WTEclassnotes Lld Fall03

8/10/2019 WTEclassnotes Lld Fall03

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WILLS, TRUSTS & ESTATES Class Notes

08/18/03

Generally:o Rights at Death Right to pass on property by will

o

Wills Formally executed; Revocable during your lifetime; Deals with property owned at moment of deathtatutes:o !"#$%$&: tatutory right to accomplish something after death 'as long as it is not against public policy(

o !"#$%$): *a+es effect instantly upon death

o !"#$%$#: Wills can ta+e any form meeting the statutory formalities 'usually with reference to their property(

o ,referred form- but not essential

Hodel v. Irving: .ndian Fractionali/ing 0ase$ Right to devise is a property right 'pass on to your heirs($ 0onsistent with the G1 statute$ .f it is a property right- then the "th1mendment +ic+s in 'ta+ings clause by the government(2

o ,rovision that re3uires the government to pay value for it

$ 4ere government tried to ta+e away a right to devise- a property right2

$ Hodel stands for the fat that the right to devise is an inherent onstit!tional right2$ *here was no federal constitutional right to devise prior but most people thin+ 4odel changes that stating there isa federal constitutional right to devise2 *hey should have overruled the old cases2

$ *he original .ndian 1llotment 1cts gave them the right to devise2 *his right had been already created by Federalstatute2

$ .f it is true that it is not a federal constitutional right- then it is all up to the state2 5ost states have statutes aboutwills2

$ What if G1 too+ away that right6 ,eople would 7ust ma+e inter vivos transfers2o Giving property away ,roblem is that they don8t want to give away the beneficial use of the property2

o *ypes of inter vivos that would wor+:

&( 9oint tenancy with right of survivorship;)( ife estate with remainder interest to ;#( Revocable trust;

%( ,ay on Death ',< R.G4* *< .>4=R.*: 4e can give it to whomever he wants2 ?es- in every state- there is a right todevise2 *here may be a Federal 0onstitutional right to devise- but there is not a right to inherit2

$ *he right to devise cannot be ta+en without 7ust compensation2 @ut it can still be regulated2 4ow do we regulatethe right to devise6 *axes 'tax on the right to devise property at the time of your death(; Rule 1gainst ,erpetuities Falls within a group of acceptable regulations li+e Rule in helley8s case- etc2 *hat state that they cannot dostuff that offends public policy2

o >o allowance for criminal

o >o prohibition on marriage as a whole

o Destruction of the property

o tatutory mechanisms for protecting the family from complete disinheritance 'spouse is protected- but

children are simply not protected except for 1 and G1( =xceptions for 1 'civil code sharelegitime(; common law doesn8t see it that way; =xception for G1 having a uni3ue system 'years support(2

Sha"ira v. Union National #an$

$ Restrictions on marriage for the two sons where they had to marry a 9ewish woman of 9ewish parentage within Ayears after death or the portion would then go to the tate of .srael2

$ First theory: Biolated the &%th1mendment 'it incorporates '=3ual ,rotection and Due ,rocess( to the states2 *heeffect is to incorporate the right announced in the bill of rights not sub7ect to oppressive action by the states as wellas the Federal Government2(


2/21

o .t relies on oving v2 Ba2 .t holds that there is a right to marry under the right of privacy2 *he states are

restricted by the bill of rights from offending2 4= 1? 4= 41 1 R.G4* *< 51RR? W4


3/21

$ G1 cheme for this: .f you a pretty sure there are no lur+ing problems 'no large creditors to dispute- no heirs whodon8t ta+e under the will that would challenge the will(- you can probate in common form2 .f there is large estate ordifficulty it will be solemn form2

$ 0ommon Form- olemn Form and >o 1dministration >ecessary: *hree ways to probate will2$ C0110N 20R1: >o notice necessary to all heirs at law 'those who would ta+e if died intestate(; wear to the

facts; Get letters testamentary; >ot binding until A years2$ S0LE1N 20R1: >otice to all heirs at law2$ Heirs at La/: =very state has legislation that controls this .ntestate distribution statutes 'favors surviving spouse

and children(; hares may be different; ,arents- siblings- etc2 *his statute is simply the legislative 7udgment aboutwhat a person would have done with property if they had a will2 *hose people who ta+e under this scheme areheirs2 4eirs at aw may be very different than those who are under the will2

