ESTATES, WILLS AND TRUSTS OUTLINE INTRODUCTION TO ESTATE PLANNING I. The Power to Transmit Property at Death; Its Justification and Limitations a. Until the 1980s, the right to pass property at death was not natural or constitutionally protected—it was a statutory idea i. Estates and wills are statutory animals—until 1540 there were no statutes. b. Hodel v. Irving i. There is a right to transmit property upon death. 1. It is only the TESTATOR’S right to transfer (because the stick came out of the bundle of rights to his property)—it is not the right of a natural heir to the testator’s bounty. ii. A restriction on the right to transfer upon death is only a taking when it is a complete abolition of the right (otherwise a restriction to transmit property would be constitutional) c. Property rights that pass as part of Decedent’s estate i. Shaw v. CMG Worldwide 1. Under NY & Cali Law a disposition by the testator of all property passes at the time of death. Thus, Testator (Marylyn Monroe) via a residuary clause in will could not convey postmortem right of publicity to testamentary legatees where statute 1 Solution to remedy a conflict:
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ESTATES, WILLS AND TRUSTS OUTLINE
INTRODUCTION TO ESTATE PLANNING
I. The Power to Transmit Property at Death; Its Justification and Limitations
a. Until the 1980s, the right to pass property at death was not natural or
constitutionally protected—it was a statutory idea
i. Estates and wills are statutory animals—until 1540 there were no statutes.
b. Hodel v. Irving
i. There is a right to transmit property upon death.
1. It is only the TESTATOR’S right to transfer (because the stick
came out of the bundle of rights to his property)—it is not the right
of a natural heir to the testator’s bounty.
ii. A restriction on the right to transfer upon death is only a taking when it is
a complete abolition of the right (otherwise a restriction to transmit
property would be constitutional)
c. Property rights that pass as part of Decedent’s estate
i. Shaw v. CMG Worldwide
1. Under NY & Cali Law a disposition by the testator of all property
passes at the time of death. Thus, Testator (Marylyn Monroe) via
a residuary clause in will could not convey postmortem right of
publicity to testamentary legatees where statute permitting such a
disposition was not passed until 3 years after her death.
ii. Uniform Probate Code § 2-602
1. Generally, a will may pass property acquired by the estate AFTER
the testator’s death.
a. Thus, in Shaw the residual clause would have had effect as
a postmortem right of publicity.
d. Dead hand control allows a dead person, through his wealth, to influence the
behavior of others after the person’s death
i. The courts usually uphold the intent of the testator unless it conflicts with
the public interest and law.
ii. Restraints on gifts in wills: (Shapira v. Union National Bank).
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1. The right to receive property in a will is not constitutionally
protected.
a. The only right is to is the father’s right to give the property
away (like Hodel)
2. Constitutionality of the restriction on marriage in the will: this is
different than Shelley v. Kraemer because in this case the court is
not being asked to enforce any restriction upon the son’s
constitutional right to marry. The court is only being asked to
enforce a testator’s restriction upon the inheritance. The right to
receive property by will is a creation of law, it is not a natural
right.
a. There is no state action so there can’t be a 14th Amendment
claim.
b. A partial restraint upon marriage is not unconstitutional.
3. Public policy: A partial restraint of marriage which imposes only
reasonable restrictions is valid.
4. Another reason a restriction will be valid if the will also provides
a second option on where the money will go if the heir does not
comply (this shows that the intent is more religious than
discriminatory)
iii. Courts tend to refuse to enforce CONDITIONS if they are unreasonable.
1. However, if a person tries to restrict marriage by saying that he
can’t marry a certain race—courts would probably not enforce this
because he is doing something bad against a certain race; instead
of promoting his religion.
2. If the conditions is negativewill not be enforced (see above
example).
iv. The Restatement says that a restraint to include a person to marry within a
religious faith is valid, if, and only if, under the circumstances, the
restraint does not unreasonably limit the transferee’s opportunity to marry.
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v. If you have a testator—you want to provide flexibility in the will so you
don’t have to run into these possible challenges of the constitionality of
the will.
1. You could appoint a third person to give a set of instructions that
help enforce the restriction. This would be valid.
vi. Courts generally support the freedom of the testator to determine who gets
the property or restraints on inheritance.
1. Total restraints on marriage are struck down
2. Total restraints on second marriages are split
3. Reasonable restrains on marriage—court is going to look to see if
the directions are CLEAR AND REASONABLE
4. Courts generally will enforce religious restraints
5. Restrictions to divorce someone will be struck down.
vii. If the court does strike down the provision of the will, that part of the will
will probably become intestate.
e. The controlling consideration in determining the meaning of a donative document
is the donor’s INTENT. (Restatement)
i. But this is curtailed to the extent prohibited or restricted by overriding rule
or law.
f. Destruction of property at death
i. If there is a provision in a will that says the house must be torn down when
the person dies; this will be struck down because it goes against public
policy—don’t want waste.
1. A person can tear down a house when he is alive
a. Difference: when it is done when the person is alive, the
person whose desire it is does it—that person bears most of
the economic consequences of the decision. But someone
else bears the burden when the person is dead.
II. Transfer of the Decedent’s Estate
a. PROBATE property: property that passes under the decedent’s will or by
intestacy.
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i. Probate statutes differ a lot from state to state
ii. UPC 3-101 : Devolution of Estate and Death; Restrictions
1. “The power of a person to leave property by will, and the right of
creditors, devisees, and heirs to his property are subject to the
restrictions and limitations contained in this Code to facilitate the
prompt settlement of estates. Upon the death of a person, his real
and personal property devolves to the persons to whom it is
devised by his last will or to those indicated as substitutes for them
in cases involving lapse, renunciation, or other circumstances
affecting the devolution of the testate estate, or in the absence of
testamentary disposition, to his heirs, or to those indicated as
substitutes for them in cases involving renunciation or other
circumstances affecting devolution of intestate estates, subject to
homestead allowance, exempt property and family allowance, to
rights of creditors, elective share of the surviving spouse, and to
administration.”
iii. Ohio Statutes:
1. Appoint a fiduciary: person representative of the state
2. Will needs to be admitted to probate (starts SOL)
3. Executor has to collect the assets together and appraise them—this
is for the probate court and taxing authorities
4. Period of time that creditors can file claims against the estate
a. May start from the day of death or when the probate is
opened.
b. However, if Medicaid—time does not run until the state
receives the death certificate.
5. Accounting and distribution of the assets to the beneficiaries of the
will.
b. NONPROBATE property: property passing under an instrument other than a will.
i. Most property is transferred at death in this manner—including:
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1. Joint tenancy property (this includes both real and personal
because the decedent’s interest vanishes at death)
2. Life insurance
3. Contracts with a POD provision (like a pension)
4. Interests in trusts
a. Testamentary trusts pass through probate;
b. Inter Vivos trusts do not pass through probate
ii. Distribution of nonprobate assets does not involve a court proceeding, but
is made in accordance with the terms of a K or trust or deed.
c. Administration of Probate Estates
i. Executor: personal representative (the person who winds up the decedent’s
affairs) when the decedent dies testate and in the will names the person
who is to execute the will and administrate the probate estate.
ii. Administrator: the person in charge of administering the estate who is not
named in the will.
iii. When a person writes a will, he can designate who is to administer the
estate. If he dies intestate, the administrator is selected from a statutory
list of persons who are to be given preference.
iv. A will can be used to refer to an instrument disposing of both real and
personal property.
v. Summary of Probate Procedure:
1. Opening of probate:
a. In Ohio no limit on when estate must be opened; however,
within 6 months creditors must make claim and con open
the estate.
b. There are four purposes:
i. It provides evidence of transfer of title to the new
owners by a probated will or decree of intestate
succession
ii. It protects creditors by requiring payment of debts
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iii. It distributes the decedent’s property to those
intended after the creditors are paid.
iv. Clears title
1. If the property is not put through probate,
there will always be a mortgage (if there was
one)—and the property will never sell.
c. Primary jurisdiction: where the decedent was domiciled at
the time of death
i. This is where the probate of the will takes place.
d. Ancillary jurisdiction: jurisdiction where the probate of the
will takes place if the real property is located in another
jurisdiction than where the decedent was domiciled.
2. In many states, the actions of the personal representative in
administering the estate are supervised by the court—this can be
timely and costly. Other states allow the administrator to handle
all of the matters without formal court supervision.
a. The UPC allows for both methods.
b. Ohio does not permit informal probate.
i. Exception for small estates, if going to surviving
spouse and < $100,000 than it can pass without
being probated.
1. If going to nephew etc., exception provides
it must be < $35,000.
c. If elects informal probate, and interested party can
intervene and request formal probate.
3. How to determine if probate is necessary
a. Probate can be avoided if the property owner during life
transfers all of his property into a joint tenancy (JT) or a
revocable or irrevocable trust or executes a K providing for
distribution of K assets to named beneficiaries on the
owner’s death.
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b. It is difficult for a rich person to transfer all of his property.
A will serves a backup function to catch overlooked
property or property acquired after the inter vivos changes
in ownership have been made.
c. Statutes in all states permit heirs to avoid probate where the
amount of property involved is small.
i. Probate can be avoided if all of the property goes to
the spouse and the amount is small—this avoids a
lot of the problems of probate because you don’t
have to do as much.
d. Many states permit close relatives of the decedent to obtain
possession of the decedent’s personal property by
presenting an affidavit to the holder of the property if the
estate does not exceed a certain figure.
e. Probate can be avoided by having right of survivorship or
trusts and not a will. But sometimes you still need a will to
go through probate if there is a lot—or as a backup.
f. If debts are more than the assets, you want it to go through
probate and hope that the creditors don’t make claims
within the SOL.
g. Rule of thumb: Anytime you have real property you are
going to want to put it through probate because of a
mortgage.
III. Professional Responsibility
a. Duties to Intended Beneficiaries.
i. A duty runs from a drafting attorney to an intended beneficiary (and that
intended beneficiary has third-party beneficiary status). Simpson v.
Calivas
1. There is an emphasis on the foreseeability of injury to the intended
beneficiary.
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a. Even though there is no privity between the attorney and
the intended beneficiary, the obvious foreseeabilty of injury
to the beneficiary demands an exception to the privity rule.
i. Most states no longer require privity, but Ohio does.
b. This would apply when the beneficiary is named—the
attorney knows who the person is.
2. RULE: a nonparty to a K has no remedy for breach of K is subject
to an exception for third-party beneficiary status. Third-party
beneficiary status necessary to trigger this exception exists where
the K is so expressed as to give the promisor reason to know that a
benefit to a third party is contemplated by the promisee as one of
the motivating causes of his making the K. (Simpson)
ii.
iii. A fiduciary duty exists when one has a special confidence in another so
that the latter, in equity and good conscience, is bound to act in good faith
(Hotz v. Minyard).
1. In this case, the attorney have a conflict of interest—he was
representing many members of the family. He should have gotten
the consent of both parties, since the parties were in conflict.
2. This area of estate planning is ripe for conflicts—most husbands
and wives come in together—if one of them tells you something in
confidence, you have to tell it to the spouse.
a. H and W have a conflict of interest—what is disclosed to
one has to be disclosed to the other.
b. Make sure you get CONSENT.
3. Where the firm is held responsible, damages may be sought (just
make a reference to punitive damages, if needed)
b. Duties of attorneys:
i. Duty to testator and intended beneficiaries (where privity has been
eliminated)
ii. Malpractice can be based on tort theories, K or both
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iii. Avoid or disclose conflicts of interest.
