

i. GA: Strict per stirpes Divide amongst 4 children, initial # of shares: 4ii. UPC: Start at grandchildren level, initial # of shares: 7; GIJK each get 1/7

h. Guardianships/Conservatorships for Minors and Incapacitated Adults i. Guardian of the person: fiduciary who is judicially charged w/ care and custody of minor/IA

ii. Guardian of the property (“conservator”) – fiduciary responsible for managing assets owned by minor/IAi. Parents and Their Descendants

i. UPC: D’s parents and descendants inherit only if D leaves no surviving descendants – inherit to exclusion of D’s siblings.

ii. “Worthy parents” – UPC: can’t inherit if evidence that parental rights could’ve been terminated; GA: parent who has abandoned minor child has no right to estate

iii. Note: relatives of the half blood treated same as relatives of whole blood2

Descendants

Ancestors

j. Parentelic System : system of inheritance based on preference for persons in nearest parentela to decedenti. UPC: carried out through 3rd parentela (grandparents)

1. Estate first divided into parental and maternal halves k. Problems (p. 43)

i. A: UPC – nearest living generation – 1/3 each, GA – 1/3 b/c no surviving siblings, statute modifies per stirpes (if all siblings dead, nieces and nephews take estate in equal shares; GA doesn’t follow consistent pattern)

ii. B: UPC – distinction through grandparent’s line (split on each side), D ½, E&F ¼; GA – treat cousin same way you treat brothers and sisters

iii. C: UPC – S is through the heir through the grandparents’ line, even if S was out of the picture; GA – R has closer degree of kinship

l. DePaoli v. Comm’r of Internal Revenue (p. 45) – Son disclaimed bequest from father b/c mother wouldn’t have to pay taxes; court says OK.

THE CHANGING AMERICAN FAMILY (p. 59)3. When is someone not a surviving spouse?

a. Divorce. Survivor obtained/consented to final decree or judgment of divorce which later proven to be invalid; where survivor, following invalid decree obtained by decedent, “marries” a third person; where survivor was party to valid proceeding purporting to terminate all marital property rights. Some states also bar for abandonment/adultery/abuse.

i. Holmes v. Fentress (p. 61) – Couple filed for divorce but axn was dismissed w/o either’s knowledge – court holds that she qualifies as surviving spouse. Generally, if no statute to the contrary, courts forced to recognize legal consequences of status as wife (extremely strong).

4. Who is a “Surviving Spouse”?a. Putative Spouse - In some states, person who cohabitated w/ another though not legally married in good faith

belief they were married takes as if they were a spouse. UPC doesn’t confer/deny, leaves it to the individual states. GA has no putative spouse doctrine.

b. Common-Law Marriage : parties agree to enter into relationship of husband/wife; not recognized in GA.c. Contracting for property :

i. Estate of Quarg (p. 66): (P) and Decedent unmarried cohabitant while Decedent was still married to wife. Court granted equitable remedy – constructive trust (used when person holding title would be unjustly enriched if they continued to own that property).

5. Who is a “Descendant”?a. Intestate Succession

i. Estates of Donnelly (p. 74): statute saying adopted child can’t inherit from natural parents means they can’t inherit from natural grandparents either (“fresh start”).

ii. GA: Assuming functional relationship, can inherit from either biological or adopted iii. Problem 2 (p. 79): Y may be able to inherit in two capacities; UPC says entitled to larger portion.iv. Nonmarital Children : UPC – individuals inherit from biological parents; GA: can inherit through mother,

and father if court declares legitimacy, sworn statement from father, signed birth certificate, or clear and convincing evidence

b. Rules of Construction for Class Gifts i. Nunnally v. Trust Co. Bank : Court applied law that existed at time of creation of the will; true indication of

testator’s intentii. Adult adoption : Generally permitted

1. Adoption of Spouse/Domestic Partner : prohibited by UAA, but allowed in some states (although these adults may not be treated as a “child” w/in class gift)

iii. Will of Hoffman (p. 97)– Ct says that use of the word “issue” in will refers to both lawful and illegitimate children absent an express intent to exclude them.

iv. Children by Assisted Reproduction : RTT 3rd – unless intent shows otherwise, child of assisted reproduction treated as child of person who consented to function as parent and (intended) to function in that capacity

1. In re Martin B. (p. 101): where governing instrument is silent, children born of new tech. w. consent of parent are entitled to same rights as those of a natural child (intent controls)

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EXECUTION OF WILLSc. Statute of Limitations : UPC – within 3 years of deathd. Functions/Purposes : cautionary, evidentiary, protective, channeling (conduct)e. Attested Wills: Must be in writing, signed by the testator, and attested by credible witnesses (GA: two individuals or

notary public). i. Writing Requirement : Must be written, not oral (RTT). Can be written anywhere (like by scratching in paint of

car) but must be a marking. Videotapes are not writings and can’t operate as will itself, but are evidence of testator’s capacity and freedom from influence.

1. So person is trying to sign, pen has no ink and scratches out w/ dry pen and dies. If no marking on the page, no signature – tough luck.

ii. Signature Requirement : Testator must sign will or someone else can do it for them in presence and at direction of testator.

1. Estate of McKeller (p. 114)– testator writes name in own handwriting on first line, but nowhere else. No witnesses saw/read/heard entire document. Ct finds will improper, even though she told witnesses it was her will, wrote by hand, was in hospital, (but?) let witness walk out with it.

2. In some jurisdictions, location of signature is special element of formality. Some specify it must be at end, or interpret the word “subscribe” to require location at the bottom. Intent or no, formality must be satisfied.

3. Most courts don’t quibble about who signs first as long as single/continuous transaction. If not, testator must sign first.

4. RTT: Harmless error can be excused if clear and convincing evidence that D adopted doc. as will. iii. Attestation Requirement : Often done by attestation clause, located below testator’s signature that recite

witness saw testator sign and declare it was last will and of sound mind, etc. Gives rebuttable presumption events recited actually occurred.

1. In theory, witnesses perform at 2 times: attestation and execution of will 2. UPC says witnesses are there to witness either: The signing of the will; testator’s acknowledgment of

signature; or testator’s acknowledgment of will. Valid as long as they sign w/in reasonable time after witnessing one of those things. Lots of ways to have appropriate testator/witness transaction.

3. GA : Witnesses must sign in testator’s presence and at testator’s express direction.4. Signature Hypos:

a. H&W go to lawyer together, accidentally sign the other’s will. Don’t figure it out until H dies. Has testator signed document? Some courts say no, it’s a nullity.

i. UPC might probate that as harmless error. It’s in the comments as circumstance where signature errors have been excused.

b. Witness goes to the other room to sign the document.i. UPC – valid. Witnesses must sign w/in reasonable time of witnessing signature or

acknowledgment of signature/will. Acknowledgement can be implied.ii. GA – not valid. Witnesses required to sign in the testator’s presence. Some other

states also require the witnesses to be in presence of each other when they sign. But what is “presence”?

iii. Estate of Peters (p. 122) – Will signed by witnesses 18 months after death; Court says not w/in reasonable time period.

iv. Stevens v . Casdorph (p. 128) – Man in wheelchair wheeled in bank, signs in front of someone who isn’t a witness, but carries will to 2 other people denominated as witnesses. Court holds will invalid – neither testator nor witnesses saw the other signing the will.

1. If court uses line-of-vision test, most likely to make will invalid (i.e. if witnesses behind testator, or could see backs but not hands/papers).

2. Most generous is conscious-presence test – close enough that they know what’s going on. UPC uses this where someone signs on testator’s behalf.

c. Suppose Englebert writes name and immediately falls into coma, then witnesses sign. In his presence? Small lapse, unforeseen event so court may make exception. This guy isn’t conscious.

d. Lawyer drafts will, testator signs. Partner calls testator and says “got your will here, I’m signing it.” Testator doesn’t know that. Phone contact is not physical presence. But under

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UPC could be sufficient. UPC says signed by 2 w/in reasonable time after witnessed signing of will or testator’s acknowledgment of will or signature. No requirement that testator be there at all, so signing is not a problem, so long as partner witnessed one of those.

a. Harmless Error Rule & Substantial Compliance Doctrine : 5. Substantial Compliance : permits probate of otherwise defectively executed will if proponents prove

that the document adequately expresses decedent’s testamentary intent, and procedure actually completed sufficiently approximates the execution req’ts and purposes of will statute.

6. In Peters, would emphasize that testatrix requested her sister notarize it. Had 2 employees come down to act as witnesses. She wanted document to be formalized and was trying to comply. There were witnesses, there was some formality, etc. Significant b/c they show intent of testator to give property through the device of this specific will.

a. Purpose of attestation is missing, but no doubt this is the right document. No allegation of fraud/duress/unfitness.

7. UPC – inquiry is not whether there IS harmless error, but whether decedent intended document to be their will (by clear/convincing evidence). RTT only lets minor technical flaws slide (i.e. doc. execution error), vs. whether they intended it to be their will (UPC), which is more liberal.

a. Dalk v. Allen (p. 121) – 8 documents requiring signature, 7 signed by witnesses and testator, but somehow only witnesses, not testator, sign the actual will. No substantial compliance but harmless error? Court held will invalid, and higher ct. declined to establish constructive trust.

8. Estate of Hall (p. 134) – Hall had one will, 13 yrs later made new will, which lawyer notarized w/ no witnesses present. Hall then told his wife to tear up the original will. Holding: A document that is not properly witnessed by two people may be probated if proponent of doc. establishes by clear and convincing evidence that decedent intended that do. to be his will.

9. HYPOS:a. G signs will, hands to nephew and asks him to get it witnessed. Takes will to 2 or 1

neighbors, who sign as witnesses.i. what’s missing is presence and witnessing. Probably not substantial compliance.

Bothersome especially if nephew stands to inherit. Maybe nephew exerted some undue influence on him. We need evidence to shore up the nephew’s credibility.

ii. $2-503 requires clear and convincing evidence that decedent intended document to be her will. With 1 witness it’s even more sketchy.

b. Suppose testator thinking about making will. Writes letter to lawyer saying “please prepare a will with the following provisions” and lists them completely. He sets it up for signature and testator on her way to lawyer’s office and she dies. So we have a signed letter from testator, and an unsigned will document.

i. Letter intent to do something in the future. What does 2-503 mean when it says testator “intended document to be his or her will.”? Maybe this is where RST’s use of “adopted as will” instead of “intended as will” crystallizes it a little. While it may express her intent, there’s nothing to indicate that it’s a done deal. We need a document intended to be adopted by testator.

iv. Competency of Attesting Witnesses (p. 132):1. Not enough to be previously convicted of crime, but mental deficiency, extreme intoxications, or

influence of drugs. Most states and UPC no age specified – must be old enough to observe, remember, and relate facts occurring at execution ceremony.

a. GA specifies minimum age of 14. If witness competent at time, subsequent incompetence does not prevent probate of the will.

2. Interested witnesses: a. UPC – Witness beneficiary is competent and signing by interested witness does not

invalidate any provision of the will.b. GA – Witness/beneficiary is competent, but testamentary gift to witness is void unless there

are at least 2 other subscribing witnesses who are not beneficiaries. Purging statute.???c. Hypo: T: $100 to B; Witnesses: B, B’s spouse, B’s child

i. GA law: all OK – have at least 2 disinterested witnessesii. If no B’s child, gift to B is void b/c only 1 disinterested witness

d. Hypo: T: $1 million, Heirs: SS + C, $100k to C, Rest to SS; Witnesses: C, X

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i. GA law: only 1 disinterested witness, so goes to default: ½ and ½ ii. C is a lot better off if there is no will

3. Self-Proved Wills (p. 128)a. Testator and witnesses have executed affidavit before notary detailing procedures followed

in execution of will. Like an attestation clause but notarized. Goes to formalities, so if someone claims lack of intent or undue influence, weight is questionable.

b. UPC – Will may be simultaneously executed attested and self-proved by the affidavits. Alternatively, may be self-proved after execution by testator and affidavits. Signature on self-proving affidavit = signature on will. Creates rebuttable presumption so that people contesting will have burden of providing evidence that will is invalid.

c. GA – Same.f. Holographic Wills : unattested will written and signed in the handwriting of the testator (and sometimes dated).

i. Validates the intent of the layman sitting at home and writing what they want done.ii. UPC – will that doesn’t comply w/ 3 requirements of attested will valid as holographic, whether or not

witnessed, if signature and material portions of doc are in testator’s handwriting. iii. GA : not recognized in GAiv. Testamentary Intent: Must be present, not future intent, that this document is a will.

