Wills & Trust Outline

Professor Wenger
Spring 2016
I. DEFINITIONS:
Will /Last Will Lawful voluntary disposition of assets upon death.
s& Testament Lawful = meets requirements of law.
Voluntary = not coerced.
Will does nothing until the occurrence of death.
Codicil Supplement or an amendment to a will
Can be written or formal
Testator (male) / One who makes a will
Testatrix [transferor or grantor]
(female)
Devise Any form of property passing under a will.
(historically only **There is no longer a distinction as to what type of property
applied to real
property)/
Bequest
(historically only
applied to
personal property
– ie: a boat)/
Legacy
(historically
applied to a gift of
money)
Heirs at Law Those persons designated by statute as being next in line to
inherit
[“family, next of kin, kindred”]
Beneficiary Those persons designated by the will to inherit
[“transferee”]
Issue Lineal descendants of the decedent
[those on the family tree coming down – your children, your great
grandchildren, you great-great grandchildren, etc.]
Orphans court/ Court with authority to hear matters related to decedent's
Sergeant court/ estate with or without a will or trust
Probate court [now more commonly referred to probate court]

II. THE DEAD HAND

i. Conceptual problems
1. Will = says where your property goes when you die, like a K but one
party is dead. Person is not alive to enforce it - but the court is.
 2. US empowers the dead -- they like this idea -- and often enforced it.
● Very dead hand friendly.
3. People can be arbitrary - with some exceptions - the state will enforce it
● Can say want to do something, marry a particular group
● Largely enforced with few questions
 
II. Shapira: Not giving money unless marrying a Jewish; not unconstitutional and
not against public policy; Not restricting marriage in general; if you want the
money, you will marry who I have approved- to protect the religious
community. *Court said this is not about getting a public park or something,
this is getting extra money for doing something, thus it is legal.
i. If this was not a will and he was alive: it would be legal
ii. Here we are asking the government to get involved
1. Asking state to put in racist disinheritance? Maybe not if it is racist
(no case law on this issue.. Unsure of what to do)
● But if it is positively stated, to preserve the community, etc.,
then it is likely to be upheld
2. But what if it is a really small religious community?
● There is still an element of reasonableness
3. What is he knew he was gay?
● Old outline: Court may not uphold this because it would be
contrary to public policy; Do not want to force into marriage
against their sexual orientation
● Class notes: Not sure when we should enforce peoples weird
wishes
4. Class Examples:
● Son Gets the property if:
1. Collect = yes (enforceable)
2. Bank Robber = no (not enforceable)
3. Marry Jewish girl = Yes
4. Marry a bank robber = Maybe no? Not sure
5. Son gets $100 and daughter gets $200 = yes
**But there are certain public policy limits if you want to get the state
involved to enforce the Will.
 
III. Why respect the dead hand?
i. Still look for reasonableness
ii. Government cannot simply take away the land when it is willed in a
different way
iii. Attempts to push limits for creation of property
● Co-opting the state to put your quirky preferences into place
ii. Largely can do this- can have arbitrary preferences
● But not to racial or other prejudices
  
IV. Power of Disposition
i. Questions of equality
ii. changing trends - giant mess
 
V. Constitutionality
i. Freedom to dispose
 
II. Hodel: Division of Native Americans land into smaller and smaller
portions; Congress passes land acts, these tiny fractions will escheat (go
back to the state)
● That is their property; going to respect the rights to their
property at their death
● It is for them to decide what to do with it… to a point
● Class notes: The court decided it was a "taking" and needs just
compensation, court respects the dead hand.
 
III. PROBATE: Probate Property = property that passes under a decedent’s will or by
intestacy 
● Class notes:
1. Non probate property – property passing under an instrument other than
a will. Most property is transferred at death outside of probate
● Examples - joint tenancy property, life insurance, contracts with
payable on death provisions, interests in trust
● Example: A has land, $, and car: land and $ want state/courts to
figure it out; but not the car;
● Land and $ = probated property
1. Through a will
2. Through intestacy
● Car = non-probate
 
● Writing a will -- instructions for the state; how to distribute the
property
 
II. Reasons for choosing non-probate routes = 1) Speed, 2) Expense, or 3)
Convenience
i. Create a trust -- on death instead of going through state, go through
the trustee
ii. Life insurance -- through private insurer
iii. Joint tenancy
● In CA, about 20% of the estates are probated
 
III. Probate provides:
 i. Formal settlement of ownership
ii. And Clear title

 
IV. Can avoid probate for small amounts --> but often going to want an estate
plan with trustee or with a will
5. Non-probate might be bad idea:
a. Property cannot be informally settled
b. Complex property ownership
c. Real property
d. Any likelihood of contesting intestate share claims
 
1. INTESTACY [no will] = a person dies intestate if they die *without* a valid will. §
6400 allows all property not disposed of by a will to pass to decedent’s heirs. This is
the default plan the states use.
● Provisions:
§ 100: Community Property
§ 101: Quasi-community Property
§ 6401: Surviving spouse
§ 6401(a): Community property
§ 6401(b): Quasi-Community Property
§ 6401(c): Separate Property
§ 6402: Property not passing to spouse (7 headed monster)
§ 6404: Escheat
 
1. Property Types:  CA- 3 ways to hold property
a. Community Property – all property acquired during the marriage
b. Quasi--Community Property – property acquired during the marriage
outside of the state
c. Separate Property – property acquired before the marriage /spouse
doesn't own any property
 
2. Spousal Intestacy (includes domestic partnership) [§ 100/101 + 6401] 
a. Community & Quasi Community Property – § 6401 - the intestate share
of the surviving spouse is half the property that belongs to the decedent
under [§ 100/101] (half belongs to surviving spouse, ½ to decedent estate)
● First ask if dead person has a will? (wills are later in the class)
● MEANING --> that when in "instate" the surviving spouse
takes all of the community / quasi community property. The
spouse gets the ½ that was left to the dead person's estate in §
100/101, the property passes to the surviving spouse in § 6401.
However, if the spouses die simultaneously, you don't apply
 6401, you apply 6403 to see if they survive the 120 hours (see
below), if they do not survive that time limit, then go to 6402.
 
● Example:
● Husband and Wife are married and hold a $1000 checking
account as community property. Husband dies intestate. What
happens next?
● A two-step process:
● Applying § 100 (a): One half of the property ($500)
goes to Wife, and the other half ($500) goes to
Husband’s estate.
● Then, applying § 6401 (a): Wife’ intestate share of
Husband’s community property is “the one-half of
the community property that belongs to [Husband]
under § 100.” Husband’s estate’s $500 goes to Wife
as her intestate share.
● EXAM: If NOT married - none of this applies.
 
2. Separate Property - ([§ 6401(c)] spousal share) -- **"Issue" means direct
descendant**
a. Entire estate passes to the surviving spouse = [NO surviving issue,
parents, siblings, or issue of a deceased brother or sister (niece, or
nephew)]
 
2. Half of the estate if the decedent has:
a. Only one child, or
b. Issue of dead child, or
c. Living parents or parent issue or their issue (means your
siblings + or their kids) [includes brother, sister, niece,
nephew]
 
3. One third of the estate where the decedent:
a. Leaves more than one child
b. Leaves one child & the issue of one or more deceased
children
c. Leaves issue of two or more deceased children
● i.e., if you have one or more kids (2 issues) - then the spouse
gets 1/3 of the property
 
3. NOT going to spouse:
a. Seven Headed Monster - [§ 6402] – 6402 tells us who gets what’s left
over of the dead's intestate estate after the surviving spouse has
taken her intestate share of the deceased’s, Community/Quasi-
Community and Separate Property, OR if there is no surviving spouse, it
 tells us how to determine who gets what of the deceased’s entire
intestate estate (and we don’t care about distinguishing between
Community/Quasi-Community and Separate Property), and the
order it passes in (the priority).
● The part of the estate NOT passing to the surviving spouse
goes to: [goes down the list - the first one applies is what happens &
stop the analysis]:
● Issue of the dead person (Kids/Grandkids/great-
grandkids, etc.)
● Dead person's parents
● Dead person's siblings and their issues (Brothers,
sisters, nieces, nephews)
● Grandparents or issue of grandparents (aunts,
uncles, cousins)
● Former step-kids and issues (Predeceased Spouse’s
kids)
● Next of kin (anyone who can show a blood relation to
you)
● Former in-laws and their issues (mother-in-law,
father-in-law, brother-in-law, sister-in-law)
 
● If of equal degree of kinship, survivors take equally. If not,
they take according to § 240.
● EX: If all same degree of kinship [Left: Just 3 children, or just 3
grandchildren], divided equally. If unequal degree of kinship
[Left: 2 children and 1 deceased child’s child (deceased’s
grandchild)] then divided per 240.
 
2. Escheat - [§ 6404] – if there are no takers of the property, the
property escheats to the state
 
iv. Property Distribution
1. Types of Distribution
a. Common Law –- [or called English per stirpes] – divide the property
into as many shares as there are living children of the dead and the
dead's children who have descendants living.
i. Per capita -- count heads and everyone takes an equal
share
ii. Per stirpes -- follow the family tree - by the roots
(Start with $1000 ---> 2 kids [1 dead] + 4
grandkids. $500 to the 1 kid and $125 to each of
the grandkids) 
 
 ii. [§ 240] Modern Law [California] -- [Modern Per Stirpes /generation
skipping] – the dead's estate is divided into shares at the generational
level closest to the dead, where there are living descendants and
provides for representation of any dead's descendent by his or her
descendants.
● Is there a generation that has people alive in it?
● If yes --> divide money equally between everyone in that
generation
● [if 1 of that generation is dead, split the
dead person's share equally between all
their kids. If the dead doesn't have kids,
then that money gets split equally between
those alive.]
● If no --> skip generations that have no one alive and move
to next
 
● Distribution Notes:
1. No issue, then they are not a taker
2. Once find someone to take, their issue does not take
3. Dead has NO children or children have predeceased
--> Then look to generational level closest to decedent
and split the estate equally between the descendants.
(i.e. 3 grandchildren from 2 predeceased children each take
1/3)
4. Per Capita at each Generation – an initial division of
shares is made at the level where one or more
descendants are alive. The shares of the dead persons
on that level are treated as one pot and drop down to
be divided equally among the representatives of the
next generational level.
● Decedent has 3 children - 2 have
predeceased. The living child takes 1/3 and
the other 2/3 drops down to be split equally
between the next generational level. 
 