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INTESTACY: AN ESTASTE PLAN BY DEFAULT
The Basic Scheme
I. Introduction
a. Intestate: when a person dies without a valid will
i. This is a default rule—it is the background law that lawyers plan around.
ii. Most people don’t have a will (40% do have wills)
iii. Even people with a will still have to use intestate laws.
b. The distribution of the probate estate of a person who dies without a will, or
whose will does not make a complete disposition of the estate, is governed by the
statute of descent and distribution of each state.
i. Partial intestacy: when a will is so poorly drafted that it disposes of only
part of the probate estate.
c. UPC 2-101 : Intestate Estate: Any part of a decedent’s estate not effectively
disposed of by will passes by intestate succession to the decedent’s heirs.
d. UPC 2-103 : Share of heirs other than surviving spouse
i. Order of passing of the estate if there is no surviving spouse:
1. Decedent’s descendants by representation
2. If there is no surviving descendant, to the decedent’s parents
equally if they both survive, or to the surviving parent.
3. If there is no surviving parent, to the descendants of the decedent’s
parents or either of them by representation.
4. If none of the above but there is a surviving grandparent: ½ to each
side (or whoever survives).
5. If not, then the entire estate passes to the decedent’s relatives on
the other side in the same manner as the half.
e. UPC 2-105 : No taker (intestate estate passes to the state)
f. The Meaning of Heirs
i. In the eyes of the law, no living person has heirs
ii. Heirs apparent: the person who would be the heirs of A, when A dies. (the
person who is entitled to someone’s property upon their death)
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1. They only have an expectancy
2. But the expectancy can be destroyed by A’s deed or will.
iii. When a person has a will, an heir is determined by looking at the will
iv. When a person dies intestate, look at the laws of the state to determine
who will be an heir.
II. Share of Surviving Spouse
a. Purpose of Intestacy Statutes:
i. Carry out the probable intent of the average intestate decedent
1. UPC 2-102 : Share of spouses
a. This gives a generous share of the estate to the spouse—
usually at least one-half of the decedent’s estate.
i. The reason everything is given to the spouse and
not to children was because studies showed that in
estate with minor children, that is the usual practice
of those leaving wills.
b. 2-102(1): giving all of the money to the surviving spouse
means that a guardianship of minor children is avoided.
c. 2-102(2): the first $200K plus ¾ of any balance of the
intestate estate, if no descendant of the decedent survives
the decedent, but a parent of the decedent survives the
decedent.
d. 2-102(3): the first $150K, plus ½ of any balance of the
intestate estate, if all of the decedent’s surviving
descendants are also descendants of the surviving spouse
and the surviving spouse has one or more surviving
descendants who are not descendants of the decedent.
e. 2-102(4): the first $100K plus ½ of any balance of the
intestate estate, if one or more of the decedent’s surviving
descendants are not descendants of the surviving spouse.
ii. Family protection: preserving the economic health of the family after a
death. The marriage is an economic partnership.
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b. Comparison of UPC and OH provisions
i. Spouse survives—no descendants and no surviving parents:
1. UPC 2-102(1)(i): all goes to spouse
2. ORC 2105.06(E): all goes to spouse
ii. Spouse survives—descendants survive
1. UPC 2-102(1)(ii): all spouse only if all descendents are also S’s
and only S’s kids
a. UPC 2-102(3): $150K + ½ if descendents are also S’s but S
has others; rest goes to descendents
b. UPC 2-102(4): $100K + ½ if one or more descendent is not
S’s; rest goes to descendents.
2. ORC
a. 2105.06(B): All S only if all descendants are also S’s
b. 2105.06(C): $25K +1/2 if one surviving decedent’s of child
that is not S’s; rest goes to Children.
c. 2105.06(D): $60K + 1/3 goes to the spouse if more than
one child is surviving if the spouse is the natural or
adoptive parent of one but not all of the children; OR $20K
+ 1/3 if the spouse is the natural or adoptive parent of none
of the children; rest goes to children equally.
iii. Spouse; no descendants; surviving parents
1. UPC 2-102(2): $200K goes to spouse + ¾; the rest goes to parents
2. ORC : No provision
iv. No spouse; descendents
1. UPC 2-103(1): all goes to descendents (per capita at each
generation)
2. ORC 2105.06(A): all goes to descendents (per capital at each
generation—2105.12)
v. No spouse; no descendents; parents
1. UPC 2-103(2): all goes to parents
2. ORC 2105.06(F): all goes to parents
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vi. No Spouse, no descendents; no parents; there is a surviving sibling of
decedent; surviving descendents of decedent’s parents
1. UPC 2-103(3): goes to surviving sibling of decedent; or surviving
descendents of decedent’s parents (per capita at each generation)
2. ORC 2105.06(G): goes to surviving sibling of decedent; or
surviving descendents of decedent’s parents (per capita at each
generation)
vii. No spouse, no descendents; no parents; no surviving sibling of decedent;
surviving grandparent of decedent or surviving descendents of
grandparents
1. UPC 2-103(4): ½ to paternal grandparent; ½ to maternal
grandparent—or all to one side if no survivors on the other side
(per capita at each generation)
2. ORC 2105.06(H)(I): ½ paternal grandparent; ½ maternal
grandparent (per capital at each generation—2105.12)
viii. No Spouse, no descendents; no parents; no surviving siblings of decedent;
no grandparent or descendants of grandparents
1. UPC 2-105 : escheats to the state—therefore no laughing heirs (no
great grandparents take)
2. ORC 2105.06(I): if next of kin—to next of kin with no
representation
a. (J): if no next of kin—to stepchildren and their decedents
b. (K): if no stepchildren or descendents—escheat to the state.
c. Forced Share: UPC 2-202(a)
i. If the spouse is left out of the will, she is entitled to a certain amount.
d. Domestic Partners
i. Some statutes (but OH doesn’t) recognize common law marriages—in
those states, they will be treated the same as if there had been a ceremony.
ii. 3 states have enacted legislation granting same-sex couples inheritance
and other spousal-type rights. But Congress and many states have passed
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statutes restricting the extension of spousal rights to same-sex couples
under federal programs.
1. If you want to be sure that the partner gets the estate:
a. Have a will giving the estate to the person
b. ORC § 2105.15 can go to court and sign a document before
the probate judge and have the person become the heir at
law—once you are designated an heir, there is no will
contest.
e. ORC § 2105.10 : A parent abandoning a minor child is barred from intestate
succession when the minor child dies intestate.
f. Simultaneous Death:
i. CL: A person succeeds to the property of a decedent only if the person
survives the decedent for an instant of time.
ii. Uniform Simultaneous Death Act:
1. This originally said that if there is no sufficient evidence of the
order of deaths, the beneficiary is deemed to have predeceased the
donor. Thus, neither inherits from the other.
2. But the act was revised in 1991 after cases like Janus (how to
determine if one died before the other).
a. Janus v. Tarasewicz: USDA at that time provided that there
must be “sufficient evidence” that the person survived the
other person—this leaves it open to a lot of litigation
because it is a low burden to prove.
i. Ex: when there is evidence of a drowning, this is
not enough evidence to show that the other
survived.
b. The amendment requires survivorship by 120 hours and
changed the burden of proof from preponderance of the
evidence to clear and convincing (higher standard)
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3. Simultaneous death problems arise more in intestacy than
elsewhere because well-drafted instruments typically require a
beneficiary to survive the decedent by 30-60 days.
iii. USDA and UPC 2-104: an heir or devisee or life insurance beneficiary
who fails to survive 120 hours is deemed to have predeceased the
decedent.
1. This not only applies to intestate succession but also wills that
don’t provide and life insurance policies.
iv. In both the UPC and USDA, a claimant must establish survivorship by
120 hours by clear and convincing evidence, not merely by some
“sufficient evidence” as provided in the original language.
v. USDA is a default statute—if the will provides otherwise, the will
controls.
vi. “if he survives me”—this raises problems in wills.
vii. ORC § 2105.32 : a person who is not established by clear and convincing
evidence is deemed to have predeceased the other person.
III. Share of Descendants
a. In all jurisdictions, after the spouse’s share is set aside, children and issue of
deceased children take the remainder of the property to the exclusion of everyone
else.
b. Sons-in-law and daughters-in-law are excluded as intestate successors in virtually
all states
c. Three systems of determining representation (whether the division into shares
should begin at the generational level immediately below the decedent or at the
closest generational level with a descendant of the decedent alive)
i. ENGLISH PER STIRPES: divide the property into as many shares as
there are living children of the designated person and deceased children
who have descendants living.
1. The children of each descendant represent their deceased parent
and are moved into their parent’s position beginning at the first
generation below the designated person.
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2. For every living child (or every child that is deceased that has
children of their own), each family line gets one share.
3. This system treats each line of descendants equally
4. OH follows this.
a. ORC § 2105.11 : When a person dies intestate leaving
children and none of the children have died leaving
children, the estate shall descend to the children of such
intestate, living at the time of his death, in equal
proportions.
b. ORC § 2105.12 : When all the descendants of an intestate,
in a direct line of descent, are on an equal degree of
consanguinity to the intestate, the estate shall pass to such
persons in equal parts, however remote from the intestate
such equal and common degree of consanguinity may be.
c. ORC § 2105.13 : If some of the children of an intestate are
living and others are dead, the estate shall descend to the
children who are living and to the lineal descendants of
such children as are dead, so that each child who is living
will inherit the share to which he would have been entitled
if all the children of the intestate were living, and the lineal
descendants of the deceased child will inherit equal parts of
that portion of the estate to which such deceased child
would be entitled if he were living.
ii. MODERN PER STIRPES: one looks first to see whether any children
survived the decedent. If so, the distribution is identical to that under
English per stirpes. But where no children survive the decedent, then the
estate is equally divided at the first generation in which there are living
takers, which is usually the generation of the decedent’s grandchildren.
1. The decedent’s estate is divided into shares at the generational
level nearest to the decedent in which one or more descendants of
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the decedent are alive and provides for representation of any
deceased descendant on that level by his descendants.
2. Look for the first generation in which there is a survivor and divide
equally.
3. This system treats each line beginning at the closest living
generation equally
iii. PER CAPITAL AT EACH GENERATION (UPC 2-106(b)): The initial
division of shares is made at the level where one or more descendants are
alive, but the shares of deceased persons on that level are treated as one
pot and are dropped down and divided equally among the representatives
on the next generational level.
1. This system treats each taker at each generation equally with other
takers at that generation
2. For the testator’s descendants, each generation is treated the
same.
iv. Need to be clear in drafting—“leave estate to my children per stirpes”—
what type is the client referring to.
v. Ex: pg. 76: A has two children, B and C. B predeceases A, leaving a child
D. C predeceases A, leaving two children, E and F. E predecease A,
leaving two children, G and H, who survive A. A dies intestate leaving no
surviving spouse. How is A’s estate distributed under each of the statutes?
1. English per stirpes:
a. D: ½
b. F: ¼
c. G: 1/8
d. H: 1/8
2. Modern per stirpes: (Ohio)
a. D: 1/3
b. F: 1/3
c. G: 1/6
d. H: 1/6
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3. UPC/Per Capita at Each Generation
a. D: 1/3
b. F: 1/3
c. G: 1/6
d. H: 1/6
d. Negative Disinheritance
i. An express statement in a parent’s will disinheriting a child
ii. Few parents actually do this; but children are effectively disinherited when
their parents leave the estate to the surviving spouse rather than children.
iii. UPC 2-101(b): says that a will disinheriting someone will be enforced (but
no state has followed this)
iv. If you die intestate, you cannot disinherit children.
IV. Shares of Ancestors and Collaterals
a. When the intestate decedent is survived by a descendant, the decedent’s ancestors
and collaterals do not take. When there is no descendant, after deducting the
spouse’s share, in nearly half the states the rest of the intestate’s property is
usually distributed to the decedent’s parents, as under the UPC.
b. *If there is no spouse or parent, the decedent’s heirs will become more remote
ancestors or collateral kindred.
i. Collateral kindred: all persons who are related by blood to the decedent
but who are not descendants or ancestors
1. First line collateral: through your parents
2. Second collateral line: through the grandparents
c. If the decedent is not survived by a spouse, descendant or parent, in all
jurisdictions intestate property passes to brothers and sisters and their
descendants.
d. If there are no first-line collaterals (descendants of the decedent’s parents), the
states differ as to who is next in the line of succession.
i. Parentelic succession: the intestate estate passes to grandparents and their
descendants.