1. Often a problem. Many courts say document itself has to communicate testamentary intent, no extrinsic evidence. Others say you can bring in extrinsic evidence if there’s some ambiguity on the face of the document.

2. UPC – allows extrinsic evidence to establish intent, including using portions of doc not in testator’s handwriting as extrinsic evidence of intent.

3. Estate of Black (p. 141): Court held that instrument was a valid holographic will despite handwritten insertions on stationer's form evidencing intent to physically incorporate portions of the preprinted language in the will b/c provisions don’t change effectiveness of will. Court notes that law favors validity.

g. Nuncupative Wills : not recognized by GA or UPC; oral wills; traditionally used by soldiers/marinersh. Testamentary Intent : RTT – decedent must intend document to be a will or become operative at death; extrinsic

evidence may be consideredi. Estate of Kuralt (p. 148) – Kuralt executed will disposing property to wife & kids. Wrote letter to mistress,

giving her piece of real property. Mistress attempted to probate. Court held that when a second will does not make a complete disposition of the testator’s estate, the second will is a codicil the first will. A letter expresses testamentary intent where the evidence shows the testator believed that he was close to death at the time of writing the letter and the facts show that intent to convey a specific item of property to a particular beneficiary.

i. Testamentary Capacity :i. Age requirement – 14 in GA

ii. Mental requirement: GA – testamentary capacity exists when testator has decided and rational desire as to disposition of property.

iii. Does not means your dispositions must be, or appear to be, reasonable. Reasonableness and incapacity are two separate considerations.

1. Fletcher v. DeLoach (p. 157)– Evidence of unreasonableness: made no provision for son or child of deceased son. Daughter sole beneficiary of 3 children. No clear reason why other 2 cut out.

a. Evidence of incapacity – had been depressed, appearance/cleanliness had declined. Shortly after eldest son had died (which seems like good reason to be depressed).

b. Neither enough alone, but unreasonableness combined with suggestion of incapacity invalidates this will. Also note: high evidentiary standard

iv. Can’t flip reasonableness inquiry around – predictable allocation is NOT presumptively reasonable, just less likely to be contested.

v. Lucid interval : RTT/GA – mentally incapacitated person can make a will during a lucid intervalvi. Insane Delusion/Monomania/Partial Insanity : belief to which testator adheres against all evidence/reason

1. Estate of Koch : children testified against him, tried to get him committed; will invalid (Court: beliefs held by decedent unfounded in fact)

vii. Will Contests : Courts have been reluctant to enforce no-contest clauses1. Fletcher : no-contest clause – if someone contests the will, won’t receive anything

a. Not a deterrent here – parties weren’t going to get anything anyways

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2. Probable cause exception (RTT): – Probable cause exists when, at time of instituting proceeding, there was evidence that would lead a reasonable person, properly informed and advised, to conclude that there was as substantial likelihood that the challenge would be successful

j. Undue influence : exercise over the testator that causes the will to recite the desires of the influencer rather than the desires of the testator

i. RTT : Undue influence when overcame donor’s free will, duress if wrongdoer threatened to perform wrongful act that coerced donor, fraud if made false representation

ii. GA : will invalid if destroys testator’s freedom of volition – fraud/misrepresentation/duress/undue influenceiii. Overt wrongdoing, typically circumstantial evidence. Confidential relationship + suspicious circumstances

gives presumption of undue influence. 1. Per se confidential relationships – fiduciary (lawyer/client, guardian/ward, etc.), reliant (special trust

or confidence), or dominant/subservient relationship.iv. Lawyers as beneficiaries

1. Per se confidential relationship – fiduciary.2. If client wants to give you gift you don’t draft the will.3. Prohibition is for “substantial gifts” – take account estate and lawyer’s wealth. Tough to say what is

or isn’t. Lawyers have duty to avoid appearance of impropriety.4. GA: General rule that says lawyer shall not represent a client when there is a significant risk that

lawyer’s duty/own interest will materially and adversely affect representation of the clientv. Estate of Peterson – Lawyer who prepared will also executor; disqualified b/c didn’t follow disclosure rules (i.e.

nature of representation, fee arrangement, potential choices). Note: GA is in minority in having something as official as this disclosure.

vi. Lipper v. Weslow (p. 167): Grandchildren contested decedent’s will (undue influence). Although there was relationship b/w D and son (lawyer), no undue influence b/c decedent of sound mind and strong will.

k. Fraud/Forgery i. Fraud in the execution : when a testator is defrauded about the nature or contents of the doc. signed

ii. Fraud in the inducement : when a testator is intentionally misled into forming a testamentary intention he/she would not otherwise have formed

iii. Latham v. Father Divine (p. 176): Decedent left estate to leader of religious group, brother contests. Decedent had expressed desire to revoke, but was prevented through U.I., force, murder. Brother made a trustee in favor of beneficiary.

l. Constructive trust and Other Remedies i. Quasi-contract : no express K, but court treated situation as though there were and allowed (P) to use it

ii. Constructive Trust : (D) as trustee of land for benefit of (P); giving relief to prevent U.E.; wholly equitablem. Unattested Documents and Events (p. 183)

i. Integration of multiple pages/writings into single will – page or writing must be present when will executed and must be intended to be part of will, in order to be treated as part of will.

ii. Incorporation by reference – Will can manifest intent to incorporate writing that is IN EXISTENCE when will executed if identifiable w/ reasonable certainty.

1. Simon v. Grayson (p. 184)– Testator leaves letter in safe deposit box saying I leave executors $6k to be paid to persons and in amounts directed by me in letter found in my effects, addressed to executors, dated March 25, 1932

a. Dates don’t match, but reasonably identifiable. But this wouldn’t be approved b/c letter says “will be dated” rather than “is dated” suggesting letter not in existence. Only reason it’s approved is b/c codicil is executed later, when letter is in existence.

i. Wills are treated as if republished when codicil is executed; in substance, will is re-executed as of that time.

2. Allen v. Maddock (p. 186) – Court uses incorporation by reference to allow invalid will to be incorporated into codicil. Note: not re-execution b/c not executed correctly in the first place.

3. UPC – writing must be in existence when will is executed, and language of will must manifest intent and describe writing sufficiently

4. RTT – may be incorporated if will manifests intent to incorporate the writing and the writing is identified w/ reasonable certainty.

5. Differences: UPC directs to find “sufficient description” in language of will, while RTT makes it possible to look beyond circumstances of the will

iii. Republication – equivalent of re-execution (p. 186)

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iv. Acts having independent significance – Permits certain evidence outside the will to be admitted in order to determine who receives and what property passes under the testator’s will.

1. Tends to be more forward-looking than inc. by reference – identifies future acts, developments.a. Ex. Can make gift in will for children you don’t have.

2. UPC – will may dispose of property by reference to acts that have significance apart from effect upon dispositions made by the will, whether they occur b/f or after execution of will or testator’s death. Execution of another individuals will is such an event.

v. Reference to Unattested Writing1. UPC – Will may refer to written statement or list to dispose of tangible personal property not

specifically disposed of by will (does not include money). Writing must be signed, and must describe items and devisees w/ reasonable certainty. May be referred to as one to be in existence at the time of the testator’s death, may be prepared before or after will, may be altered after originally prepared, may have no significance apart from effect on dispositions.

REVOCATION OF WILLSn. Three Principal Elements of Revocation: (1) authorized act/instrument, (2) intent to revoke, (3) legal capacityo. Revocation by Subsequent Will

i. UPC & GA : testator can revoke will by validly executing another will containing express revocation clause1. UPC : in the absence of express revocation clause, previous will is revoked by “inconsistent”

subsequent willii. GA :

1. Express revocation – testator by writing or action expressly annuls will; takes effect instantlya. May be effected by subsequent will or other written instrument that is executed, subscribed,

and attested w/ same formality as required for will. 2. Implied revocation: execution of subsequent inconsistent will that does not expressly revoke previous

will; takes effect only when subsequent inconsistent will becomes effective.a. Extends only so far as an inconsistency exists b/w testamentary instruments.

iii. Gilbert v. Gilbert (p. 201): Will + holographic instrument w/ instructions to distribute $20k+ “the rest” of $50k. Court interpreted as 2nd will b/c no revocation clause and distributed only part of residuary.

p. Implied Revocationi. Can be revocation by inconsistency.

1. HYPO: Doc 1 says Desk to A, $20k to B, residue to C. Doc 2 says Desk to X, $10k to B, residue to C, but no express revocation.

a. A clearly loses desk.b. Does B lose the 20, get the 10? Or get 30? Nothing necessarily inconsistent about getting

20k and another 10k. c. GA – implied revocation takes effect only when subsequent inconsistent will becomes

effective. Any portion of prior instrument that can stand consistently w/ scheme of second instrument shall remain unrevoked. Thus, under GA, B gets 30k.

d. UPC – if will disposes of entire estate, presumption that it replaces entire will, if not read it as supplement. So B gets 10k. But if 2nd didn’t say residue to C, you read 2nd as supplement and B’s gifts are cumulative.

q. Revocation by Unattested Revocatory Acti. Requires intent. No revocation by only intent, or only act, need both.

1. UPC – does not distinguish between revocation by cancellation and revocation by destruction. Neither act actually has to touch words on the paper. Must be done by testator or in his conscious presence and by his direction.

2. GA – Requires obliteration or cancellation of material portion of will. Acts done to paper/words on paper.

a. Suppose H throws will in fire, W removes it. Paper singed, but no word obscured or destroyed. Ineffective revocation. Key words are destruction, obliteration, etc.

3. Kronauge (p. 205)– act of revocation, if at all, is writing in margin that will is void (Ct. notes that writing does not touch wording of the will itself). But statute required tearing, destroying, etc. Here there’s proper intent, but improper act.

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4. Tolin (p. 208)– Lawyer had original, testator had realistic copy, which he destroys. Act done with intent, but to wrong document. Court imposes constructive trust b/c of mistake one party is unjustly enriched. Testator’s clear intent frustrated by mistake.

a. Courts will use similar method to not enforce will that isn’t destroyed b/c another person fraudulently intervened to prevent destruction.

5. Presumption of intent a. If proved testator had custody of the will, will found physically mutilated is presumed

revoked. Both custody and destruction are required to trigger the presumption.b. HYPO: Destroyed will was in pickup truck. Custody? Depends on how secure it is. c. Presumption is rebuttable – must be tempered when act could be accidental blemishd. May (p. 211)– Act of revocation, if at all, is tearing will out of book. However, looks like

accident – one side jagged, but not torn. 3 days/f death D told strong witness (who had interest if there was no will) he had a will. No evidence of intent to revoke.

ii. Act by a third person (proxy)1. UPC – requires testator to be present.2. GA – Doesn’t require presence, just says “testator’s direction.”

iii. Lost or destroyed wills:1. GA – Presumption of intent to revoke arises if original can’t be found to probate. Copy can be

probated as long as proved by preponderance of the evidence to be true copy of original will, and presumption of intent to revoke rebutted by preponderance of evidence.

2. RTT : Agrees w/ GA; no need for “clear and convincing evidence” standard3. So what do you do if will not there but overcame presumption of intent to revoke?

a. Usually contents must be proved by clear and convincing evidence as part of rebutting presumption of revocation (p. 215).

iv. Restrictive Lost Will Statutes1. Language of the statues on its face would prevent proponents of will who could overcome

presumption that testator planned to revoke will must still offer proof of what the will providesa. Must establish contents; used to be difficult b. GA : Now, doesn’t matter if lost during testator’s life, as long as presumption can be

overcome, will can be probatedv. Duplicate Wills: forms procedures for executing a will were performed on the same will. Act of revocation on

one also revokes the other duplicate. 1. Horton : when copy retained by testator cannot be found after death, presumption of destruction w/

intent to revoke. vi. Fraud: If person obtains access to testator’s will and wrongfully destroys it, not revoked.

vii. Partial revocation: has double effect of depriving someone of property & giving that property to someone else1. GA – No partial revocation by act allowed. But where part of will is missing and no way to prove what

it said, GA will choose probating will as is over throwing whole thing out. Court has held that if material portion revoked, whole will revoked.

a. HYPO: 4 names on will, 2 crossed out. Looks like attempted partial revocation by act. Presumption is, if there’s obliteration of a material portion, we infer revocation. But you can overcome that by preponderance of evidence.