$ >< 1D5.>.*R1*. >=0=1R?: .f there is an intestacy- the only difference is that there is no will2 Whenyou get to administration- the will and intestate administration should be very similar2 .f you have an intestateestate- this procedure can be done no ad3inistration neessar42 .nstead of appointing personal representative-the heirs at law can go into probate court and state that they inherit all of the property and state that we can handleit2 *he probate court can give them an order of no administration necessary- which wor+s li+e letters testamentary2With an administration- ,2R2 has to +eep going bac+ and get accounts chec+ed2 4ere they do not2 *hey can dropout of administration2

$ *.*= 0=1R.>G F>0*.: othing left for probate because the share travels under the

deed2 '*enants in 0ommon are not li+e this because you would still pass H to beneficiaries(2)2 ife =state with Remainder in Fee imple: >othing left for probate because it passes under the deed#2 ife .nsurance: @eneficiary already named and the title transfers by contract2%2 ,ay$* *R1>F=R 1W$ .f a person gets in a situation where they have more liabilities than assets and they +now it- but they have control

over some of their assets- it is not uncommon for people in that situation to ma+e gifts of their assets2 1 creditormay come in a 3uestion the transfer of the assets2

$ 0reditor must show that: they +new they were insolvent; they +new the transfer would ma+e them less capable ofpaying the debts off; within a statutory time period2


4/21

,Ro need for administration unless there is reason for childrento be worrisome with her shit 'you can only do no administration necessary in intestate cases(2

#2 What about owning the house and a lot6 *hose would go to his estate 'executor(2 he would need to probatebecause of the real property2 .t is the only way to get clear title2

%2 Does Green really need a will6 *his is a family that you +now and children are no problem at all2 uggest a willbecause it would be more practical2 4e doesn8t +now what he is going to have when he dies so it is always a goodidea2 *hin+ about it2 Right now you really don8t but the will controls the situation when you die2 ?ada- yada-yada

08/25/03

FR


5/21

$ on convinces the court that the attorney was supposed to have put that in the document2$ *he cause of action is in negligence: Duty 'foreseeable plaintiff(- @reach- etc22$ 4e could plead it as C because he was a #rdparty beneficiary2 Damages are also limited under C law2$ 4e is within the scope of people protected by the contract and the plaintiff also argues the C cause of action2$ 5alpractice: 0an be pled in both negligence and contract law2 ?ou should plead in the alternative$ *he other piece of the case: 4ow sweeping is this6 .s this uniform between 7urisdictions6$ What if father sues6 houldn8t father be relegated to C damages6 What is the harm to dad6 5onetary loss of fee2

.s the deceased relegated to recover only the fee he paid since that was the only damage he really suffered6$ *4= R=: *here was probably a universal rule that the only person who could sue attorney for malpractice was

a client2 *he lawyer is responsible to the people that would have ta+en under the will were it not for the attorney8sdrafting2 *he beneficiary has to show negligence by the attorney 'rule against perpetuities mista+es are >


6/21

G.F* *1M=$ =M0.: Donative transfers: =ach can give J&&C per year per recipient without paying gift tax2 =ach one

of the spouses can give it to each person without transfer tax2 1ny donor to any donee $ ?ou can also payanybody8s tuition or medical expenses 'on top of the J&&C(2 *his will never be counted under gift tax2 *uition iseven broader 'educational expenses(2 ?ou must pay the provider and not the person directly- but still =R1*. C.,,.>G *1M$ 0ongress said that the ability to avoid estate tax with successive life estates is thwarting their plans2$ *hey are then taxed as if it went through the child if going straight to the grandchild2$ @1.: tepped up basis is sub7ect to repealed2

'Wrap up on OP)APK#($ >eed to have some expertise in handling estate and gift tax if you are estate planning$ *he tepped$p @asis rule: For inherited property- the tax basis is the date$of$death mar+et 'or I months after