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ii. Degree of relationship: the intestate estate passes to the closest of kin,
counting degrees of kinship.
iii. Mass law: follows a degree of relationship system but provides for a
paretelic preference to break a tie between kin of equal degree.
e. All states recognize that if you die without a spouse or descendants—goes to the
first collateral line.
f. OH and UPC both recognize the second collateral line
i. UPC 2-103 : does not permit inheritance by intestate succession beyond
grandparents and their descendants.
ii. ORC § 2105.03 : Determination of next of kind in intestate succession is
determined by the degrees of relationship computed by the rules of civil
law.
g. Ex: Problem 1, pg. 96: The decedent is survived by his mother, his sister and two
nephews (children of a deceased brother). How is the decedent’s estate
distributed?
i. UPC 2-103 : The mother receives all of the estate because she is still living
ii. OH: mother receives all of the estate (every statute recognizes the first
collateral line)
h. Ex: Problem 2, pg. 96: The decedent is survived by one first cousin on his
mother’s side and by two first cousins on his father’s side. How is it distributed?
i. UPC 2-103:
1. M’s cousin: ½
2. D’s 2 cousins: ¼ to each
ii. ORC § 2105.06
1. Same as UPC (every state recognizes the first collateral line)
i. Ex: Problem 3, pg. 96: The decedent is survived by A, the first cousin of he
decedent’s mother, and by B, the granddaughter of the decedent’s first cousin.
How is it distributed?
i. UPC 2-103:
1. First cousin of decedent’s mother—third collateral line (chart, pg.
79)
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2. Granddaughter of the decedent’s first cousin—second collateral
line
3. Granddaughter gets everything because she is closer
ii. OH 2015.06: Same as UPC
iii. Massachusetts law looks to the degrees of separation
1. First cousin of the mother is closer in degrees, so that person gets
the estate.
j. If the intestate leaves no survivors entitled to take under the intestacy statute, the
intestate’s property escheats to the state.
k. Half-Bloods
i. UPC 2-107 : a relative of a half-blood is treated the same as a relative of
the whole-blood
1. OH follows this as well.
ii. In some states, a half-blood is given a half-share
iii. In other states, a half-blood takes only where there are no whole-blood
relatives of the same degree.
Transfers to Children
I. Meaning of Children
a. Adopted Children
i. Hall v. Vallandingham: court says that the kids have no constitutional
right to receive property (only the right to give away is constitutional)
1. The court says that allowing the children to adopt from their
adopted parents and real parents would give them a superior status
a. There is no dual inheritance.
2. This case would be different under the UPC.
3. OH has no statute like the statute in this case—OH would allow
dual inheritance (still allowed to inherit from the natural parent).
a. Practical problem: adoption records are sealed, so you can’t
adopt from natural parents.
ii. UPC 2-113 : Individuals Related to Decedent through two lines
1. Only entitled to a single share (whichever share is larger)
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iii. UPC 2-114 : Parent and Child Relationship
1. Subsection (2) allows a child who is adopted by a step-parent to
still inherit from their natural parents.
iv. In a stepparent adoption, the children can inherit from their natural
relatives, but the natural relatives cannot inherit from them.
v. The overwhelming majority of inheritance statutes draw no distinction
between the adoption of a minor and the adoption of an adult.
1. If a person wishes to leave property to a friend, under some
circumstances it might be wise to adopt the friend as a child
vi. In most states, an adult person, married or unmarried, may adopt any other
person, minor or adult, but the adoption of a spouse or lover may not be
allowed.
1. Why someone would adopt an adult:
a. Avoid a will contest
b. Graph someone into the family tree
vii. If a child adopts his spouse just so that person can be included in a will, it
is not allowed. The adoption of an adult for the purpose of bringing that
person under the provisions of a pre-existing testamentary instrument
when he clearly was not intended to be so covered should not be permitted
(Minary v. Citizens Fidelity Bank & Trust)
1. In this case, the court will look at the intent of the testator v. the
language of the statute.
a. Courts generally try to carry out the testator’s intent.
2. If the court had wanted to follow the statute, they could have
created a constructive trust (to ensure that she was not unjustly
enriched).
viii. Equitable adoption: this is an informal type of adoption that can also
determine the distribution of property in intestacy (O’Neal v. Wilkes)
1. Equitable adoption is recognized by about half of the states (OH is
not one of them)
2. Two theories:
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a. Contractual model: someone with authority contracts with
someone else to adopt the child
b. Equitable argument: if you care for the person and love
them and hold them as your child—it is an equitable
adoption.
3. Equitable adoption may be recognized in a state where H and W
take a baby into their home and raise A as their child but do not
formally adopt A.
4. Equitable adoptions permit an equitable adopted child to inherit
from the foster parents. But the foster parents cannot inherit from
the child.
5. If you want to ensure that there will be a recognized adoption, go
through the formal proceedings.
b. Posthumous Children
i. Woodward v. Commissioner of Social Security
1. Balancing test to consider whether the children resulting from a
pregnancy by inception (sperm bank) after death, gives the
children inheritance rights of natural children under MASS law.
a. Three factors:
i. Best interest of Child – legislature said all children
should be treated the same regardless birth.
ii. State’s interest in orderly administration
iii. Deceased Reproductive Rights – Parent must have
consented to reproduction, burden on the surviving
parent.
ii. This occurs when the child is conceived before the death, but is born after
her father’s death
1. Law: it is to a child’s advantage to be treated as in being from the
time of conception rather than from the time of birth, and the child
will so be treated if born alive.
iii. Usually the child has to be born within 280 days of the father’s death.
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iv. UPC § 2-108 : An individual in gestation at a particular time is treated as
living at that time if the individual lives 120 hours or more after birth.
v. ORC 2105.14 : Descendants of an intestate begotten before death, but born
thereafter, in all cases will inherit as if born in the lifetime of the intestate
and surviving him; but in no other case can a person inherit unless living
at the time of death of the intestate.
1. ** “Begotten” means conception in Ohio. Thus, must have been
conceived before death.
vi. Rebuttable presumption
1. If the child claims that the conception dated more than 280 days
before birth, the burden of proof is on the child
vii. Uniform Parentage Act: raises the amount of time to 300 days.
c. Posthumous Children & “Vitro” fertilization
i. Modern rule (NY) & Restatement – where vitro fertilization occurs after
the death of a beneficiary of a trust, if funds are intended to pass to
decedent’s “issue” and “descendants” the court will look at intent of the
trust document itself, to determine if the children are conceived and born
after beneficiary dies. Thus, child will be part of a class even if conceived
and born after beneficiary/grantor’s death. (In re Martin B)
ii. UPC – A posthumously conceived child of A is included in a class gift in
a will or trust by T to the “children,” “issue,” “descendants,” or “heirs” of
A if (1) A consented to posthumous conception in a signed writing or A’s
consent is otherwise proved by clear and convincing evidence; and (2) the
child is living on the distribution date or is in utero not later than 36
months after or is born not later than 45 months after the distribution date.
d. Nonmarital Children
i. Modern—all jurisdictions permit inheritance from the mother, but the
rules respecting inheritance from the father vary.
ii. Most states permit paternity to be established by:
1. evidence of the subsequent marriage of the parents
2. acknowledgement by the father
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3. an adjudication during the life of the father
4. clear and convincing proof after the death
iii. Uniform Parentage Act: the parent-child relationship extends to every
parent and child, regardless of the marital status of the parents. When not
married, a parent-child relationship is assumed to exist, if:
1. While the child is less than 2, the father lives in the same
household and openly holds the child out as his natural child
2. The father acknowledges his paternity in a writing that is filed with
an appropriate court
iv. CL: if a man and woman are living together and have a child, it is held
that the child is that man’s.
1. This is rebuttable only by clear and convincing evidence.
v. ORC § 2105.17 : Children born out of wedlock shall be capable of
inheriting or transmitting inheritance from and to their mother; and from
and to those from whom she may inherit, or to whom she may transmit
inheritance, as if born in lawful wedlock.
vi. If father wants to claim that he is the father—can show this by(OH):
1. Marrying the mother
2. Adopting the child
3. Acknowledging the paternity (supporting the child)
4. Designating the child as an heir at law.
5. Putting them in will
vii. ORC § 2105.25 : A file can declare the alleged fatherhood of an adult
child. The father, mother and child must go to the court together.
viii. ORC § 2105.26 : The probate court will determine that the man is the
father when requested under the above section if:
1. the order was freely and voluntarily requested
2. no person is designated as the father on the birth certificate of the
adult child
3. genetic test results show that the man is the father of the adult
child.
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4. It is in the best interests of the man and adult child that the order be
issued.
ix. Reproductive Technology and New Forms of Parentage
1. Woodward v. Commissioner of Social Security
a. Children were conceived 2 years after the father died.
b. OH has a bright-line test: child has to be conceived before
the father died in order to get estate.
c. Have to determine if the father had consented to supporting
these children.
II. Surrogates
a. Surrogate is simply the surrogate, not the parent. Based on contract law.
III. Assisted Reproduction and Same-Sex Couples
a. UPC 2-120 – child conceived by assisted reproduction other than gestational
surrogacy is in a parent-child relationship (and thus entitled to inherit by, from, or
through) the child’s birth mother. There can also be a parent-child relationship
with another person if the other person either consented in writing to assisted
reproduction by the birth mother with the intent to be the other parent of the child
or functioned as a parent of the child w/in two years of the child’s birth.
IV. Advancements
a. Applies only to intestate estates
b. CL: any gift given to a child by a parent was presumed to be an advancement and
that amount would be taken out of the estate.
i. Ex: 4 children—20K given to child 1 during life; 80K left at death.
1. AT death, 100K divided among the children—so child 1 doesn’t
get any money.
ii. Gifts are not advancements (like paying for a wedding, paying for college,
supporting a disabled child)
c. To avoid the application of this doctrine, the child has the burden of establishing
that the lifetime transfer was intended as an absolute gift that was not to be
counted against the child’s share of the estate.
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d. Many states have reversed the CL presumption of advancement because of the
problems of proof of the donor’s intent.
i. In those states, a lifetime gift is presumed not to be an advancement unless
it is shown to have been intended as such.
ii. Usually there has to be a writing to show that it was an advancement.
e. UPC 2-109 : Advancements
i. (c): changes the common law if the recipient does not survive the
decedent. In that case, the advancement is not taken into account in
determining the share of the recipient’s issue.
ii. UPC pretty much eliminates the doctrine of advancements from the law of
intestate succession because it requires the formality of a WRITING to
evidence an advancement.
f. ORC § 2105.051 : Advancements-time of valuation
i. When a person dies, property that he gave during his lifetime to an heir
shall be treated as an advancement against the heir’s share of the estate
only if declared in a contemporaneous writing by the decedent, or
acknowledged in writing by the heir to be an advancement.
V. Guardianship and Conservatorship of Minors
a. A minor has neither the legal capacity to manage property nor the power to make
most choices about how and where to live—therefore people with young children
need to consider the possibility of their children being orphaned.
b. Guardian of the person:
i. This person has the responsibility of the minor child’s custody and care
(makes the personal decisions of the child)
ii. As long as one parent of the child is living and competent, that parent is
the natural guardian of the child’s person.
iii. If both parents die without a will and the child is a minor, the court will
appoint a guardian of the person from among the nearest relatives.
iv. This terminates once the child enters the age of majority.
c. Property Management Options
i. A guardian of the person has no authority to deal with the child’s property
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ii. There are many types available:
1. Guardianship of the Property
a. They make all the decisions with finances—everything has
to be approved by the court.
b. This person has the duty of preserving the specific property
left to the minor and delivering it to the ward at age 18.
c. They need the court’s approval to do anything (such as
change investments)
d. Strict court supervision is burdensome and time-consuming
2. Conservatorship
a. This person is given title as trustee to the protected person’s
property, as well as investment powers similar to those of
trustees.
b. More flexibility than a guardianship of the property
c. Ends at age of majority.
