This course surveys the law relating to the gratuitous post-mortem transfer of wealth by wills, trusts and intestacy. This page contains a full course description, a schedule of readings, a selection of hyperlinks, and several past exams.
This course will survey the law relating to the gratutitous transfer and inheritance of wealth. The section on Estates will cover the creation, execution, alteration and interpretation of wills. The section on Trusts will cover the creation, revocation and interpretation of trusts and trust instruments of different kinds, including charitable, resulting and constructive trusts. Consideration will be given to future interests and perpetuities. Throughout the course, strong emphasis will be placed on setting the rules relating to both trusts and estates within a broad philosophical and historical framework. Evaluation will be by final examination.
All readings for Fall 1998 are from Jesse Dukeminier & Stanley Johanson, Wills, Trusts and Estates (5th edition, 1995)
August 26 The Idea of Inheritance 1-21
August 27 The Dead Hand 27-36
August 28 The Probate Process 36-51; 61-66
September 2 Intestate Successors 67-73; 80-91
September 3 Transfers to Children 91-119
September 4 Bars to Succession 132-144
September 9 Will Formalities: Mental Capacity/ Undue Influence 147-176
September 10 Fraud 197-204
September 11 Execution of Wills: Attestation 205-218
September 16 Competency of Witnesses and Mistakes in Execution 218-234
September 17 Holographic Wills 248-261
September 18 Revocation of Wills 261-285
September 23 Components of a Will 285-304
September 24 Will Interpretation: Extrinsic Evidence 413-439
September 25 Lapsed Devises 439-462
September 30 Specific and General Devises 462-472
October 1 Restrictions on Disposition 473-483
October 2 Elective Share 483-493; 500-519
October 7 Omitted Issue 550-562
October 8 Will Substitutes: Contracts 304-317
October 9 Will Substitutes 319-344
October 14 Creation of Trusts 563-584
October 15 Creation of Trusts (cont.) 584-603
October 16 Unwritten Trusts 608-618
October 21 Revocable Trusts 344-353; 364-378
October 22 Discretionary Trusts 618-630
October 23 Spendthrift Trusts 631-646
October 28 Modification and Termination of Trusts 646-666
October 29 Charitable Trusts 666-676
October 30 Modification of Charitable Trusts 676-700
November 4 Trust Administration 905-921
November 5 Trust Administration (cont.) 921-949
November 6 Trustee Powers 955-980
November 11 Review of Possessory Interests (no reading)
November 12 Introduction to Future Interests 747-758
November 13 Construction of Future Interests 758-770
November 18 The Rule Against Perpetuities 827-837
November 19 The Fertile Octogenerian and the Unborn Widow 837-846
November 20 The Rule and Class Gifts 852-863
November 25-27 No Class [Thanksgiving break]
December 2 Reforming the Rule 876-903
December 3 Catch-Up and Review
December 4 Catch-Up and Review
The following links provide connections to Internet resources pertinent to the study of estates and trusts:
There are also other Estates and Trusts courses online [courtesy JURIST: The Law Professors' Network]:
- American College of Trust and Estate Counsel
- Estate Planning Links
- Estates and Trusts Law Materials (Legal Information Institute, Cornell)
- Law and Estate Planning Links
- Pennsylvania Estate and Trusts Cybrary
- State Probate Statutes
- Trusts and Estates (Internet Law Library - US House of Representatives)
- Uniform Probate Code
- Wills on the Web
- Trusts and Estates
Sheldon Kurtz, University of Iowa College of Law (n.d.)
- Estates and Trusts
Robert Lawless, University of Missouri-Columbia, School of Law (Winter, 1997)
All exams were administered under the same rules. Each exam was three hours long, open book. In each case students were instructed to answer three of the four questions; all questions were weighted equally.
May, 1995 May, 1994 May, 1993 May, 1992
- "The time has come to discard the multiple formalities of will execution. Supposedly designed to manifest and guarantee testator's intent, those formalities have proved equally capable of frustrating and defeating that. In any event, American law currently gives testators and would-be testators so many ways around the formalities that in some respects they are little more than moldy monuments to tradition." Discuss and evaluate.
- "The contemporary American law of secret and semi-secret trusts is in serious need of reformation." Discuss and evaluate.
- Thomas Jones died March 25, 1995 at the home of his son John Jones, an attorney. For approximately three years prior to his death, Thomas, a widower, had been living with John, John's wife Pamela, and their son Jake, and had come to rely heavily on them. Already in declining health and suffering from occasional lapses of memory, Thomas was declared incompetent in June, 1993; John Jones was appointed as his guardian and continued to serve in that capacity until Thomas's death.
