Wills, Trusts, and Estates

Front Matter
	Editorial Advisors
	Title Page
	Copyright
	About Wolters Kluwer Legal & Regulatory U.S.
	Dedication
	Summary of Contents
	Contents
	List of Illustration
	Preface
	Acknowledgments
Chapter 1 Introduction: Freedom of Disposition
	A. The Power to Transmit Property at Death
		Lawrence M. Friedman, Dead Hands: A Social History of Wills, Trusts, and Inheritance Law
		1. Freedom of Disposition and the Dead Hand
			Shapira v. Union National Bank
		2. Justifying Freedom of Disposition
			a. The Donor’s Prerogative
				Adam J. Hirsch & William K.S. Wang, A Qualitative Theory of the Dead Hand
				Daniel B. Kelly, Restricting Testamentary Freedom: Ex Ante Versus Ex Post Justifications
			b. Concentrations of Wealth
				Wojciech Kopczuk, What Do We Know About the Evolution of Top Wealth Shares in the United States?
				Edward N. Wolff, A Century of Wealth in America
			c. Human, Cultural, and Social Capital
				Stephen J. McNamee, The Meritocracy Myth
			d. A Question of Tax Policy?
		3. From Feudalism to a Constitutional Right
		4. Posthumously Created Property Rights
			Shaw Family Archives Ltd. v. CMG Worldwide, Inc.
	B. The Mechanics of Succession
		1. Probate and Nonprobate Property
		2. Probate Terminology
		3. What of Digital Assets?
		4. Probate Administration
			a. Opening Probate and Choice of Law
			b. Common Form and Solemn Form Probate
			c. Formal and Informal Probate
			d. Supervised and Unsupervised Administration
			e. Barring Creditors
			f. Closing the Estate
		5. Can Probate Be Avoided?
	C. Professional Responsibility
		1. Duties to Intended Beneficiaries
			Simpson v. Calivas
		2. Joint Representation
			A. v. B.
Chapter 2 Intestacy: An Estate Plan by Default
	A. An Estate Plan by Default
		1. Why Do So Many People Die Intestate?
		2. The Purpose of Intestacy Statutes
		3. Heirship and the Expectancy of an Heir Apparent
		4. Applicable Law and the Uniform Probate Code
			Uniform Probate Code §§ 2-101, 2-102, 2-103, 2-105
	B. The Structure of Intestate Succession
		1. Surviving Spouse
			a. The Spouse’s Share
			b. Unmarried Cohabiting Partners
			c. The Problem of Simultaneous Death
		2. Descendants
			a. Representation
			b. Representation in Wills and Trusts
		3. Ancestors, Collaterals, and Others
			a. Parents
			b. Other Ancestors and Collaterals
			c. Laughing Heirs
			d. Stepchildren and In-Laws
			e. “Half-Bloods”
			f. Escheat
		4. Disinheritance by Negative Will
	C. Transfers to Children
		1. Adopted Children
			a. Formal Adoption
				Hall v. Vallandingham
			b. Adult Adoption
			c. Adoption and Wills and Trusts
				Minary v. Citizens Fidelity Bank & Trust Co.