ii. Simultaneous Death – a person succeeds to the property of the dead only
if, the person survives the dead for an instant of time.
1. Community / Quasi Community property [§ 103] – If a
husband and wife die simultaneously and it can NOT be
established by "clear and convincing evidence" that one spouse
survived the other:
a. ½ of the property shall be distributed as if one spouse
had survived and as if that ½ belonged to the
surviving spouse
 b. The other ½ of the property shall be distributed as if
the other spouse survived and as if that half belonged
to that spouse.
In other words: If a husband and wife die leaving
"Community or Quasi-community property", and it can’t be
established by clear and convincing evidence that one
survived the other, ½ that property is distributed as if the
husband survived the wife, and the other ½ is distributed
as if the wife had survived the husband (103).
 
ii. Simultaneous Death – [§ 220] – When there is “no clear and
convincing evidence” of the order of deaths, the property of
each person shall be administered as if that person survived
the other – others predeceased.
● i.e., can't show order of death that you can establish by
clear and convincing evidence
● (§ 221 – this rule does NOT apply if §§ 103, 6211, 6403
apply)
● Beneficiaries - § 222 = In other words: Where there’s a will
& separate property, if it can’t be established by clear and
convincing evidence that the beneficiary survived the
deceased, then we pretend the deceased survived the
beneficiary (the beneficiary gets skipped)
 
iii. "Intestate" Succession [NO Will, any of the property types] – [§
6403] – it must be established by "clear and convincing
evidence" that a person to take through intestate succession
survived the dead person by 120 hours (5 day), or else the
person who would have gotten everything will have been
deemed to be dead.
● EXCEPTION: This rule does NOT apply if the 120
requirement would result in the property escheating
to the state [the person would be re-qualified -
basically do the intestate process again with the spouse
surviving if no issues - treating the person as if they had
survived 120 days]
In other words: Where there’s no will as to the property, a
person who fails to live 5 days (120 hours), established by
clear and convincing evidence, after the decedent dies is
treated as though he predeceased the deceased (he gets
skipped). This section will not apply if the deceased’s
property would then escheat to the state under 6404 (6403).
 
3. Advancements - [§ 6409] – If a person dies intestate, property given to an
heir by the decedent during their lifetime is treated as an advancement
against that heir’s share if:
 i. [Proof] -- There is a writing indicating that the property was
intended to be given as an advancement. Writing by:
i. The decedent, or
ii. The heir (recipient)
 
2. [Valuation] -- Value of the property advanced is determined at:
[the time the heir gained possession] or [at the time of death of
the decedent], whichever comes first
i. i.e., Time of possession or death of decedent,
whichever is first.
ii. Contemporaneous written valuation is conclusive
 
3. And if the recipient is dead? = By default, not taken into
consideration. 
 
v. Children and Intestacy: There are several provisions applying to children in
regards to intestate succession
1. Definition of a Child [§ 6450]: Who counts as a child for intestate
succession?
i. Natural children [§ 6450(a)]
ii. Adopted children [§ 6450(b)]
The marital status of the natural parents is irrelevant (but see § 6452).
[under common law martial status mattered]
 
ii. Limits on Adoption [§ 6451]: Adoption limits when an adopted child can
inherit from or through his natural parent and when a natural relative can
inherit from or through an adopted child. Without 6451 if a widow
remarried, then that new husband adopted the children, the children would not be
able to inheritfrom or through their mother when she died intestate (Hall v.
Valladingham type cases).
 
1. [§ 6451(a)]: Adopted Child Looking to Inherit Through/From
Natural Parent: Adoption severs the link between the adopted
child and adopted child’s natural parent, & the adopted child cannot
inherit from/through his natural parent(s),
EXCEPTION:
i. The adopted child and natural parent lived together as
parent & child (unless premature death prevented this); AND
ii. Adopted by the spouse of a natural parent, or after death
of natural parents
 
ii. [§ 6451(b)]: Relatives Looking to Inherit Through/From Adopted
Child: In order for a natural relative to inherit through/from an
adopted child after the adoption:
 1. 6451(a) must be met;
2. Even then, in order to inherit through the child, the
adoption must be by a natural parent’s spouse (can’t be
someone else who adopted the child after natural parents’ death);
3. this section won’t apply to whole-blood
brothers/sisters/their issue .
Once adopted, only whole-blood brothers and sisters of the
adopted person, or their issue, may inherit from the adopted
person based on the child parent relationship of natural parents
 
Note: This works mostly works against natural parents and
relatives of natural parents inheriting from the natural parent’s
adopted child.
 
iii. [§ 6451(c)] Prior Adoptive Relationships: provides that a prior
adoptive relationship (an adoption before another adoption) is
considered a natural parent relationship.
 
3. Adult Adoption: Can an adult be adopted? Yes.
● It creates a lot of wrinkles though and there are some important
limitations, especially for policy concerns where the adult
adoption serves to circumvent the will and do violence to the
rule (Minary).
● Allowed in California but not in all states.
● Usually adult adoptions are done to prevent will contests – can
still be contested on grounds of mental capacity or undue
influence.
 
a. California law: CA law allows for adult adoption with limitations:
i. Can’t adopt someone older than you;
ii. Limited to one person a year unless you are adopting
siblings.
iii. You can't adopt someone who your married too
 
b. Irrevocability: You can divorce your spouse, but you can’t un-adopt
someone (Doris Duke case).
 
vi. Parents—Who’s a Parent? These sections deal with who qualifies as a parent,
through/from someone may inherit, for intestate succession.
1. Equitable Adoption—[§ 6454/6455]: This is tightly limited by case law.
“The doctrine of equitable adoption allows a person who was accepted and treated
as a natural/adopted child, and as to whom adoption typically was promised or
contemplated but never performed, to share in inheritance of the foster parents’
property.”
 ● Generally, then, an equitably adopted child can inherit from
parents, but not vice verse (Estate of Ford). Idea of equitable
adoption emerged to undo injustice where a caretaker, say,
lacked authority to effectuate an official adoption (O’neal).
 
● Equitable Adoption in California— [§ 6454]: In order for a person
to inherit through/from a foster/step-parent,
i. They have to have lived with that person throughout
their life, &
ii. That foster/step-parent intended to adopt them and
would have but for some legal barrier (as in O’neal).
● A misunderstanding (thinking there was a legal barrier
where there was not) is not enough; there must be an
actual legal barrier (Estate of Ford).
● Need direct intent to adopt and then something crazy
happened
 
ii. What about [§ 6455]? 6455 only says that the judicial doctrine of
equitable adoption is not affected by 6454. From Estate of Ford we
know we only look to 6454.
 
2. Natural Parents—[§ 6453]: Under 6453 a natural parent is someone who
is presumed to be a parent, someone established as a parent by court-
order or test, and other court actions proving fatherhood.
 
3. Deadbeat Provisions—[§ 6452]: 6452 only applies to children born out of
wedlock. A natural parent/relatives of a natural parent can NOT inherit
from a child born out of wedlock if:
i. The natural parent does NOT acknowledges the child, &
ii. The natural parent left the child without
support/communication for at least 7 consecutive years - with
the intent to abandon the child.
● The failure to provide support or to communicate for the
prescribed period is presumptive evidence of an intent to
abandon.
● Note: If the parent is unable to inherit from the child because of
Deadbeat Provision, estate shall be divided as required by 6402.
 
4. Posthumously conceived children and surrogate : California is mainly
K-based in this regard. Look to the surrogacy K. Not a lot of case law.
No cloning (not testing these issues)
  
2. WILL:
i. BARS = These are acts which will prevent [stop] a person from receiving
under a will or prevent them from successfully admitting their version of a will
revoking an earlier one. Will not valid.
● Notes:
● Why bars?
● Traditional aspect of common law
● Prevent estate from going to unworthy recipients.
● Prevent bad incentives – profit from crime.
● [§ 6104] The execution/revocation of a will (or a part of a will) is
ineffective to the extent the execution/revocation was procured by
duress, menace, fraud, or undue influence.
 
2. BARED BECAUSE OF:
i. Duress [Civil 1569/§ 6104]: Confinement of person, family, or
property, including lawful but harassing confinement
● e.g., I won’t give this exonerating evidence that will free you
from jail if you don’t draft a new will
 
2. Menace [Civil 1570/§ 6104]: Threat of violence to person or
property or duress
● EX: Unless you write this will, I will hit you in the head
 
3. Fraudulent Acts [Civil 1571/§ 6104]: Fraud includes both actual and
constructive fraud .
i. [Civil 1572]: Actual fraud = is with intent to deceive or
induce the person by:
● Misstatement,
● Knowingly saying more than you know,
● Omission, and
● False promise
ii. [Civil 1573]: Constructive fraud = includes
● Breaching duty to mislead in order to
gain an advantage, or
● Any other deceptive acts [catch all].
ii. [Civil 1574]: Actual fraud is always a question of fact
 
Note: Unless there is another reason to strike a provision, the "Will"
is valid absent valid violations of this type of fraud. It is perfectly
legitimate for a decedent to divide an estate unevenly, whether the
division is based on difference like religion, education, affection, or
even mere whimsy.
  
4. Mistake: Mistake can be of:
i. Law or Fact [Civil 1576]; or
ii. An unconscious ignorance of fact; or
iii. Belief in non-existent objects [Civil 1577].
 
5. Murder & Abuse: It makes sense that if you kill someone or abuse
them and you inherit under their will that we want to bar that. It
used to be that if you killed the decedent and copped a reduced plea
below murder that you might still inherit (Mahoney). California
statute fixes that.
● POLICY CLASH: While want to discourage profiting
from crime, we do not want to discourage people from
justifiably killing someone—self-defense or defense of
others.
 
