Estates and Trusts

testamentary capacity
testamentary intent
formalities of execution

that the document control events at the maker's death, with no rights or powers until that time

only where ambiguous language exists in the document

the testator's mental state; whether the testator understands enough to know the will-making process

the testator must know:
the nature and extent of property
the "natural objects of the testator's bounty"
understand disposition of property

a belief, adhered to against reason, impossible under the circumstances, which leads to an unnatural disposition

extrinsic evidence is always admissible

there are 3 elements:
1) confidential relationship between proponent and testator
2) proponent receives a substantial benefit
3) weakened intellect in the testator

the claim fails if any element fails to be proved

fooling the testator into signing a document purporting to be a will, but including undisclosed provisions

getting the testator to execute the document by misrepresenting the facts

writing
signed by the testator at the end of the document

the name must be subscribed before or after the mark, and 2 witnesses must sign in the presence of the testator

the proxy must sign in the presence of the testator at the express direction of the testator and declare the document as his will in presence of 2 witnesses

an informal will, handwritten by the testator

generally there is strict adherence to statutory requirements

this provision denies gifts to beneficiaries who challenge the will, but are only valid if accompanied by a gift to the potential contestant

to give testamentary effect to document not present at the execution of the will

must exist when will is executed
must be readily identifiable

information outside the will that has independent significance to ownership

an ambiguity apparent from the face of the document

an ambiguity discoverable by considering evidence extrinsic to the document

Where family members (and beneficiaries) have the same name, extrinsic evidence may be used to determine the identities of beneficiaries of the will

a later writing meeting statutory requirements expressly revokes

specific act that physically damages the document

Where Will I executed, Will II executed and Will I revoked by physical destruction, testator dies and Will II is invalid, the presumption arises that the Will I revocation was dependent on validity of Will II.

- must be physical revocation
- dispositions must be essentially same

gifts donor intends to be charged against the recipient's share of donor's intestate estate

Used in determining shares where advancements have occurred

1) value of each advancement is added to total amount available for distribution from the estate and the total divided among the heirs
2) subtract the gift from donee's share of the pot

gifts donor intends to be charged against recipient share of a testate estate that is presumed to only exist from parent to child

a change in the distribution of an estate by a beneficiary refusing to accept share of estate that treats the disclaiming individual as if died before the decedent

gift is specifically identified and is adeemed if lost or missing when property distributed

occurs if document gives away property not available when the document becomes effective

a specific gift fails because the subject matter of the gift is not an estate asset at the time of death

a specific devise transfers free of any outstanding mortgage, which is paid by the residuary estate

where not enough money is available in estate for all bequests, gifts fail in a particular order:

residuary
general
demonstrative and specific

Where the beneficiary dies before the testator, the gift is eliminated

prevents lapse by identifying alternative takers

the right of the spouse to take against the will of a decedent spouse

passing by will or intestacy
income
power to revoke or dispose for benefit
right of survivorship
annunity payments
within year of death and exceeding $3,000

usually take intestate share from residuary estate unless evidence demonstrates testator intended to exclude the individual

a fiduciary relationship between a trustee and the trust beneficiary as a result of the separation of legal and equitable title to property held in trust

the SETTLOR creates or contributes property to the trust
the TRUSTEE receives legal title from the settlor and holds the property in trust
the BENEFICIARY is the person having a present or future interest in trust and holds a power of appointment over the trust property

transfer by written instrument to another during lifetime or by will
a written declaration signed by or on behalf of property owner
written exercise of power of appointment

1) intent to create a trust
2) capacity
3) definite beneficiary
4) duties for the trustee
5) same person is not trustee and beneficiary
6) signed writing or signed mark by another at settlor direction
7) valid trust purpose

"the trustee in its absolute discretion shall deem advisable"

"necessary for the comfortable support of the beneficiary"

terms are determined by context of what the beneficiary "has become accustomed to"

provision that restrains the involuntary and voluntary transfer of beneficiary's interests

creditors are unable to obtain the interest in the trust and cannot force trustee to pay debts from the trust

where the creditor is a child for child support benefits

the last income beneficiary dies, the prescribed number of years is over, or the purposes of the trust are accomplished

beneficiaries may not force the termination of a trust if the trust has not accomplished the "material purpose" of the trust

due to changed circumstances the settlor did not anticipate, the trust purposes will be furthered, defeated, or impaired unless action taken

not required to have definite beneficiary
not subject to Rule Against Perpetuities
intent must be to create a charitable trust

something that benefits the community in general, for instance:
relief of poverty
advancement of religion or education
governmental or municipal purposes

all persons who can feed a class die

when any class member has the right to demand possession of property

the trustee dividing money and distributing to a trust for a class at time after death creates a contingent remainder and the right to possession or enjoyment comes at distribution

the power of an individual to designate who takes property subject to a power or what shares are to be received

the DONOR is the individual who creates the power
a DONEE is the person who gets the power of appointment
the OBJECT or PERMISSIBLE APPOINTEE is the person identified by the donor to receive the property
the APPOINTEE is the recipient of the gift when the power is exercised and must come from permissible appointees
TAKER IN DEFAULT OF APPOINTMENT is specifically identified to take property if the donee does not exercise power

the general power allows the donee to give the property to anyone, including himself or the estate

a specific power limits the donor to giving the property to a particular class of objects

the fiduciary must act solely in furtherance of beneficiaries' interest or the purposes of a charitable trust

where the trustee has fully disclosed the proposed transaction to the beneficiary; the transaction is fair and reasonable; the beneficiary has given informed consent

the fiduciary must prudently maintain the assets of the trust

an absolute duty to diversify exists, unless it would be imprudent under the circumstances

compel trustee to perform
enjoin trustee from committing a breach of the trust
compel trustee to pay money, restore property, or other action
appoint special fiduciary to administer trust
remove trustee