Soon after Thomas's death, John petitioned for a typed document dated November 14, 1993 to be admitted into probate as Thomas's last will and testament. The dispositive portions of the document, which John had drafted for his father, read as follows:I, Thomas Jones, declare this to be my last will and testament. In appreciation of his attention to my needs over the years, I leave to my eldest son John for life my sixty acres of land in Forbes County, that land to pass in fee simple after his death to John's eldest son surviving him, but if that eldest son has a child, the land shall go to that child and his heirs and assigns forever when the child reaches 21.
Provided that he votes Republican in the first Presidential election held after my death, I leave my son Robert the contents of my bank account at the First National Bank. If Robert does not vote Republican, the contents of the bank account are to go to my cousin Sarah Vaughan in the hope that she will use it to further her children's education.
To my youngest son David I leave my prized stamp collection.
The residue of my estate, if any, is to go the First National Bank, to be held in trust with the income going to my alma mater, Gates College, in perpetuity.
The executor of this will is to be my dear and devoted son, John Jones.
The document was signed "Thomas Jones", and was witnessed by three persons, one of whom was John.
Three days after John Jones petitioned for the probate of this document, Thomas's youngest son David petitioned for the probate of a signed, handwritten instrument dated March 17, 1992, which provided as follows:I leave my real property to my son David Jones, $1,000 cash to my son Robert, my stocks and bonds to my cousin Sarah Vaughan, and my stamp collection to my eldest son John. The residue of my estate is to pass directly to Gates College.
David believes that this instrument, which he claims his father had given to him for safekeeping, is in fact Thomas's true will. He suspects that the "will" of Thomas introduced by John is part of a scheme to effectively cut David off with next to nothing. Years before, David and John had had a falling out and were still not on good terms at the time of their father's death.
In March 1993, two years prior to his death, Thomas converted his bank account at the First National Bank to a joint tenancy with his son John in order that John might make withdrawals on Thomas's behalf; as a result of such withdrawals, the account now contains the sum of $104.65. Acting on John's suggestion, and with John handling the transaction in his capacity as Thomas's guardian, Thomas sold his stamp collection in April 1994; the $15,000 raised by the sale was subsequently used to pay some of Thomas's in-home medical costs. At the time of his death, Thomas Jones retained sole and exclusive possession of a variety of stock and bonds (collectively worth some $10,000), sixty acres of land in Forbes County, and a small amount of other personal property.
Sarah Vaughan died in January 1995, leaving a daughter Patricia. Also in January 1995, Gates College officially merged with McKinley University, becoming "Gates and McKinley University."
You are the probate judge considering these two probate petitions. Using the "common law" of wills as outlined in this course, consider the validity of each of these instruments and indicate how (and to whom) Thomas's property will ultimately pass. Would your answer be different if you were told that the UPC applied?
- In 1985, Jane Smith transferred to the Second National Bank and her son Frank Smith (as trustees) stock and bonds then valued at $100,000, the income from which was to go to Jane during her life and, after her death, to Frank for his support and maintenance during his life. The relevant trust instrument further provided that the trust corpus and all accumulated income would be disposed of in equal shares among Frank's children living 21 years after his death. Jane expressly reserved the right to amend or revoke the trust during her lifetime.
Jane Smith died in 1986 without having amended or revoked the trust. Upon Jane's death, the trustees began to pay the entirety of the trust income, which had formerly gone to Jane, to Frank.
In October 1987, after a stock market crisis, the Second National Bank collapsed. Having been designated as trust property on the bank's books, the trust assets were preserved to the trust, but the Bank was no longer able to act as trustee. As the remaining trustee, Frank took sole control of the trust and, following the established practice, continued to pay all the trust income to himself.
Along with many other investors, Frank was alarmed at the sudden weakening of the stock market which had led to the demise of the Second National Bank; he subsequently sold 50% of the trust's securities (average dividend yield: 14.7%) and converted the proceeds into 8.5% CDs (certificates of deposit) at a number of well-known banks, including the Third State Bank, where he kept his own accounts. Just to make sure that the CD certificates were properly protected, he placed them in his safety deposit box. As it turned out, the market value of the sold securities did decline somewhat in the short term, but the securities all continued to pay dividends at their original rates. At the present time, the securities are actually worth more than they were before Frank unloaded them.
In 1993 and 1994 the stock market recovered, and one sunny afternoon Frank decided to re-invest the other 50% of the trust securities in stock of Consolidated Gold Mines. According to reports Frank had read in the highly-respected Stock Market Review, the company had just struck gold in Idaho and had declared a stock dividend representing a 28% return on investment. These reports turned out to be false, however, and within three days the stock of Consolidated lost all its value.