1. Slayer Statute —[§ 250]: If you "feloniously and intentionally
killed" decedent you cannot inherit [by will or intestacy].
Standard: — [§ 254]: “Felonious and intentionally
killed” is satisfied if there’s:
1. A final judgment of a felonious and
intentional killing [criminal conviction];
OR
2. In absence of such , court can determine the
that it was a "felonious/intentional killing"
by a preponderance of the evidence.
● even a misdemeanor charge or acquittal
● The burden of proof is on the party seeking
to establish the killing was
felonious/intentional
 
2. Abuse—[§ 259]: A beneficiary is deemed to have predeceased
decedent (dead) if it is established by "clear and convincing
evidence" that they abused decedent if they: *all 4 must be met*
i. Abuse,
ii. Bad faith,
iii. Reckless/maliciousness/fraud/oppression, and
iv. This impaired the decedent from being able to
manage his own resources/finances (not able to resist
fraud, undue influence)
● think of this like psychologically wearing the
person down
 
6. Undue Influence [Civil 1575 / § 6104]: – coercion – when a person
overcomes the will of a testator (will maker) and convinces them to
do something they would not have normally done.
i. Must establish: 
● That T was susceptible to undue influence
● That the influencer had the motive to unduly
influence T
● That the influencer had the opportunity to influence
T
● That the disposition is the result of the influence
 
2. Taker is Attorney: 
i. Prohibited transferees - [§ 21380] – unless one of the
listed exceptions apply, a donative transfer to any of
the following is invalid:
[can't leave stuff in a will to the following people]
1. The drafter of the will (lawyer) or their
relatives, domestic partners, or roommates
2. The law firm of the drafter, including any
other employees
3. Anyone who has a fiduciary relationship
with the transferor who transcribes the
document and their relatives, domestic
partners, etc.
4. A caretaker of adult dependent and their
relatives, domestic partners, etc. 
 
2. Exceptions - [§ 21382]–  if the attorney is gifted
something under the will, there is a rebuttable
presumption of undue influence, unless
i. The person who drafted the document is related
to, the registered domestic partner of, or
cohabitant with the transferor, or
 
2. The instrument is reviewed by an independent
attorney who 
i. Counsels the client about the nature and
consequences of the intended transfer
ii. Attempts to determine if the transfer is the
result of menace, fraud, duress, or undue
influence, and
iii. Signs an original certificate of independent
review.
 
 3. Notes:
● Weakened state of mind vs not.
● Cases: Courts step in for "inappropriate relationships" that is
based on their view of social relationship, they judge if two
people should have been together, thinking that maybe one
person unduly influenced the other.
● Kauffman
● Mossus case = older woman, younger man,
threw out will because they said taking
advantage of.
● Reid = older woman, younger man, court isn't
sure about the relationship, they think that is an
undue relationship. It is hard to determine what
a normal relationship is
 
 
7. Disclaimer – An heir refuses to take their inheritance [usually for
tax purposes or to keep the property from creditors]
i. Disclaimer allowed – [§ 275] – an heir may disclaim, in whole or
in part, any interest by filing a disclaimer.
 
2. Disclaimer form – [§ 278] – the disclaimer must be in writing
and signed by the dis-claimant. It must also
3. describe: 
i. Identify the creator of the interest.
ii. Describe the interest to be
disclaimed.
iii. State the disclaimer and the extent of
the disclaimer.
 
4. Effect of disclaimer – [§ 282(b)(1)] – a person who disclaims is
treated as though they have predeceased the creator of the
interest - meaning it would pass to the next person in line or
go through intestacy. The disclaimer relates back to the date of the
decedent’s death (heir can avoids creditors, but not the
government -- still have to deal with the IRS).
● Exceptions: Not treated as predeceasing the
creator for determining per stirpes (§ 240)
distribution. 
 
8. Capacity: Concerned with the validity of the will on the ground that
the person was not of sound mind. In general, there is a
presumption that the testator had capacity. Even the weirdest of the
weirdos can validly create wills. You might be bared from taking
under the will because the will is not valid due to the "capacity" of
the will-maker.
i. Mental Capacity - [§ 6100] – a person who is 18 years old
and of sound mind may make a will (can also be done
through conservator).
● Mental State at the time will was signed. If will
gets thrown out, it drops into intestacy.
● EXAMPLE CASE: Wright, soaked fish in
kerosene, flake flowers, jumps out of bushes to
scare the will. None of the stuff given in
evidence has to do with the will, although it is
strange behavior, none of it has to do with the
act of making a will/property being given
away. They upheld the will.
● RULE FROM CASE: “A few isolated acts,
foibles, idiosyncrasies, moral, or mental
irregularities or departures from the normal are
not enough — cannot destroy testamentary
capacity unless they directly bear upon and
have influenced the testamentary act.”
● Worried about whether the judges and their silly
ways of deciding who gets what.
 
2. Basics of Mental Capacity - [§ 6100.5] – a person is not
mentally competent if they can NOT understand:
i. The nature of the testamentary act (Know what a
will is)
ii. The nature and extent of property (know what
your property is)
iii. Relationships with family members whose
interests are affected by the will (don't know
who their family is, old-timers), OR
iv. Suffers from delusions and hallucinations
affects property distributions
**If you meet any one of these, then you don't have the
mental capacity to create a will**
 
3. Presumptions and Protections - [§ 810] – You are not bared
by 6100.5 unless you meet these, too.
i. There is a rebuttable presumption that all
persons have the capacity to make decisions and
to be responsible for those acts or decisions.
● If someone is challenging a will, you
have to show that the person didn't
have capacity
 ii. Can have a mental disorder and still make a will
iii. Based on evidence (more than just a diagnosis)
 
4. [§ 811] How someone lacks capacity -- Incapacity should
be based on evidence of a complete deficit in one or more
of the person’s mental functions and not just on a medical
diagnosis
i. Mental Functions Include:
● Alertness and attention -
consciousness, concentration,
orientation to time, place, person, and
situation.
● Information processing - memory,
ability to understand and
communicate with others, recognition
of familiar objects and persons. 
● Thought processes – hallucinations,
delusions, severely disorganized
thinking 
● Ability to control mood and effect –
pervasive and persistent fear, panic,
anger, depression, etc. 
 
2. Must show:
i. A correlation between deficit (mental
function) and acts in questions, AND
ii. Significant impairment - the person's
ability to understand and appreciate
the consequences of his actions with
regard to the type of act/decision in
question.
 
3. Court considers:
i. Frequency,
ii. Severity, etc.
iii. Diagnosis by itself is not dispositive
 
9. Will contests:
i. Admission to Probate: So what do 8220 and 8226 establish?
● Unless there’s a contest, a will can be proven through
witness
● Either find the witness or signature and you divide
under the will.
 ● Admission to probate is conclusive… unless there’s a
contest, or unless there was no jurisdiction to start
with
● A will may be admitted even if there is a prior will or
distribution. It will not affect property already
distributed
● Sets out time limits: 60 days from knowledge of
will or 120 days from order regarding the estate
(admission of will or intestacy), whichever is later.
 
2. Contests - [§ 8250] – in order for a will to be contested, the
contestant must file an objection to probate with the court and
serve notice on all interested parties.  This is before probate
officially begins, the person finds something wrong with the will and
wants to argue it. If you argue
i. Subscribing Witnesses – [§ 8220] – if there is no will
contest, the will may be proved by:
● Evidence presented by a subscribing
witness, if the evidence shows that the
will was duly executed
● By an affidavit of a subscribing
witness attached to a will or in the
original will by an attestation clause.
● Through deposition if no witness lives
in the county 
 
2. Burden of Proof – [§ 8252]
i. Due execution (signed, witnesses, etc.) -->
Proponents of will have burden
ii. For various invalidity issues (undue
influence,/lack of mental capacity/fraud,
duress/mistake/revocation) --> Contestants of a will
have burden
iii. Order of events: First the court will determine
the validity of a later will that purports to revoke
an earlier will. If the claim of revocation, look at the
validity of the later will.
 
3. Conclusiveness of probate – [§ 8226] – if no one
contests the validity of a will, admission of the will to
probate is conclusive (i.e., final) so you should bring
contest issues before probate.
 
iii. Revocation of Probate - [§ 8270] – a person can petition to
revoke probate of a will 60 days from knowledge of will or 120
 days after it is admitted to probate (admission of will or
intestacy), whichever is later, unless:
1. They are a party to a will contest
2. Had actual notice of will contest in time to have
joined contest 
● Petition must set forth grounds of objection
 
iv. No-Contest Clauses - [§ 21310-21315] – a no contest clause is a
provision in a will that states that a beneficiary under the will
does not take if they contest any provision of the will (i.e. a will
should be sufficiently baited to prevent a will contest). (21310 is
definitions)
● EX: when you don't want your kids fighting over the will
● EX: Will says $100 to brother, $50 to sister, if either
contests they get nothing.
● If someone brings a contest and succeeds - the
will is set aside. If sister brought the claim she
has the burden of proof.
● If the contest fails, but the court believes it is
reasonable - no contest clause not enforced,
sister takes under the will
● The contests fails and court says that it is not
reasonable - no contest clause enforce, and sister
is bared from taking under the will.
 
i. Enforcement – [§ 21311] – a NCC shall only be enforced
against those who directly contests the will without
probably cause (i.e. court finds contests not reasonable.)
1. Actions not considered contests – (unless
directly stated in the NCC)
● Filing a creditors claim
● An action to determine the character,
title, or ownership of property
● A challenge to the validity of a
document (contract, beneficiary
designation, etc.) other than the
document containing the no contest
clause.
 
ii. How it works: 
1. If someone brings a contest and succeeds
= the will is set aside.
2. If the contest fails, but the court believes it
is reasonable = NCC not enforced
 3. The contests fails and court says that it is
not reasonable = NCC enforced
 
ii. Common Law - [§ 21313] – the common law governs
enforcement of a no contest clause to the extent that is not
covered by statute. 
 
3. Strict Construction - [§ 21312]– a no contest clause will be
strictly construed. (i.e., unless court finds reasonable
grounds, the NCC will be upheld)
 
 
ii. WILL BASICS: there are two types of wills: attested and holographic.
● Validity of Will - [§ 6113] – must be a validly attested will or
holographic will
● Extrinsic evidence – [§ 6111.5] – California allows extrinsic evidence
if it is needed to determine whether a document constitutes a will, or
to determine the meaning of a will/a portion of a will if the meaning
is unclear.
● Now, we use extrinsic evidence to determine if there was a will.
Under common law, they threw out wills for everything. In
California, we like this to fix the wills.
 