D*=*1*= =*1*=: 1ny part that is not effectively disposed of passes by intestate succession to the

decedent8s heirs as in the code2 *hey can prohibit intestate property from passing to an heir in the will'common law rule does not allow you to do that negative disinheritance(

o 41R=


7/21

$D2 9ro:le3s 'p2 AI(&2 4oward @rown8s estate planning: 4 has ) children with Wendy and W has & other child2 What happens if 4 dies

first in G16 Divided into &P# with W and ) children2 What if Wendy died first6 4 Q &P#; =ach child ta+es )P#between three of them ')PL to each(2 >ote on p2 AI =ffect of additional child under ,0 is different

)2 4 S W married & year and 4 survived by wife and & brother- who gets it6 W.F= gets it all under G1 and ,02#2 4 S W live together but relationship is bigamous6 *:

$ Where there is property that needs to be distributed$ Dividing the shares at the first level where there are survivors to ta+e2$ .f a line of descendants is dead- then you split it among the first level of descendents that are surviving under

,0$ G1 does strict per stirpes '=nglish(: 1lways divide according to the original share even if they are all dead2$ G1 per stirpes 'part & of !"#$)$&( under '#(2 G1 ta+es out spouses share and then goes per stirpes2 >o

surviving spouse 0hildren ta+e and those who survive,=R *.R,=2$ ,roblem on p2 OO: G1 first as said in boo+2$ *=*10? '0ontinued(

$ ast 0lass: hare of urviving pouse and hare of 0hildren and .ssue and hare of ,arents 'legislature trying to dowhat the person would have done if there had been a will(2

$ *here are ) ways: ,er tirpes 'trict( in G1 .ssue at the first generation regardless of whether one is surviving2,0 First generation with survivors and divide per capita at that generation2&2 0


8/21

it but if not his mother gets it2 @urden of ,roof is on tanley8s mother in this case because it falls on the party whoseclaim depends on establishing survivorship2

$ SI1ULTANE0US EATH ACT: .f it is a simultaneous death 'where we can8t decide(- and there is not sufficientevidence- it is treated as if each survived the other2 .f you can8t tell the order- then assume that each survived for thepurposes of the property2 '1t least a moment(

$ U9C: &)K hours rule where the death is 3uestionably simultaneous- must survive by &)K hours2 .t doesn8t matterwhat causes their death2

$ ;A RULE till have the simultaneous death act 'not amended(2 .t is the original D12 omething to thin+ about indrafting the will2

$ 1pplies anytime who gets it depends on the time of death

A09TI0N

$


9/21

N0N(1ARITAL CHILREN

$ *hese children are the ones who are hurt and are totally blameless2$ 4istorically- intestate inheritance disfavored non$marital children probably every state did not allow inheritance by

illegitimate children of fathers but did for illegitimate children of mothers2 With fathers- it might be difficult to provethey are actually the biological fathers of the children2

$ G1 tatute !"#$)$#: 0hild born out of wedloc+ may inherit through mother2 ')( .llegitimate child of father does notinherit unless: 'i( court has declared child legitimate; 'ii( court has established paternity; 'iii( Father signed affidavitattesting to parent$child relationship; 'iv( igned birth certificate; 'v( 0lear and convincing evidence that child is childof the father2 D>1 provision has time limitation2

$ !"#$)$%: 5other inherits from child but the father inherits if above happens except for clear and convincing evidence2$ tatute on page &A used to provide that mother could inherit but that father could inherit only if he provided support

and care2 *he statute has been amended to ta+e that out for e3ual protection reasons2$ 0ase where father raised child 'p2 &&I( but wasn8t married to mother and didn8t have a will2 When the father died- it

was a 3uestion of who inherited father8s assets. ED!ita:le legiti3ationwas adopted here2$ Heht v. S!"erior Co!rt: Decedent has ) children by divorced wife and relationship with 4echt2 4e +ills himself and

had fro/en sperm in cryoban+2 *he sperm had seemingly been left to Deborah 4echt both in his will and documentsat the cryoban+ 'li+e a , 1DB1>0=5=>*; ')( *he only way to prove it isadvancement is show a writing2 'ame as in ,0( ,resumption is that the lifetime gift is not advancement and need awriting to prove 'could be a concession by the donee- but still a writing(2