Unhappy with her father's conduct and the declining value of the trust assets, Frank's only child, Marissa, brings an action in which she seeks:
- her father's removal as trustee;
- immediate modification/termination of the trust so as to give Marissa the right to receive the remaining corpus of the trust property now instead of 21 years after her father's (Frank's) death.
Can Marissa succeed? Advise Frank of her chances under the law of trusts as outlined in this course, and be sure to discuss any recent statutory, code or other legal changes that might affect Frank's position, and your answer.
- "The present tendency of some probate judges to pay less heed to the explicit words of wills in favor of some broad construction of 'testator intent' based on a greater range of extrinsic evidence, on a vague desire to be 'fair' to beneficiaries, or on a new willingness to overlook or even correct 'mistakes' in the content or execution of wills threatens to make a mockery of wills law as a whole. Such an abandonment of our traditional loyalty to the literal words of testamentary documents (not to mention the statutes which govern them) is but an invitation to judicial error, judicial arbitrariness and, ultimately, legal chaos. Here it is truly said that 'the road to hell is paved with good intentions.'"
Do you agree or disagree with this quotation? Discuss it in light of cases and issues raised in this course.
- Patricia Wright, 37, a prominent software designer with Interfaces Incorporated, died suddenly on February 17, 1994, leaving Debbie (a 7 year-old step-child from a previous marriage, an ex-husband named George (the father of Debbie, divorced from Patricia since June of 1990), two brothers, Christopher (age 35, married with 2 children) and Robert (age 27, currently living with his heterosexual friend David Smith) plus a mother, Catherine, from whom Patricia had become estranged while still a teenager (Catherine had abused Patricia as a child).
A week after Patricia's death, Robert discovered a handwritten document dated October 16, 1989 inside an envelope labelled "Old Will" which had been placed in one of Patricia's desk drawers at home. The document had apparently been written out in a hurry and some parts were illegible. The legible portions read as follows:I wish my brother Christopher to be appointed as executor of my will . . . I leave my personal effects one-quarter to George, one-quarter to Debbie, one quarter to Christopher and one-quarter to Robert, the last bequest being on condition that Robert terminate his unacceptable homosexual relationship with David Smith. If Robert declines to do this, then I will his quarter of my effects to my mother. . . . My executor is instructed to erase all computer disks in my possession (at home or in my office) at the time of my death. . . . Pat
When Robert read this document he was very distressed. He nonetheless called Christopher to tell him of his find. Christopher said that he would secure all of his sister's computer disks stored at her office so that they could be erased per her instructions; the brothers would then decide how to approach the local probate court.
After collecting all his sister's computer disks from her office in anticipation of having to carry out her final wishes re: their destruction, Christopher decided to quickly go through them. While doing so, he found a disk labelled "Will", the contents of which had last been modified on January 20, 1994. Running the disk on Patricia's office computer, Christopher found himself staring at what looked like a will which began "I Patricia Wright, being of sound mind and body, do solemnly declare the following to be my last will and testament, intending it to supercede, revoke and cancel all other testamentary instruments that have formally been made by me . . .". The substance of the document directed that all of Patricia's property be passed to her supervisor at Interface, Vince Reynolds (with whom, Christopher recalled, Patricia had recently been romantically involved). Patricia's signature plus the signatures of two witnesses appeared at the end of the electronic document, having been either scanned-in or drawn-in using a graphics program compatible with the text-format of the will.
Uncertain as to the appropriate course of action, Christopher and Robert resolve to present both the handwritten document and a printout of the computerized will to the local probate court in order to got a ruling on which, if either, is the appropriate testamentary instrument. You are the probate judge in this case. Interpret each document for its validity and meaning so as to guide Christopher and Robert in their efforts to carry out their sister's final wishes and complete the probate of her estate. If your interpretation would vary according to specific laws in force in particular states, or according to whether the Uniform Probate Code does or does not apply, dicate the interpretive options available and describe how each would affect your ruling this case.
- "The contemporary law of trusts is so severe in many respects that potential trustees are well-advised to think long and hard before undertaking any obligation, and to do so only after having secured for themselves a level of compensation commensurate with the many risks and dangers undertaken."
Do you agree or disagree with this statement? Discuss it in light of the case and statute law surveyed in this course.
- On October 15, 1983, Thomas Smyth, a widower, executed a will in which he divided his assets into three parts. He left all his real estate (with the exception of one 100-acre lot) "to my son Percy Smyth for life, then to my granddaughter Karen Smyth when she reaches the age of 21." The 100-acre lot was passed "to Karen Smyth, but when Karen Smyth dies, to my cousin Frank Muir."