1. Attested Wills – an attested will is a will that was “attested to” by a
witness. The will must be written, signed, and witnessed.
i. Requirements - [§ 6110] -
1. Must be in writing
2. Must be signed by the testator or someone else under
the testator’s direction & in their presence
● T and witnesses may use name or some “mark”
so long as (1) They intended to authenticate the
will; and (2) Complete the act of authentication
3. The witnesses must acknowledge that they
understand the duty they are undertaking in signing
the testator’s will.
4. Signature must be witnessed by at least 2 witnesses
who are present at the same time or after
acknowledgement of the testator.
● Must be disinterested + present at the
time + understand it is a will
● UNLESS:
1. Substantial Compliance [§ 6110(c)
(2)]: Can still have a valid will with
clear and convincing evidence, so if
 they find something good enough,
that is okay.
i. Witnesses =
1. General Rule = If there is
clear and convincing
evidence that the will is
what the will-maker
wanted, don't have to
follow the witness
requirement
● Burden --> on
proponent of the
will
2. Interested Witnesses = the
witnessing of a will by an
interested witness creates a
rebuttable presumption
that the witness’ interest is
improper
● Improper because
of -- (1) Duress,
(2) menace, (3)
fraud, or (4)
undue influence
● Interested
witnesses create a
presumption of
impropriety.
3. You can take no more than
your intestate share if the
will gets thrown out.
 
2. Problem with Signature = case
law
 
ii. Attestation Clause – a section of the will that states that the will
was duly executed.
o The requirement of due execution can be satisfied
merely by having the witnesses sign below the
testator’s signature as “witnesses.”
 
iii. Presence Requirement – the requirement that the witness sign
in the presence if the testator is satisfied only if the testator is
capable of seeing the witness in the act of signing.
o Exception for blind people – in some states the test is
whether the testator would have been able to see the
 witness sign the document if they had the power of
sight. Other states require a “conscious presence” of
the witnesses.
 
iv. Competency as a Witness – [§ 6112] – generally anyone can be a
competent witness. Witnesses must be “legally competent” to
be a witness (i.e. a child is not a competent witness).
 
v. Unavailable Witnesses – [§ 8221] – if the witnesses to a will are
unavailable and the will on its face complies with all the
requirements under the law of wills, the court may permit proof
of the testator’s handwriting and one of the following
o Proof of handwriting of any subscribing witness
o Evidence of a writing in the will bearing the
signatures of all witnesses or an affidavit of a person
with personal knowledge that the will was duly
executed.
 
vi. Will Reform– [§ 6200/6240 et seq.] – signature + witness -
o Potential concerns [Mistakes]:
o Cases: Pavlinko & Snide - accidently signing the
wrong will. In both cases, the spouses signed the
other will. The court in Pavlinko, threw the will out
because if there was a problem with the signature
requirement of the will. In Snide, the court read the
wills together because they were mutual and
exactly the same, except for the signature.
 
ii. Substantial Compliance -- legal terms for "it's good
enough" the court lefts the will stand. Under 6240, in
California you need a signature + witness. The statute says
if you don't get the witnesses right you can use Substantial
Compliance
● EX: A tries to write an attested will, problem
with witnesses, then you can use substantial
compliance. If the signature is at issue, then you
look at the case law.
● This is better than the common law approach.
 
ii. Holographic Wills – wills that are handwritten and signed by the
testator without the requirement of attestation by witnesses. Letters,
actual will written in handwriting, a tractor fender
o Cases:
 o Kimmel: Just because it is a general letter does not mean it is not
a will. This was a will because there is the intent - "if anything
should happen." Enough though it was signed "father"
 
ii. Gonzalez: Handwritten portion enough?
● Printed parts of a will form can be incorporated into a
holographic will where found the testamentary intent and
with considering all the evidence
● Look for the intent -- did they mean for it to be a will?
 
iii. Kuralt: Wealthy individual, has a family but has a girlfriend as
well; wants her to have the MT property so he does a
holographic will on the side of his other will. Didn't want wife
to find out about girlfriend
● Writing letters about leaving her property are holographic
will
 
2. Writing Requirement – at common law, the entire will must have
been in the testator’s handwriting to be valid.
i. First generation statutes – will must be entirely written,
signed, & dated in the handwriting of the testator (9 states)
 
2. Second generation statutes – the signature and material
provisions of the will must be in the handwriting of the
testator
 
iii.  Third generation statutes (Current) – material
provisions and signature must be in the testator’s
handwriting. Extrinsic evidence is allowed to establish
testamentary intent.  

3. California Requirements – [§ 6111] – signature and material

provisions must be in the testator's handwriting:
i. Material Provisions = Testimony intent can be typed, but
the rest needs to handwritten
1. Will has a typed portion and a handwritten portion.
This is okay.
2. This is a will and something __ and __ then
handwriting in the fill in the blank. In California this
counts, but it is pushing it. If describing the property
and who it is going to.
3. If there is only 1 __ (fill in the blank) probably will not
be upheld.
 
 2. Dates:
i. Holographic will does not necessarily have to have
dates.
ii. If date is uncertain, provisions are invalid to the
extent they conflict with a later will
iii. If the date may be in a period of incompetency, the
will is invalid
 
4. Form wills – [§ 6240 et seq.] –  This is just an example of how a will
should be written, it allows you to fill in the blanks.
● Who should NOT use the form will? complicated ownership,
enough assets to trigger estate tax, trusts, etc.
 
 
3. Revocation - People revoke because: property changes, relationships
between people change (liking someone different in your family or
marrying someone else, etc.), changes in law how property passes. If you
don't validity revoke, will can be probated.
● Must do some act to revoke the will, other than just say it
orally
 
i. Revocation [§ 6120] – a will or any part of it can be revoked by:
1. Writing: A subsequent (2nd) will revokes either
expressly or through inconsistency, OR
● Expressly = by stating that you revoke the
first will by writing in the second will
● Inconsistency = giving the same property
to someone else in your second will
2. Physical Act: Burned, torn, cancelled, obliterated, or
destroy either by testator or someone else at the testator’s
discretion with the intent & purpose of revoking
● Meaning not by accident to be a legal
revocation
● Notes:
▪ There should be some sort of intent requirement
▪ Oral revocations without more are usually not
enough, you need to do something else like write a
new will or burn, tare, etc.
▪ Issues: If the will was burned in a house fire, even
though it hasn't been legally revoked, you can't use
it to be distribute property - try not to leave the will
in your house or keep multiple/secure/known
copies.
 
2. Family Changes - [§ 6122] – unless will expressly provides
otherwise, divorce, dissolution, or annulment revokes
disposition to former spouse of property, powers of
appointment, and nomination as executor, trustee, or guardian.
(Does not apply to legal separations or other family law issues)
i. Ex-spouses are treated as predeceasing the testator
● Does not get rid of former in-laws, step-children, etc.
ii. If revoked only under divorced and then remarried to
same person --> original will can be revived
iii. This is an automatic revocation
 
3. Domestic Partnership - [§ 6122.1] – same laws apply as
marriage but for a domestic partnership
 
iv. Multiple Wills - [§ 6123] – no automatic revival of the original
will, but can have revival if there is evidence of intent to
revive prior will [statement in will is best]
1. Original wills are not revoked by destruction of
codicil (will supplement/amendment to will)
2. If original will destroyed, the codicil does not stand
on its own – cannot have the amendment on its own
3. Lost wills =
1. some courts hold that if will can’t be found,
presumption of revocation;
2. some hold that presumption can be
rebutted by evidence
● EX: “disinherited” husband living
with wife; testator recently referring
to the will
EX:
Will 1 = Blackacre to Sister in 1999
Will 2 = 2005, I revoke will 1, Blackacre to Brother
Will 3 = I revoke will 2
Will 1 is not automatically revived, only revived if there
was intent to revive the first will.
EX:
2001 = BA to S, GA to B
2005 = BA to C, WA to D
This is a partial revocation (the BA part, because
revocation by inconsistency) and the rest is a codicil (since
the other part if amending the first will) this makes the
will, BA to C, WA to D, and GA to B
 
 v. Dependent Relative Revocation (CA adopted this) – if a
testator revokes a will --- then makes a new will but that new
will is determined to be invalid (for whatever reason), it makes
the revocation of the 1st will ineffective. If the court determines
that the revocation of the first was dependent on the writing of
the new will.
● Class Rule: If the court believes that those two actions are
part of a package deal, they might see that the revocation is
dependent on the second action, if the second action does
not work, the court would say the revocation doesn't work.
● Look for some action that was tied to the revocation,
that was meant to be a packaged deal
● In other words: Is the person revoking the first will
just so he could write a new will? If yes, and he
wouldn't have revoked the first will unless he could
make the second will, then the revocation of the first
will is ineffective.
● EX:
2001: BA to Sister
2005: Revoke will by tearing it and make a new will, but
the new will fails for some reason.
Class Rule: If the court believes that those two actions are part of
a package deal, they might see that the revocation is dependent
on the second action, if the second action does not work, the
court would say the revocation doesn't work.
 
iv. Will Components:
1. Integration – all papers present at the time of execution, that are
intended to be part of the will, are integrated into the will.
● Integration cases arise when:
● Pages of the will are not physically connected
and there is no internal coherence
● There is evidence that a staple has been removed
● The type-setting on the will is different on some
pages
● Best way to avoid issues with multi page wills is to have
the client initial each page to avoid fraud and other issues.
 
ii. Republication by Codicil – [amendment to a will] common law
doctrine that allows a testator to “republish” their will.
● In theory, a codicil only applies to a prior validly executed
will.
● Rule: Under the common law, a testator may republish a
will through codicil. This amends a prior (validly
 executed) will. The codicil must satisfy all the
requirements of an attested will or holographic will
● Whenever you have a codicil, it republishes the will -
meaning, the date of the will becomes current
● Ex: Making a 2001 will, then making a 2005 will
adding something. It now becomes a 2005 will

 
iii. Incorporation by Reference – incorporate some other document into
the will by referencing to it in the will.
1. Statute – [§ 6130] – a writing in existence when the will is
executed can be incorporated into a will if the language of
the will manifests this intent and describes the writing
sufficiently to permit identification (snapshot – not a way
to modify will).
2. If the testator wishes to change the incorporated
document, they have to re-execute the will.
 