3. Custodianship
a. Person who is given property to hold for the benefit of a
minor under either the Uniform Transfers to Minors Act or
the Uniform Gifts to Minors Act (if you leave a gift to a
child or grandchild, need to have a guardian for the child).
i. Some form of these has been enacted in every state
—property may be transferred to a person as
custodian for the benefit of the minor.
b. He has the right to manage property and to reinvest it.
c. He is a fiduciary and is subject to the standard of care that
would be observed by a prudent person dealing with
property of another.
d. There would only be a court accounting if the custodian
uses the money for his own benefits.
e. Distribution at age 21.
f. Very easy to create—not good for big gifts.
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4. Trusts
a. This is the most flexible
b. A trust can be tailored to family circumstances and the
testator’s particular desires.
c. Can postpone when the children will receive the money.
d. Usually drafted in wills for children who are fully grown
for a minor beneficiary.
iii. A guardianship is required of all minors
1. The terminology in a will matters
2. Even moderate amounts of money require a guardianship
Bars to Succession
I. Homicide
a. A slayer cannot benefit from his intentional, felonious act.
i. Intent is the key
b. If someone who was entitled to a trust kills a person: a CONSTRUCTIVE
TRUST will be created (the slayer has legal title but equity holds him in a
constructive trust).
c. Almost all states have statutes dealing with the rights of a killer in the estate of a
victim
i. UPC 2-803 : bars the killer from succeeding to nonprobate as well as
probate property.
1. The killer is treated as having disclaimed the property
2. (g) provides that a criminal conviction of a felonious and
intentional killing is conclusive that the convicted individual is the
decedent’s killer. Acquittal is not dispositive of the acquitted
individual’s status as slayer.
ii. ORC § 2105.19 : if there is murder or voluntary MS, the wrongdoer is
treated as though he predeceased the dead.
d. Since the killer can’t take, the usual view is that the killer is treated as having
predeceased the victim.
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e. CL: if you are never convicted, can still go to civil court to try to avoid the slayer
from being entitled to the benefits of the wrongdoer.
II. Disclaimer
a. This is a very important part of estate planning
b. Definition: when an heir or devisee declines to take the property by filing the
appropriate writing with the probate court. The person is treated as though he
predeceased and the property passes to the next in line.
c. An individual may disclaim an interest devolving her, the effect of which is to
treat the disclaiming individual as if he predeceased effective the date of the
instrument granting the interest.
d. The most common motivations are to reduce taxes or to keep property from
creditors. Other reasons:
i. Cure defective estate planning
ii. Make gifts to children (ex: parents leave you money, you don’t need it—
you disclaim, and it goes to your children—passes without the tax
consequence)
e. Individual creditors cannot reach disclaimed assets, but government can.
f. A disclaim cannot be used for the sole purpose to qualify for Medicaid (Troy v.
Heart)
g. CL: an intestate successor cannot prevent title from passing to him or her. If the
heir does refuse to accept the inheritance, the CL treats the renunciation as if title
had passed to the heir and then from the heir to the next intestate successor.
h. UPC § 2-801: Disclaimer of Property Interests
i. A person to whom an interest devolves by whatever means may disclaim it
in whole or in party by delivering or filing a written disclaimer.
i. Uniform Disclaimer of Transfers by Will, Intestacy or Appointment Act
i. A person may disclaim by delivering a written disclaimer.
ii. This is treated as if the person predeceased the decedent.
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WILLS: CAPACITY AND CONTESTS
Mental Capacity
I. The Test of Mental Capacity
a. There is not a lot of statutory authority
i. UPC 2-501: An individual 10 or more years of age who is of sound mind
may make a will.
ii. ORC 2107.02 : A person of the age of 18 years, or over, of sound mind and
memory, and not under restraint, may make a will.
b. Requirements to make a will:
i. Adult (18+)
ii. Must be capable of knowing and understanding in a general way
iii. The nature and extent of his property,
iv. The nature objects of his bounty and
v. The disposition that he is making of that property
vi. And capable of relating these elements to one another and forming an
orderly desire regarding the disposition of the property
c. Legal presumption is always in favor of sanity, especially after attestation by
subscribing witnesses (In re Estate of Wright). It is the duty of the subscribing
witnesses to be satisfied of the testator’s sanity before they subscribe the
instrument.
i. 4 elements (low threshold):
1. nature of the act he is performing
2. understanding his assets
3. understand who has natural claims to his bounty
4. appreciate relationship of his family.
d. It is unethical for lawyers to draft a will for an incompetent person. But the
lawyer can rely on her own judgment regarding the capacity.
e. Capacity to make a will is governed by a different legal test and requires less
mental ability than to manage one’s investments, to make a K, or to make a gift.
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So even if a person has been put under a conservator, that doesn’t mean they have
the incapacity to make a will.
f. Other factors that may be considered to determine if a person is capable: ability to
read/write; feebleness.
g. Why we require mental capacity:
i. A will should give effect only if it represents the testator’s true desires
ii. The mental capacity requirement is that a mentally incompetent person is
not defined as a person
iii. The law requires mental capacity to protect the decedent’s family.
II. Insane Delusion
a. Delusion: a false conception of reality
i. An insane delusion is one to which the testator adheres against all
evidence and reason to the contrary.
b. This is a legal, not mental, capacity
c. A person may have sufficient mental capacity generally to execute a will but may
be suffering from an insane delusion so as to cause a particular provision in a will
—or even the entire will—to fail for lack of testamentary capacity.
i. Only the part of the will caused by the insane delusion fails (because the
person has the general capacity to make a will).
d. MAJORITY TEST: a delusion is insane even if there is some factual basis for it if
a rational person in the testator’s situation could not have drawn the conclusion
reached by the testator.
e. In re Strittmater—court found that the woman was insane because she only left
her money to the women’s party because she hated men.
i. Today, this case would not have come out the same—there has been more
acceptance of mental disorders and a person will not be considered insane
if she has one (this case had more to do with the mores of the time)
f. Elements to prove (In re Honigman)
i. That there was an insane delusion
ii. How this affects the determination of the assets (insane delusion causes an
unnatural disposition).
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g. In re Honingman
i. Majority (what most states follow): there can be minimal showing of
cause that will then shift the burden back to the proponents of the will to
provide a basis for the alleged delusion.
ii. Dissent: there has to be a showing of cause by the people contesting the
will.
h. Many courts impose upon testators a duty to provide for those whom the court
views as having a superior moral claim to the testator’s assets. Wills that fail to
provide for those individuals typically are upheld only if the will’s proponent can
convince the fact finder that the testator’s deviation from normative values is
morally justifiable.
i. An insane delusion is different than a mistake
i. A mistake will not be reformed by the court.
j. Statutes in 3 states (including OH) permit probate of a will during the testator’s
lifeLIVING PROBATE
i. These authorize a person to institute during life an adversary proceeding to
declare the validity of a will and the testamentary capacity and freedom
from undue influence of the person executing the will
ii. ORC 2107.081 through 2107.085 : testator can initiate the process of
probate before he dies.
1. He has to petition the court
2. Notify all the people listed in the will; heirs at law
3. Court makes a finding whether the will is duly executed; whether
there was capacity; whether it is free or undue influence or insane
delusion.
iii. As long as the testator doesn’t change his will, after he dies, the will
cannot be contested.
1. But if the will is later changed, still need to determine if it was
duly executed; capacity; free from outside influence.
iv. Advantage: anyone who contests the will can be written out of it (if you
revise the will after it is probated while you are alive)
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v. Disadvantage: doesn’t help family relationships to do this ahead of time;
costly.
Undue Influence
I. Estate of Lakatosh—elements of undue influence:
a. Confidential relationship
b. The person enjoying such relationship received the bulk of the estate
c. The decedent’s intellect was weakened
II. Burden of proof (used with the above elements)
a. The proponent of a will has the burden of proving its validity, but this is easily
done in most cases by showing due execution (clear and convincing evidence).
The person contesting the will then has the burden of proving undue influence
directly or by proving facts that would give rise to a presumption of undue
influence (clear and convincing evidence).
III. The minority of states follow the Restatement which lists factors to determine if there
has been undue influence:
a. The extent to which the donor was in a weakened condition, physically, mentally
or both, and therefore susceptible to undue influence
b. The extent to which the alleged wrongdoer participated in the preparation or
procurement of the will or will substitute
c. Whether the donor received independent advice from an attorney of from other
competent and disinterested advisors in preparing the will or will substitute
d. Whether the will or will substitute was prepared in secrecy or in haste
e. Whether the donor’s attitude toward others had changed by reason of his or her
relationship with the alleged wrongdoer
f. Whether there is a decided discrepancy between a new and previous wills or will
substitutes of the donor
g. Whether there was a continuity of purpose running through former wills or will
substitutes indicating a settled intent in the disposition or his property
h. Whether the disposition of the property is such that a reasonable person would
regard it as unnatural, unjust or unfair.
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IV. Lipper v. Weslow
a. This case uses DIRECT EVIDENCE that the testator is susceptible to undue
influence
b. There are two ways to establish undue influence:
i. Direct evidence: contestants of the will have to provide evidence that the
substituted his mind and will for that of the testatrix.
1. There are 4 elements:
a. The testator was susceptible to undue influence
b. That the influencer had the disposition or motive to
exercise undue influence
c. The influencer had the opportunity to exercise undue
influence
d. The disposition is the result of the influence
ii. Shifting presumption (the burden of proof discussed above)
1. Confidential relationship
2. Unnatural disposition
3. Or Restatement test (suspicious circumstances)
V. No contest clause in a will
a. These clauses provide that a beneficiary who contests the will shall take nothing,
or a token amount, in lieu of the provisions made for the beneficiary in the will.
b. This discourages unmeritorious litigation and family quarrels.
c. UPC 2-517 : probable cause rule
i. A provision in a will purporting to penalize an interested person for
contesting the will or instituting other proceedings related to the estate is
unenforceable if probable cause exists for instituting proceedings.
d. Minority of courts enforce no-contest clauses unless the contestant alleges forgery
or subsequent revocation by a later will.
e. If you have a no-contest clause, make sure you leave something to the person.
VI. Bequests to Attorneys
a. Many courts hold that a presumption of undue influence arises when an attorney-
drafter receives a legacy, except when the attorney is related to the testator.
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b. Model Rules: “A lawyer shall not prepare an instrument giving the lawyer or a
person related to the lawyer as parent, child, sibling, or spouse any substantial gift
from a client, including a testamentary gift, except where the client is related to
the donee.”
c. Have to be careful of a conflict of interest—attorney cannot prepare document
giving himself a gift unless he is a relative.
VII. In re Will of Moses
a. This court shifts the burden—there was a confidential relationship; and there is an
unnatural disposition because all of the assets go to him.
b. This case dealt with the mores of the time.
c. Sexual relations cast a suspicion of deceit and cautions the court to examine the
evidence with unusual care.
d. Courts rule diffierently when it is a younger woman and an older man
VIII. In re Kaufmann’s Will
a. Once again this is a case that deals with the mores of the time (gay relationships
were not accepted).
IX. Attorney’s Ethical Obligations
a. It is alright for an attorney to witness a will—but not a good idea because if
something goes wrong it falls on the attorney who witnessed the will.
b. H and W come into office—have a conflict if they want to make trusts.
i. If one comes into your office alone, you have the duty to diclose it to the
husband.