2. UPC – allows will or any part thereof to be revoked by act. 3. RTT – rejects position that there is a difference b/w revocation of a complete devise and rearranging

shares or rewriting terms of the will by deleting selected words. viii. Revocation by change in circumstances:

1. Spencer (p. 222): Testator left estate to wife under maiden name, wife didn’t get the estate. 2. If marriage/divorce/childbirth imminent, testator should always include clause in contemplation of

that to avoid operation of statute.3. GA : Marriage of testator, birth of child to testator (incl. birth w/in 10 mths of T’s death), or adoption

subsequent to making of will = subsequent spouse/child gets intestate share. Share paid from residuum. Provision in a will or a class of T’s children shall be presumed to be made in contemplation of birth/adoption of additional members absent contrary intent.

4. GA : Provisions of a will made prior to testator’s final divorce/annulment in which no provision is made in contemplation of such event shall take effect as if spouse had predeceased the testator. No change to the original will if testator remarries former spouse.

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ix. Revival – reinstating a revoked will. “Revival,” identifies the issues surrounding this circumstance: A testator executes Will I, and then sometime later executes Will II, which revokes Will I. Changing his mind again, the testator revokes Will II. The question is whether Will I is good again. 

1. Ecclesiastical Rule : whether will #1 would be revived would depend on G’s intent.2. Common-Law Rule : will #1 treated as valid will regardless of intention3. RTT

a. A will revoked by a later will is revived if the testator (i) reexecuted previously revoked will; (ii) executed a codicil indicating an intent to revive the previously revoked will; (iii) revoked the revoking will by act w/ intent; (iv) revoked the revoking will by another, later will whose terms indicate intent to revive previously revoked will.

b. A will that was revoked by act revived if testator (i) reexecuted; (ii) executed a codicil indicating intent to revive; or (iii) performed act on will that clearly and convincingly demonstrates intent to reverse the revocation.

c. A testamentary provision that was revoked by dissolution of the testator’s marriage is revived if (i) testator remarried former spouse, reexecuted will, or executed codicil indicating intent to revive; or (ii) dissolution of the marriage is nullified.

4. UPC a. If will that wholly revoked previous will is revoked by act, the previous will remains revoked

unless it is revived – revived if evident from circumstance of revocation or testator’s declarations that testator intended previous will to take effect as executed.

b. If will that partly revoked previous will is revoked by act, revoked part is revived unless evident from circumstances of revocation of subsequent will or from testator’s declarations that testator did not intend revoked part to take effect as executed.

c. If subsequent will (3rd will) that revoked prior will in whole or in part is revoked by instrument, 1st will remains revoked unless revived as suggested by terms of later will.

5. GA – Only allows revival in situations where first revocation is express. So first step where revocation of revocation is to see whether first revocation was express or implied.

a. If will that expressly revoked previous will entirely is later revoked by instrument, previous will remains revoked unless it is revived – revived if appears from terms of instrument that testator intended previous will to take effect.

b. If will that expressly revoked or amended previous will in part is revoked by later instrument, first will is revived to extent appears from terms of later will that testator intended previous will to take effect.

c. If will that expressly revoked previous will entirely is revoked by act, previous will remains revoked unless appears from circumstances of revocation, other instrument, or testator’s declarations that he intended previous will to take effect.

d. If will that expressly revoked prior will in part is revoked by act, revoked part is revived unless evident from circumstances of revocation, other instrument or testator’s declarations that they did not intend revoked part to take effect.

6. UPC and GA – are exactly the same EXCEPT that GA requires 2nd will to have expressly, not impliedly, revoked first will (UPC doesn’t treat express/inconsistent revocation differently).

7. If 2nd will had no express revocation, revocation by inconsistency – implied revocation from inconsistent will – inconsistent document (w#2) never took effect b/c probated.

8. Test: was the revocation express or implied? If implied, then it never took effect b/c it’s been revoked (GA). If it is an express revocation, go into revival statute.

9. Boysen (p. 228): Intent hard to determine. 10. HYPO: Testator’s will was once torn, but is in safe deposit box scotch-taped back together. Sufficient

act of revocation followed by attempt to revive. RST says will can be revived if testator performed act on will that clearly convincingly demonstrates intent to reverse revocation. But what are circumstances here? Exclusive possession? Taping is clear, but is it convincing?

a. Case stronger if extrinsic evidence testator thought he had a will.b. Traditional answer is can’t revive this will. RST doctrine of revival is more extensive than

most courts go. Revocation takes place at time of tearing and is final.c. GA – Q of revival can only come when you have revocation of express revocation. So after

taped back together, testator and witnesses would have to reexecute document. Or if you had a codicil.

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11. HYPO: Will 2 revokes will 1. Testator tears up will 2 and says “good, now first will is good again.”a. Where second revocation is by act, evidence of circumstances of revocation (and

current/subsequent declarations) get in as intent to revive first will.b. But if second revocation is by document (codicil) assumption is doc says everything

important. If nothing there expresses intent to revive then hands are tied.12. HYPO: Will says desk to A, other paragraphs, residue to X. Codicil “I revoke para. 1 and leave desk to

B, everything else stays same.” Partial revocation of first will. Times goes on and testator rips up codicil.

a. GA – Revocation by act of document that partially revokes will puts will back way it was.13. HYPO: Same, but instead no express revocation, just “Desk to B.” Revocation by inconsistency.

a. GA - says implied revocation takes effect only when subsequent inconsistent will becomes effective. There never was a revocation by inconsistency if codicil torn up before testator died.

14. HYPO: Instead of codicil, total revocation by inconsistency.a. Same – there never was a revocation so you get your first will as if never revoked.

15. Is first revocation total revocation or a partial revocation?a. if total, then assumption is there is no revivalb. if partial revocation – then assumption back to first will as originally written

16. Second revocation – by act or by later testamentary instrument?a. important – tells what kind of extrinsic evidence can be used to get at actual intent

17. What if the first will is just missing? Go through the lost will presumption – was it destroyed with the intention of being revoked?

x. Dependent Relative Revocation – c/l doctrine used to “protect” testators who try, but fail, to revive a prior will. Theory of conditional revocation. Love says this is heavy artillery. Not worth bringing where differences are minimal. Law of 2nd best. Aka “doctrine of ineffective revocation”

1. UPC – leaves it to courts decide whether to apply it. Should have good evidence of testator’s actual intent (but under UPC that usually facilitates effectuation of testator’s intended result by using harmless error rule and liberal revival rule).

2. RTT – (a) A partial or complete revocation of a will is presumptively ineffective if the testator made the revocation:

a. (1) in connection w. an attempt to achieve a dispositive objective that fails under law, orb. (2) b/c of a false assumption of law, or b/c of false belief about fact, that is recited in

revoking instrument or established by clear and convincing evidence.c. (b) The presumption in (a) is rebutted if allowing the revocation to remain in effect would be

more consistent w/ the testator’s probable intention. 3. HYPO: Testator tears up will “Torn up my will b/c I made a new one.” But problem is 2nd will is invalid.

There was intent behind the act of revoking first will. Theory is: testator’s intention is not absolute destruction of first will, but revocation dependent on and relative to attempt to make new will.

4. HYPO: T’s heirs are J&M. If intestate they would split 50/50. Will #1 says everything to J. Will #2 says everything to M (but invalid, T thought it was valid and tore up first will). Will 2 is invalid, do you apply DRR and probate Will #1 or say he died intestate?

a. Intestacy is more in line with what he was trying to do with 2nd will.b. We know what testator’s first choice is – solid reliable evidence. W/o that, no fact basis for

deciding between choices.5. Callahan (p. 233) – 40 will, 44 will. 44 is revoked and evidence they wanted to revive 1940 will. Early

anti-revival statute didn’t allow. 44 will or intestacy? 40 will good evidence of what testator wanted (credible atty testimony also). 40 gave A much more than J, 44 gave A slightly more than J, intestacy treats equally.

a. T probably wouldn’t like either, but would prefer 44. (admitted 44 to probate)6. Patten (p. 236)– 68, 70. 70 invalid b/c witnesses didn’t see the signature. Both gave most money to D,

less to R. 68 R was executor. Intestacy they split equally. Seems like better case for DRR b/c closer to her intent.

a. But this court takes conditional intent theory VERY seriously, doesn’t use presumption, and puts large evidentiary burden on D, which he doesn’t meet.

7. The Uncompleted Plan – Generally less likely to have successful DRR than ineffective attempt. In the end, rests more on evidence of what’s 1st best, logic/reason/justness.

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a. In deciding when to apply DRR, line drawn between actual attempt at new will and uncompleted plan. Future intent to someday make new will stretches fiction of conditional intent. Q is when testator goes for enough.

b. Basically have to have a definitive new dispositive plan. Usually doesn’t occur until T executes will he believes effective.

c. Dougan (p. 238)– 1st will has pen/cil marks on it, taken to lawyer w/ outline, says prepare will. L does, but T suffers stroke before he can execute will.

d. Ausley (p. 238)– A had draft, made changes, died before new draft presented.e. In both cases testator could change mind…and quickly. That’s what will formalities are there

for. In both, courts said mutilated will could not be given effect under DRR.8. Unattested Handwritten Alteration of Attested Will : testators sometimes attempt to alter wills by

marking them up. Q then becomes whether crossed out attested language stands as partial revocation or whether revocation is ineffective under DDR.

a. Schneider v. Harrington (p. 239) - Cancelled out some figures and bequests and added substitutions; cancellations deemed conditional on validity of substitutions, but substitutions invalid. Original will submitted.

b. In GA, no partial revocation by act – treat as cancellation of a material portion (presumptively intent to cancel whole will)

POST-EXECUTION EVENTS AFFECTING WILLSr. Classifying devises : Usually only ambiguity is disposition of 100 shares of X stock where T owns 500 shares. Could be

specific or general.i. Specific – disposition of a specific asset.

ii. General – disposition of specified amount of money or quantity of property that is payable from general assets of estate.

iii. Demonstrative – disposition of a specified amount of money or quantity of property that is primarily payable from a designated source, but secondarily payable from general assets to extent primary source is insufficient.

iv. Residuary – disposition of net estate not disposed of by specific, general or demonstratives. Ademption of Specific Devises by extinction – when the subject of a specific devise (i.e. the property given) is not a part

of the testator’s estate at death, the gift fails by ademption. i. Identity theory: Majority. Ademption depends solely on whether subject of specific devise exists as part of

estate at death. Intent is irrelevant. GA.ii. Intent theory: Minority. Depends on testator’s subjective intent. UPC, RTT.

1. Common law exception: change of form – although that specific property is not in the estate, there is something else in the estate that represents the property and is a change of form

iii. UPC – If specific property sold by guardian, specific devisee has right to general pecuniary devise equal to sale price unless T’s capacity ceases and T lives another year. Specific devisee also gets property acquired as replacement for specifically devised property (house sold to purchase another house) or value of item if stolen.

1. Specific devisee has a right to specifically devised property or any part of it that exists in testator’s estate at death. Also has right to assets that represent remaining interest retained by testator at death: unpaid balance of purchase price, unpaid amount of condemnation award, insurance/recovery for injury, property received by foreclosure, replacement property.

iv. GA – follows identity theory. Gift is adeemed when testator does not own at death UNLESS:1. Exchanges property for property of like character or changes the investment of a fund. OR2. Within 6 months of death gift is lost/stolen/destroyed AND covered by insurance. Devisee has right

to insurance proceeds.3. Within 6 months of death property is taken by condemnation. Devisee gets award for condemnation.

v. Hume – H makes a will and devises a specific house to M. The guardian has control of the property and feels like he needs to raise cash. Sells house. H dies, and the will bequeaths the house (no longer in the estate) to M. Under the identity theory, M gets nothing.

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1. Court reluctant to apply identity theory: testator clearly intended to make the devise when he had the mental capacity to do so. When he no longer has the mental capacity, the guardian makes the sale of the house. no affirmative intent to remove that beneficiary from the will.

2. Two possibilities:a. House sells for $55,000. Sale was made in good faith. We have $55,000 in the bank account

that we can clearly trace to the property.i. If apply identity theory, windfall to residuary.

b. Testator lives for 5 years and the $55,000 is gradually dissipated.i. If the value of the property is no longer in the estate, we have to find it somewhere

else (decrease devises to residuary beneficiary).3. UPC - saves the specific devise from ademption b/c not testator’s intent, but does not apply should

the testator recover from his incapacity.4. GA does not have an exception from the strict identity theory for intentional sales.5. What if house were foreclosed on just before the testator's death? As a general rule should this be

treated as an exception to the identity theory? There is no intent to sell on the testator's part. However, T did knowingly not pay his mortgage, which leads to some culpability on his part.

a. UPC – devisee would get excess value of the foreclosure sale over money owed to bank.b. GA – Protects devisee against condemnation, not foreclosure.