iv. Acts of Independent Significance – [§ 6131] – tying the will to other
lists or events that can change ($100 to each employee of the
company at my death). Can be documents in existence when will is
executed or after.
● EX: to all of my basketball players (not very specific and
can change)
 
v. Contracts to make a will – [§ 21700] – clear and convincing
evidence that a contract existed.
1. In California you need ONE of these:
1. Contract set out in the will
2. Contract referenced in will, plus extrinsic evidence
3. Signed writing
4. Clear and convincing evidence of agreement (with
beneficiary or third party), OR equitably enforceable (with
beneficiary or third party)
2. Notes:
1. Joint wills won't create a presumption
2. Applies to making/revoking will, or dying intestate
 
iii. WILL CONSTRUCTIONS/INTERPRETATION:
1. Interpretation
1. Ambiguity in will language
● Common Law – follow the common usage of the word / term
and does not allow extrinsic evidence to establish the testator’s
 intent. Four corners of the document only, even if intent was
otherwise.
● You do NOT look at the extrinsic evidence & don't
reform (fix) things. If the will has a problem it gets
thrown out.
● This caused problems.
 
ii. Modern Approach (CA approach) – extrinsic evidence allowed
to show a scrivener’s error. In CA look for intent, you can use
CL (wills of construction, the four corners) + any extrinsic
evidence to provide the intent of the testator.
 
b. Statutes to help interpretation issues
i. Intent of Transferor Controls - [§ 21102] – the intent of the
transferor controls and extrinsic evidence can be brought in to
establish intent. Where intent is unclear, rules of construction
apply.
 
b. After acquired property - [§ 21105] – the will passes all
property the testator owns, including property acquired after
the will was written
● EX: If someone writes a will leaving "all property to X" then
acquires more property a few years later, X also gets the new
property -- i.e., getting everything the will maker owned at the
time he died.  
 
c. Interpretation - [§ 21120] – presumption that all language in a
testamentary instrument has some meaning and that there is no
superfluous language. Also a presumption against intestacy or
failure of the transfer.
 
iv. Document understood as a whole - [§ 21121] – all parts of the
testamentary document are to be construed in relation to each
other to form a consistent whole. Ambiguous sections may be
explained by reference to another part of the will.
● Using other will provisions is permitted
 
v. Grammatical Meaning of Words - [§ 21122] 
● Ordinary grammatical meaning is given to language,
unless a contrary intention is clear
● Meaning that if a will says "house" it means the
actual house, not the motor home
● The rule that technical words follow their technical
meaning is followed, unless
 ● clear intent otherwise, or
● the document was written by the testator who
had no idea what the technical definition meant
 
ii. Lapse = when a beneficiary predeceases the testator (dies before the will
maker). All gifts made by will are subject to a requirement that the devisee
survive the testator, unless the testator specifies otherwise.
● Common Law – varies by type of devise. But basically, if you fail
conditions/die you don't take under the will.
● Specific & General Gifts – drop into residuary estate
● Residuary Devise - distributed according to intestacy, unless
someone is said to collected that portion (if there is more
than 1 person who gets the residual estate, it still goes into
intestacy and not to the other (alive) person)  
● Class gift – divided up among remaining members of the
class (unless anti-lapse)
● Void Devise - if devisee is already dead at time will is
executed, is a dog/cat, or other ineligible take, the devise is
void. The same rules that apply to a lapse devise also
apply to void.
 
ii. Modern Law:  General = You can either fail by dying or failing to
satisfy the condition/meeting the condition
● Failure to survive the Decedent (will maker)- [§ 21109] = If
the transferee does not survive the testator --> they do not take
-- (basically if you don’t survive, you don’t take)
● Must be established by clear and convincing evidence
or the transferee will be treated as though they did
not survive the testator (i.e., not inherit)
 
ii. CA Anti-lapse Statutes – statutes that do not prevent a lapse,
but substitute other beneficiaries for the dead beneficiary if
certain requirements are met. A typical anti-lapse statute
requires that if the devisee was of a certain relationship to the
testator and is survived by issue, the issue are substituted for
the deceased devisee.
● Means --> the issue (kid) of the predeceased takes
instead --
● Unless the predeceased was deceased when will
executed (before will was written) OR if there is a
contingent provision
● Watch out: contingent provisions are if
something happens then another person
gets the property.
 ● EX: if A dies before B, then B gets the
property when I die.
● EX: If X's will says "if A dies before B,
then B gets the property", then A and
B die at the same time, the contingent
provision governs, so B's issue (kids)
would get the property per section
240.
 
i. Disposition in case of Lapse or Death (anti-lapse statute)
- [§ 21110] – if the transferee is dead when instrument is
executed =
● Kid(s) of dead beneficiary take in §240 distribution
analysis [Issue of deceased transferee take in modified per
stirpes distribution]
● Same for class gifts [i.e. issue (kids) of class member
take their share] --> Unless the transferee’s death
occurred before the execution of the instrument and
the fact was known to the transferor 
● then it is distributed to the other class members
per common law - the anti-lapse statute fails
(because there isn't a substitute beneficiary
qualified to take) so it reverts back to common
law rules.
● The issue of the deceased transferee does NOT take
if a different intent is expressed in the will or
another substitute is provided.
 
ii. Failed transfers – [§ 21111] – if transfer fails (dead or other
reason), property is passed as follows: 
● Alternative disposition
● This is a contingent taker - EX:"if X doesn't survive
me, then property to Y"
● Residuary estate -- > passes through intestacy, to
avoid that - it goes to next to kin.
● If no contingent or Anti-Lapse --> goes to the
residuary estate, which gets distributed through
intestacy
● Class gifts – if failed for any reason fails for any
reason, and no alternative disposition is
provided, property passes to other members of
the class pro rata (i.e., in proportion to their other
interest in the residuary gift/future interest). If failed
because of death, passing governed by 21110
 
 iii. Classification of Transfers - [§ 21117]
● Specific gift – specifically identifiable property
● General gift – is a transfer from the general assets of
the transferor that does not give specific property.
● Annuity – a pecuniary gift that is payable periodically
● Residuary gift – catchall provision – what remains after
all specific and general gifts have been given -
“everything else to my sister”
 
iii. Summary:
● No transfer to a dead transferee;
● property goes to contingent or to issue (kid).
● Other failed transfers are passed according to contingent
terms or become part of the residuary estate.
● Failure of part of a class gift for reasons other than death,
results in pro rata distribution among other recipients.
● Failure of a class gift for death, is still governed by 21110.
 
iv. Class Notes:
● Can't take or anti-disposition "BA to S, but if S dies BA to D"
● If you are not a family member or die
● Anti-Lapse
● Share to their issue
● If there was a class gift - anti lapse applies unless deceased
when written and that fact was known was known
● If no anti-lapse = CL
**This is someone who is dead or just can't take. Omitted
spouses/kids are people who are alive and can take
 
iii. Family Protection (estate interpretation): If you omit some family members,
the will doesn't always get distributed as written.
● Omitted Spouses – usually arises when the surviving spouse is not
provided for in a will -- the surviving spouse can “take against the
will” (i.e. take a portion of the estate even though it is not provided for in
the will).
● Common Law Background
● Dower – a widow had a life estate in 1/3 of spouses
property
● Curtsey – (1) the husband did not acquire curtsey
unless children were born of the marriage and (2) the
husband was given a life estate in the entire property
Rationale – to allow the surviving spouse to
provide for children and keep children from
becoming wards of the state. Marriage is a
 partnership and surviving spouse should have a
share of the property.
 
ii. Statutes – a very strong presumption of spousal inheritance 
● Spousal Share [Elective share] – [§ 21610] – other
than as applied to the listed exceptions, if the decedent
fails to provide in any testamentary instrument (not just
a will, applies to trusts) for spouse who married the
decedent AFTER the document was written, the
omitted spouse gets to take a share of the decedent’s
property:
● Share given:
● Half of the community property (this
is the dead spouse's half of the community
property, the alive spouse still gets her
half of the CP. Basically, the alive spouse
will get all the CP)
● Half of the quasi community
property (Same as above)
● Share of separate property that the
spouse would have taken if decedent
had died intestate (cap at ½ of the
separate property) 
● Can either take 1/3 by normal
rules of intestacy or 1/2. Just
can't take the whole thing, even
if no issues.
Note on weird cases: There is a will, two spouses
get divorced. Still same will, wife is still not in
the will. Then get remarried. Under the case law,
because the will predates the second marriage, it
is a pre-marital will. Thus, Heather may claim a
spousal share.
 
ii. Distribution - [§ 21612] where is the spouses share
coming from
● Residuary estate first
● EX: "whatever is left goes to UC"
● Pro rata from other devisees [others in will]
(ratio – 4:1; 2:1; etc.)
● EX: $3000 estate (separate property) - will
says "$2000 to S and $1000 to B" + has
an omitted spouse. So spouse would get
$1500 (half the estate). You take from B
and S shares at the same ratio as it says in
the will. So figure out what the ratio.
 Here, S (2/3) gets $1000, B (1/3) gets
$500 - so their shares are getting
distributed to them pro rata, like they
would have otherwise gotten.
Other:
● Discretion – to avoid interference with a
specific devise
● Uses values at the time of death
 
iii. Exceptions – [§ 21611] – only three recognized
exceptions (nothing else will satisfy the exception – hate
spouse, legally separated, haven’t spoken to each other in
years, suing each other, new life partners, etc.)
● Disinheritance explicitly stated on the face
of document
● EX: "I omit any future spouse"
● Transfer outside of testamentary estate =
other provision for spouse, such as a large
life insurance policy
● Can be proven by extrinsic evidence
--> statements, amounts, etc.
● EX: "I am going to put my brother to will
and you get my life insurance" or just
providing a life insurance for the same
amount.
● Valid waiver -- a spouse can elect to waive
their share of the estate – courts may be
reluctant to apply. (in CA needs 7 days
notice, counsel, etc.) Examples:
● Prenuptial agreement
● Contracts – courts are
increasingly willing to enforce
one sided agreements if
disclosure was adequate.
● Specific waiver
 
iii. Widows Election – instead of taking under the will -- the
surviving spouse can take all of the community property of the
estate in the form of a life estate. The remainder usually goes to
the children or grandchildren.
● EX: Will says "all my CP and all my spouses CP goes to a
life estate and remainder to kids" - spouse has to agree to
give the CP (this is basically a contract)
● Remainder = after the end of the 'spouse who has the life
estate's' life (property rule)
  
2. Children – These are kids that are omitted from the will. Generally,
parents can disinherit children. Children do not have an affirmative
right to inherit.  
i. Rationale – family dynamics change and testator should be
allowed to distribute property as they wish
 