Fraud
I. Definition
a. This occurs when the testator is deceived by a misrepresentation and does that
which the testator would not have done had the misrepresentation not been made.
b. The misrepresentation must be made with both the intent to deceive the testator
and the purpose of influencing the testamentary disposition.
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c. Provision in will procured by fraud is invalid, the remaining portions of the will
stand unless the fraud permeates the entire will or the portions invalidated by
fraud are inseparable from the rest of the will.
d. Elements—contestator must show that testator was deceived in the:
i. Contents of the wills (fraud in the execution) OR
ii. The circumstances surrounding the making of the will (fraud in the
inducement) OR
iii. Facts material to a disposition.
e. Fraud in the inducement: occurs when a person misrepresents facts, thereby
causing the testator to execute a will, to include particular provisions in the
wrongdoer’s favor. (misrepresenting facts)
f. Fraud in the Execution: occurs when a person misrepresents the character or
contents of the instrument signed by the testator, which does not in fact carry out
the testator’s intent. (misrepresenting character of the instrument)
g. Puckett v. Krida
i. Difference between undue influence and fraud:
1. Fraud tries to conceal the acts and tell untrue facts or
circumstances
2. Undue influence:
a. Two tests
3. Fraud
a. Intentionally deceiving someone through
MISREPRESENTATION.
Duress
I. Definition: a donative transfer is procured by threats or wrongful acts that coerce the
donor into making transfer
a. There must be COERCION. It is only when the will of the person who becomes a
testator is coerced into doing that which she does not desire to do.
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b. A donative transfer is procured by duress if the wrongdoer threatened to perform
or did perform a wrongful act that coerced the donor into making a donative
transfer that the donor would not otherwise have made.
c. Don’t see these cases very often
II. Constructive trust
a. Definition: this is an equitable remedy (not a trust) to prevent unjust enrichment.
i. When property has been acquired in such circumstances that the holder of
the legal title may not be in good conscience retain the beneficial interest,
equity converts him into a trustee.”
b. May be extended in these situations (Latham v. Father Divine)
i. Will executed under duress passes under the will; however, equity, in
order to defeat fraud, raises a trust in favor of those intended to benefit by
the testator, and compels the legatee, as trustee to turn over the gift.
Tortious Interference with Expectancy
I. Definition
a. Includes intentional interference with an expected inheritance or gift as a valid
cause of action.
b. must prove that the interference involved conduct tortious in itself, such as
fraud, duress, or undue influence.
c. Most prove the following:
i. the existence of an expectancy
ii. a reasonable certainty that the expectancy would have been realized bu for
the interference.
iii. Intentional interference with that expectancy
iv. Tortious conduct involved with the interference
v. Damages
d. Because persons do not have a “right to inherit” this is a derivative of a contract
remedy, an “expectancy.”
e. Schilling v. Herrera
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i. Although the general rule is that all remedies must be exhausted in probate
court, in this instance, Plaintiff was fraudulently misled when D did not
inform him that his sister had died and Plaintiff probated the will. Thus,
the tortous conduct was unde influence and fraud, and because fraud was
not discovered until after probate, Pl could bring this action.
II. Marshall v. Marshall (Ann Nicole Smith)
a. A person might file this instead of a will contest because you can get punitive
damages.
b. Only can get this in a minority of states.
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WILLS: FORMALITIES AND FORMS
Execution of Wills
I. Attested Wills
a. The Function of Formalities
i. There are four functions:
1. Ritual function: the courts need to be convinced that the statements
of the transferor were deliberately intended to effectuate a transfer.
2. Evidentiary function: the requirements of transfer may increase the
reliability of the proof presented to the court.
3. Protective function: some of the requirements of the statutes of
wills have the stated prophylactic purpose of safeguarding the
testator, at the time of the execution of the will, against undue
influence or other forms of imposition
4. Channeling function: it is easier to determine a person’s wishes at
death if they are channeled into a will with standardized
formalities.
ii. Most basic formalities for an attested will:
1. Writing
2. Signature by the testator
3. Attestation by witnesses
iii. Statute of Frauds:
1. Writing
2. Signature
3. Attestation and subscription (the will must be signed at the end of
the will) by three witnesses
iv. Wills Act:
1. Writing
2. Subscription
3. Attestation and signature by two witnesses
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a. UPC § 2-505 : An individual generally competent to be a
witness may act as a witness to a will.
v. UPC 2-502 : this is one of the broadest and most general will statutes
1. Writing
2. Signature
3. Attestation and signature by two witnesses, signed within a
reasonable time after he witnessed either the signing of the will or
the testator’s acknowledgement of his signature.
a. No contemporaneous signing requirement
vi. ORC § 2107.01 : a will includes codicils to wills admitted to probate, lost
or destroyed wills, but it does not include inter vivos trusts or other
instruments that have not been admitted to probate.
vii. ORC 2107.03
1. Ohio requires two witnesses; more restrictive than UPC.
2. Testator either has to sign in their presence or acknowledge in their
presence; witnesses also have to sign in the presence of each other
or acknowledge
3. Ohio allows oral wills (this is unique)ORC § 2107.60
a. Allowed in last sickness; if it is reduced to writing within
10 days by two individuals who heard the testator say that
it was to be his will
b. Can’t dispose of real estate in an oral will.
b. The Formalities in Action
i. UPC 2-502 : Execution; Witnessed Wills; holographic wills
1. This sets form the requirements of a will
ii. Courts are usually very strict in making sure that the formalities are
followed
iii. The traditional (and MAJORITY) rule is that courts will not reform wills,
and that the requirements of the wills statutes must be strictly complied
with)
1. In re Groffman
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a. The will statute required that the witnesses had to be in the
same room at the same time—because it wasn’t strictly
complied with, the will has to be thrown out.
b. If the UPC was applied, it would have been valid because it
was signed by the witnesses within a reasonable amount of
time
c. If ORC was applied, statute that requires the two witnesses
would have been ok if they heard the testator acknowledge
his signature.
2. Stevens v. Casdorph
a. Mere intent is not enough—need to meet the formalities as
well
b. There is a small exception: if a witness acknowledges his
signature on a will in the physical presence of the other
subscriving witness and the testator, then the will is
property executed.
c. Meaning of presence:
i. Line of Sight Test: the requirement that the witness
sign in the presence of the testator is only satisfied
if the testator is capable of seeing the witnesses in
the act of signing. Testator does not actually have
to see the witness sign but must be able to see them
were the testator to look. (minority)
ii. Conscious Presence Test: the witness is in the
presence of the testator if the testator, through sight,
hearing or general consciousness of events,
comprehends that the witness is in the act of
signing. (majority)
iii. UPC 2-502 : dispenses with the requirement that the
witnesses sign in the testator’s presence.
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iv. In almost every state, if the individual can’t sign his whole signature—as
long as the individual makes the mark himself, it is sufficient for a
signature
1. In OH, if you tell your child to sign your name, it is valid. But
they cannot sign your name for you without your consent.
2. Can be denied probate if the child helps the testator sign and the
testator did not ask for assistance.
a. Under the UPC, the dispensing power will take care of this
if there is intent.
v. Digitalized signatures are not effective
1. Rubber stamps are not effective.
vi. Ex: if witnesses sign after the testator. And then the testator adds
something at the end…
1. If the handwritten line was added after the testator signed the will,
the will would be admitted to probate, and the line would be
ineffective as a subsequent unexecuted codicil.
2. If the will hadn’t been signed at the end:
a. The whole will is ineffective (if it was a dispositive
provision—changing all the terms of the will)
b. If it was a non-dispositive provision, the writing at the
bottom gets thrown out but the rest is valid.
vii. Attestation clause: recites that the will was duly executed
1. It is malpractice not to include one.
2. This establishes prima facie evidence that the will was duly
executed.
viii. “Writing” and Video or electronic Wills
1. Restatement (3rd) – Will need not be on paper, all that is required is
a reasonably permanent record of the markings that make up a will.
a. Thus, electronic will may be proper, as substantially
compliant.
ix. UPC 2-505(b) : Purging statutes
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1. An interested witness does not forfeit a devise under the will.
2. Reason for this is that a person getting a benefit under the will can
still be a good witness.
x. Purging statutes of many states purge the witness only of the benefit the
witness receives that exceeds the benefit the witness would have received
if the will had not been executed.
1. Definition of purging statutes: purges the part of the will that went
to the interested party.
2. If statute provides that cannot have two witnesses that benefit, if
one benefits (w/o intestate share) but the other actually would
receive more intestate (has option) the former’s will not be void
because the latter did not actually benefit. (Estate of Morea)
xi. ORC 2107.15 : purging statute
1. “If a devise or bequest is made to a person who is one of only two
witnesses to a will, the devise is void. The witness shall then be
competent to testify to the execution of the will, as if the devise
had not been made. If the witness would have been entitled to a
share of the testator’s estate in case the will was not established, he
takes so much of that share that does not exceed the bequest to
him.”
2. If there are two witnesses: if you are a family member and a
witness—would not lose bequest as a witness if your share did not
exceed what you would have gotten intestate
a. Supernumerary witness - If there are three witnesses and
the third one is interested, it wouldn’t make a difference
(you can pick and choose who are the witnesses)
xii. You NEVER want to have an interested witness—it makes it easier in the
long run.
c. Recommended Method of Executing a Will:
i. Have the following parts:
1. Three witnesses
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2. Notary public
3. Attestation clause: statement by a witness saying that they signed
the will in the presence of the testator and other witnesses.
4. Self-proving affidavit
ii. UPC § 2-515: allows a will to be deposited by the testator with any court
for safekeeping. The will must be kept sealed.
iii. UPC 2-506 : most states have statutes recognizing as valid a will executed
with the formalities required by the state where the testator was domiciled
at death; the state where the will was executed; or the state where the
testator was domiciled when the will was executed.
iv. UPC 2-504 : two types of self-proving affidavits
1. Combined attestation clause and self-proving affidavit: the testator
and witnesses sign their names only once
2. A self-proving affidavit to be affixed to a will already signed and
attested, an affidavit that must be signed by the testator and
witnesses in front of a notary public after the testator has signed
the will and the witnesses have signed the attestation clause.
d. If a will is lost, most states presume it to be revoked
i. This is not an easy presumption to overcome.
ii. ORC 2107.26 : lost, spoiled or destroyed wills
1. The will can be admitted to probate if:
a. The will was executed with the formalities
b. The person can show by clear and convincing evidence the
contents of the will
e. In re Pavlinko’s Estate: court held that when the H and W signed the other
person’s will, this was not valid—need to follow the formalities requirements.
i. This court followed strict construction
f. In re Snide: When H and W signed the other’s will, this was valid because was
intended was very clear.
i. A minor exception was allowed in this case because they were mutual,
reciprocal wills.
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ii. They also met clear and convincing evidence.
iii. A guardian will always contest a will because they have a fiduciary duty
for the child until they become of legal age.
g. Curative Doctrines
i. The traditional rule is that the formalities required by the Wills Act must
be complied with strictly; and almost any mistake in execution will
invalidate a will.
1. A minority or statutes and courts adopt this.
ii. UPC 2-503 : departs form the tradition by giving a court the power to
dispense with formalities if there is clear and convincing evidence that
the decedent intended the document to be his will.
iii. In re Will of Ranney: the will may be admitted to probate if it substantially
complies with these requirements.