6. Suppose testator lives for a while after foreclosure, and it's tough to tell if the proceeds from the sell are there or not.

a. GA - Doesn't change anything. b. UPC - doesn't apply because these are not proceeds unpaid at death. Does devisee have a

UPC non-ademption avenue?i. The UPC doesn't categorically shut the door on her. The UPC follows the intent

theory - he had plenty of time to make a new devise to her. Here there is an affirmative burden on the beneficiary to show that the intent hasn't changed

7. If will said “My atl house” and he used the foreclosure money on a different house, fortuitous language and M gets the house b/c it’s in the estate. If “My atl house at 5375 Broad St…” M gets nothing under identity theory. UPC might consider it a replacement house.

a. If money used to buy cabin in woods instead of another house, tougher case. b. GA does discuss exchanging property for property of “like character.”

t. Accessions and Accretions – assets produced by devised asset after execution.i. Generally devisee only gets accessions and accretions occurring after death.

ii. Post-Execution, pre-death: interest on accounts does not pass. Question arises for stock splits. If devise is specific, devisee gets benefit of split. If general, they don’t.

iii. It is well settled that collected interest on a specifically devised bond does not pass to the specific devisee even if the interest remained part of the testator’s estate.

iv. Best to think of this in terms of intent. v. Is there a way to avoid issues of stock splits?

1. Give someone all of stock or dole out percentages of stock to peoplevi. Watson v. Santalucia (p. 267): Gets rid of preliminary classification of general or specific – get stock split

either way. Sum total is same – splits decrease the value of the stock and percentage ownership of the corp. vii. UPC: 2-605 (same approach). Also, with stock dividends- gives benefit to devisee. Many courts do not. Add’l

securities must be acquired after will executed as result of testator’s ownership. Cash distributions prior to death not part of the estate.

viii. OCGA: says you get income profit or increase of specific devises. Generally you start getting the interest 12 months after death.

u. Abatement : changes in the estate where owner has less than they anticipated. We protect in order of specificity. Specific devises are most protected, residual least protected.

i. HYPO: Ring to A, Piano to B, $10K to C (from bank account Z), $10K to D, residue to E. Ring/piano are specific, cash to C is demonstrative; money to D is general and residue to E is residue. T dies, estate has piano and $15K in account Z.

1. Ring is gone by ademption. A gets nothing, even if plenty of money. UPC raises issue that A has argument for pecuniary devise.

2. B gets the piano. C gets $10K, D gets $5K and E gets nothing. ii. HYPO: Same except account Z is closed, and we have 15K available.

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1. Ring to A still gone, B still gets the piano. Many states say C and D each gets $7,500 and E gets nothing. Demonstrative requests treated as specific or general depending on whether property is in estate. Account not in estate here, you have $20K of general devise and $15K available.

a. GA - Demonstrative gifts go above general, below specific. C would get $10K regardless of whether account is there.

iii. OCGA – Plan of Abatement:1. Order of Loss

a. Residuaryb. Generalc. Demonstratived. Specific

2. HYPO:a. To: A brooch (specific); B $10K (general); C $5K from X account (demonstrative); D – residue

(residual)b. Grantor Dies; leaving – Brooch and stocks and bonds of $12K, who gets what under GA

law?i. Residuary loses first, so D gets nothing

ii. General Loses next, 7K to Biii. Demonstrative loses third, 12k-5k = 7k (so 7K to B) and full 5K to Civ. A gets Brooch

c. What if B’s demonstrative devise property is not in the estate for abatement purposes, then the demonstrative devise becomes a general devise and thus…

i. Residuary loses first, so D gets nothingii. General devisees (because there are 2, will lose at a pro-rata basis) C and B. B gets

2/3 of 12,000 and C gets 1/3 (C was 5,000 of 15,000; B was 10,000 of 15,000)iii. And A gets Brooch

iv. OCGA : 53-4-63: Payment of debts of testator:1. A) Unless otherwise directed, the debts of testator come out of the residuum.2. B) if residuum is not enough, goes after general devises. Then demonstrative, then specific. 3. C) Creditors can go after specific beneficiaries after exhausting executors.4. D) Land and personal property are both equally eligible to pay off debts.

v. Basic abatement rules, in some states, may be affected by the estate taxes.1. There are some assets that are not a part of the probate estate but may be apart of the taxable

estate ((life insurance property,etc.) – some states shift the estate tax burden to these non-probate properties.

vi. Land and its liability for debts:1. Common-Law – land is so sacrosanct, beneficiary gets the land free of mortgage 2. Fallen out of favor everywhere, but in 2008 in dictum, Georgia still hasn’t abolished this principle.

v. Ademption by Satisfaction i. Basically paying will bequests in advance. So painting Z to B in will. During T’s life he gives B the painting, B

doesn’t get anything else from the estate.1. OCGA : Transfer satisfies testamentary gift if you can show intent. Shown only if will provides for

deduction of lifetime transfers or if satisfaction declared in writing signed by transferor w/in 30 days of transfer, or acknowledging in writing by recipient at any time.

a. Painting Z to B, Painting Y to C, Residue to A, during T’s life he give B painting Y. Without provision in will or proper written acknowledgment, B gets both paintings and C out of luck.

2. OCGA : 53-1-10a. A) A gift during life meant to show satisfaction of testamentary gift must show intent and the

other requirements under (C)b. B) A lifetime transfer is meant to show the satisfaction of the part of the share the heir

would receive as their portion of intestacy or take under the will with a showing of intent and provisions of section (c)

c. C) Shown only if the will provides for the deduction of the lifetime transfer of its value or if the satisfaction or advancement is declared in a writing signed by the transferor within 30 days of making the transfer or acknowledged in a writing signed by the recipient at any time.

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3. UPC says the same, but “contemporaneous writing”; so does Restatement or the requirement of the devisee’s writing acknowledging that this is how the gift is to operate.

ii. HYPO:1. T: Portrait of mother to daughter (specific devise)

a. Gives it to her during lifetime, is it satisfied? (no writing)i. Under OCGA – must be writing

ii. No writing here, not satisfiediii. This is a specific bequest, however. At death, the property is no longer in the estate,

so this is ademption by extinction, the daughter gets nothing at the death of the T. However, if, during her life, mother gave the daughter something different to satisfy, there must be a writing or the daughter ALSO gets the portrait at death.

iii. Advancement – is like partial satisfaction. Same rules apply re: writing, intent. 1. HYPO: (book page 275 problem):

a. Problem 1: G’s daughter A graduated from Mayo Clinic Medical School at a 4 year cost of $100K. IF G were to die now with a will leaving “100K to A, residue to B”, how much would A receive under the will?

i. This is not an advancement of the will devise as there is no writing, so she would get the full amount.

b. Problem 2 (redux): Suppose instead it is A’s daughter that goes to medical school, and the devise is to A. The testator writes on check that they are intended to be the devise to daughter, even though the money is for granddaughter to go to school – so the gift is for someone else, is this still treated as an advancement under OCGA?

i. OCGA 53-1-10 – NO – only to the beneficiary; “that the transfer is intended to be a part of the share that the heir would inherit by intestacy or the beneficiary or the beneficiary would take under the testator’s will.”

6. Altering Intestate succession by means other than testamentary disposition : a. In some states, you can designate heirs at the courthouse and they get it by intestate succession over your

“true” heirsb. Negative will : another way to disinherit heirs, by expressly disinheriting them in will.

i. HYPO: T has 3 bros, 2 sis. Will $50k to bro 1, $50K to sis 2, residue to spouse and express recital he’s disinherited bro 2, bro 3 and sis 1 for these reasons. Spouse predeceases testator so part of estate has to go by intestatcy b/c nothing else to do with it. Most statutes say intent to disinherit people does NOT carry over.

c. UPC : allows it to effect intestate estates.d. Waring v. Loring: (p. 56)

i. Testator dies, survived by wife and daughter. Bulk of property left to wife and daughter. Principle of second trust that is at issue here (life interest in the trust fund is in the daughter).

ii. Balance of trust is not disposed of by Will, and daughter has died, leaving no issue, and in such situation, the will provided for the trust to go to other beneficiaries (who have also died). No one for the principle to go to, what do we do?

1. Negative provision in will blocking wife from sharing in any other part of estate2. Refuse to apply this provision to intestacy rights, so the principle of the trust is disposed of

following statutory intestacy rights of the state:a. 1/3 to wife’s estateb. 2/3 to daughter’s estate

iii. Prevailing Court made law in US – an intent to disinherit expressed in a will has no effect on the right of an heir to inherit any intestate portion of the estate.

e. Jetter (p. 56): sole named heir predeceases T, who had specifically disinherited everyone else. If follow his intent everyone’s gone and property escheats to state. You can disinherit some, but not all of your heirs.

7. Post- Execution Deaths : Lapse and Anti-Lapse: what do you do when beneficiaries predecease Ta. Lapse : In order to take under will, you must survive T.

i. UPC : 120 hour rule: only overcome if T expressly indicates they don’t have to survive by particular amount of time

ii. OCGA : has no 120 hour requirementiii. Steps:

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1. Will beneficiary be treated as if predeceased, even though maybe survived by a short time? (UPC 120 hr rule can be negated by terms of will). Assuming you have person that predeceased and cannot take…

2. Does the will provide for an alternative taker? If not…3. Does antilapse statute provide for an alternative taker?4. If not, true lapse situation.

a. Judicially, in a lapse situation:i. Non-residuary devise goes to the residuary (some say this is not followed

for land, but only for personal property –early common law rule). ii. Residuary property that lapses becomes intestate property.

iii. No residue of a residue rule: More than 1 residuary beneficiary exists, and one has predeceased; without a class gift, the share intended for the deceased devisees goes into intestacy. (rejected by some courts)

iv. Ideally, will should provide alternative takers – Residue to A, but if A doesn’t survive me, then to A’s heirs.

1. If will says, “residue to A and her heirs” that’s a fee simple interest which would pass by intestacy to A’s heirs if she predeceased.

b. Class Gifts and lapses i. Class Gifts are gifts of property to a group of persons identified by a group label, such as “children”,

“grandchildren” etc. - 1. Membership is not static but subject to fluctuation by increase or decrease until class is

entitled to distribution2. And upon distribution, the property is divided among the then-entitled class members on a

fractional basis.ii. Gift is presumptively a class gift if only identified by a group label (“to my children”)

iii. A gift is presumptively not a class gift, although the takers are identified by a group label, if the group members are also identified by name, or by number, or both. These are fixed fraction gifts.

iv. Rule of lapse applies to class gifts as well – 1. EX HYPO: G’s will to “my children.” When will made, had children 1, 2, and 3. 2. At death, 1 had died, but 2 and 3 were alive still – 2 and 3 will take a ½ in the land- 3. But if the will said: To my children, C1, C2 and C3, and C1 was dead at time of T’s death,

a. C2 and C3 get their interest, and C1’s interest goes to the residuary of the estate. (traditional rule).

b. Restatement uses a GIFT OVER: but only if the court finds that such a construction is more consistent with the transferor’s overall dispositive plan – so C2 and C3 would also share c1’s share.

c. Anti-lapse – only comes into play if will doesn’t fill the gapi. The idea is that anti-lapse statutes leave the requirement of survival intact and provide a statutory

substitute gift, usually to the devisee’s descendants who survive the testator. 1. If you don’t have a protected devisee you stop here2. If you do have a protected devisee, they must have left the right kind of person for statute to

applyii. UPC : Anti-Lapse statute applies to protected devisees are grandparents, descendents of grandparents

or stepchild. Gift goes to their descendents. UPC, like most, does not apply gifts to spouse.1. Devise that fails becomes part of residuary

iii. OCGA : gift vests in descendants of any beneficiary as if inherited from them. Lapsed or void gift becomes part of residuary. If residuary is void or lapses, it passes by intestacy.

iv. Class gifts have built in gift-over to the other takers. Class member’s heirs do not substitute. Courts split on this. Some say heirs do take.