2. Barriers to Disinheritance = contest. Children aren’t as dis-
inheritable as they may seem
 
iii. (Omitted Kids) Pretermitted Children – children not provided
for in a will, usually born after execution of the will; generally
protected under statute.
1. Republication by Codicil – status as pretermitted
child may be disrupted by republication by codicil
● Parent can accidentally destroy pretermitted
child protection by republishing a prior will –
essentially disinherit child.
● EX: 2001 will says "all to B" -- 2003 - child born.
2005 codicil "and.. $10 to sister." This republishes
the will and disinherits the will because then they are
not "pre-omitted" since they will have been born
before the will was created.. Meaning they can't take
under this statute (**causes malpractice! Ask if they
have kids before doing a codicil**)
 
ii. Issue – grandchildren and great-grandchildren not
protected under pretermitted statute. Create class
gifts. They do not get to take under the statute
 
iv. Statutes
1. Child Protection – [§ 21620] – except as provided for
in exceptions, if decedent fails to provide for child
(adopted or born) after execution of all testamentary
instruments, the omitted child receives a share as if
decedent died intestate.
 
ii. Exceptions – [§ 21621]
1. Explicit disinheritance - on the face of the
will/trust (testamentary instrument)
2. Provide for child outside of testamentary
estate
● Implicit exception is that non-
pretermitted children don’t take. 
 3. Gave substantial amount of estate to other
parent of pretermitted child (other parent
will provide for child).
 
iii. Unknown children – [§ 21622] – if the decedent has
children that they do not know about (believed to be
dead or did not know were born), the children will
take a share equal to what they would have received
if the decedent had died intestate. (Mostly for men,
although no gender restriction. Basically treated the
same as known child)
 
4. Distribution of omitted child’s share – [§ 21623]
1. Residuary estate
2. Other gifts pro rata
3. Discretion – specific gifts protected
 
3. Omitted Spouse & Child Examples: these are all omitted spouses and
kids
1. Ex: $300 SP, $100 CP (D's share) -- Will says "All to B." D has a
spouse and 2 kids. How is the estate distributed?
Spouse gets $100 of the CP (all of D's share) -- 1/3 of SP =
$100 [spouse gets $200 total],
child takes $100 of the SP each.
So… brother gets nothing.
2. EX: $300 SP, $100 CP (D's share). Will says "All to B." 1 spouse,
1 living child, and 1 dead child with issue.
Spouse gets $100 CP and $100 SP [$200]
Living child: $100 SP
Grandchild (dead child's issue)
B: $100
*Basically run a fake intestacy. There is no omitted grandchild
statute, so they aren't protected and can't take under the statute.
The statute only allows omitted children and spouses take, so
whatever is left over after they do, then it goes to brother.
 
4. Other Family Stuff -- NOT TEST IN HIS CLASS =)
1. Homestead – [§ 6521] – the probate homestead shall be set apart
for the use of either the surviving spouse or the minor children
 
2. Family Allowances – [§ 6540] – a reasonable allowance may be
granted out of the estate for maintenance for the:
1. Surviving Spouse
2. Minor Children
 3. Dependent physically or mentally handicapped adult
children
 
In the court’s discretion:
1. Other adult children – dependent in whole or part
2. Parents of the decedent – dependent in whole or part
● Family allowance shall only be granted to those
who do not have reasonable maintenance from
other sources
 
3. Property Selection – [§ 6522] – the probate property shall be
selected out of:
1. Community property or quasi community property
2. Property owned in common or out of decedent’s
separate property
3. The property shall not be taken out of property
vested in a third party unless the third party consents.
 
4. Factors Considered – [§ 6523] – in selecting and setting aside
the probate property the court shall consider
1. The needs of the surviving spouse and minor
children,
2. Liens and encumbrances on the property
3. Creditors claims
4. Needs of heirs and devisees of the decedent
5. Intent of the decedent with respect to the estate and
estate plan
 
5. Length of Time – [§ 6524] – the property set aside shall be set
aside only for a period of time: (1) no longer than the life of the
surviving spouse, or (2) beyond a child’s minority if set aside
for a child.
 
vi. Grant or Modification - [§ 6541] - the court may grant or
modify a family allowance on petition.
 
 
4. Miscellaneous Provisions
1. Ademption – when a specific gift no longer belongs to the decedent
(“Boat to daughter” stated in the will, but the boat has been sold).
i. Common Law -
1. Ademption by extinction (identity) = no longer
anything to convey because it has been destroyed,
given away, sold, etc.
 ● EX: Buying/selling lots of Pokémon cards. CL
says oh well, if you don't own it when you die,
the person doesn't get it.
2. Ademption by satisfaction = the court seeks to satisfy
the intent of the transferor
 
2. Specific Gifts - [§ 21133] – the recipient of specific gift has a
right to the property specifically given, and
1. Balance of the purchase price owing from a purchaser
2. Any amount of an unpaid eminent domain award
3. Unpaid fire or casualty insurance proceeds
 
3. Stocks - [§ 21132] – if the transferor executes a document that
gives stocks (securities) at the time of their death, any
additional securities acquired as a result of the stocks named
in the document also pass to the transferee.
This includes:
1. Securities of the same organization – dividends,
stock splits
2. Securities of another organization – merger
3. Securities of same organization from re-
investment
4. Does not include distributions in cash
● If the transferor buys more stock after
execution for the testamentary document,
this stock goes to the estate. Distinguish
accruing more stock from buying more
stock.  
 
2. Lien Exoneration
1. Common Law Rule – when a person inherits property with a
mortgage or lien on it, the property would transfer free of the
mortgage. The mortgage was paid off by the estate. The person
who inherits didn't like this.
 
2. Right of Exoneration - [§ 21131] – specific gifts pass subject to
any mortgage, deed of trust, or lien. - Meaning that the
mortgage passes with the gift. CA does not exonerate on
transfer.
● EX: A general directive “I want my debts paid upon my
death” will not pay off the mortgage or lien on a property.
 
3. Abatement – arises when there are insufficient funds to pay debts
and devises in a will. This is different than the family protection
 1. Common Law Order of Abatement
i. Residuary
ii. General gifts
iii. Specific Gifts
● Problems arise because many people want the
residuary to be the largest ushare and to go to a
specific person.
 
2. Order of abatement - [§ 21402] - determine who to subtract money
from first when the estate has insufficient funds. Abate pro-rata in
each category
1. Property not distributed in the will
2. Residuary gifts
3. General gifts to non-relative
4. General gifts to relatives
5. Specific gifts to non-relative
6. Specific gifts to relatives
EX: Will says "$2000 to neighbor, $2000 to friend, $4000 to
daughter." Estate only has $5000. How does this get distributed.
Go down the list. N gets $500, F gets $500, and D gets $4000.
So the general gifts to non-relatives gets dinged before relatives.
So the relative is more protected. You ding them pro-rata
 
4. Gifts in Anticipation of Death – causa mortis - gifts that are given by
a person when they think they are going to die.
1. Generally - [§ 5701] - Gifts given in anticipation of impending
death are treated as regular gifts except as provided by this
section.
 
2. Definition - [§ 5702] - Gifts made in anticipation of impending
death are made with the intent that the grantor should be able to
revoke if they recover from the illness.
 
iii. Presumptions – [§ 5703] – these types of gifts are presumed to
be gifts given during impending death:
1. A gift given during the giver’s last illness, OR
2. Under circumstances that would impress the giver to
expect a speedy death
 
iv. Revocation of gifts - [§ 5704]:
1. A gift given in anticipation of impending death is revoked
by:
1. The givers recovery from illness or escape from
peril,
 2. The death of the donee before the death of
giver,
 
ii. May be revoked by
1. The giver at any time,
2. The giver’s will if the will expresses an intention
to revoke the gift
 
iii. Generally, a gift given in anticipation of impending death
is not affected by a prior will (unless contrary intention is
clearly stated in the will).
 
d. The gift will not be revoked if good faith delivery has
already occurred, conditional nature was unknown to the
recipient, and consideration was given (quasi-contract)
 
5. Healthcare:
i. Healthcare Instructions - [§ 4670] – an adult that has capacity
can give individual health care instructions, including oral or
written instructions. They may limit the instructions to only
occur when a specific event occurs.
● Don't need a fancy form. You can just write it out,
even while in the hospital. It can also be oral - but
there are capacity problems. Although it creates a
legally binding advanced healthcare, but there are
way too many issues.
● The optimal approach is 4701
 
2. Particular Form Not Required - [§ 4700] – in creating a
healthcare directive, the form provided in § 4701 does not have
to be used in order for the instructions to be valid. An
individual can complete or modify any or all parts of the form.
 
iii. Statutory Healthcare Form - [§ 4701]  - who has the authority
and what is the scope of their authority. Do you want alternate
people (if they don't want to or die before you). Etc. Have
clients fill out the form and go over it with them. Tell them to do
this sooner than later.
 
IV. NON-PROBATE:
1. NON-PROBATE PROPERTY – non-probate transfers are transfers that occur
outside of a will or testamentary document. It is a valid way to pass property but
avoid probate. Does not go through the courts/probate process - this is asset specific
 1. Types of non-probate property - § 5000 - these do not have to comply with
will execution  
1. Insurance
2. Employment contracts
3. Pensions and retirement accounts
4. Promissory notes, bonds, deeds
5. Trusts
6. Agreements regarding payment of debt
7. Mortgages and securities
8. Bank accounts
 
▪ Much of the result may hinge on whether the account is joint or owned in
common (money usually)
● Tenants in common – interest passes to people listed in will
● Joint Tenancy – the other tenants share the property equally. Easy to
pass property, usually between family members.
● Joint ownership requires clear and convincing evidence.
 