09/10/03

AANCE1ENTS'cont2(


10/21

$ Default Rule: 5ost people meant to treat children e3ually in the distribution of the estate2 .f a parent gave a childproperty over and above obligations- the presumption was that is was an advancement and when the parent died youwould count it against the child2

$ nder 0ommon aw: *he 3uestions exist: Was it really above the obligations and did the parent really mean to ma+ethe gift6

$ nder G1 and ,0: *he rule of advancements is in statute and the presumption is flipped2 .nstead of originalpresumption- the new presumption is that it is not a gift2


11/21

)2 Discreet .tems#2 4ouse%2 Residual 0lause"2 0ontingent *rust clause only applies if children are under a certain age2 We are loo+ing at a support trust 'gives

children whatever income is needed for their support(2 .nvasion of corpus clause 'stating if you need it for supportyou can use it2

I2 >ominated *rustee if &stdoesn8t 0ontains exculpatory clause and trustee8s powers '>o trustee shall be liablefor( and then control is right underneath that2

A2 *rustee is not the guardian of the person or the property2 '?ou can also do this by letter for ease of changing(21lso- children are not property and shouldn8t have been disposed of in will2 1ll this does is let the court +nowwhat you want to be done2

ISCLAI1ERS'p2 &%O$L($ *hese are important because they give you the opportunity for post$death estate planning2$ ?ou need a statute for this because of the common law rules2 For gift- you need donative intent- delivery and

acceptance2 *he common law says that real property flips to the heirs at law so what if you didn8t want it2$ D.01.5=R and R=>>0.1*. mean the same thing2 1 person who stands to inherit says . don8t want it 'either

testate or intestate($ Why would you do this6 1void estate taxes 'instead of going to wife(; 1void creditor liability2 hifting to avoid

creditor and tax liability2

$ ?ou have to do it right 'under .R code and tate law purposes(2 !"#$&$)K: 5ust be in writing- before acceptingbenefits- 'if a present interest must be within L months of transfer if a minor you have L months from ma7ority(- 'ifa future interest you have L months from vesting- indefeasibly(2 .R says only L months from the creation of theinterest2 '.f adult- L months after interest is created and if minor- L months after interest and )&(2

$ .R says L months of when the interest is created when the interest appears in document admitted to probate2

Tro4 v. Hart: 4e had appointed an attorney 'agent( and you weren8t stripped of powers2 =ven though he had appointedsomeone he could still do it on his behalf himself2

09/15/03

ISCLAI1ERS ont.-

$ 5ust be in writing- within L months of the date the interest is created 'if testamentary- date of death(

$ .f it is going through intestate estate or will you can disclaim the inheritance2$ 1s a policy matter- the purpose of disclaimer is to let you avoid creditors and taxes2$ 0ritical things: 5ust be in writing; *here are different rules for when the L months starts running 'most people want

.R disclaimer and it must be on the date the interest is actually created(; if the gift is testamentary it is the date ofdeath2

$ What happens if there is a disclaimer6 *he person is treated as if he predeceased2 'one of the law of wills favoritefictions(2

$ ,roblem on p2 &"K: < has ) children '1 S @(2 @ dies survived by one child- 02 *hen < dies intestate2


12/21

$ .s he violating the fraudulent activity law is this avoidance issue6$ 4art counsels him to file the disclaimer and not Beil 'the lawyer(2$ *he disclaimer is in place2 ettich really did exercise a disclaimer2 1t the time he executed it- the federal regs had

not caught up with this and the disclaimer is still good2 *his does avoid his estate8s liability for the 5edicarepayments2

$ What happened in this case6 *he disclaimer is good2 *hen the court says that he in effect gave away the money ata time he was being supported by a state program2 *he court suggests that the interest should be ta+en sub7ect toclaims of the state for any 5edicaid benefits2 4art already said that they would pay the money to the government2*here is no ruling by the court on it2

$ The 2ederal Regs no/ state that 4o! annot !se a dislai3er to avoid 1ediaid2

1ahone4

$ Decedent shot and +illed by his wife2 Wife is convicted of manslaughter2$ 4e is survived by wife and parents Wife would normally get the estate over the parents2$ *he law says that she ta+es- but the court decides differently2 *he court has to figure out a way to not follow the

rule in B*2$ First- they could follow the law and give the property to the wife2$ econd- they could use e3uitable powers to say that wife shouldn8t get the interest because e3uity overrules law2