1. OCGA: A, Jr takes in A’s place unless clear intent to the contrary2. UPC – same. Excludes class gift to “issue” “heirs” “descendants” etc.

v. Prongs:1. Is beneficiary a protected devisee: If yes2. Is taker designated by statute here? If yes…

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3. Does will override anti-lapse statute? Gift to beneficiary “if he survives me” is superfluous, doesn’t change the law. Usually express survivorship requirement has to be clearer than that.

vi. HYPOS:1. 10K to Sam; 10K to Dee; Residue to SS

a. Sam predeceases Testator and has son, Sam, jr. b. Is it fair to assume the testator would prefer it to be diverted to grandchild instead

of into the residue (surviving spouse?)c. Substituted taker is limited in the statutes to the descendants of the will

beneficiary. d. Under OCGA 53-4-64, it would go to Sam Jr. definitely, unless the will testator

specifically designated for the Sam Jr not to take. vii. Ruotolo v. Tietjen: (p. 280)

1. Majority of courts say that “Y to X, if X survives” defeats the anti-lapse statute2. Minority court here, says it does not defeat the anti-lapse statute3. Majority seems to believe that if X does not survive, then the gift goes into the residuary4. UPC as often as not, mindlessly used as boilerplate language- so without more evidence, this

language does not throw out the anti-lapse statutesviii. GA – 53-4-64

1. Must be an absolute gift for the Georgia anti-lapse statute to applya. So X to Y if he survives is a conditional gift, so the anti-lapse statute won’t apply

ix. Class gifts – All __ to my children (can fluctuate) but divide among remaining members upon deathx. Unique wrinkle for anti-lapse statutes-

1. Membership of the class can fluctuate 2. Most statutes address whether anti-lapse statutes apply to class gifts

xi. OCGA 53-4-64 yes applies to anti-lapse gifts1. HYPO: X to my Surviving children – if you are the surviving child of a predeceased beneficiary

of this, can you get anything?2. Seems not under the provision, not absolute gift- conditional on survival

REVOCABLE TRUSTS & WILL SUBSTITUTES8. Devices that straddle the line between wills and trusts. Life insurance, pension accounts, joint accounts, joint tenancies and

revocable trusts. Inter vivos transfers don’t have to comply with statute of wills. Courts willing to go along with just about anything that owners want to do in terms of retaining interests and powers. So long as beneficiary gets something it’s still an inter vivos transfer.

a. “Pure” will substitute : allows the donor to retain lifetime enjoyment of, and control over, the asset while designating another person to receive future possession. (life insurance, pension accounts, joint accounts, joint tenancies, revocable trusts are these).

b. Present transfer test: Upon creation, must immediately pass to donee any interest in the property, present or future, vested or contingent.

c. Revocable Trust: O gives X $1K as trustee for B. Title split. X has legal, B has equitable title. Present transfer. Doesn’t matter if O keeps power of revocation (revocable trust) still present transfer.

d. Revocable self- declared trust: O is trustee, has legal title, management control of property and power of revocation. B has equitable title. Satisfies present transfer test, O now has equitable duties and B has equitable ownership.

e. Testamentary trust: You can create a trust, and fund it, using your will.f. Doesn’t matter that payable on death (POD) and transfer on death (TOD) accounts do the same thing as a will.g. Creditors – trend is to make these nonprobate assets available to creditors.h. Rights of surviving spouse: Most states say you can’t completely disinherit spouse. Forced share may reach trusts.

9. Mathias v. Fantine : (p. 290)a. During the trust creation, the grantor, trustee and beneficiary are the same person. This doesn’t survive the

present interest test as the trust declaration in Article I created a merger of interests in Mr. Mathias making the declaration void. No interest passed to the beneficiary before the death of the settler (All one in the same, interest was already held by Mathias…) This was just a fee simple.

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b. Ohio changed Statutes after this trust – “self declared trust” – trust in which the settler acts as trustee. 10. Farkas v. Williams : (p. 291)

a. Fairly standard form document turned out by the company –b. More than declaration of trust with power to revoke, he also retained: pretty much everything as long as he is alive c. O has income for life, he is owner, trustee, power to revoke, could change the beneficiary, could sell or redeem the

mutual funds (would not go back into the trust as it normally would) d. Court has convinced itself that Richard Williams got something in the lifetime transfer- an equitable/remainder

interest – contingent, subject to be divested through revocation – e. Looking at this through a policy standpoint – doesFarkas have to go through the statute of wills to make this –

intent to give to Richard these shares after he died – policy of wanting to satisfy the grantor’s intent is enough to uphold this trust –

f. Safeguard built into this arrangement? i. He had to deal with outside neutral parties to get this set up?

ii. Working with company issuing the stock to get this set up – financial intermediary involved – iii. When it comes to validity of these will substitutes – form prevails over substance – any shred of

property interest or contract right – as long as form ok, substance is not examined11. Wilhoit Case: (p. 296)

a. Mrs Wilhoit gets 5000 from the death of her husband from life insurance contract. Valid for life insurance company to pay her 5000 upon his death

b. She turns around and agrees – lets the company keep her money (3 ½ % a year paid to her) and pay it to her needy brother – why did it go wrong –

c. Her attempt to get it transferred to her brother is a testamentary disposition why? Payable on death – no present transfer

i. Not an insurance contract –had she taken the check and gone to the bank with it and the bank had agreed to hold it on the same terms as her insurance company and had a contract with the bank, just as testamentary – shift the ownership at death – not a “present transfer”

ii. Had her brother survived her he would have been able to take the mone, but he did not survive her, his will beneficiary is standing in his shoes - no survival clause

iii. Her intent was in her will, it seems – went to her stepson under her will12. TYPES of Will Substitutes: Discussed in Class

a. Pension Plans: Mostly used to live off of when you retire, but became transfers of wealth for the already wealthy.b. Bank Accounts:

i. Totten Trusts: A goes to bank and puts $ in “A in trust for B”1. If B fails to survive, account stays with A2. Perfect will substitutes, if A dies $ goes to B3. Bank Account trust not true trust

c. Joint Bank Accounti. A is depositor “A and B” or “A or B”

1. May or may not be express right of survivor ship, or joint tenants2. Equal status for both

ii. A is depositor- all money came from A1. IS this an effective will substitute?2. Will B be regarded as the owner of those assets?

a. YES3. While A is alive, does B have any ownership rights?

a. Yes, B can write checks on the account, but cannot clean it out without leaving A without a remedy.

b. B has a presumptive right of survivorshipiii. Payable on Death Accounts

1. A retains complete ownership on account, but upon death, funds go to B.a. Legislatures stepped in and POD designations are recognized and enforceable as non-

probateiv. Transfer on Death (TOD)

1. These are for securitiesv. TOD for real estate

1. No contractual deals going on

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2. No joint tenancy in property, just give someone else ownership on death.13. Miscellaneous Issues re: Creation of Trusts

a. Mental Capacity to create a trust: just know the grantor must be able to create a trust to the same extent they must be able to create a will.

b. Trusts are void under the UTC and RTT if created under Undue Influence, Duress or Fraud14. 3 Most common issues with Revocable Trusts

a. What are the rights of the SS to non-probate assets?i. In some jurisdictions, the grantor’s SS may claim an elective share in the assets of a revocable trust. Will

see more of this later… b. Can the creditors reach the non-probate assets?

i. Transfer in fraud of creditors can be set aside to satisfy debt1. Transfer in fraud is done with actual intent to hinder, delay or defraud a creditor or one that

leaves the grantor’s remaining assets insufficient to satisfy current debt or debts the grantor intended to incur.

ii. What if not in fraud?1. Traditional view: cannot be reached by grantor’s creditors.2. Now, under UTC, UPC and Restatement of Trusts – broken away from traditional position and

creditors can reach the assets in a revocable trust. c. What about Federal Taxation of trusts?

i. Federal System taxes revocable trusts according to their substance, not their formii. If decedent retains any significant power/interests then congress has made it clear they will reach these

assets to satisfy federal taxesiii. Pension plan account – book doesn’t mention taxes but if pension plan is covered by ERISA then there is

substantial protection against creditors that come from the ERISA statuteiv. Federal bankruptcy act has substantial protection for retirement accounts, even non ERISA accountsv. Life Insurance- fair amount of protection for beneficiaries.

15. KNOW that OCGA statutes on multiple part bank account statutes generally track the “original version” of the UPC.16. REVOKING OR AMENDING WILL SUBSTITUTE:

a. Trust may be revoked in any way that provides clear and convincing evidence of intention to do so (unless trust document specifies how power is to be exercised.) Tear it up in front of witness and say you don’t want it anymore.

i. GA is unique – it requires a writingii. Suppose T dies and trust document is found torn in 4, and has always been in settler ’s custody. Not really

Clear and convincing evidence… don’t know what intent went along with tearing. Need more. iii. Settler can revoke trust through express provision in subsequent will. Often, that rule doesn’t apply (UPC)

to bank accounts.b. Estate and Trust of Pilafas : (p. 305)

i. There was sufficient evidence that will was revoked, what about inter vivos trust? Not revoked according to the court- not enough evidence for clear and convincing evidence.

1. Trust had article: The settler may at any time during his lifetime by instrument in writing delivered to Trustee amend or revoke this agreement in whole or in part… Power is personal to Settler and may not be exercised by a personal representative or anyone else.

2. In accordance with this, settler amended trust twice. Before his death, there are communications with attorney and family that he wanted to include his children in estate plan. He executes a trust agreement and two amendments and will, and with assistance of lawyer. Attorney did not retain original documents and gave originals to settler . Originals were not found.

3. According to appelles, decedent saved important records and was unlikely to lose them.4. Trial court says because not found, revoked. Appeals court disagrees. Not revoked – not clear

and convincing evidence to revoke. ii. In short, Pilafas kept power to revoke but didn’t revoke in the way expressly retained in the trust. Thus,

not revoked.c. A trust is only revocable if it expressly retains a power to revoke (common-law)

i. OCGA 53-12-40: sticks to common law, must reserve power to revokeii. Restatement Third of Trust : doesn’t completely overturn, creates presumption.

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iii. UTC 602: Unless the terms of a trust expressly provide that the trust is irrevocable, the settler may revoke or amend the trust. Reverses the common law.

d. Revoking or amending will substitute by a later will:i. Life insurance – will can’t change beneficiary, generally (a few courts allow)

ii. Will can alter revocable trustsiii. Courts split on Totten Trustsiv. Multi-Party Account/POD designation – UPC generally says nov. Joint Tenants who predecease co-tenants have no power to devise their interest in JTWROS (b/c of right

of survivorship)vi. It is in public interest that an insurance company may pay a loss to beneficiary designated in the policy as

promptly after the death of the insured as may reasonably be done. e. Superwill : testamentary control should be expanded to allow testators to change the beneficiary designations of

nonprobate transfers. i. Reality in state of Washington; Excluded are real property joint transfers and life insurance and retirement

plan beneficiary designationsf. Revoking or Amending Will Substitutes Governed by ERISA

i. Johnson: (also substantial compliance) (p. 311)1. Decedent checked wrong policy box on standard life insurance form (both boxes were some form

of life insurance) in an attempt to designate a separate beneficiary. 2. GE Employee who received and processed the form figured out what he wanted and still

processed the form – not a big error. a. Made other slight errors (put mothers address down as his own, marital status wrong.)b. But these errors didn’t effect his communications with GEc. What he did here was substantial compliance – he did use GE’s forms.

3. There was clear intent to change the beneficiary and the checking the wrong box does not serve to negate the intent, so the beneficiary has changed.

WILL SUBSTITUTES AND THE SUBSIDIARY LAW OF WILLS: 17. Do the rules that govern wills also govern will substitutes?18. REVOCATION UPON DIVORCE:

a. Clymer v. Mayo: (p. 316)i. Mayo’s sole heir were her parents; married to ex-husband for 25 years but divorced prior to death.

ii. Ex-husband was beneficiary in will, retirement annuity and in trust (all executed during their marriage). 1. Trust A: If ex-husband outlived Mayo, the trust split into two parts, with ex-husband getting

income benefit and general power over appointment of assets in Trust A. Also entitled to reach principal at his request.

2. Trust B: residuary went to ex. iii. During divorce, ex-husband waives interest decedents “securites, savings accounts, savings certificates,

and retirement fund and furniture furnishings and art.” iv. Ex remarries and creates a will in favor of his new wife.v. What happens to Mayo’s money?

1. Trust A was invalid, purpose was to qualify for an estate tax marital deduction was no longer valid.

2. Trust B – Mayo failed to revoke or amend the trust after the divorce. Statutes in state say that wills are revoked by will (see will section). This applies to this trust as well. (restricted to this trust).

a. Court says everything looks like a will - nothing functions until she dies – no money in it until then – all equivalent of testamentary – court restricts this to unfunded-revocable inter vivos trusts

b. Pour Over Devises : provision in a will that adds property to an inter vivos trust that wasn’t funded during T’s life, but whose terms are in a trust instrument executed during T’s life.

i. UPC allows oyu to identify trust in will and state terms of trust in writing without having to have a res in the trust at the moment of creation (or at all during T’s life).

c. Egelhoff : (p. 321)

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i. David A. Egelhoff named the petitioner, his wife, Donna Rae Egelhoff, the beneficiary of his life insurance policy and pension plan that he received while working at Boeing. Both the life insurance policy and the pension plan were governed by the federal Employment Retirement Income Security Act, (ERISA). Later the couple divorced and Egelhoff’s children from a prior marriage claimed that a state law revoked the petitioner’s interest to the insurance policy and pension plan.

ii. Issue: ERISA shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan covered by ERISA. A state law relates to an ERISA plan if it has a connection with or reference to such a plan.

iii. Holding: Yes. The federal Employee Retirement Income Security act preempts a state statute which revokes the payment of a non probate asset to a former spouse because the statute interferes with the statutes goal to administer a nationally uniform plan. The ERISA statute commands that a plan shall, “specify the basis on which payments are made to and from the plan.” If administrators are forced to act in accordance with the state statute, they will have to comply with the varying statutes of all 50 states and wait on litigation before processing a payment. This delay conflicts with the legislature’s goal of minimizing the administrative and financial burdens placed on beneficiaries.