			d. Equitable Adoption and De Facto Parentage
				O’Neal v. Wilkes
		2. Posthumous Children
		3. Nonmarital Children
		4. Reproductive Technology and New Forms of Parentage
			a. Posthumously Conceived Children
				Woodward v. Commissioner of Social Security
			b. Posthumously Conceived Children and Wills and Trusts
			c. Surrogacy and Opposite-Sex Married Couples
			d. Assisted Reproduction and Same-Sex Couples
			e. The 2019 Uniform Probate Code
		5. Advancements and Hotchpot
			a. Advancements at Common Law
			b. Hotchpot
			c. Advancements in Modern Law
				Uniform Probate Code § 2-109
		6. Guardianship and Conservatorship of Minors
			a. Guardian of the Person
			b. Property Management Options
	D. Bars to Succession
		1. The Slayer Rule
			In re Estate of Mahoney
			The Unworthy Heir
		2. Disclaimer
			a. From Common Law to Statutory Law
			b. Avoiding Taxes
			c. Avoiding Creditors
			d. Disclaimers to Qualify for Medicaid
Chapter 3 Wills: Formalities and Forms
	A. Execution of Wills
		1. Attested Wills
			a. The Core Formalities
			Uniform Probate Code § 2-502
			b. The Functions of Formalities
			John H. Langbein, Substantial Compliance with the Wills Act
			c. The Strict Compliance Rule
			The Meaning of “Presence”
			“Presence” During the COVID-19 Pandemic
			Matter of Ryan
			The “Signature” Requirement
			Bitetzakis v. Bitetzakis
			d. Interested Witnesses and Purging Statutes
			(1) From Disqualification to Purging
			(2) The Trend Away from Purging
			e. Model Execution Ceremony
			Safeguarding a Will
			f. Ad Hoc Relief from Strict Compliance
			In re Pavlinko’s Estate
			In re Snide
			g. The Substantial Compliance Doctrine
			The Unfulfilled Promise of Substantial Compliance
			From Substantial Compliance to Harmless Error: Australia’s National Experiment
			h. The Harmless Error Rule
			Uniform Probate Code § 2-503
			In re Estate of Hall
			In re Probate of Will and Codicil of Macool
			i. Electronic or Digital Wills
			In re Estate of Horton
		2. Notarized Wills
			Lawrence W. Waggoner, The UPC Authorizes Notarized Wills
		3. Holographic Wills
			a. Discerning Testamentary Intent
			Ashbel G. Gulliver & Catherine J. Tilson, Classification of Gratuitous Transfers
			In re Kimmel’s Estate
			b. Preprinted Will Forms
			In re Estate of Gonzalez
			c. Signature and Handwriting
			(1) Signature
			(2) The Extent of the Testator’s Handwriting
			d. Extrinsic Evidence
			In re Estate of Kuralt
	B. Revocation of Wills
		1. Revocation by Writing or by Physical Act
			Uniform Probate Code § 2-507
			a. Express and Implied Revocatory Writings
			b. Formality in Revocation by Writing or Physical Act
			Thompson v. Royall
			c. Presumption of Physical Act Revocation
			Harrison v. Bird
			Lost Wills and the Presumption of Revocation
			d. Harmless Error in Revocation
			In re Estate of Stoker
			e. Partial Revocation by Physical Act
		2. Dependent Relative Revocation
			LaCroix v. Senecal
			Restatement (Third) of Property: Wills and Other Donative Transfers § 4.3
		3. Revival of Revoked Wills
			Uniform Probate Code § 2-509
		4. Revocation by Operation of Law
			a. Divorce
				Uniform Probate Code § 2-804
			b. Marriage
			c. Birth of Children
	C. Components of a Will
		1. Integration
			In re Estate of Rigsby
		2. Republication by Codicil
		3. Incorporation by Reference
			a. Existing Writings
			Uniform Probate Code § 2-510
			Clark v. Greenhalge
			b. Subsequent Writings and Tangible Personal Property
			Uniform Probate Code § 2-513
		4. Acts of Independent Significance
			Uniform Probate Code § 2-512
	D. Contracts Relating to Wills
		1. Contracts to Make a Will
			Uniform Probate Code § 2-514
		2. Contracts Not to Revoke a Will
			Keith v. Lulofs
Chapter 4 Wills: Capacity and Contests
	A. Capacity to Make a Will
		1. Mental Capacity
			In re Wright’s Estate
			Wilson v. Lane
		2. Insane Delusion
			In re Strittmater’s Estate
			Breeden v. Stone
	B. Undue Influence
		1. What Is Undue Influence?
		2. Undue Influence in the Cases
			In re Estate of Sharis
			Presumptions and Burden Shifting in Undue Influence Cases
			In re Will of Moses
			Lipper v. Weslow
			Bequests to Lawyers and Fiduciary Appointments
		3. Planning for and Avoiding a Will Contest
			a. Warning Signs
			b. Strategies
	C. Duress
		Latham v. Father Divine
		Interference with Inheritance, Restitution and Unjust Enrichment, and Constructive Trust
	D. Fraud
	E. Tortious Interference
		Schilling v. Herrera
Chapter 5 Wills: Construction
	A. Mistaken or Ambiguous Language in Wills
		1. Plain Meaning and No Reformation
			Mahoney v. Grainger
			In re Estate of Cole
		2. Ad Hoc Relief for Mistaken Terms
			Arnheiter v. Arnheiter
			In re Gibbs’ Estate
		3. Openly Reforming Wills for Mistake
			Uniform Probate Code § 2-805
			In re Estate of Duke
	B. Death of Beneficiary Before Death of Testator
		1. Lapsed and Void Devises
			In re Estate of Russell
		2. Antilapse Statutes
			Uniform Probate Code § 2-605
			a. Presumed Intent
			b. Scope
			c. Default Rules
			d. Words of Survivorship
				Ruotolo v. Tietjen
		3. Class Gifts
			a. What Is a Class?