=3uity wouldn8t allow it to go to the wife2$ *hird- they could allow the legal title to go to the wife but in a constructive trust 'it then collapses and goes to the

next heir(2 *rust is not really a trust but an e3uitable remedy2$ *hey don8t want to add another penalty to the crime and she is going to have to serve her time as well2$ *his is only a 7urisprudential difference2 .n the second situation- they scoff the law2 .n the third- they follow the

law but only in a nominal way2 o- they are not disobeying the law exactly2$ =3uity 7urisdiction 3uestion: *he original court did not have e3uity 7urisdiction2 'probate court cannot get

constructive trust(2$ 1lso- they don8t want this to happen for involuntary manslaughter type cases2$ Whipsaw on civil and criminal verdict

.n G1- what if he isn8t convicted but everyone +nows he did it6 'p2 % $ !"#$&$"($ .f it is murder or voluntary manslaughter- no inheritance where the standard is beyond reasonable doubt2$ 0ivil standard is clear and convincing or preponderance of the evidence2 .f they are ac3uitted- we don8t +now if a

7ury would find them responsible under those easier civil standards2

$ G1 tatute: 'a(: .f you are responsible for felonious +illing you don8t inherit2 'c(:


13/21

09/17/03

CA9ACIT5 ont.-

trittmater$ he disinherited cousins that she didn8t even +now that well$ *oday- the will would probably be upheld2$ he is a feminist when feminism is truly an EF word2$ 4ow do you protect your client when someone is in the position of being disfavored by the client6$ When you are trying to decide the capacity- you loo+ at the capacity of the person and not the reasonableness of

the decision2$ oo+ at the ability to comprehend as opposed to whether you thin+ it is a rational choice2

p2 #% $ upplementG1 !"#$%$&&: >either advancing age nor wea+ness of intellect nor eccentricity of habit nor thought is inconsistent withcapacity to ma+e the will2

Wright case in notes: upheld the will where the guy was truly odd2When you thin+ about capacity we should be thin+ing about the % re3uirements2 .t is a right that is more often honored thannot2

4onigman$ Deceased left will$ >o 3uestion of his sound mind under the % re3uirements of capacity$ *he wife has also helped to accumulate the assets2 4e cut her bac+ from the inheritance because of his belief of

the affair2 *he wife has some property2 4e gave the stuff to the brothers and sisters and nieces2$ *he will was invalid because it was product of insane delusion2 What is insane about thin+ing that your wife is

running around on you6 *he testimony that established as she carried men up in bedsheets- men running aroundthe house- etc=ven if you absolutely believe that she is faithful and he is wrong about it that doesn8t arrive atinsane delusion2

$ What happens in the litigation6 9ury did decide and 0? she got "KN2

ipper v2 Weslow$ ndue .nfluence: *his is again to a way to have what loo+s li+e a valid will invalid2$ *=* for >D= .>F=>0=: &( confidential relationship; )( opportunity; #( motive; %( substituting his mind

for the will of the testatrix2 'he was susceptible to this; there was opportunity; there was motive($ he has basic capacity 4ow do we get to the$ 4ow do we get there6 4e lived next door; he prepared the will; he was her lawyer but he was also related yet

he gets more than he would under intestacy which is not good 'shouldn8t be written in your favor( son is notalways in confidential relationship with mother but attorney is always in such a relationship;

$ 0=,*.@..*?- D D.,


14/21

$ .n G1 a no$contest clause is not good unless there is a gift$over ?ou don8t get the money and someone else does2.t must provide to whom the gift would go2

$ ,@.0 ,eed &( ,erson who ma+es a deliberate misrepresentation with

the intent to defraud and the defrauded party does in fact rely on it to their harm2 *he testator is defrauded becausetheir testamentary wishes do not get carried out2 ,roblem 4eir tells < not to draft a will giving property to 1stating it is not necessary2 4eir will get constructive trust and the intent will be done2 '=3uitable remedies'constructive trust(: can correct for un7ust enrichment fraud is not essential to get e3uitable remedy(

a2 Fraud in the .nducement:b2 Fraud in the =xecution

"2 ,R


15/21

Father Divine case$ ,laintiffs were first cousins 'but not the heirs at law(2 When she died she left most of the estate to Father Divine6