19. HOMICIDE a. Where beneficiary kills T, they can’t profit by their wrong. Fictional assumption that killer has predeceased victim.

i. HYPO: Will to children A, B, & C. A kills T. B and C get their share, plus A’s share under GA’s anti-lapse statute (descendants of decedent).

ii. Joint Tenancy is problematic because killer had something before death.1. Neiman v. Hurff (p. 341): Killer retained half the interest in total tenancy by the entirety, reduced

for the amount of the commuted value (equivalent of the killer receiving simply a life estate). Forfeits survivorship because he didn’t allow the question of who would take under the right to survivorship be answered naturally.

iii. GA : Majority, only reaches felony and intentional killing – not self-defense or insane. Does not affect ability of descendants of killer to take as long as descendants of the decedent.

iv. OCGA Hypos:1. A is killer, 4 nieces/nephews. B (predeceased) leaves nephew. Kills sibling C (no children/spouse)

2. What happens to the estate? Under OCGA 53-1-5(c), we don’t have to rearrange the shares so that it is divided among the new living generation (1/5) per heir, instead the truly dead sibling takes half and his heir takes for him and the presumed dead siblings heirs, under the OCGA 53 1- 5(c)statute, is only allowed to divide what is given to the killer- ½ of the state divided among the 4.

3. HYPO: Same but decedent dies testate. Will gives to siblings – ½ each – we now get into anti-lapse statutes with predeceased takers – in GA – in terms of protected beneficiaries- everyone is protected, and both left descendents – can apply anti-lapse statutes and shift shares of siblings on down to the descendants – don’t have to rearrange shares at the individual beneficiary level, not the issue here – due to the limitations on the anti-lapse statutes, the kids of the killer will get nothing, unless they are also the descendents of the decedents, which they are not here (See OCGA 53-1-5(c).

PROTECTION OF THE FAMILY20. Separate property system : husband and wife are separate owners of assets acquired after marriage.

a. Elective Share – Doesn’t allow spouse to completely disinherit spouse.

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21. Community Property System : Husband and Wife own all assets acquired by either during marriage in equal shares. Economic equality. Separate property is what they brought into marriage or what they received as gifts or by inheritance.

a. Where part paid before marriage and part after, separate property can be determined by inception-of-title, time-of-vesting, or pro-rata

b. No need for elective share b/c survivor already owns ½ the marital property22. Migratory Couples – law of state where domiciled when assets acquired controls ownership. 23. GA – doesn’t have forced share. Year’s support provision instead (see later)24. UPC – adjusts elective share to length of marriage, from 3% at first year to 50% at 15 years. Also, the percentage is the value

of the augmented estate (combined assets) including Decedents non-probate transfers to others. Also, survivor’s assets counted first (double the elective share percentage) – decedent’s assets only tapped if there is a deficiency. $50K minimum.

a. HYPO: W&S married 5 years. $600K combined assets, $300K in each name. UPC elective share % is 15%. Elective share entitlement is $90K. Double the elective share percentage of own assets count in fulfilling 30% of 300K is 90K, so W gets nothing.

b. Doesn’t matter when most things done (so could have totten trust set up for someone before marriage and it goes in the estate). Exception is property transfers. Irrevocable transfer where decedent retains right to possession/enjoyment or income; and transfers where decedent created power over income/property exercisable for decedent’s benefit must have been transferred during marriage.

25. Conventional Elective Share: SS has right to 1/3 of decedent’s estate. Can be far off from 50/50 split.a. HYPO:

i. Husband has 500 dollars from savings during marriage ii. Wife 10 dollars before marriage

1. Community property state: a. Wife gets 250 + 10 (hers)

2. Common law with elective sharea. Wife gets 1/3 of 500 + her 10 (166 +10)

b. HYPO (book): H&W have $600K in assets. If all titled in H’s name, W gets $200K. If H has $500K in his name, W gets $266K (166 + 100K of her own). If H has $300K, W gets 400K (100K from him, 300K of her own).

c. Other problem is if short marriage late in life, survivor shrinks estate of the other (probably) to benefit his grandchildren/children from prior marriage.

26. Incompetent surviving spouse :a. Court will appoint guardian and ask for recommendation whether they should take under the will or force elective

shareb. Clarkson (p. 368): Election on behalf of incompetent SS to take under husband’s will or estate in fee (greater

amount). Ct follows statutory provision for best interests of incompetent – gives estate in fee simple. c. Should it make any difference if the surviving spouse is incapacitated?

i. Court says should be in best interest of the taker. Interests of heirs should not be taken in consideration, nor consider what T would have decided. Essentially means you just consider the monetary value.

d. UPC: Not entitled to elective share, only amount necessary for support and maintenance.27. Protection against will substitutes:

a. Different approaches to keeping decedent from using will substitutes to disinherit spouse.b. Common Law:

i. Fraudulent-Transfer test:ii. Illusory-Transfer Test – predominant view

1. Newman (p. 360): Testator transferred all real personal property to trustees in agreements executed 3 days before death (cross actions for dissolution of marriage pending). Motive was to evade elective-share statute. Illusory transfer and invalid.

2. Seifert (p. 358): revocable trust where a lot of control was retained. Court determined not to let spouses disinherit each other this was, says trusts are included in the estate.

3. Had promise, didn’t work out. Factors for illusory transfer test (very similar to factors for testamentary present transfer test factors):

a. Settler retained extensive powers in trust b. Motive/intent of transfer

iii. Sullivan v. Burkin (p. 360) – Will treated as part of the estate assets of an inter vivos trust created during the marriage by the deceased spouse over which he or she alone had a general power of appointment, exercisable by deed or by will; not part of estate and not subject to elective share.

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iv. Current UPC expressly includes D’s non-probate transfers in measuring the estate, so makes all that worthless.

1. UPC 2-205 includes will substitutes that are a part of the augmented estate. (non-probate property that comes into the estate).

c. Matter of Scheiner (p. 366): Treasury Bills are not testamentary substitutes against which a spouse can elect.

PROBATE EXEMPTIONS AND ALLOWANCES28. UPC : does not charge exemptions/allowances against devises unless will directs otherwise. Also, not charged against

elective share. Authorizes up to $43K to be distributed to SS without delay or court order. Basically there to support spouse during period of administration. That allowance is in addition to elective share or intestate share.

29. Homestead exemption , under UPC allows a lump-sum amount to be given to SS instead of allowing them to live on property (which is what happens in some jurisdictions.)

30. GA : provision for 12 months support is preferred before all other debts/expenses of administration. What is it? Support and maintenance for 12 years from date of death of testator. Barred by marriage, death or attainment of majority before the filing of petition of years support. Requires court order.

a. Petitioner can ask for whatever they want for year’s support, they have burden to show this amount is proper. Having own income/property goes to quantum not entitlement.

b. Judge has no power to deny request if no objection.c. Testator may make provision for spouse in lieu of support – spouse must make election.

31. Estate of Hiers: a. 2nd wife- prenuptial agreement and will said in lieu of year’s support she got $5k

i. HYPO: If he died intestate, can he get her intestate share and year’s support? Yesb. However, his will left a monetary bequest and it said it was in lieu of year’s support, so she can either have the $5K

OR the year’s support (not an absolute bar to year’s support). But the prenup meant she wasn’t entitled to year’s support.

c. What is the consequence if you put “in lieu of years support” ?i. Spouse must elect between bequest or years support (53-3-3)

32. Pay year’s support before you pay other creditors (53-3-4)a. Also if property is years support, can skip year of property taxes

33. The right to an elective share/year’s support can be waived by premarital or marital agreement. a. Overall thrust of book reading: Most states put these sort of Ks through some sort of extra scrutiny. Why?

i. B/c of personal relationship between parties – prevent overreaching – confidential relationship of the parties

1. Premarital agreements – bargaining out of marital property agreements – own rule for getting out of consequences of marriage

ii. This is not an arms length transaction – there is generally one spouse who has an unfair bargaining power(advantage) over the other

iii. Court’s theory is that it facilitates marriage – some people wouldn’t marry without such Ksiv. Parties MUST make full disclosure to one another

b. Simeone v. Simeone (p. 373): i. Court rejected argument that premarital/marital agreements should be declared void if one party did not

have independent counsel. ii. Also, the reasonableness of a prenuptial bargain is not a proper subject for judicial review

34. RTT : Premarital and Marital Agreementsa. Can waive an elective share or other statutory rights before or during a marriage in a written agreement signed by

both parties.b. To be an enforceable waiver against SS, enforcing party must show SS’s signature was done with informed consent

and was not obtained by undue influence or duress. c. Rebuttable presumption arises that the requirements of subsection (b) are satisfied, shifting the burden of proof to

the SS to show that his or her consent was not informed or was obtained by undue influence or duress, if the enforcing party shows that:

i. Before the agreement’s execution (i) the SS knew or approx knew of assets/liabilites of other party or (ii) it was provided to them in a timely fashion

ii. SS was represented by independent legal counsel; or

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iii. If not represented by independent legal counsel, (i) decedent or his representative advised the spouse to obtain independent legal counsel and offered to pay if SS was needy (ii) the agreement stated in plain easily understood language, the nature of any rights or claims otherwise arising at death that were altered by the agreement.

35. Protection against unintentional disinheritance a. Omitted Children Statutes

i. IF you have existing children and they’re not in the will, we assume it’s intentional. Allowed to disinherit them if you want. Afterborn children are another question:

1. Pretermitted heir statutes protect against unintentional disinheritance of children. a. GA: child born after will executed gets intestate share. Can prevent that by saying it’s in

contemplation of future children, or by making a class gift. Bequest in favor of subsequent child goes toward satisfying intestate share.

i. If failure to provide for in will based on erroneous assumption child is dead, and no other living children, child gets intestate share (but may not reduce disposition to surviving parent of the omitted child).

ii. If gifts to one or more other children of testator, omitted child gets pro rata gift share.

b. UPC : If no child alive when will executed and most of estate goes to other parent, who survives, child gets nothing. If it doesn’t, they get intestate share. Where testator did have children and devised property to at least one, child takes pro rata share of property devised to living children.

2. Azcunce (p. 386): will, codicil, child born, 2nd codicil. Doctrine of republications means child was in existence when will was in effect. Since will is not ambiguous, presumed that child was intentionally disinherited, despite evidence that decedent intended her to receive equal share.

a. What about idea that republication by codicil is not applied if inconsistent w/ testator’s intent? Even express provision republishing will does not require doctrine be applied.

36. Omitted Spouse: a. Basically applies where you have a premarital willb. GA : Will made prior to marriage w/out provision in contemplation of, spouse gets intestate share. Bequest in

spouse’s favor goes toward satisfying intestate share.

TRUSTS: FORMATION AND FORMALITY37. Types of Trusts:

a. Express Trust : intentionally created for ongoing management of trust property.b. Constructive Trust: not really a trust, a remedy used to prevent unjust enrichment (thief uses proceeds to buy land,

he must transfer title to victim – treats thief as if he were trustee of land for benefit of victim).c. Resulting Trust: When express trust fails. Property interest analogous to reversion retained by grantor.d. Inter vivos trust (created during life) testamentary trust (created by will)

38. Parties to a trust: a. Settler b. Trusteec. Beneficiary (ies)

39. Nature of Interests: a. Trustee holds legal title to a trustb. Beneficiary holds equitable (beneficial) title to a trust. Only the beneficiary can enforce the trust.