				Restatement (Third) of Property: Wills and Other Donative Transfers §§ 13.1, 13.2
				Dawson v. Yucus
			b. Application of Antilapse Statutes to Class Gifts
		4. Summary Diagram
	C. Changes in Property After Execution of Will
		1. Ademption by Extinction
			In re Estate of Anton
			Uniform Probate Code § 2-606
		2. Stock Splits and the Problem of Increase
		3. Satisfaction of General Pecuniary Bequests
		4. Exoneration of Liens
		5. Abatement
Chapter 6 Trusts: Characteristics and Creation
	A. The Trust in American Law
		1. Origins of the Trust
		2. Sources of Law
		3. Vocabulary, Typology, and Illustrative Uses
		4. Bifurcation of Ownership
		5. A Trust Compared with a Legal Life Estate
			a. Legal Life Estate
			b. Equitable Life Estate — A Trust
		6. Business Trusts
		7. Foreign Trust Law
	B. Creation of a Trust
		1. Intent to Create a Trust
			a. Testamentary Trust
			b. Deed of Trust
				Jimenez v. Lee
			c. Declaration of Trust
				Hebrew University Ass’n v. Nye (1961)
				Hebrew University Ass’n v. Nye (1966)
			2. Trust Property
				Unthank v. Rippstein
			3. Ascertainable Beneficiaries
				a. The Beneficiary Principle
					Clark v. Campbell
				b. Pet and Other Noncharitable Purpose Trusts
					In re Searight’s Estate
			4. A Written Instrument?
				a. Oral Inter Vivos Trusts of Personal Property
					Uniform Trust Code § 407
					In re Estate of Fournier
				b. Secret Testamentary Trusts and the Wills Act
					Olliffe v. Wells
				c. Oral Inter Vivos Trusts of Land and the Statute of Frauds
Chapter 7 Nonprobate Transfers and Planning for Incapacity
	A. The Rise of Nonprobate Succession
		John H. Langbein, Major Reforms of the Property Restatement and the Uniform Probate Code: Reformation, Harmless Error, and Nonprobate Transfers
	B. Revocable Trusts
		1. The Wills Act and a Present Transfer
		2. Abandoning the Present Transfer Fiction
			Uniform Trust Code § 603
			Fulp v. Gilliland
		3. Revoking or Amending a Revocable Trust
			Uniform Trust Code § 602
			Patterson v. Patterson
		4. The Subsidiary Law of Wills
			State Street Bank and Trust Co. v. Reiser
			Clymer v. Mayo
		5. Revocable Trusts in Contemporary Practice
			a. The Pour-Over Will
			b. Deathtime Considerations
			c. Lifetime Considerations
	C. The Other Will Substitutes
		1. Life Insurance
			Cook v. Equitable Life Assurance Society
		2. Pension and Retirement Plans
			a. Tax-Advantaged Saving and Investment
			b. Types of Pension and Retirement Plans
			c. Succession Issues for Pension and Retirement Accounts
				Nunnenman v. Estate of Grubbs
				Egelhoff v. Egelhoff
			3. Pay-on-Death (POD) and Transfer-on-Death (TOD) Contracts
				Uniform Probate Code § 6-101
				Multiple-Party Bank and Brokerage Accounts
				Varela v. Bernachea
			4. Nonprobate Transfer of Real Property
		D. Planning for Incapacity
			1. Property Management
				a. Conservatorship
				b. Revocable Trust
				c. Durable Power of Attorney
					In re Estate of Kurrelmeyer
			2. Health Care
				a. Default Law
				b. Advance Directives
				c. Physician Aid in Dying
			3. Disposition of the Body
				a. Post-Mortem Remains
				b. Organ Donation
Chapter 8 Limits on Freedom of Disposition: Protection of the Spouse and Children
	A. Protection of the Surviving Spouse
		1. The Elective Share of a Separate Property Surviving Spouse
			a. Separate Property or Community Property?
			b. Economic Partnership or Support Obligation?