*he court said that this church was a cult2 @e careful to reali/e that when a very wealthy white woman gives thatproperty to a blac+ church it is li+ely to be challenged here2

$ @rother entered into a settlement agreement 'heir at law( so he was no longer in it2$ 0ousins said that she tried to change the will before her death- but was unable to because Father Divine was

supposedly the conspirator in her death2o 4ow do we plead this case6

o 0apacity6 >ope

o ndue .nfluence6 5aybe

o 5onomania6 5aybe

o Fraud6 ?es2

o omeone shouldn8t be able to benefit from his wrongdoing2 *his is one of the first cases that uses the fraud theory

and imposes a constructive trust2o .n most cases- fraud theory is not that clear2

o trategy: *hey are trying to have the will probated and assets would go to Father Divine2 *hey are the

wrongdoers2 .f the will is not probated- the property goes to the brother2

*0= W.*4 =M,=0*1>0?:$ .n G1- we don8t have to worry about this because G1 does not recogni/e expectancy as an interest at all2$ 1 few states recogni/e this but it is a mixing of tort and probate law and shouldn8t be allowed2

EGECUTI0N 02 WILLS

5ost wills are formally executed and written and complies with whatever your statutory formalities are2

.n G1 this is the only way to have a good will2

'>on$cupative: *his made on deathbed and not written(2

4olographic Wills: =ntirely written in the testator8s handwriting and do not have to be in compliance with statutory

formalities2 G1 does not recogni/e these2 Why have statutory formalities6 &( ,ublic policy: 4aving formalities Q Witness ma+es someone reali/e that they are

doing something important; help with evidence; help with inappropriate influence;

4.*ext- tatute of Frauds: ,reventing fraud by witnessed writings2 ?ou can devise land by witnessed writing signed

by # people2 ,ersonal property slightly less onerous2 >ext- Wills 1ct: aid that we don8t need ) systems for devising real and personal property2 *his said that it was all

simple2 @ut then it said that you had to have ) witnesses present at the same time2 Will has to be signed by hand2 ,0 'p2 ))I(: 5ust have writing; signed by testator or at the direction of the testator 'only where he cannot sign it(;

must be ) witnesses and they have to witness &( the signing- )( ac+nowledgement of the signature or #( the will itself;*he witnesses do not have to be there at the same time and do not have to sign in the testator8s presence2

G1 'p2 #" of upplement(: ) witness but must sign in the testator8s presence; will must be witnessed as opposed to the

,0 which gives # things to witness2 @oth statutes do not re3uire publication *he witness does not have to +now it is a will under ,02 *hey do not have

to tell the witnesses what they are witnessing under both sections2

G1 supreme court determined that G1 has more of a statute of frauds statute instead of wills act state2 .t is


16/21

Groffman Wife is getting only life estate here2 Widow disputes the will arguing that the will did not meet the technical

re3uirements as to witnesses2 1ttestation clause on the will: awyer says here ta+e this and sign it2

What is wrong with execution6 tatute re3uires that both witnesses sign together with testator in the same room2 *he

witnesses did not both see the testator8s signature2

Would this be


17/21

?ou are loo+ing for the document2

Cimmel8s =state 1 letter is entitled to probate2 What is it about the letter that lets it be probated unli+e the note6

.f Eenny thing hapens: ECepp this: *his is sufficient to allow probate2

Cimmel would not have understood the technicalities of the will

0onditional Wills: ays on the face of it .f . die on this trip- .f . die of this surgeryBery conscious of mortality2

Would this be admitted to probate if she didn8t die then- but &K years later6 *his particular thing didn8t happen2 4owimportant is the introductory clause6 .f it was simply what motivated them to write the will- then the testamentaryintent would be assumed2 5ost often- the conditional will Ewill be probated2 ,resumption: ,resumption of testacy which is preferable to intestacy2

RE0CATI0N

Wills are always sub7ect to revocation until the death of the testator2

eed 7oinder of act and intention .n every 7urisdiction except G1- a revocation by physical act must be in the

testator8s presence or it doesn8t count2 .n G1- it has to be at the testator8s direction2