In the same instrument, Thomas Smyth directed that half his personal property (mostly made up of securities) be held in trust, the income from that half being paid to his daughter Rose Fingard for her life, with the proviso that she not alienate or assign it in satisfaction of any claim or judgment; after Rose's death, the property was to be distributed equally "to Rose's children." Thomas mandated that the other half of his personal property also be held in trust, but that the income from that half go to the Democratic Party or, alternatively, "to the University of Pittsburgh if it chooses a female Chancellor."
To cover any undisposed-of (or inadequately disposed-of) property, Thomas concluded his will with a clause that left all his residuary estate "to Frank Muir."
Thomas Smyth died on December 27, 1983. His son, Percy Smyth, died unexpectedly in 1985, when his daughter Karen was only 15 years old. Percy's will passed three-quarters of his real and personal property to his wife Jane, and one-quarter to his sons Miles and John. Karen and Frank were killed together in an automobile accident in 1993. Karen's will passed all of her property to her aunt Rose (Thomas' daughter); Frank, who died intestate, was survived by his wife Priscilla and a daughter Tammy. Rose already had two children when Thomas died in 1983; in 1985 she had one more. The eldest of Rose's children, Beatrice, died unmarried in 1993 at the age of 25; in her will she passed all her property rights to her sister Joan. As of 1994, Rose was still receiving income from her father's trust.
In light of all this information, analyze the various property interests created under Thomas's will and describe their development in light of the changing circumstances of the Smyth family over time. If your analysis would vary according to specific laws in force in particular states, or according to whether the Uniform Probate Code does or does not apply, indicate the interpretive options available and describe how each would affect your ruling this case.
- The Supreme Court's decision in Hodel v. Irving has been interpreted in some quarters as recognizing the existence of a constitutionally-protected right to pass property to successors by descent (inheritance) or devise (will). Should such a right exist? Why, or why not?
- On March 27, 1993, Donna Parsons died intestate at the age of 85. Donna was survived by a brother, Timothy, her husband, Arthur, two children she had had with Arthur (Jane and Vince), and three step-children (Karen, Peter and Josh) that were Arthur's by a previous marriage. A month before her death, Donna had expressed an intention to adopt Karen legally, but Donna had been hospitalized before she had had a chance to act on her intention. Donna was predeceased by a third child (Cecelia) who she had had by Arthur, and a fourth child (Sam), born to her during a previous marriage to William Irving (who is still alive). At the time of Donna's death, two children of Cecelia's (one adopted--Susan--and one natural--James) were living. A second adopted child of Cecelia's-- Christine--also predeceased Donna, leaving a husband (Gary), a son (David) and a daughter (Rose). Two of Sam's children (all natural) were also living (Ernest, Alfred). A third child of Sam's (Kevin) predeceased Donna by two weeks, leaving a wife Betty (who is pregnant) and two living daughters, Beth and Jill.
Presuming that the UPC applies, who takes what proportions of Donna's estate, and why?
- "Courts are still far too conservative in their application of the doctrine of cy pres. Both public policy and the likely attitude of most settlors faced with defeat of their charitable intentions would favor a more liberal approach." Discuss.
- Robert Russel owned a fortune publicly valued at some $550,000,000. In his declining years, Robert repeatedly expressed his wish that his fortune should fall to his only son, Edgar, who in any event was his likely intestate heir. On January 15, 1993, Edgar--who was well aware of his father's intentions and desired to make provisions accordingly--told his own daughter, Grace, that he had spoken with the manager of the First National Bank and, pursuant to that conversation, was passing his inheritance to the Bank to hold it on trust, paying the income from the property to Grace during her life, and then giving the assets outright to the first of Grace's issue to reach 21. On January 16, 1993, Edgar executed a will (duly witnessed and signed) that passed all his non-inherited property to the First National Bank to dispose of according to the terms "of my inter vivos trust".
On March 1, 1993, Robert died intestate, and Edgar succeeded to his father's property by operation of law. At this point, however, Edgar had second thoughts about the original trust he had set up favoring Grace. On March 15, 1993, he went to see his attorney, and immediately after that consultation drew up a document passing his inherited property to the First National Bank on revocable trust to pay the income therefrom to himself for life, then to Grace for life, then to Grace's children for their lives 21 years after the first of those children marries, with the trust assets to be distributed afterwards to the state School Board to finance high school classes on the achievements of the Russel family in American history. Edgar expressly reserved for himself the right to amend, revoke or otherwise alter the trust at any time, as well as the right to pre-approve any of the trustee's actions involving the trust assets. The First National Bank now holds the inherited property according to the trust terms.