				Uniform Probate Code Article II, Part 2, General Comment
			c. Unmarried Cohabiting Partners
			d. Variation Across the States
			e. Nonprobate Property
				(1) Judicial Responses
					Sullivan v. Burkin
				(2) Statutory Reform
					In re Estate of Myers
				f. The Uniform Probate Code
				g. Waiver by Premarital or Postnuptial Agreement
					Uniform Probate Code § 2-213
					Reece v. Elliott
				2. Community Property
					a. The Spread of the Community Property System
					b. Management and Disposition of Community Property
				3. Migrating Couples and Multistate Property Holdings
					a. Moving from Separate Property to Community Property
					b. Moving from Community Property to Separate Property
				4. Miscellaneous Additional Rights
					a. Social Security
					b. Pension and Retirement Accounts
					c. Homestead
					d. Personal Property Set-Aside
					e. Family Allowance
					f. Dower and Curtesy
			B. Intentional Omission of a Child
				1. American Law
				2. The Family Maintenance System of the Commonwealth
				Lambeff v. Farmers Co-operative Executors & Trustees Ltd.
			C. Protection Against Unintentional Omission
				1. Spouse Omitted from Premarital Will
					Uniform Probate Code § 2-301
					In re Estate of Prestie
				2. Unintentional Disinheritance of a Child
					Uniform Probate Code § 2-302
					Gray v. Gray
					In re Estate of Jackson
Chapter 9 Trusts: Fiduciary Administration
	A. From Limited Powers to Fiduciary Administration
		1. From Conveyance to Management
			John H. Langbein, Rise of the Management Trust
		2. Trustees’ Powers
		3. Fiduciary Governance
			Robert H. Sitkoff, Trust Law as Fiduciary Governance Plus Asset Partitioning
	B. The Duty of Loyalty
		Hartman v. Hartle
		In re Gleeson’s Will
		In re Rothko
	C. The Duty of Prudence
		1. The Distribution Function
			a. Discretionary Distributions
				Marsman v. Nasca
			b. Sole, Absolute, or Uncontrolled Discretion
			c. Exculpation Clauses
			d. Mandatory Arbitration
		2. The Investment Function
			a. From Legal Lists to the Prudent Investor Rule
				Uniform Prudent Investor Act §§ 1, 2, 3, 4
				Max M. Schanzenbach & Robert H. Sitkoff, The Prudent Investor Rule and Market Risk: An Empirical Analysis
			b. Applying the Prudent Investor Rule
				(1) The Duty to Diversify and Inception Assets
					In re Estate of Janes
					Compensatory Damages for Imprudent Investment
				(2) Powers, Duties, and the Terms of the Trust
			3. The Custodial and Administrative Functions
				a. Duty to Collect and Protect Trust Property
				b. Duty to Earmark Trust Property
				c. Duty Not to Mingle Trust Property with the Trustee’s Own Property
				d. Duty to Keep Adequate Records of Administration
				e. Duty to Bring and Defend Claims
			4. Trustee Selection and Divided Trusteeship
				a. Choosing a Trustee
				b. Delegation by a Trustee
					Uniform Trust Code § 807
				c. Division by a Settlor
					(1) Co-Trustees
					(2) Power of Appointment
					(3) Directed Trusts
				d. Private Trust Company
		D. The Duty of Impartiality
			1. Due Regard and the Terms of the Trust
			2. The Principal and Income Problem
				In re Heller
			E. The Duty to Inform and Account
				Uniform Trust Code § 813
			1. Responding to a Request for Information
				Uniform Trust Code § 105
				Wilson v. Wilson
			2. Affirmative Disclosure
				Allard v. Pacific National Bank
			3. Accountings, Beneficiary Authorization, and Repose
				a. Judicial Accountings
					National Academy of Sciences v. Cambridge Trust Co.
