wills and trusts essay outline
So the son who thought he should inherit the land of the homestead, just not the house sued after buying out his stepmother. Substantial Compliance Doctrine – Langbein: Formalist ( Purposive Formalism in drafting wills = Good.
Ks to Make Wills: Majority: If a party leaves a will that’s not in accord with the K for that will, will will be probated but K law imposes constructive trust would be on the estate Via v Putnam (FL 1995 –p323): Minority view Pretermited wife takes before K Creditors who are 3d Party Beneficiaries of a Mutual Will K not to Revoke the will. Son lost. Ambulatory – because of absolute revocability, the inclusion of someone in a will creates NO legally vested interest until the death of the testator. for A& B) Majority rule: each co-depositor owns what they contribute Person can be personally liable for excess of withdraws over contributions Laches is a defense UPC: bank should ask when acct. If the advanced person goes over his share, if its a loan one can sue him to recover it, if it was not… he keeps the extra. Every state has laws like this, UGMA (p. 133) Form instrument, easy and efficient, given $$ to X as custodian for Y. Sometimes its easier to inherit from a father who disputes paternity than one who openly admits it (but doesn’t get a court order). Haynes v. FNSB of NJ – Old woman moves in with her daughter(1 0f 2), and using her living younger daughter’s attorney to redraft her will leaving more to the living side. Notebook was not in existence when she made the first will. Kid must put $20K in hotchpot in order to share in estate. Quickly memorize the terms, phrases and much more. They ordered the probate court to stay action for 60 days and allow the administrator time to visit the court of chancery seeking a declaration of a constructive trust under the widow.
7. 4. No one would restrict all of their assets in order to pay out $200 a month Brainard – future profits do not constitute a res This is the majority rule, and the minority rule is that as long as there’s intent, there’s a trust even with no res (see Speelman) If a person purports to declare himself trustee of an interest not in existence or if he purports to transfer such an interest to another in trust, no trust arises even when the interest comes into existence in the absence of a manifestation of intention at that time Speelman v. Pascal – Where Pascal had exclusive rights (a license) from the Shaw estate to make a musical version of Pygmalion, court held that Pascal could transfer an enforceable right to percentages to accrue to Pascal on the production of a stage or film version of a musical play based on “Pygmalion.” Here, plaintiff wins a share of the future royalties, which is the opposite outcome from Brainard Beneficiaries (Bs): equitable interests Trust needs one or more Bs to whom trustee owns fiduciary duty They can be unborn or unascertained at trust’s creation However, trust can fail if Bs are too indefinite to be ascertained at time trust goes into effect Clark v. Campbell – Where testator created a trust for the bequest for the benefit of his “friends,” the court assesses whether “friends” is a definite and ascertainable enough class of beneficiaries for this private trust (since refers to “trustees” in the ninth clause, cannot be said to be a gift), Held that the word “friends,” unlike “relations,” has no accepted statutory or other controlling limitations and therefore is not definite or ascertainable enough to qualify this as a private trust. During the life tenant’s lifetime, the real estate cannot by mortgaged by the life tenant. Also it must be signed by the testator, often a date is required. If one is not named, the court will appoint one from among the relatives. Otherwise spouse gets first $100,000 plus ? Pour-Over Will – Will that lists a few bequests and leaves the rest to whatever revocable trust that you operate. This second purpose if inferred from the language of the trust, which states that trustee must provide for the “care, maintenance and welfare” of the lifetime beneficiaries “so that they may live in the style and manner to which they are accustomed, for and during the remainder of their natural lives.” Held: cannot terminate the trust. You do not need to be insane to lack testamentary capacity. The court was playing fairly loose. Person allegedly influencing had opportunity to exercise it. Then it can devolve to the kids. D. Safe Harbor function, gives the testator confidence. Make sure the testator has read & understands it. Insurance says to wife if she survives me, default to do this is the UPC limit of 120 hours. UPC 2-513: Separate writing identifying bequest of tangible property: To be admissible the document may not bestow money, but may be altered by the testator later, and have no other purpose than to affect the will. Escheat.
A will may legally exist and not physically exist Gingiss recommends keeping the will in your office if you aren’t going to file it, except in Wisconsin where you’re not supposed to. (Not all states accept this, or the Hall decision). The presumption can often be overcome by evidence of Independent other Counsel But not always: In Re Will of Moses (MS 1969 –p188) Ct finds 3d party lawyer not independent enough to rebut presumption b/c lawyer didn’t investigate thoroughly LESSON for the Unwary: If ever asked to draft a will which does NOT go to the Natural Objects of Bounty ASK: Do you have such blood relatives Why are you disinheriting them Who is the guy this is all going it And put it in the will Red Flags for Undue influence Challenges: Age differences Class Differences Race Differences Same Sex In Re Kaufman’s Will (NY 1964 –p193): court upholds undue influence verdict where wealthy man left all for younger lover Alternatives for people in position of Moses and Kaufman Trust Higher std. Role: Subordinate. what is a member in good standing); and Appoint 3d party to determine standing, and this saves clarity always. Courts will appoint a guardian if none is listed in the parents’ will. Benefits & burdens analasys? Giving a life beneficiary or remainderman a special POA enables donee to choose whether to pay the GST tax (55%) or federal estate tax (37%-55%). Participation by the beneficiary in procurement of the will 2. Scope of Duty: Some states find it to express or disinherited B’s, others to any potential beneficiary. or 1/3 in non UPC States. Watch out for states that don’t have the UPC. BUT it is rebuttable by clear and convincing evidence. Social cost: esp. Nobody enters or leaves till the ceremony is done. The Duty of the Lawyer To Whom: Simpson v Caliveras (NH 1994 – p59): Court finds Lawyer has duty to Beneficiary despite no privity: K theory: 3d Pty Beneficiary doctrine; or Tort theory: as foreseeably injured party. There is no constitutional right to receive property. (DUH) P 87 Diagram (2 kids dead, 3 grandkids) English System (and SD) – Divide at the kids generation, even if they’re all dead. A trust – the superior means if you have doubts at all. Free to have 2 lines of inheritance TX. There was a life estate to be reserved in the house & homestead, but these were not properly defined. Chapter 5: WILL SUBSTITUTES: NONPROBATE TRANSFERS A. To draft a will for an incompetent is a breach of ethics. (Though list should have equaled symbolic delivery.) As are any of the spouse’s kids from a prior relationship. B. If there are no parents, go to descendants of parents same as the whole, descendants of only one parent are treated as full bloods. Exception is property that passes to the surviving spouse in such a manner as to qualify for the marital deduction is not taxable under the estate tax; a life estate coupled with a general testamentary power in the surviving spouse qualifies for the marital deduction. Partial Restraints on Marriage: Upheld if: Clear (i.e. Judy came to the Dobson office to discuss the will later still, and they showed her the old one (at Minyard’s insistence that she not know of the newer. ) Independent advice (not the usual lawyer) 3. Partial Revocation – Client crosses out part of his will because someone forgot his birthday.
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