1. SUBSTANTIAL COMPLIANCE: functional rule designed to cure
the inequity caused by the harsh and relentless formalism of the
law of wills.
a. Definition: clear and convincing evidence that the will
substantially complies with statutory requirements
i. Does the noncomplying document express the
decedent’s testamentary intent?
ii. Does the form sufficiently approximate Wills Act
formality to enable the court to conclude that it
serves the purposes of the Wills Act?
b. When formal defects occur, proponents should prove by
clear and convincing evidence that the will substantially
complies with statutory requirements.
c. Courts are more likely to apply this doctrine because it
carries out the intent of the legislature.
iv. In re Estate of Hall: DISPENSING POWER
1. Provides for the probate of a document that was not properly
executed if the court is satisfied that there can be no reasonable
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doubt that the deceased intended the document to constitute his
will.
2. UPC 2-503
a. Courts are directed to look not at whether the purposes of
formalities were served, but rather that decedent intended
the document or writing to constitute the decedent’s will.
b. Clear and convincing evidence that testator meant
document to be a will.
v. Difference between substantial compliance and dispensing power:
1. Substantial compliance: court doctrine that allows a will to be
admitted to probate when the purposes of the formalities were
served despite a defective execution
2. Dispensing power: provides for the probate of a document that was
not properly executed if the court is satisfied that there can be no
reasonable doubt that the deceased intended the document to
satisfy his will.
II. Holographic Wills
a. It is a will written by the testator’s hand and signed by the testator; attesting
witnesses are not required
i. It must be in the testator’s handwriting
b. Permitted in over half of the states (minority rule)
i. OH not included.
c. Holographic wills are often written in extremis—when the testator is close to
death
d. It may be signed at the end, beginning or anywhere in the will, but if not signed at
the end, there may be a doubt about whether the decedent intended his name to be
a signature
e. Kimmel’s Estate: in order to be a valid holographic will, there has to be an
INTENT to be a valid will.
i. Conditional wills: says what you want to happen if something happens to
you.
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1. Generally, the condition is not enforceable—courts ignore the
condition.
2. The will is enforced if nothing happens at that time, but something
happens later.
f. How to determine how much of the holographic will must be signed in the
testator’s handwriting:
i. First generation statutes: “entirely, written, signed and dated”
1. Required holographs be entirely written, signed and dated by the
testator
ii. Second generation statutes: “material provisions”
1. The signature and material provisions of the holograph had to be in
handwriting
iii. Third generation: “material portions” and extrinsic evidence is allowed
1. UPC 2-502(b)
2. This allows the probate of a holographic will even if immaterial
parts such as the date or introductory wording is printed.
3. This also allows extrinsic evidence to be used to establish
testamentary intent, this further encouraging courts to look at the
printed words in addition to the handwritten ones.
4. Muder—court looked at intent.
g. In re Estate of Kuralt: Hoffman thinks this decision was wrong
i. He did not intend the letter to be a will
ii. In order to be a valid holographic will, need INTENTION!!
iii. You must look at the intent of the document at the time is made—was it
supposed to be a will?
h. Codicils
i. This is a testamentary instrument that amends a prior will; it does not
replace it.
i. Dispensing statute of the UPC can be applied to this as well.
Revocation of Wills
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I. Revocation by Writing or Physical Act
a. A will is subject to modification or revocation by the testator during his lifetime
b. All states allow revocation of a will in one of two ways to revoke:
i. By a subsequent writing with testamentary formalities
ii. By a physical act such as destroying or burning the will
c. UPC 2-507 : Revocation by writing or by act
i. A will is revoked by executing a subsequent will that revokes the previous
will or part expressly or by inconsistency
ii. By performing a revocatory act on the will, if the testator’s intent is to
revoke the will; another individual can do this action if performed in the
testator’s conscious presence and by the testator’s direction.
1. the burning, tearing or canceling is revoking the will; no matter
whether it touches any words of the will.
d. UPC 2-701 : will can be revoked by a subsequent writing or by a physical act
e. ORC 2107.33 : revocation of wills
i. Testator can revoke a will in a number of ways:
1. Testator tearing, canceling, obliterating or destroying
2. By having someone else tear the will in your presence
3. By another will
4. By a separate will that has the same execution requirements of a
will.
f. Revocation of a codicil does not revoke a will—but the revocation of a will does
mean that all of the codicils are also revoked.
g. Harrison v. Bird—rebuttable presumption
i. If the evidence establishes that a person had possession of the will before
her death, but the will was not found among the personal belongings after
her death, it is presumed that the will was destroyed
ii. There exists a presumption that the will was destroyed and revoked. The
burden then shifts to present sufficient evidence to rebut that presumption.
iii. Under ORC, the result would be different because the attorney did not
revoke in her presence.
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h. If a will is a filed stating “revoked will”—this does not mean that the will was
destroyed; it only shows intent which is not enough.
i. Most states hold that if you revoke a will by written words—the words have to be
written over the will.
i. UPC does not require the words to be written over the will.
j. Lost wills
i. In the absence of a statute, a will that is lost, or is destroyed without the
consent of the testator, or is destroyed with the consent of the testator but
not in compliance with the revocation statute can be admitted into probate
if the contents are proved.
k. Partial revocation by physical act
i. Although UPC 2-507 and the statutes of many states authorize partial
revocation by physical act, in several states a will cannot be revoked in
part by an act of revocation; it can be revoked in part only by a subsequent
instrument.
II. Dependent Relative Revocation and Revival
a. Doctrine of dependent relative revocation: if the testator purports to revoke his
will upon a mistaken assumption of law or fact, the revocation is ineffective if the
testator would not have revoked his will had he known the truth (Revocation of all
or part of a will is ineffective if the revocation is based on mistake)
i. The doctrine involves presumptive intent, not actual intent
1. It can only be applied where the clear intent of the testator is
shown to be that the revocation of the old is made conditional upon
the validity of the new.
ii. This is entirely common law.
iii. This requires clear and convincing evidence.
iv. LaCroix v. Senecal:
1. If a testator cancels or destroys a will with a present intention of
making a new one immediately and as a substitute and the new will
is not made or for some reason fails, it will be presumed that the
testator preferred the old will to intestacy, and the old will is to be
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admitted to probate in the absence of evidence overcoming the
presumption.
v. This doctrine can apply to the entire instrument or it can only partially
apply.
vi. Courts have set limits as to when this applies:
1. Where there is an alternative plan of disposition that fails
2. Or where the mistake is recited in the terms of the revoking
instrument, or possibly, is established by clear and convincing
evidence.
b. Revival
i. Ex: Testator executed will 1. Later executed will 2, which revokes will 1
by an express clause. Later testator revokes will 2. Is will 1 revived?
1. Three views:
a. English CL that will 1 is not revoked unless 2 remains in
effect until the testator’s death.
b. Will 2 legally revokes will 1 at the time 2 is executed
i. Upon revocation of will 2, will 1 is revived if the
testator so intends (majority)
ii. A revoked will cannot be revived unless reexecuted
with testamentary formalities
2. UPC 2-509 : Revival of Revoked Will
a. (a): if a subsequent will that wholly revoked a previous will
is thereafter revoked, the previous will remains revoked
unless it is revived.
b. (b): if a subsequent will that partly revoked a previous will
is thereafter revoked, a revoked part of the previous will is
revived unless it is evident from the circumstances
c. (c): if a subsequent will that revoked a previous will in
whole or in part is thereafter revoked by another, later, will,
the previous will remains revoked in whole or part, unless
it or its revoked part is revived.
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3. ORC 2107.38 : If a testator executes a second will, the destruction,
cancellation or revocation of the second will shall not revoke the
first will unless the terms of such revocation show that it was such
testator’s intention to revive and give effect to his first will or if the
testator republishes his first will.
III. Revocation by Operation of Law: Change in Family Circumstances
a. Most states have statutes providing that a divorce revokes any provision in the
decedent’s will for the divorced spouse
b. UPC 2-804 : Revocation of Probate and Nonprobate transfers by Divorce
i. All instruments are revoked upon the divorce from the spouse (probate
and nonprobate property)
ii. It also revokes any provisions from the spouse’s relatives.
c. ORC 2107.33(d), (e)
i. If the couple remarries, the will is revived.
d. U.S. Supreme Court
i. Held that federal law preempts the application of state revocation on
divorce statutes to federally regulated pension benefits.
e. Marriage
i. If a testator executes a will and then later marries, a majority of states have
statutes giving the spouse her intestate share, unless it appears that the
omission was intentional
ii. UPC 2-301 : revokes the premarital will to the extent of the spouse’s
intestate share
iii. ORC § 2107.37 : A will executed by an unmarried person is not revoked
by a subsequent marriage.
f. Birth of Children:
i. Minority: CL rule that marriage followed by birth of issue revokes a will
executed before marriage
ii. Almost all states have pretermitted children statutes, giving a child born
after execution of the parent’s will, and not provided for in the will, a
share of the parent’s estate
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iii. UPC 2-302 : If a testator fails to provide in his will for any of his children
born after or adopted after the execution of the will, the omitted after-born
or after-adopted child receives a share of the estate as follows:
1. Testator had no child living when he executed the will, the omitted
child receives a share in the estate equal in value to that which the
child would have received had the testator died intestate
2. If the testator had one or more children living when the will was
executed, and the will devised property or an interest in property to
them, an omitted after-born child is entitled to share in the
testator’s estate as follows:
a. The portion of the testator’s estate in which the omitted
after-born child is entitled to share is limited to devises
made to the testator’s then-living children under the will.
b. The omitted after-born child is entitled to receive the share
of the testator’s estate that the child would have received
had the testator including all omitted after-born children
with the children to whom devises were made under the
will and had given an equal share of the estate to each
child.
c. It must be of the same character as that devised to the
testator’s then-living children.
d. However, this does not apply if the omission was
intentional or the after-born child was provided for outside
of the will.
Components of a Will
I. Integration of Wills
a. Definition: all papers present at the time of execution, intended to be part of the
will, are integrated into the will
b. Fasten all the papers together to the will
II. Republication by Codicil
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a. Definition: a prior, validly executed will is treated as reexecuted (republished) as
of the date of the codicil.
b. It is not applied automatically but only where updating the will carries out the
testator’s intent.
c. This is different than incorporation by reference
i. Republication only applies to a prior validly executed will
ii. Incorporation applies to incorporate into a will language or instrument that
have never been validly executed
III. Incorporation by Reference
a. Definition: a writing in existence at the time of execution of a will may be
incorporated by reference if sufficiently described and the will manifest such an
intent.
i. a will can add into its provisions any document or paper not so executed
and witnessed, whether the paper referred to be in the form of a mere list
or memo, if it was in existence at the time of the execution of the will, and
is identified by clear and satisfactory proof as the paper referred to (Clark
v. Greenhalge).
b. Elements:
i. The document must have been in existence at the time the will was
executed
ii. The will must expressly refer to the document in the present tense
iii. The will must describe the document to be incorporated so clearly that
there can be no mistake as to the identity of the document referred
iv. The testator must have intended to incorporate the extrinsic document as
part of the overall testamentary plan.
c. The purpose is to enact the intent of the testator.
d. Most hold that the actual writing that was in existence at the time—not a
document that might exist at the time, but writing is added later.
e. Need to refer to the document explicitly and saying that the testator is
incorporating the doctrine by reference in the will.
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f. Simon v. Grayson—court held that the letter found in the safe box was
incorporated by will and became an integral part of the will, even though it was
not the correct date.
g. Johnson v. Johnson—Hoffman thinks this case was wrong
i. Court held that the whole will was valid because it is incorporated by
reference
ii. But this case was wrong because in order to have a republished will, you
have to have a validly published will to begin with (this was a holographic
will), which wasn’t in this case.