II. TRUST: figure out what kind of "trusts" we are in (testamentary, trusts, or inter-vivos)
1. Terminology/Parties
1. Trust = device where the trustee manages property as a fiduciary for one
or more beneficiaries.
2. Settlor/Trustor = The person making the trust
3. Trustee = Party to whom the settlor transfers the trust property; trustee
holds both legal title to trust property and manages property for duration
of trust. A trustee cannot be forced to accept the duty because of fiduciary
responsibilities involved.
● Trustee must have a duty to someone, so beneficiaries are required for
trusts to exist
● Can be a business, law firm, lawyer, family members, etc.
● Trustee issues
i. Can be a beneficiary if there are other beneficiary
ii. Doctrine of merger –both the trustee and the settlor are the
same person - leaving stuff to yourself
● Example - "for A in trust, A as trustee": A is both trustee
and beneficiary. It will merge because A has no duty owed
to anyone but herself.
● Example – “For A to life, then to B, A as trustee OR for
A,B,C and ABC as trustees.” No merger because there is a
duty to someone other than oneself.
iii. What happens if settlor doesn’t name a trustee? Court will
appoint it.
● Common law says that a trust won’t fail for lack of trustee.
The court can also appoint a trustee when a trustee dies or
 withdraws. Court appoint by looking to family members, or
person can submit their names to the court (i.e., lawyers -
this is a court appointed trustee)
2. Beneficiary – have equitable interest in the trust & whom the trustee
owes a fiduciary duty (i.e., person who gets the trust property)
● Beneficiary problem is that beneficiary is a dog (payments designated
to dog’s caretaker). California allows these types of “puppy” trusts,
but not all states do. Successor Beneficiaries are okay - like "to A for
life"(See merger doctrine) -- Can sue the trustee if they aren't doing
their job
3. Inter-vivos Trust – set up during settlor’s life & is officially created when
funded
4. Testamentary Trust – trust is created when the settlor dies -- a trust set up
through a will 
5. Revocable Trust – can be revoked or modified at any time
6. Blind Trust – cannot see what the trustee is doing
 
II. Trust Requirements/Creation: To have a valid trust you need:
III.
1. Settlor must have the intent to create a trust
● Just look to see if there is intent. "wishful language" is not
binding, you don't need any magical language to create a trust.
Key word to make a trust is "for the use and benefit…" (EX: To
B for the use and benefit of S..") - based on case law
● Intent to create the characteristics of a trust; Conveyance of
property for someone else’s benefit; Not merely intent to create
a ‘legal trust’  
2. Trust must be funded
● Means - must have property and you have to specifically say
what you are going to do with the property - you need to make
a "corpus" of trust body
3. Trust must have ascertainable beneficiaries
● Must be ascertainable (knowable) -- in general, cannot leave it
to an animal (but could create a trust for specific purposes)
4. Terms of the trust must be in writing if the trust property includes real
property or if the trust if a testamentary trust (a will)
● If testamentary = must be in writing. If inter-vivos = terms
need to be in writing only if it involves real property
5. Purpose cannot be illegal or against public policy
 
III. CA Statutes for Trust Creation =
1. Common Law – § 15002 – the common law rules, unless modified by
statute
 
 II. Creation of a Trust – § 15200 – a trust can be created by:
1. Declaration by the owner of property that he holds the property
as trustee - Declaration of trust
2. Transfer of property by the owner to another person as trustee
during the owner’s lifetime
3. Testamentary trust -- Transfer property by will or other
instrument taking effect upon the death of the owner
4. Transfer of property to trustee (i.e., through a deed of trust) --
Transfer of the property by the owner to another person as
trustee
5. Exercise of power of appointment to another person as trustee 
6. Enforceable promise.
 
III. Intent - § 15201 – the settlor must manifest an intent for a trust to be
created 
 
4. Property – § 15202 – a trust is created only if there is trust property 
● EX: "R to receive $200 a month for 5 years" - This is not a trust
because there is nothing that purpose - nothing to say
where the money is come from -- Should have said: "I put
$5000 into a trust a trust for R, to be paid at $200 a month for 5
years"
● Property = Land, checking accounts,
● "my future earnings from the published book"
because you know that it will generate something.
● Not Property = Future property or income cannot create a
trust,
● "My future from stocks" (don't know if there will be
future earnings or not.
● "future earnings from the book that I am writing" -
probably no, unless you are a famous author that will be
guaranteed to make money
 
5. Trust Purpose – § 15203 – a trust may be created for any purpose that is
not illegal or against public policy.
 
6. Trusts for General Purpose – § 15204 – a trust for an indefinite or general
purpose may be created and enforced even though it is not limited to
charitable purposes.
● This is a change from the common law
 
7. Beneficiary Designation – § 15205 
● Other than a charitable trust, a trust must have a designated
beneficiary
 ● This requirement can be met:
● A beneficiary or class of beneficiaries that are ascertainable
with reasonable certainty or that is sufficiently described
● EX: can't say to my "friends" that isn't knowable, it
could be anyone - you can't ask who their friends are.
● EX: "members of the 2016 law faculty" you can
identity who those are
● A grant of power to the trustee or some other person to
select the beneficiaries (power of appointment)
● EX: This is "Steven and he gets to pick who my
friends are"
● This over rules the common law on this issue
 
3. California Pet Care Trust = Beneficiary problem is that
beneficiary is a dog (payments designated to dog’s caretaker).
California allows these types of “puppy” trusts, but not all
states do. (In re Searight’s Estate).
● Note: If they put a million dollars it will be
challenged.
 
8. Statute of Frauds – § 15206 – a trust in relation to real property is not
valid unless there is a writing signed by the trustee, settlor, or agent.
● Real property must be in writing - [Same as common law]
 
9. Oral Trusts – § 15207 – an oral trust of personal property may be
evidenced only through clear and convincing evidence. Oral declaration
of the settlor alone is not sufficient.
 
10. Consideration – § 15208 – consideration is not required to create a trust.
A promise to create a trust in the future is enforceable if a valid contract is
formed.
 
11. Subsequent Successors – § 15209 – If a trust provides for one or more
successor beneficiaries a trust is not invalid or merged where  
● The settlor is the sole trustee and beneficiary during the settlor’s
lifetime, or
● There are two or more settlors, one or more who are trustees,
and the beneficial interest in the trust is in one or more of the
settlor’s during their lifetime
In English --> Exception to common law Merger Doctrine -- Trustor
can be trustee and beneficiary as long as life estate only and
remainder beneficiary named after expiration of life estate
● Basically this allows parents to create own trust which then may
go to children upon their death
  
12. Recording – § 15210 – the trust regarding real property may be recorded
in the office of the county recorder in the county where all or a portion of
the real property is located
 
13. Duration – § 15211 – non-charitable corporation or unincorporated society
trusts may be performed by the trustee for only 21 years.
 
iv. General Rules = Common law applies unless statute modifies -- A trust is
usually used in non-probate form (§ 5000) -- meaning this don't follow all the
same rules as wills. Anything considered property may be put into trust (house,
bank account, etc.). If statute says nothing you follow the common law. --- Once
a trust is validly created, the primary issue during the life of the trust is the
extent of each beneficiary’s interest in the trust
1. Beneficiary’s interest = can be either mandatory or discretionary, and it
can be in the principal or income, or both
● Beneficiary’s interest depends on settlor’s intent as expressed in the
terms of the trust
● EXAM - Analyze the extent of a beneficiary's interest of express
language of trust
● Two Types of Trusts: these are types of trust accounts, it becomes a
spendthrift if says the trust can't be transferred
 
1. Mandatory Trusts – If the trustee MUST distribute
income (or sometimes principal) on a regular basis
● Typically according to a fixed schedule set forth
in express terms
● Trustee must distribute the income to the
beneficiary exactly how it requires
● E.g., “Trustee to pay $1000 a month from trust
income to beneficiary on 1st of month.” Or, “On
January 1 of each year Trustee to distribute all
income from prior year to beneficiary.”
 
ii. Discretionary – If the trustee has discretion over when to
distribute the income/how much to distribute,
● Because Trustee owes fiduciary duty for
beneficiaries, the trustee still has a duty to
inquire and a duty to act reasonably and in
good faith in exercising his discretion
● E.g., “Trustee may distribute up to $2000
monthly to beneficiary at Trustee discretion.”
● Ascertainable Standard for Discretionary – if it
is linked to something (beneficiary health,
education, support [room/board]) receipt --
 Trustee will have to check in to make sure
what the B is using the money for what is it
supported to be for  
 
ii. Beneficiary Rights = their property rights are alienable (i.e., able to
transfer) – generally property can be sold, rented out, shared by
beneficiary
● So generally, you can do stuff with your trust and creditors can
go after it. When the Person creating the trust knows that B
might be careless with the money - that is when the Creator
puts in a spendthrift (can't be voluntarily transfer and it can't be
taken by creditors, subject to exceptions) -- Generally courts
honor these spendthrifts, unless an exception [see below]
 
3. Creditors Rights = may have access to trust  -- Creditors stand in the shoes
of the B & can take the mandatory payment. Can't do this for discretionary
payments
a. Mandatory – some right
● EX: $100,000 annually to son
 
2. Discretionary – no right
● Beneficiary also has no right to discretionary trust (EX; income
to son at trustee discretion – son has no right to money)
● Cannot transfer to creditors
 
5. Spendthrifts Trusts – A spendthrift trust is a trust that is created for the benefit
of a person (often unable to control his spending) that gives an independent
trustee full authority to make decisions as to how the trust funds may be spent
for the benefit of the beneficiary. The beneficiaries interest in income under
the trust may not be transferred (either voluntarily or involuntarily) and is
not subject to a money judgment until paid to the beneficiary. Beneficiary
cannot voluntarily alienate the trust -- creditors cannot reach the trust.
 
1. Statues:
a. Spendthrift Income Trust – 15300 – spendthrift trusts will be
respected, unless exception applies (15304 -15307).
● In general, if trust income is subject to spendthrift limits, it
may not be transferred, and is not subject to judgment,
until paid.
● Creditors cannot get paid until the beneficiary gets paid.
 
2. Transfer of Principal – 15301 – the trust will be respected,
unless exception applies. The beneficiaries interest in principal
under the trust may not be transferred and is not subject to a
money judgment until paid to the beneficiary. 
 ● Creditors cannot get paid until the beneficiary gets paid.
● After principal becomes due, the court may make an order
directing the trustee to satisfy a money judgment out of the
principal amount for all or part of the payment owed.
 