				b. Informal Accountings
				c. Accounting to a Representative Beneficiary
				d. Beneficiary Authorization: Consent or Release
Chapter 10 Trusts: Alienation and Modification
	A. Alienation of the Beneficial Interest
		1. Discretionary Trusts
			a. Pure Discretionary Trust
			b. Support Trust
			c. Discretionary Support Trust
			d. Collapsing the Categories
				Uniform Trust Code § 504
			e. Protective Trusts
		2. Spendthrift Trusts
			Uniform Trust Code §§ 502, 503
			Scheffel v. Krueger
		3. Self-Settled Asset Protection Trusts
			Huber v. Huber
		4. Trusts for the State Supported
			a. Self-Settled Trusts
			b. Trusts Created by Third Parties
	B. Modification and Termination
		1. Consent of the Beneficiaries
			a. English Law
			b. The Claflin Doctrine
				In re Estate of Brown
			c. The UTC and the Restatement (Third) of Trusts
				Uniform Trust Code § 411
			d. Nonjudicial Settlement Agreements
		2. Deviation and Changed Circumstances
			a. Traditional Law
			b. Extension to Dispositive Provisions
				Uniform Trust Code § 412
				In re Riddell
			c. Tax Objectives
		3. Trust Decanting
			Hodges v. Johnson
	C. Trustee Removal
		Uniform Trust Code § 706
		Davis v. U.S. Bank National Association
Chapter 11 Trusts: Charitable Purposes, CY Pres, and Supervision
	A. Charitable Purposes
		Shenandoah Valley National Bank v. Taylor
	B. Cy Pres and Deviation
		1. Cy Pres
			a. Illegal, Impossible, or Impracticable
				In re Neher’s Will
			b. Wasteful
				San Francisco Chronicle: The Buck Trust
		2. Deviation
			Philadelphia Story: The Barnes Foundation
		3. Discriminatory Trusts
	C. Enforcement of Charitable Trusts
		1. Traditional Law
		2. Settlor Standing
			Smithers v. St. Luke’s-Roosevelt Hospital Center
		3. Local Politics
			The Sweetest Place on Earth: Hershey’s Kiss-Off
		4. Persons with a Special Interest in the Trust
		5. Federal Supervision
			Hawaii Journal: The Bishop Estate
Chapter 12 Trusts: Powers of Appointment
	A. Purposes, Terminology, and Types of Powers
		1. Terminology and Relationships
			a. The Parties
			b. Creation
			c. General and Nongeneral Powers
			d. Time and Manner of Exercise
			e. Ownership Equivalence
			f. A Fiduciary Power of Appointment?
		2. Tax Considerations
			a. General and Nongeneral Powers
			b. Flexibility Without Estate Tax Liability
			3. Creditor Rights
		Irwin Union Bank & Trust Co. v. Long
	B. Exercise of a Power of Appointment
		1. Manifestation of Intent
		2. Formal Requirements Imposed by the Donor
			a. The Nature of the Instrument
			b. Specific Reference Requirement
				Uniform Probate Code § 2-704
				Cessac v. Stevens
			3. Permissible Exercise of the Power
				a. Appointment to an Object
					Timmons v. Ingrahm
				b. Appointment in Further Trust
					Brown v. Miller
				c. Creation of a New Power of Appointment
				d. Exclusive and Nonexclusive Powers
				e. Salvage Doctrines: Allocation and Capture
					(1) Allocation
					(2) Capture
				4. Disclaimer, Release, and Contract
		C. Failure to Exercise a Power of Appointment
			1. General Power
				Uniform Powers of Appointment Act § 310
			2. Nongeneral Power
				Uniform Powers of Appointment Act § 311
Chapter 13 Trusts: Construction and Future Interests
	A. Future Interests
		1. Classification
		2. Future Interests in the Transferor
			a. Reversion
			b. Possibility of Reverter
			c. Right of Entry
		3. Future Interests in Transferees
			a. Remainders
				(1) Vested and Contingent Remainders
				(2) Vested Subject to Partial Divestment
				(3) Vested Subject to Divestment or Contingent?
				(4) Remainders and Reversions
			b. Executory Interests
		4. Future Interests Reform
	B. Construction of Trust Instruments
		1. Preference for Vested Interests
			a. Acceleration into Possession
			b. Transferability
				(1) Inter Vivos Transfer
				(2) Transfer at Death
			c. Requiring Survival to Time of Possession
				(1) The Traditional No-Survivorship Rule of Construction
					Tait v. Community First Trust Co.