On March 20, 1993, Edgar visited his attorney's office to execute a codicil to his will. In the codicil he expressed his wish to have his probate estate pass to the First National Bank to be disposed of according to the terms of the new trust. While in the office, however, Edgar was stricken by a severe attack of angina; he was taken to the hospital without signing the codicil. Edgar has been home for two weeks now; fearing that he might die with his testamentary plans incomplete, he recently went ahead and signed the codicil without consulting further with his attorney.
Grace (who at the moment has one child, aged 2 months) has just learned of the new trust set up by her father, and comes to you for advice. Which one of Edgar's trusts--if either--is good? What, if anything, will happen to the trust assets under either arrangement if Grace dies before her children can succeed to the income (or principal) after her? If Edgar dies tomorrow, how will his will operate?
If your answers to any or all of these questions would vary according to the scheme of laws in force in a particular jurisdiction, indicate what the basic legal options are and how particular options might lead to particular outcomes.
- "The development of new technologies and the decline in society's recourse to -- and skill in -- writing as a medium of expression together mandate a re-evaluation not only of how wills should be made, but also of how written wills should be interpreted." Discuss, considering both the benefits and dangers of change in these areas.
- Clutching a copy of Norman Dacey's best-selling book, How to Avoid Probate, an elderly and rather wealthy client comes into your office and asks you about "living trusts." Explain living trusts to your client, and advise her of the various advantages and disadvantages of leaving property in this way, as opposed to through a will. What, if anything, might you want to know about your client's specific personal and/or financial circumstances before definitively recommending one form of property disposition over the other?
- On January 27, 1992, William Beech, 55, died when his car had a head-on crash with a truck which had moved onto the wrong side of the highway. At the time of the accident, William's 22-year old daughter Elizabeth was at the wheel and William was riding as a passenger; unlike her father, Elizabeth survived the crash, but died a day later in hospital.
William Beech's will, dated October 23, 1989, left his wife Lydia "all my real property plus $100,000 cash." In the same document, he left "my playboy son, Robert," "my car"; to Elizabeth, he left "500 shares of IBM stock." The remainder of the document devised his residuary estate to trustees, ordering that the income from the trust be paid "to my wife for her life, then to Elizabeth for her life; after Elizabeth's death, the corpus of this trust shall be given to the American Cancer Society for the purpose of funding research directed at finding a cure for cancer."
Elizabeth died intestate, leaving a husband, Greg, and an infant son, Roger.
On January 27, 1992 William Beech's estate consisted of real property worth $2,000,000, a blue-chip stock portfolio (which did not include any IBM shares) worth $500,000, and sundry items of personal property. The only liquid capital in the estate was $7,000 in a savings account at the First National Bank.
Lydia, Robert and Greg now come to you, looking for advice. They want to know who will get what under William's will, given the circumstances and terms I have just described. Do any of them have any recourse against the will? Robert in particular wants to know what would happen to the trust assets if the American Cancer Society were to find a cure for cancer either before his mother dies, or at any time thereafter. In responding to these inquiries, be sure to canvass the common law and whatever "Uniform" legislation or state statutes that may theoretically apply to this situation.
- These are the continuing adventures of REMAINDERMAN, the Property superhero! His mission: to find possessory and future interests; to seek out vested and contingent remainders; to boldly convey what no one has conveyed before!
This afternoon, Remainderman has a problem. He has just received a coded message from Headquarters describing a particularly troublesome conveyance. He has 1 hour to decipher the conveyance, and tell Headquarters precisely what it means. Here is Remainderman's description of the conveyance and its surrounding circumstances:
"In an inter vivos conveyance, A passed all her real property 'to B for life, then to the children of B and their heirs and assigns forever when the first of those children reaches 21, but when the first of those same children reaches 50, then to C, her heirs and assigns forever.'
In 1985, when the conveyance was made, B had no children. In 1987, D was born to B. In 1990, B had a second child, E. B died in January, 1992, leaving a will in which she passed all her property to F; E died last week."
The clock is ticking. Is this the end? Has the caped conveyancer finally met his match? Help Remainderman solve the puzzle of the conveyance by identifying the various kinds of interest implicated in the instrument at various times, and by indicating who is going to end up with the property, and on what terms.
How might you have analyzed the conveyance if you had been told that:
- B never had any children; or
- the transfer to B's children had read "then to the children of B who survive her, their heirs and assigns forever"; or
- the transfer to B's children had read "then to the children of B, their heirs and assigns forever"?