1. There also wasn’t an identification sufficient to indicate the
document and incorporation language.
h. UPC 2-510 : Incorporation by Reference
i. Any writing in existence when a will is executed
ii. Language of the will manifests this intent
iii. Describes the writing sufficiently to permit its identification
i. ORC 2107.05 : incorporation by referencean existing document, book, record or
memo may be incorporated in a will by reference, if referred to as being in
existence at the time the will is executed. This document shall be deposited in the
probate court when the will is probated.
j. UPC 2-513 : Separate Writing Identifying Bequest of Tangible property
i. A will may refer to a written statement or list to dispose of items of
tangible personal property not otherwise specifically disposed of by will,
other than money. The writing must be signed by the testator and must
describe the items and the devisees with reasonable certainty. The writing
may be referred to as one to be in existence at the time of the testator’s
death; it can be prepared before or after the execution of the will.
IV. Acts of Independent Significance
a. Definition: If the beneficiary or property designations are identified by acts or
events that have a lifetime motive and significance apart from their effect on the
will, the gift will be upheld under this doctrine (acts or events references in a will
that have lifetime significance can result in changes to disposition made by a will)
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b. E.g. Decedent gives to any charitable trust that her brother may establish; brother
establishes . . . ; issue is that we have a future act or recipient not otherwise
identified. Here, act on its own has such independent significance that it is not
being used to undermine the will.
c. UPC 2-512 : Events of Independent Significance
i. A will may dispose of property by reference to acts and events that have
significance apart from their effect upon the dispositions made by the will
ii. Ex: Throwing things into the drawer is not an act of significance—so not
entitled to it.
1. However, if only the testator has access to the drawer, this is an act
of independent significance.
Contracts Relating to Wills
I. Introduction
a. A person may enter into a contract to make a will or contract not to revoke a will
b. Contract law applies
c. If, after the K becomes binding, a party dies leaving a will not complying with the
K, the will is probated but the K beneficiary is entitled to a remedy for the broken
K.
d. ORC 2107.04 : an agreement to make a will only valid if it is in writing.
II. Contracts to Make a will
a. Many states subject Ks to the SoF
b. But even if this is not fulfilled, the beneficiary may be entitled to restitution of the
value to the decedent of services rendered
III. Contracts Not to Revoke a Will
a. Joint will: one instrument executed by two persons as the will of both (one will
for two people)
b. Mutual wills: separate wills of two or more persons that contain similar and
reciprocal provisions
c. Joint and Mutual will: a joint will in which the respective testators make similar
or reciprocal provisions.
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d. UPC 2-514 : Contracts Concerning Succession
i. A K to devise to make a will or devise, or not to revoke a will or devise, or
to die intestate, if executed after the effective date, may be established
only by (1) provisions of a will stating material provisions of the K, (2) an
express reference in a will to a K and extrinsic evidence proving the terms
of the K or (3) a writing signed by the decedent evidencing the K.
e. A K not to revoke a will is breached if, after the K becomes binding, a party dies
leaving a will that does not comply with the K.
f. Via v. Putnam
i. Minority: the rights of beneficiaries under a K to make a will are limited
by the possibility that the survivor might remarry and that the subsequent
spouse might elect against the will
1. Three exceptions:
a. Provision has been made for, or waived by, the spouse by
prenuptial or postnuptial agreement
b. When the spouse is already provided for in the will
c. When the will discloses an intention not to make provision
for the spouse
ii. Majority: the 3rd party beneficiary prevails over the second wife.
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CONSTRUCTION OF WILLSrules of construction apply unless the intent of the will is to
the contrary.
Mistaken or Ambiguous Language in Wills
I. The Traditional Approach—No Extrinsic Evidence, No Reformation
a. Plain meaning rule/no extrinsic evidence rule (majority rule): extrinsic evidence
may be admitted to resolve some ambiguities, but the plain meaning of the words
of the will cannot be disturbed by evidence that another meaning was intended
i. RULE: Wills act requires that will terms be in attested writing and parol
evidence cannot be admitted to vary the written will.
ii. Circumstances surrounding the testator (not declarations of testator) at the
time and the will was executed are admissible.
b. No reformation rule:
i. Reformation is an equitable remedy, that, if applied to a will, would
correct a mistaken term in the will to reflect what the testator intended the
will to say.
ii. The justification for refusing to reform the will is that the court is thereby
compelled to interpret the words that the testator actually used, not to
interpret the words that the testator is purported to have intended to use.
c. Mahoney v. Grainger—a will duly executed and allowed by the court must under
the statute of wills be accepted as the final expression of the intent of the person
executing it.
i. When there is no doubt as to the property bequeathed or the identity of the
beneficiary there is no room for extrinsic evidence .
ii. The idea behind the plain meaning rule is that statements by the testator
are suspected; don’t want them changing the will.
iii. The fact that it was not prepared in conformity to the instructions given to
the draftsman who prepared it does not authorize a court to reform or alter
it.
d. Patent ambiguity: an ambiguity that appears on the face of the will
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i. Most states allow extrinsic evidence to aid in interpreting a patent
ambiguity
ii. Extrinsic evidence of facts and circumstances are admissible but not the
testator’s declarations.
iii. If we can see it right out in the open (common law) than it could not have
been amended, unlike Latent, where you can add terms.
e. Latent ambiguity: an ambiguity that does not appear on the face of the will, but
manifests itself when the terms of the will are applied to the testator’s property or
designated beneficiaries.
i. There are two types:
1. A will clearly describes a person or thing and two or more persons
or things exactly fit that description
a. Equivocation: admission of extrinsic evidence to clarify a
latent ambiguity first began in these cases
b. Courts reasoned that extrinsic evidence did not add
anything to a will, but the evidence only made the terms of
the will more specific
2. A will clearly describes a person or thing and no person or thing
exactly fits that description, but two or more persons or things
partially fit.
a. This is more common.
ii. Extrinsic evidence, including the testator’s declarations, are admissible to
determine the meaning.
f. If there is no ambiguity in the will, no evidence can be admitted to show the
intent.
g. Sometimes it is hard to tell a difference between a latent and patent ambiguity
i. Ex: to the university in Southern California known as the UCLA.
1. Court said that it was a latent—but it looks like a patent.
II. Slouching Toward Reformation: Correcting Mistakes Without the Power to Reform
Wills
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a. The rule against reformation (not allowing the correcting of an innocent mistake
in the terms of the will) is at odds with routine practice in other areas of the law of
wills (like including extrinsic evidence to show undue influence or fraud)
b. A review of cases reveals a trend toward admitting extrinsic evidence not merely
to resolve ambiguities, but also to correct mistakes in view of the actual intent of
the testator
c. Arnheiter v. Arnheiter: court changed the will so that the description was more
general and the will was still valid because the testator only owned one piece of
property on that street.
i. Where a description of a thing or person consists of several particulars and
all of them do not fit any one person or thing, less essential particulars
may be rejected provided the remainder of the description clearly fits.
ii. Court applies the doctrine of misdescription: falsa demonstration non
nocet doctrince (mere erroneous description does not vitiate).
iii. Court wanted to carry out the intent of the testator.
d. Estate of Gibbs: no ambiguity in this case—but the court corrected the mistake.
i. Details of identification are highly susceptible to mistake and should not
be granted such sanctity as to frustrate an otherwise clearly demonstrable
intent.
ii. There needs to be a high degree of certainty.
iii. Court says that they aren’t reforming it, but they really are.
III. Openly Reforming Wills for Mistaken
a. This is still the MINORITY position
b. Applies to scrivner’s errors.
c. Need clear and convincing evidence to correct mistakes to conform to the T’s
intent.
d. This is the view of the Restatement:
i. Two things need to be proven by clear and convincing evidence:
1. That a mistake of fact or law, whether in expression or
inducement, affected specific terms of the document and
2. The donor’s intent.
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e. Erickson v. Erickson
i. Court makes a narrow exception: can reform the will only if there is a
scrivner’s error.
f. This shows the changes from the CL no reformation rule.
g. UPC § 2805 – Reformation to Correct Mistakes
i. Court may reform the terms of a governing instrument, even if
unambiguous, to conform the terms to the transferor’s intention if it
proved by clear and convincing evidence that the transferor’s intent and
the term of the governing instrument were affected by a mistake of fact or
law, whether in expression or inducement.
Death of Beneficiary Before Death of Testator
I. Introduction
a. Rule: If a devisee does not survive the testator, the devise LAPSES (fails)
b. All gifts made by will are subject to a requirement that the devisee survive the
testator, unless the testator specifies otherwise.
i. This is why you should always have an alternative disposition of where
the devise should go.
c. Antilapse statutes: substitute another beneficiary for the predeceased devisee.
d. Default rules that apply if the devisee predeceases the testator (these apply if there
are no anti-lapse statutes, but they should never apply because you should say
who takes if the person dies):
i. Specific or general devise: if a specific or general devise lapses, the devise
falls into residuary.
ii. Residuary devise: if the devise of the entire residue lapses, because the
sole residuary devisee or all the residuary devisees predecease the testator,
the heirs of the testator take by intestacy.
1. If a share of the residue lapses, at CL the lapsed residuary share
passes by intestate to the testator’s heirs rather than to the
remaining residuary devisees.
a. This is called no-residue-of-a-residue
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b. In the majority of states, this rule has been overturned
i. UPC 2-604(b) : if the residue is devised to two or
more persons, the share of a residuary devisee that
fails for any reason passes to the other residuary
devisee, or to other residuary devisees in proportion
to the interest of each in the remaining part of the
residue.
iii. Class gift: if the devise is to a class of persons, and one member of the
class predeceases the testator, the surviving members of the class divide
the gift.
iv. Void devise: where a devisee is dead at the time the will is executed, or
the devisee is a dog or cat or some other ineligible taker, the devise is
void.
1. Same rules govern this as govern lapsed devises.
II. Antilapse statutes (apply if allowed by state statutes and the will does not have an
alternative for a lapsed gift):
a. Definition: substitute other beneficiaries (usually issue) for the dead beneficiary if
certain requirements are met
b. It usually provides that if a devisee is of a specified relationship to the testator and
is survived by issue who survive the testator, the issue are substituted for the
predeceased devisee.
c. This applies to a lapsed devise only if the devisee bears the particular relationship
to the testator as specified in the statute.
d. This supercedes the CL rule
e. UPC 2-605 : Antilapse, Deceased Devisee, Class Gifts
i. If a devisee fails to survive the testator and is a grandparent, a descendant
of a grandparent, or a stepchild of either the testator or a donor of a power
of appointment exercised by the testator’s will:
1. A substitute gift is created in the devisee’s surviving descendants.
ii. This applies to beneficiaries who are lineal descendants of a grandparent
who survive 120 hours.
Analysis: 1. CL rule 2. Antilapse statute3. But antilapse doesn’t apply in all situations, so CL rule still applies
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iii. Applies to wills and all nonprobate documents.
f. UPC 2-603(b) - “Words of Survivorship”
i. Such as in a devise to an individual “if he survives me” or in a devise to
“my surviving children” are not, in the absence of additional evidence, a
sufficient indication of an intent contrary to the application of this section.
g. ORC 2107.52
i. This applies to blood relatives (much more broad than UPC)
1. If a devise of real property or a bequest of personal property is
made to a relative of a testator and the relative was dead at the time
the will was made, leaving issues surviving the testator, those issue
shall take by representation.
ii. Applies to wills and trusts
iii. This statute is similar to most states
1. Applies if beneficiary dies before testator or survives less than 120
hours (simultaneous death) or disclaims
2. Beneficiary has to be testator’s blood relative
3. One of those descendants of the deceased has to survive for 120
hours
4. Get rid of no residuary of a residuary
5. Applies to class gifts
III. Class Gifts
a. If a class member predeceases the testator, the surviving members of the class
divide the total gift, including the deceased member’s share
b. The purpose of construing a gift in a will as a class gift is to reach the
consequences intended by testator.
c. Test of whether it is a class gift: whether the testator is “group minded”
d. Beneficiaries described by their individual names, but forming a natural class,
may be deemed a class if the court decides, after admitting extrinsic evidence, that
the testator would want the survivors to divide the property.
e. Dawson v. Yucus—
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i. A class gift is a gift of an aggregate sum to a body of persons uncertain in
number at the time of the gift, to be ascertained at a future time, and who
are all to take in equal or in some other definite proportions, the share of
each being dependent for its amount upon the ultimate number of persons.
ii. To determine if it’s a class gift: look at the language of the will.
iii. In other cases similar to this, courts will go out of their way to find a class
gift in order to avoid intestacy. The purpose was to carry out the intent of
the testator.
f. Almost all states apply their antilapse statutes as class gifts and most statutes
expressly so provide.
g. Cy Pres Doctrine – Court will permit deviation in the administration of terms of
a trust – private or charitable – when compliance would defeat or substantially
impair the accomplishment of the purposes of the trust on account of changed
circumstances not anticipated by the donor.
i. More specifically, if purpose becomes illegal or impracticable, court may
direct donation to another charity. Court looks to settlor’s intention,
instead of letting it last altogether, next best thing.