*here is a Elost will presumption *he presumption is that the will is revo+ed if it is lost2 ?ou assume that if the will is torn up that it is revo+ed2

?ou have to rebut this if it is not the intent of the testator to revo+e the will2

0


18/21

.t is possibly Ecancelled *his is the only place she can go with what they have done with the will2

Why doesn8t writing on the bac+ of a document6 *he phrase must touch the words that are to be cancelled2

*he court should be loo+ing for a revocation since it was her obvious intention- but the 7ust can8t find it2

.f you mar+ the document as cancelled- then there is a stamp right under the words2 .t can only be a cancellation where

the words are mar+ed by the cancellation attempt2

he is starting with 'a( and 'b( on p2 )O"2

10/13/03

tarting on p2 #%": 5ultiple ,arty @an+ 1ccounts

5*.,= ,1R*? 100* @an+ of 1nna

F10*: =xecutor of estate of Fran+ Whitehead was suing the ban+ that paid out the funds to 0ora Goddard2 *he

funds are in a 7oint savings account2 Fran+ and 0ora are 7oint names on the savings account2 *here is a right ofsurvivorship provision for 0ora Goddard2

5ost of the litigation in post$death estate issues between family members and family and friends comes up in the

multiple party ban+ accounts2

0omparison between ma+ing testamentary disposition and ma+ing exceptions statutorily2 ife .nsurance ,olicies: used to be the only exception

5ultiple ,arty @an+ 1ccounts

9oint to survivor- ,


19/21

Why does the statute say that if you are loo+ing at 7oint or trust account- we will let outsiders to the account

come in and prove that it doesn8t really belong to survivor or beneficiary- but not with a ,


20/21

uppose instead of letter he wrote companies- we find note in des+ drawer stating that he was conveying the

property and was signed by him2 1ll that it ta+es is a writing with no witnesses2 *hat document is valid2 .f it isvalid- something happens when the document is written2

.f you establish a revocable trust and you are trustee and life beneficiary and you +eep a right to revo+e- the rule of

law is essentially ,RF=RR=D 1* *4= *.5= G2 Does a will or a trust trump6 *rust @ecause the trust property had already been transferred to the beneficiary2 *he

+ey is seeing that what the court is saying in Far+as E=ven though a person retains the power to revo+e- the intervivos revocable trust transfers the property when the

trust is executed so that those property interests move at execution of the document2 *his is hugely flexible and convenient2

G1 has gone along with this as well2 *here is not a case on record that completely loc+s G1 courts into this but

through ban+ing and the reliance on most people2

*hin+ about this case1ll of a sudden you get

,ilafas: *here is a lost will rule What happens now in the development of wills law666 .f it is a will substitute- does

will law apply6 0ontract law6 =tc10/15/03

Will ubstitutes 0ommon aw: ife =states with Remainders; 9oint *enancy with R


21/21

0onveyed to the trust some capital stoc+ of " closely held corporations

4e no longer is owner but now he is trustee and there are other beneficiaries described in the trust2 4e goes to the

ban+ and they give him a loan based on his controlling interest in the corporations and loo+ at history of finances2 4e never tells the ban+ that he has put the interest in the trust2 *he ban+ officer doesn8t ta+e any security for the

note and doesn8t ever as+ about the actual control of the corporation2 *he principal of the loan had not been paid and the estate was not large enough to cover the loan because the property

was in the trust2 1rgument: Read this as a unified estate plan 1pparently he wanted the 7ust debts clause to apply to the current debt2

*hey will hold the property in trust and use it for the benefit of the beneficiaries2

During his life- they would have had access to the assets in the trust2

4e has unlimited power over the trust during his life2

@eneficiary 1rgument: When he died- he lost power to revo+e the trust and is no longer trustee2 o the title is in the

beneficiaries2 1s a result- they argue that beneficiaries are not responsible for the debt2 .f you have a situation where a person ac3uires the assets themselves and then puts them in revocable trust with

retention of control and have not changed their position- on their death- those assets are treated as available to thecreditors2

,roperty aw 1rgument: *here is no title in the decedent only in the beneficiaries2

Documents

WTEclassnotes Lld Fall03