40. The Uses of Trusts: a. Estate planningb. Estate-tax marital deductionc. Transfer tax savings

41. ELEMENTS OF A TRUST : specific res, intent, trustee (with active duties), identifiable beneficiaries. 42. RES : (can be land/personal property)

a. Trust law requires there be an identifiable trust property (res). i. Codified in many states (Restatement 3d of trusts - any legally recognized property interest that is

transferable can be the subject of a trust).b. Brainard (p. 403):

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i. Brainard purported to declare trust (orally – not allowed in Georgia – must be a writing to show intent) but he put no property into it. Declares trust of property is interest in “profits in stock” but there were no profits (nor any stocks) at the time. Could have identified account, declared himself trustee and used it to play stocks and that would have been fine. Declaration to create trust was gratuitous promise.

1. Trust came into existence not when property of trust came into existence (because that’s missing the intent prong). Once interest comes into existence, must manifest intent at the time to create the trust.

2. “mere silence was not a manifestation of intent.” –declaration here no more than mere promise3. It is clear that the declaration could not have been enforced against him, and that his mere

silence with respect thereto could not be considered as an expression of his intention to establish a trust at a time earlier than the credits… (this is an issue for tax purposes for Brainard). He will be taxed for the income of the stocks.

c. Property goes to validity of trust : unless you are creating a pour-over trust. Can have an “empty box” here. d. Debts as trust property:

i. A can create a trust of his legally enforceable claim against B. But B (debtor) cannot declare he holds debt owed in trust for A. Debtor cannot be trustee of his own debt.

ii. HYPO: A hold claim against B for $10001. A can hold that claim in trust for another person (A holds 1K in trust for X)2. But the debtor can’t hold/transfer his interest as the debtor in trust to another party (can’t pay

another person in that interest) (So B can’t pay C as part of his debt to A).e. Anything that the law generally recognizes as a transferrable interest in property can be put into a trust. f. Uncashed Checks as Trust Property:

i. Courts differ. Some say uncashed check is an incomplete gift, others say it is complete b/c legally delivered and accepted.

g. When inter vivos trust is created:i. Different from trust created in a will (those begin when testator dies, no issue of timing with regards to

transfer to trustee).ii. HYPO: Settler signs on 11/4 and physically delivers the doc to the trustee (trust in real estate) on 11/7

1. When is a trust created here?a. Intent indicated 11/4 but deed to land isn’t effectuated until 11/7. Property is not in

trust until 11/7. In most cases doesn’t matter – not having trust between 11/4 and 11/7 won’t undo it. But sometimes it will be critical to know when exactly the trust comes into existence.

iii. Different way of creating a trust:1. Settler is Trustee – so you are declaring a trust

a. You don’t have to transfer the title to the trust property to another – no real delivery required here.

h. Sample trust on 397:i. Not a declaration of trust- this is a transfer of trust

ii. Purports to use the technique of transferring the property listed in the schedule (delivery of the document is not tantamount to the delivery of the property) – is the execution of this document effectively transferring this property to the trustee?

iii. If its really property, this technique isn’t gong to work – def not going to work if a declaration of trust – if settler is trustee, must record a deed

1. Declaration will work as long as there is not a statute to the contrary, but GA code reflect uncertainty about dealing with trustee as settler

43. Beneficiaries :a. Trust is not created unless terms provide beneficiary who is ascertainable at the time or who may later become

ascertainable within Rules Against Perpetuities. b. Valid trust can be created that includes unborn/unascertained persons.c. 3 categories have different rules when it comes to beneficiaries:

i. Private Express Trust: definite beneficiariesii. Honorary Trust: Non-charitable purpose

iii. Charitable Trust: Must have valid charitable purposed. Private Express Trusts :

i. When does a trust HAVE to have beneficiaries?

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1. Simple answer – suggested in Restatment 3rd of Trusts: we don’t have to have them at the creation of the trust – seems clear that it is alright if they are definite at the creation of the trust – seems clear that it is alright if they are definite or ascertainable when created or become definite or ascertainable later as long as it is within the RAP (assume in exam the RAP is satisfied).

ii. Morsman (p. 406): M declares self as trustee, income to himself for life. On termination of trust, principal was to go to issue or widow or legal heirs (in that order). Throughout period, unmarried and no issues.

1. When there is a gap at the beneficiary level, we fill the gap with a resulting trust. The beneficiary of the resulting trust is the settler . So now M is settler and beneficiary. Problems:

2. M has legal and equitable titles, plus he’s the trustee. (merger). Big distinction between that between that and where X is trustee. No one could sue to enforce his duties or any rights under agreement.

3. Living person has no heirs. So that doesn’t help beneficial interest problem. iii. Folk v. Hughes (p. 406): - some say you can follow what happens in Morsman and still have a valid trust

1. Trust- son is trustee2. Life interest – Son3. Remainder trust – unborn children of son4. Resulting trust is settler (father)5. So we have a trust b/c the son still holds the life interest and the son still holds the life interest

and the trustee interest6. But the other side of the debate says you don’t have to reach to the resulting trust until you

REALLY have to – so what we have here isn’t an actual gap, but a potential gap – save resulting trust until we KNOW there is a gap

iv. Merger : one person may not be both sole trustee and sole beneficiary. 1. Puts an end to the trust. So if A is trustee for B, and A dies with B as sole heir, legal and equitable

title vest in B, merger, trust ends.2. In case where equitable, court could hold no merger and appoint another trustee to effectuate

settler ’s wishes (like if trust was land and instrument said it couldn’t be sold for 10 years, period hadn’t elapsed yet.)

v. Page 410 Categories:1. None of these talk about a merger of interests – all valid. 2. Category 3 – close to Mathias case (p. 290 – revocable trust case) erroneous view of merger case.

a. Mathias was holding trust in his name for the benefit of others – you don’t see any other beneficiaries identified – if no other identified, he is sole trustee and sole beneficiary and wouldn’t be valid, so we must assume there are other beneficiaries – Love assumes there are other beneficiaries identified – merger should not have completely invalidated that trust

e. Indefinite Beneficiaries :i. Beneficiaries identified in such a way as to be indefinite. “Residue to my friends.” Impossible to say

certainly who does and does not fit.ii. Consider difference between 1 “Income to A for life, remainder to such of my friends as trustee shall

select” vs. 2 Income to A for life, remainder to such of my friends as A shall select. 2 is discretionary power of appointment, 1 is mandatory power of appointment. A also has discretion whether to even exercise the power – that’s what makes it valid. Pure power of appointment apart from trust device.

1. Discretionary valid unless group of permissible appointees (“my friends”) is so indefinite that it’s impossible to id any person that would be acceptable.

2. Mandatory is more stringent. Must determine all the people who fall within the category.a. If power is in trustee, it is mandatory. IF power is in beneficiary, it is discretionary.b. When the settler gives someone a completely discretionary power of appointment

(even to exercising it) that trust goes forward and person can exercise power. When settler gives someone a mandatory power of appointment, the trust is invalid, even if the person is willing and honest and wants to do it. Invalid b/c duty to exercise it.

iii. Page 411 hypos: (assume whoever A is, A is not trustee)1. Income to A for life, remainder in corpus to my (g’s) friends.

a. Invalid but doesn’t affect A’s income2. Income to A for life, remainder in corpus to such of my (g’s) friends as the trustee shall select.

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a. this power given to the trustee, a fiduciary, is a mandatory power of appointment, more stringent test for this power than the discretionary power – valid.

3. Income to A for life, remainder in corpus to such of my (G’s) friends as A shall select.a. This is a discretionary power of appointment b/c the holder of the power is not a

fiduciary and thus is not under any fiduciary obligation to exercise the power. Discretionary powers are almost valid b/c the test for their validity is so easily satisfied. (Powers of appointment law comes from property law). A doesn’t have to exercise this power if he chooses not to – this is a power not a duty – so this is valid.

iv. Clark v. Campbell (p. 412):1. There is no valid bequest to an indefinite person. Here she gives her trust to her “Friends.” Even

if one person can agree who one person is a “friend” still doesn’t make a class definite. 2. Even if we have a trustee who is willing/able to perform and eager to identify the friends – the

courts under traditional law say that you cannot exercise that power – this is b/c the trustee is under a duty to exercise the power (property and trust law are fused). Trust law trumps property/powers law and this trustee has an obligation to act and select – can’t force him to make a selection. The only option courts would have is to give the property to all the friends, but we don’t know who that is. B/c the courts perceive that they cannot remedy the situation adequately with a misbehaving trustee with a power to select, they say it is invalid to begin with – the willing trustee has an invalid power – so b/c it is mandatory it is invalid.

f. TAKEAWAYS FOR EXAM :i. 402( c) - UTC

1. Even if you give the power to a trustee to selet a beneficiary, the trust is valid 2. If this is not exercised, the trust has failed and property goes back to Settler – (This is a 180 from

Clark case)ii. OCGA 53-12-20 : Creation or Declaration; requirements. More muddled attempt to address this issue

1. C – The requirement that a trust have a reasonably ascertainable beneficiary shall be satisfied if under the trust instrument the trustee or some other person has the power to select the beneficiaries based on a standard or in the discretion of the trustee or other person (seems to be like 402(c) - but very muddled)

iii. To get out of this – when Trust law says you must have definite beneficiaries, what must this require?1. page 416: Restatement 3d of Trusts Section 46 comment A

a. In order to be definite, must be able to identify all the members of the class (will be indefinite if cannot identify all of the members of the trust class)

b. THIS IS STILL GOOD LAW2. Trust to friends as beneficiaries (no power in anyone to select) still invalid!3. For exam purposes – note 2, page 415 on discretionary v. mandatory powers – for our purposes –

assume that if a power is fiduciary, it is mandatory (so if the power is to the trustee) 4. Mandatory powers – select among an indefinite class (CLARK) given to trustee.5. Modern law under UTC, 3rd Restatement and hopefully under OCGA hopefully clears the

distinction between mandatory and discretionary powersg. Animal Beneficiaries – Honorary Trusts

i. Definite but animals can’t sue as plaintiffs. Rather than say it’s totally invalid, you set it up, but not enforceable under trust law (so not a trust) but we won’t prohibit willing trustee from carrying it out.

1. Estate of Searight (p. 417): trust for T’s dog. $1K to be paid 75cents per day as long as dog lives. Doesn’t violate RAP b/c money will be exhausted before RAP.

ii. Device is available so long as it has a specific purpose (that’s not capricious) like to provide for pet, and that’s within RAP.

iii. OCGA : 53-12-28 – Trust for the care of animal/creation/termination1. Could a court, if someone requested it, cut down a trust from 4 million to 2 million b/c it is

ridiculous to tie up that amount for the care of a pet?a. Nothing in the statute allows you to cut it down, if you want to leave 12 million to care

for your pet, you are free to do sob. Can also place someone to look over your trustee to make sure your trustee is doing

their job.c. As long as the animal is alive, the trust can be sustained.

h. Illegal Trusts :

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i. Trusts cannot involve commission of tortuous or criminal act.ii. Can’t impose conditions against public policy – usually where donor tries to break up a family. (to a

provided they divorce b) or discourage someone from getting married.

44. INTENT: a. Usually not a problem – have document saying to A as trustee for B. No doubt. 2 categories of cases where intent

can be problematic:i. Imperfect gift : donor wants to make a gift to donee but mess up delivery. Can you recharacterize what

was going on and say donor was declaring self as the trustee for donee?1. Winthrop (p. 421): B creates trust with $5K. $850K is added. FLT has power of attorney to receive

from her estate and transfer money on her behalf to itself as trustee. $1.5 million still to come out of husband’s trust, but power of attorney no longer valid because she dies first.

a. The $1.5 million is an imperfect gift with incomplete delivery. No expression of purpose to effectuate present gift, they won’t recharacterize transaction.

b. B would have immediately subjected $1.5 million to trust by identifying her interest in it. c. This $1.5 million is stuck in her estate residuary. d. Cardozo says this is not sustained as a declaration of trust – donor had no intention of

being a trustee herself. 2. After this case, Restatement 3rd of trusts creates a different approach that would change the

outcome: could use the constructive trust concept – equitable remedy of constructive trust – Settler who wants to make a transfer in trust, and settler does all the steps required to complete the transfer (the Settler does that in Winthrop) (or you could use unjust enrichment here – if you don’t complete the transfer– then the will beneficiaries will get 1.47 million they are not entitled to- unjustly enriched. ) Then money goes to trust beneficiaries.

ii. Precatory Trust : Testator imposes moral obligation as opposed to legally enforceable duties. Request that devisee consider someone instead of clear direction that this person serves as trustee.

1. Look at words in context to see if enforceable duties placed on devisee. But generally courts don’t find language of duty here.

2. Colton (p. 425): T “recommends to her the care and protection of my mother and sister, and request her to make such gift and provision for them as in her judgment will be best.” Court says this is a precatory trust. Request in terms that imply no alternative.