				(2) Multigenerational Class Gifts and Other Exceptions
					Clobberie’s Case
				(3) The Survivorship-Plus-Antilapse Rule of UPC § 2-707
			2. Gifts to Classes
				a. Gifts of Income
					Dewire v. Haveles
				b. Gifts to Children, Issue, or Descendants
					(1) Gift to Children
					(2) Gift to Issue or Descendants
				c. Gifts to Heirs
					Estate of Woodworth
				d. The Rule of Convenience
					(1) Immediate Gifts
					(2) Postponed Gifts
					(3) Gifts of Specific Sums
Chapter 14 The Rule Against Perpetuities and Trust Duration
	A. The Common Law Rule
		1. History
			a. Predicates to the Rule
			b. The Duke of Norfolk’s Case
			c. Toward Lives in Being Plus 21 Years
		2. The Policy Against Remote Vesting
			a. The Modern Purposes of the Rule
			b. Why “Lives in Being Plus 21 Years”?
			c. The Rule and Trust Duration
		3. A Rule of Logical Proof
			a. Some Life in Being
			b. When the Lives in Being Are Ascertained
		4. What Might Happen and the Fantastical Characters
			a. The Fertile Octogenarian
			b. The Unborn Widow
			c. The Slothful Executor
			d. The Magic Gravel Pit and Other Marvels
	B. Perpetuities Reform
		1. Saving Clauses
		2. Reformation (or Cy Pres)
		3. Wait-and-See
		4. Abolition of the Rule Against Perpetuities
			Robert H. Sitkoff & Max M. Schanzenbach, Jurisdictional Competition for Trust Funds: An Empirical Analysis of Perpetuities and Taxes
			Lawrence W. Waggoner, From Here to Eternity: The Folly of Perpetual Trusts
			Jesse Dukeminier & James E. Krier, The Rise of the Perpetual Trust
		5. The Restatement (Third) of Property
			Restatement (Third) of Property: Wills and Other Donative Transfers § 27.1
	C. Application of the Rule to Class Gifts and Powers of Appointment
		1. Class Gifts
			a. The All-or-Nothing Rule
			b. Exceptions to the All-or-Nothing Rule
				(1) Gifts to Subclasses
				(2) Specific Sum to Each Class Member
			2. Powers of Appointment
				a. General Powers Presently Exercisable
					(1) Validity of Power
					(2) Validity of Exercise
				b. General Testamentary Powers and Nongeneral Powers
					(1) Validity of Power
					(2) Validity of Exercise
				c. The Delaware Tax Trap
		D. Other Durational Limits
			1. The Rule Against Suspension of the Power of Alienation
			2. The Rule Against Accumulations of Income
Chapter 15 Wealth Transfer Taxation
	A. The Federal Gift Tax
		1. Taxable Gifts
			a. Inadequate Consideration in Money’s Worth
			b. Completion
			c. Joint Tenancy
			d. Income Tax Basis
			e. Liability for Gift and Estate Taxes
		2. The Annual Exclusion
		3. The Marital Deduction and Gift Splitting
	B. The Federal Estate Tax
		1. A Thumbnail Sketch
		2. The Gross Estate
			a. The Probate Estate
			b. Joint Tenancy
			c. Annuities and Employee Death Benefits
			d. Life Insurance
			e. Retained Rights or Powers
				Estate of Maxwell v. Commissioner
				Old Colony Trust Co. v. United States
				Family Limited Partnerships
			f. Revocable Transfers
			g. Transfers Within Three Years of Death
			h. Powers of Appointment
				Estate of Vissering v. Commissioner
			3. Deductions
				a. The Marital Deduction
					(1) Requirements to Qualify
					(2) The Nondeductible Terminable Interest Rule
					(3) Exceptions to the Nondeductible Terminable Interest Rule
					(4) Qualified Domestic Trusts
					(5) Tax Planning for Spouses: The Credit Shelter Trust and Portability
				b. The Charitable Deduction
		C. The Generation-Skipping Transfer Tax
			1. The Nature of the Tax
				a. A Taxable Generation-Skipping Transfer
				b. When GST Tax Must Be Paid
			2. Exemption and Exclusions
		D. State Estate and Inheritance Taxes
		E. Income Taxation of Grantor Trusts
Table of Cases
Author Index
Index