Changes in Property After Execution of Will
I. ADD CASES
II. Ademption by Extinction
a. Definition: when a will includes a specific devise of an item of property that does
not exist at the time of death.
b. Only applies to specific devises (disposition of a specific item of the testator’s
property)
c. Two theories may be applied:
i. Identity theory (traditional approach): if a specifically devised item is not
in the testator’s estate, the gift is extinguished (subject to limited
exceptions)
ii. Intent theory: if the specifically devised item is not in the testator’s estate,
the beneficiary may still be entitled to the cash value of the item.
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d. Wasserman v. Cohen
i. Courts have long adhered to the rule that when a testator disposes, during
his lifetime, of the object of a specific legacy or devise in his will, that
legacy or devise is held to be adeemed, whatever may have been the intent
or motive of the testator in doing so.
ii. The doctrine seeks to give effect to the testator’s probable intent by
presuming he intended to extinguish a specific gift of property when he
disposed of that property prior to his death.
e. Ademption requires a voluntary action on the part of the testator.
i. In this case, the beneficiary would be entitled to the cash replacement.
f. Ex: what if the property was for sale but hadn’t been sold yet when the testator
died
i. Identity theory: the property is still in the estate, so he can get the proceeds
from the sale
ii. Intent theory: the intent was that the testator was trying to sell it and didn’t
want that person to have the proceeds.
g. Ex: what if testator changes the property into a corporation—still owned at the
time of her death. Is it adeemed?
i. Intent: it was not her intent for the beneficiary to have a corporation
h. Ex: What if it was a C.D. in Chase Bank? It is given to a beneficiary and then
before her death she cashes it in and moves it to another bank?
i. Identity: this is adeemed because it is just a change of form.
i. UPC 2-606 : Nonademption of Specific Devises; Unpaid proceeds of Sale,
Condemnation or Insurance, Sale by Conservator or Agent
i. 1990 UPC abandoned the identity theory and adopted the intent theory,
but creates a presumption in favor of ademption
1. “A specific devisee has a right to specifically devised property in
the testator’s estate at the testator’s death and to any balance of the
purchase price owed by a purchaser at the testator’s death by
reason of the sale of the property…or any real property or tangible
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personal property owed by the testator at death which the testator
acquired as a replacement.”
ii. The party opposing ademption (party claiming that the property shouldn’t
be devised) has the burden of proving that ademption is consistent with the
testator’s intent.
iii. Includes a list of circumstances when there is not ademption
j. ORC 2107.501 : follows CL identity theory
i. One exception: if the piece of property had been sold on an installment
basis and part of those payments had not been paid off, beneficiary is
entitled to the balance of the installment payments.
III. Stock Splits and the Problem of Increase
a. This occurs when 100 stocks (for example) become 300 shares
b. Modern courts follow that, absent a contrary showing of intent, a devisee of stock
is entitled to additional shares received by the testator as a result of the stock split.
IV. Satisfaction of General Pecuniary Bequests
a. Satisfaction applies when a testator makes a transfer to a devisee after executing
the will.
b. If the testator is a parent of the beneficiary and after execution of the will transfers
to the beneficiary property of a similar nature to that given by the will, there is a
rebuttable presumption that the gift is in satisfaction of the gift made by the will.
c. UPC 2-609 : requires that the intention of the testator to adeem by satisfaction
must be shown in writing.
i. This applies when a testator gave property in his lifetime to a person, this
is treated as a satisfaction of a devise in whole or part, but only if the will
provides for the deduction of the gift and it is in writing.
d. ORC 2105.501 : if it is a close family member, it is thought to be an advancement
and taken out of will
i. Under OH law, what to do to have it not be treated as a gift but have it
counted toward inheritance:
1. There must be a contemporaneous writing by the decedent (at the
time the advancement is made) OR
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2. Acknowledge in writing by the heir to be an advancement
V. Abatement
a. Occurs when the estate has insufficient assets to pay debts as well as the devises;
some devises must be abated or reduced
b. Dividing in the following order:
i. Residuary devises are reduced first
ii. General devises
iii. Specific and demonstrative devises are the last to abate and are reduced
pro rata
c. UPC 3-902 : Order of abatement done in the following order:
i. Property not disposed of by the will
ii. Residuary devises
iii. General devises
iv. Specific devises.
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NON-PROBATE TRANSFERS AND PLANNING FOR INCAPACITY
An Introduction to Will Substitutes
I. More money transfers pass under non-probate than wills and testate combined.
a. The purpose for this is to avoid probate.
b. This is the most common way for property to pass.
i. Trusts
ii. Life Insurance
iii. Pension Plans
iv. Joint and survivorship property
v. Pay on death property
vi. Transfer on death deeds
c. Most non-probate transfers are similar to a will in that it is a gratuitous transfer
and there is no change in the individual’s rights in that the non-probate document
is established.
i. Exception: joint and survivorship property
1. There is a change the beneficiary does have rights in the
property.
d. Will substitutes v. Wills
i. Tend to be asset specific
ii. Avoid probate
iii. Will substitute not required to satisfy wills act
e. There are 4 main will substitutes:
i. Life insurance
1. Functionally indistinguishable from a will
ii. Bank, Brokerage and Mutual Fund Accounts
1. These are accounts over which the depositor retains explicit
lifetime dominion while designating beneficiaries to take on his
death.
2. Joint bank account: the owner creates a present interest in his
donee-cotenant. Each cotenant can withdrawal the full amount.
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iii. The Revocable Inter Vivos Trust
1. Either by declaration of trust or by transfer a third-party trustee, the
appropriate trust terms can replicate the incidents of a will. The
owner who retains both the equitable life interest and the power to
alter and revoke the beneficiary designation has used the trust form
to achieve the effect of testation.
Revocable Trusts
I. Introduction
a. This is the most flexible of all will substitutes because the donor can draft both
the dispositive and the administrative provisions precisely to the donor’s liking.
i. Different than a trust in a will:
I. UPC § 2-511 : A will may validly devise property to the trustee
of a trust established or to be established (i) during the
testator’s lifetime by the testator or (ii) at the testator’s death
by the testator’s devise to the trustee.
b. The typical revocable inter vivos trust involves a deed of trust
i. The settlor (creator of the trust), transfers legal title to property to another
person as trustee pursuant to a writing in which the settlor retains the
power to revoke, alter or amend the trust and the right to trust income
during lifetime.
ii. On the settlor’s death, the trust assets are to be distributed to or held in
further trust for other beneficiaries.
c. Revocable declaration of trust: the settlor declares himself trustee for the benefit
of himself during lifetime, with the remainder to pass to others at his death.
d. UTC § 603(a): Settlor has control (power to revoke) and the only person that the
trustee has any obligation to while the trust is revocable is the settlor.
e. UTC § 604 : Person may bring suit to challenge a revocable trust, but only after
the trust becomes irrevocable by reason of the settlor’s death.
f. A trust is a management relation where the trustee manages property for the
benefit of one or more beneficiaries.
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i. The trustee holds legal title to the property and can sell trust property and
replace it with property thought more desirable.
ii. The beneficiaries hold equitable title.
iii. Trustee has fiduciary duties.
iv. The trustee can be one of the beneficiaries of the trust. However, if the
trustee is the sole beneficiary, there is no trust.
g. Difference between trust and wills:
i. Once property is transferred into a trust, there is a transfer of legal
ownership to the trustee.
ii. This is why some rules don’t apply to trusts that apply to rules.
h. If the trust agreement provides a certain way that the trust can be revoked, it must
be followed that way to effectively revoke the trust (In re Estate and Trust of
Pilafas—simply not being able to find the trust when the trust agreement says that
it has to be revoked in writing does not revoke the trustthis is different from the
laws of wills).
i. Examples:
I. If the settlor is his own trustee, and a later wills says that it
revokes the trust.
a. This is like a codicil, so the trust is revoked
II. There is a third-party trustee have to revoke the trust by
notifying the trustee in writing. If the settlor then says that he
revokes the trust in his will
a. This is not effective.
III. There is a third-party trustee; the trust agreement says nothing
about how the trust can be revoked. The settlor then says that
he revokes the trust in his will.
a. This is effective and the trust is revoked.
b. Could be the case even if the trust document was torn into
pieces.
c. The court looks at the intention (if there is no provision as
to how it is going to be revoked).
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IV. There is a third-party trustee and the trust says that it can be
revoked by notifying the trustee in writing. The will then says
that revocation is done.
a. Under UTC § 602(c): it can be revoked through the will;
unless the trust says that it can only be revoked a certain
way.
i. Unless the terms of a trust expressly provide that
the trust is irrevocable, the settlor may revoke or
amend the trust.
i. Creditors can gain assets in a revocable trust upon death. (State Street Bank &
Trust v. Reiser)
i. Caveat: a lot of statutes say that only after probate assets have been taken
can you go to the trusts.
ii. UPC 6-215 : permits the decedent’s creditors to reach P.O.D. bank
accounts and joint bank accounts, if the probate estate is insufficient.
j. Gift (inter vivos trust) v. Will
i. “Present interest test” – No firm test, however, inter vivos means that it
vests during lifetime, thus even if revocable, said to be “vested subject to
defeasance.”
II. Pour Over Wills
a. Example of definition: O sets up a revocable inter vivos trust naming X as trustee.
O transfers to X, as trustee, his stocks and bonds. O then executes a will devising
the residue of his estate to X, as trustee, to hold under the terms of the inter vivos
trust.
b. The pour-over by will of probate assets into an inter vivos trust is a useful device
where O wants to establish an inter vivos trust of some of his assets and wants to
merge after his death his testatmentary estate, insurance proceeds, and other assets
into a single receptacle subject to unified trust administration.
c. There can be non-probate transfers into the trust
d. This is a common estate planning technique:
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i. Individuals use trusts because it is privateit isn’t public record, so
people can’t see what you own
ii. Allows a uniform way of disposing of property
I. Most people know what they want to do with property, so by
using, it all flows into a single document and is uniformly
disposed of.
e. UPC § 2-511 : allows for pour-over trusts.
i. Even if the trust is not funded, it is still effective of going over to the trust.
ii. The statute specifically says that the property held in the trust is non-
testamentary. This keeps it out of probate court.
I. Testamentary trusts (trusts included in the body of a will) are
subject to the probate court and public records.
f. Uniform Testamentary Additions to Trusts Act: permits the trust instrument to be
executed after the will.
i. The trust has to be in writing, but amendments can be in any form that the
trust provides or through the intention of the testator.
g. Like a will, when the trustee and beneficiary divorce, the divorce cuts out the
former married beneficiary and the interest is revoked. (Clymer v. Mayo)
i. Other beneficiaries receive the share that the divorced spouse would have
received.
ii. UPC § 2-804 : provides that divorce revokes dispositions in favor of the
divorced spouse in revocable inter vivos trusts as well as in other will