45. The Trustee: a. Trust does not fail for lack of trustee. If trustee declines, unable or ceases to act proper, court will appoint trustee.b. Once established, principal relation is between trustee and beneficiary. c. Restatement 3d of Trusts: Trust does not fail for lack of trustee. d. Adams (p. 426): H&W execute deed to H’s house to A, as trustee for W. H&W both acknowledge deed before

judges. Later H&W divorce. After that, A declines W’s request to assert or act as trustee (H had possession of deed). A says he had no knowledge of it and hadn’t accepted it. Court declares trust valid & appoints new trustee.

e. Trustee can always refuse to accept duties, but once accepted can only resign within court’s permission.f. At common law, a sole trustee’s title to the trust property passed to his or her heirs on the trustee’s death

intestate and could also be disposed of by will. Some states have changed this by statute. g. Co-trustees hold title as joint tenants so that, on the death of one, legal title to the trust property is in the survivor.h. Traditionally, co-trustees of a private trust must all join in the exercise of their powers of trustees, unless the terms

of the trust or a statute provide otherwise. (Does not apply to charitable trust). i. Self-declared trusts – GA must be evidenced by writings – all trusts must be evidenced by writings.

46. Spendthrift Discretionary and Support Trusts :a. Definitions of Types of Trusts :

i. SUPPORT TRUSTS : contains a provision directing the trustee to pay or to apply for the benefit of the beneficiary so much of the income and principal or either as necessary for the beneficiary’s education and support.

ii. DISCRETIONARY TRUSTS : contains a provision giving the trustee discretion to pay to or apply for the benefit of the beneficiary only so much of the income and principal or either as the trustee sees fit.

iii. SPENDTHRIFT TRUSTS : contains a provision imposing a disabling restraint on the alienation of the beneficiaries equitable interests.

b. Discretionary v. Support Trusts:

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i. Discretionary trusts : beneficiary’s interest used to be considered to be inalienable. B has “mere expectancy” in non-distributed principle and income until trustee elects to make a payment. Creditors and taxes cannot reach discretionary trusts.

ii. Support Trusts : B’s ability to alienate and Creditor’s ability to reach was dependent upon whether the interest was limited to what was necessary for the beneficiary’s support and education. If so limited, interest was not transferable by the beneficiary and not reachable by the creditor.

1. Look at sample trust on page 397: Discretionary v. Support provisions:a. Mandatory Interests –

i. Income interest in the grantor (article 2)ii. All net income to Mary Doe at the death of Grantor during her life (article 3,

1(a)) iii. When children turn 25, get 1/3 principal and when they turn 30 get ½ of their

remaining of principal; when they turn 35 remaining balance of their fund (article (3)©

iv. Children have interest in the interest at 21 – article 3 a b. Discretionary aspect

i. Can the grantor get the money for any purpose?1. Yes for any purpose the Grantor directs in writing (Article II )

ii. But there is a discretionary clause, why?1. If the Grantor cannot take care of himself, it gives the power over to

the trusteeiii. Standards for Trustee getting into the money?

1. For support and comfort of the Grantor – any other purpose in Grantors best interest

iv. Can the trustee get into the principal for the surviving spouse?1. Yes – article 3, section B2. Reasonable support and comfort

v. For the children-1. Reasonable support and comfort and education2. Article 3, section b 3, a

c. Hybrid (discretionary – support) Trusts :i. RST throws away categorization and says there is always some level of discretion. Vague standards

turn on the language of the trust in each particular case – what’s the settler ’s purpose?ii. Problem set page 492 and 493 – Range of discretion

1. Give Wilma enough for her support and maintenance (not enough for her comfort)a. We have 165,000 – we have discretion to determine (extended discretion) her

support and maintenance –i. How much do we give Wilma- if we pay her to little, she may sue us, if we

pay her too much, the remainder beneficiaries may sue us – 1. NOTE – yearly total expenses 326,000; total income 305,000.2. Restatement on page 491- what we need to note is how to

determine the distributions based on beneficiary’s personal resources (comment to restatement presumes to consider other resources but use discretion in the matter when determining the payment amount.)

3. In pure support trust, don’t consider other resources.4. If pure discretion – court can review your reasonableness of your

discretion – not here, your discretion is extended5. When there is extended discretion – has the trustee acted

honestly and in a state of mind contemplated by the settler ? a. This is extended discretion with a clear standard of

support and maintenance6. Maybe a tighter standard of review

d. SPENDTHRIFT TRUSTS: i. Disabling Restraint: Seeks to invalidate later transfer of equitable interest in property, in whole or in

part. Beneficiary cannot alienate it and nor can it be involuntarily alienated.

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ii. Forfeiture Restraint: Seeks to terminate equitable interest in whole or in part, in event of later transfer. May apply to any attempted transfer or only some types and may be limited or unlimited (w/in RAP)…

iii. Insulates them from creditors, but as soon as beneficiary gets the money in their hands, that’s available to creditors. Income paid out, not principle.

iv. GA – exception for tort judgments, taxes, government claims, alimony, child support.1. Self-Imposed – you can restrain yourself, but can’t protect self from creditors.

v. Indestructible – beneficiaries can’t compel trustee to prematurely terminate. vi. Any person can be recipient of spendthrift trust, regardless of ability to look after self and conduct

business affairs.vii. Minority don’t recognize at all.viii. Validity of spendthrift restraints: Spendthrift provisions are held valid in most American jurisdictions.

Where allowed, the restraints may be validly imposed on income interests, and a majority of the few decisions on point also allow such restraints on future interests, in principal. (1) Compare – invalidity of restraints involving legal interests: Restraints on the alienation of legal interests are, in nearly all places and forms, void when “repugnant to the interest created.” … Since such repugnancy is nearly always found to exist with respect to fee interests, this generally means that when dealing with such an interest, any restraint whatsoever – even one attempting to prevent creditors of the grantee from attaching – is void. And when dealing with life estates or term of years, at most only “reasonable” restraints (limited as to time and parties) will be upheld.

ix. Adams (p. 497): Issue: How does inalienabilty apply to equitable estate in trusts?1. Can make trusts inalienable. Spendthrift upheld

x. Sligh (p. 510): spendthrift trust can be reached through a tortfeasor claim. Drunk driver being sued can be forced to pay his damages through his spendthrift trust.

xi. Vought (p. 499):1. In the Vought case, the issue was whether spendthrift provisions are equally valid if you

attach them to a remainder interest in the principal rather than just an income interest- they are valid – follow evolving rules of 2nd restatement. Disagreement between majority and dissent about what was motivating Chance Senior to create spendthrift restriction on two son’s remainder interest –

2. Spendthrift provision until a time he thought he could manage it more wisely 3. Sons will get remainder whenever mother dies – 4. What the settler had knowledge of when he dies – there is no assurance that when he drafts

this trust, that his wife will outlive him and the sons will be able to take care of themselves when the sons got their remainder interests

5. Dissent – doesn’t want to place protective interest on these facts.xii. Hurley (p. 506): Child support/alimony can reach spendthrift trusts.

xiii. GA : OCGA 51-12-80 (d)(3) 1. Also important is OCGA 51-12-80 (d)(4) Georgia is one of the few states to make its lists

longer as far as who can reach a spendthrift trust xiv. ISSUE: – as a policy matter, the donor is allowed to protect beneficiaries, but should the beneficiary

be able to protect himself/herself (create a trust to hide money from creditors?)1. OCGA /UTC 505 – the settler of the trust cannot benefit from a spendthrift restriction even if

it is beneficial to the other beneficiaries interest. Or from discretionary or support interests47. Termination or Modification by the Beneficiaries

a. To A for life, then to A’s children. A dies – natural terminationb. Can A and A’s children get together and collapse the trust and divide the property?

i. Clafin v. Clafin (p. 524): $10K when 21, $10K when 25, remainder at 30. Court upholds settler ’s mandate to keep it out of hands until 25 and 30.

1. Think this was done b/c of particular concern about recipient and his maturity. Other son didn’t have that restriction on his gift. But court doesn’t insist on that kind of signal.

ii. The “Clafin doctrine” (or “material purpose” doctrine) – if court perceives some kind of material purpose of settler will be undermined by early termination, won’t let beneficiaries do it. Protective/paternalistic.

iii. RST relaxes Clafin doctrin, says court can authorize termination if decides reason for termination outweighs material purpose an all beneficiaries consent. Case by case inquiry.

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1. RST also says spendthrift restriction, discretionary provision do not by themselves signal material purpose.

2. Many states say postponement of enjoyment, spendthrift, support, discretionary are deemed to have material purpose.

iv. The second prong for termination or modification is consent of ALL the beneficiaries. (Consent from ALL is being relaxed)

1. How do you get consent from unborn or minor beneficiaries?a. To the extent you have minor and incapacitated beneficiaries, the person who has

legal ability to make decisions about their property can consent (guardians/conservators)

b. But for unborn/unascertained heirs, courts and statutes have come around to the view that such beneficiaries can have a guardian ad litem appointed

c. Guardian ad litem only represents to point of making legal arguments to their behalf – and can give consent to termination or modification

d. This doesn’t mean that as the guardian ad litem can consent just to make everyone in the family happy, when he consents (under GA rule) must give articulate reasons and may not merely give pro form consent why the interests are not adversely effected

v. In OCGA - consent of beneficiaries are not needed or crucial (different from RST) – not a complication of Claflin doctrine –

1. Do we have a Claflin doctrine in GA- we should – there is another provision in trust code that says the principals of common law and equity remain in effect except to the extent they are modified under this code

2. If you look at OCGA 53-12-64 closely doesn’t seem to replace/supplant Claflin, but lists other situations that you can term/modify trusts

vi. HYPO: T survived by A; A’s child X; B; B’s Child Y. Will has no spendthrift restraint. Whose consent is necessary to terminate trust?

1. Income to A for life, remainder in principle to X? A and X2. Income to A for life, remainder in principal to X if X survives A. Backup is intestacy. T’s heirs

are A and B. Need A, B and X.3. Income to A for life, remainder in principal to A’s children. X has vested remainder subject to

open. Don’t have all of them, but guardian ad litem can be appointed to represent their interests.

48. Modifications:i. Is it the settler ’s design or the beneficiary’s wishes that will be carried out

ii. B’s can’t override a material purpose – there are some situations in which the B’s will prevail, despite the fact they are prematurely terminating the trust the settler set up and to that extent defeating the settler ’s purpose

iii. Deliberately designed to let the beneficiaries wishes prevail and defeat the settler ’s intentb. Modification: Equitable deviation

i. To carry out the settler ’s intent is the court’s purpose of this doctrineii. Justification for equitable deviation in order to carry out settler ’s intent?

iii. Sometimes things change so drastically they really impact the machinery put in place by the settler and are threatening the scheme/design/basic purposes of the settler

c. Administrative deviations: unanticipated situations by settlori. Settler doesn’t give the trustee enough power to deal with the situations as they come up

ii. Pulitzer actually shackled the trustees/beneficiaries to his one newspaper/stock he had poured his life into, hoping it would remain the powerful newspaper it was in his lifetime – it became economically devastating to hold the trustees wanted to sell it and reinvest it and allow the beneficiaries to comp some losses

1. The purpose of the settler is not deviated from the change to the trust – the settler wants the beneficiaries to benefit from the trust, and if there is an administrative deviation here, they will actually be allowed to benefit

d. Distributive Deviations – changes in the distribution from the trusti. No way you an increase the flow of distributions to one beneficiary without diminishing what was

intended for another beneficiary

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ii. Wolcott case – can’t send more to poor surviving widow without leaving less for the surviving beneficiaries

iii. Realize that Wolcott is an extremely rare case in which the court used unanticipated change of circumstances to allow diminished flow to remainder beneficiaries –

1. A few things to point outa. Settler died in 1944, and this court is in highest level of appellate court in 4 years – b. So is there proof this was unanticipated change in circumstances?c. The remainder beneficiaries are two children and a grandchild under 18 (guardian

ad litem) who consent to change – don’t want to see grandmother penniless- d. If there had been protesting beneficiaries, would the court have been as willing to

grant the deviation? Certainly made it easier for the courtiv. OCGA (FORMER): Court may direct or permit a trustee to modify the terms of a trust if it is

established by clear and convincing evidence that, owing to circumstances not known to or anticipated by the settler, compliance would defeat or substantially impair the accomplishment of the purposes of the trust

v. Current version 53-12-62 1. Tracks UTC : Expressly explicit that the administrative or dispositive terms can be modified

vi. Smith v. Hallum – 691 S.E. 2d 848 – ask court to kick a beneficiary out of the trust – very dispositive issue being changed

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