2. Exceptions - these allows the court to allow creditors to take from the
trust - it depends on if the trust is a mandatory/discretionary trust. This
allows the creditor to take before it is given to the Beneficiary (if one of these
doesn't apply, then the creditor might be table to take under 15307 after the
B's needs for support/education are met.
 
i. Self settled trust - 15304 – if the settlor is a beneficiary of a trust
created by the settlor, the restraint on transfer is invalid against
transferees or creditors of the settlor 
● Support trust or discretionary trust – a transferee or
creditor can reach the full amount that trustee can reach –
not to exceed proportional contribution made by the settlor
(husband share of joint trust)
● Rationale – self serving way to get rid of creditors
● CA does not play this game.. Will force trusty discretion
 
ii. Family Support – 15305  - child support, alimony,
● Mandatory Trust - the court may, as is equitable and
reasonable under the circumstances, order trustee to
satisfy family obligations out of trust for all or part of the
payments as they become due.
● So a court may order the money to be sent to a
creditor instead of the B

ii. Discretionary trusts – the court may, as is equitable and

reasonable under the circumstances, order any future
payments trustee decides to make to beneficiary to pay
all or part family obligations (gives trustee direction)
● Can say if you choose to exercise discretion to send a
payment to B, Tee will send it to Creditor instead. "If
in the future when you choose to make a payment (to
B), then you make it to the creditor instead"
 
iii. Restitution Judgment – 15305.5 – same as family support but
pay to a crime victim if equitable and reasonable under the
circumstances -- The statute provides that a “money judgment
for damages incurred as a result of conduct for which the
defendant was convicted of a felony” may be satisfied out of
trust property, subject to discretion and the court’s
determination.
 ● Same rules for mandatory and discretionary except
the creditor here is a victim of a crime (the "B" would
be paying restitution to the victim)
● Mandatory - may order payments
● Discretion - may order payments if the Trustee pays
the B (makes a distribution of the trust - i.e., future
payments)
 
iv. Public support debts – 15306 – (these are state creditors, and the
state loves to protect itself) it applies to instances in which any
state statute makes the beneficiary/beneficiary’s spouse/minor
child subject to reimbursement for public support.
● Examples: Medicaid lien - someone without insurance goes
to the hospital, the hospital charges the Medicaid, and the
state puts a lien on you -- you only have a trust..
 
ii. Types: "the court’s decision will be based on what is
“equitable and reasonable under the circumstances of the
particular case." court may order reimbursement to state or
local entity for: 
● Mandatory Trust – all or part of payments as they
become due
● if the beneficiary can compel payment of income
and/or principal, the court may order the
trustee to satisfy or partially satisfy the
obligation from the trust property.
● Discretionary Trust – all or part of future payments
● whether or not the beneficiary can compel
payment of income and/or principal, the court
may order the trustee to satisfy or partially
satisfy the obligation out of any future
payments the trustee makes.
● Beneficiary is the settlor (or spouse/minor child) –
may force payment without regard to trustee
discretion. -- meaning that the court can force the
trustee to make the payment, but instead of it going to
the B, it will go to the creditor (i.e., the state)
● If it’s public support and it’s self-settled or
settled by spouse or child, then the court can
force trustee discretion.
 
iii. Special Needs Exception: does not apply to special needs
trusts (like disabled), unless the beneficiary would be
ineligible for public support in the first place.
 ● Does not apply to the severely handicapped,
unless they have so much money that they
should have not have applied for public support
services
● EXAM: he will explicitly state if you are meeting
these elements or not.
 
v. Support in Excess Amount – 15307 – any amount in excess of
amount needed for education or support of the beneficiary that
has been paid by the trustee can be applied to satisfy judgment
against beneficiary
● Ones the money goes into the account and he has
more than for support/health/education - all the
creditors scramble to get it. All other creditors have
to wait for money to be distributed, then can seek
what is in excess of education and support.
● Creates Hierarchy of Creditors  of who gets paid First
● Public Support Debts
● Family Support /Felony Restitution
● Everyone else -- then like a bankruptcy
proceeding  
 
iii. Limitations – 15306.5 
● An order directing a trustee to pay shall not exceed 25% of the
payment that would otherwise be made (or 25% of aggregate
amount of multiple judgments)
● An order may not require trustee to pay amount necessary for
beneficiary support
● Support judgments have priority over other judgments
● Nothing in this section affects or limits trustees discretion under
a discretionary trust  
 
vi. Modification & Termination
● General:
● If slight changes – modification
▪ All beneficiaries have to consent and an unforeseen change
in circumstances must materially frustrate settlor’s intent
▪ Common Law = More protective of settlor’s intent and
strictly applies requirements
▪ Modern = favors beneficiaries and takes a broader
interpretation
 
ii. If total distribution – termination
▪ Default rule is that a trust is revocable
 ▪ Revoking is the easiest way to modify or terminate a trust
▪ Revoked by:
● Compliance with the instrument
● Unless otherwise specified in the instrument, by a signed
writing delivered to trustee
● If expressly permitted in the instrument, by an attorney in
fact operating under a power of attorney
 
ii. Revocable Trusts VS. Irrevocable Trusts =
● Common Law  = If the settlor and all beneficiaries agree, irrevocable
trusts can be modified or terminated
● Trustee’s consent is not necessary to end the trust
● Claflin Approach – look to material purpose of the settlor -
modification or termination must not go against general
purpose of the trust (US approach)
 
ii. Types of Trusts 
● Revocable Trusts – settlor has power to end trust
● Doesn't own a duty to the beneficiary and can freely revoke
● Irrevocable – settlor does not have power to end the trust
● If the settlor is dead, it becomes irrevocable unless the trust
names someone to have the power to revoke it.
● Testamentary trusts are irrevocable
 
iii. Statutes:  
● Default Rule – § 15400 – a trust is revocable in California
(minority rule – most states default to irrevocability).
● Settlor must be domiciled in this state when trust is
created, trust must be executed in this state, or specify that
California law governs. 
 
ii. Revocation Methods – 15401- a trust revocable by the settlor
may be revoked in whole or in part by: 
● Compliance with any method of revocation in the
document
● Do what the document says
● Unless otherwise specified, by a signed writing by settlor
delivered to trustee during the settlor’s lifetime.
● If expressly permitted in instrument by an attorney in fact
operating under power of attorney
 
iii. Modification – 15402 – if the trust is revocable, it can also be
modified (through revocation procedure)
 ● Unless the document expressly says otherwise - if it is revocable
then it can also be modified
 
iv. Beneficiary Consent – 15403 = A class of beneficiaries of an
irrevocable trust may compel modification / termination,
unless it would go against the material provisions of the trust. If it
would go against a material purpose, the court will weigh the
interests.
● Spendthrift – a court does not have power to modify
spendthrift trust.
● Even with consent of all beneficiaries, a trustee can NOT
modify a testamentary spendthrift trust
● Notes: All B's can compel to modify/terminate if it does not
against material purpose of the trust. If it does, the court weights
the interests involved.
 
v. Beneficiary and Settlor Consent – 15404 
vi.
● All consent - if settlor and all beneficiaries agree, then trust
can be modified / terminated.
● They can compel modification/termination -- this
issue comes up mostly with irrevocable trusts because
if it was revocable the settlor can just do it.
 
ii. Not all consent - Court can compel consent by non-
consenting beneficiary so long as the non-consenting
Beneficiaries interest is not substantially impaired.
● Notes: If settlor + some B's agree, they can compel if
the other B's are not substantially impaired.
● If no settlor agreement.. Then you don't get to do
anything.
 
3. Next of kin – if trust is left to next of kin or heirs, the court
can limit trust consent to people likely to take under the
trust.
 
vi. Capacity – 15405 - consent by an incapacitated (minor /
disabled / unborn) person can be given through guardian ad
litem
 
vii. Fertility Rebuttable – 15406 – in determining class of
beneficiaries whose consent is necessary to modify or terminate
a trust, the presumption of fertility is rebuttable.
 
viii. Termination – 15407 – a trust terminates when: 
 1. Term expires;
2. Purpose fulfilled;
3. Illegal;
4. Impossible
5. Revoked
 
ix. Termination due to trust size – 15408 - if the fair market value
of the trust is so low in comparison to cost of administration, the
court can, in its own discretion, modify / terminate / appoint a
new trustee. (This includes spendthrift trusts) 
● If the principal of the trust is under $40,000 trustee can
terminate the trust
 
x. Changed Circumstances – 15409 – If there is something that is
not known/anticipated by the settlor, or would defeat or
substantially impair purposes of the trust, the court can modify
or terminate the trust.
● In other words: If unanticipated circumstances would lead
to impairment of trust purpose, the court may modify the
trust. 
● Similar to Riddle case
 
xi. Combining Similar Trusts – 15411 – two trusts that are similar
can be combined by petitioning the court as long as it is
consistent with the trusts purpose and interests of the
beneficiaries.
 
xii. Dividing Trusts – 15412 – a trust may be divided into two or
more trusts as long as it will not defeat or substantially impair
the trust purpose or interests of the beneficiaries.
 
xiii. Duties for Revocable Trusts – 15800 – if a revocable trust,
unless otherwise specified, duty of trustee is owed to person
with power of revocation.
● Keep in mind - Revocation is a type of termination but not
all terminations are revocations. 
 
 
3.  TRUSTEE DUTIES:
i. Two prongs Summary:
1. Duty of Loyalty – the trustee must administer the trust solely in the
interest of the beneficiaries
2. Duty of Prudence – trustee is held to an objective standard of care in
administering the trust
  
2. DUTY OF LOYALTY: -- Fiduciary Duty – needed to protect beneficiary from
fraud; prevents the trustee from having an economic interest in the trust;
separation between ownership and control = fiduciary duty
i. General Rule: the trustee must administer the trust solely in the
interest of the beneficiaries
● Limitations
i. Innocent Purchasers
ii. Good faith reasonableness not a defense
iii. Co-trustees can be held liable for the actions of
other co-trustees -- No way to shield from liability
except for trust document. (Rothco) 
● Co-trustee is personally liable because the co-
trustee didn't exercise reasonable care to make
sure that he wasn't do anything bad. They have
to keep each other in check.
● Trustee should either be informed or resign.
(not knowing is not a defense)
 
2. Inherent Powers of a Trustee 
i. Common Law – none – powers arise from instrument
 
3. Statute 
i. Duty of trustee - § 16000 – duty to administer according to trust
instrument and trust law in beneficiary’s best interest.
 
2. Administration - § 16002 – the trustee has a duty of loyalty to
administer the trust solely in the interest of the beneficiaries.
● Not a violation if administering two trusts to sell,
exchange, or participate in the sale or exchange
property between them if:
1. Fair and reasonable in effect
2. Both beneficiaries get all the material facts about
the exchange that the trustee knows or should
know 
 
3. Impartiality for Multiple Beneficiaries – § 16003 – a trustee of
trust with two or more beneficiaries has a duty to deal
impartially with the beneficiaries and in investing and
managing the trust property
 
4.  Self dealing – § 16004 – MOST IMPORTANT THING  
i. A trustee has a duty not to use or deal with trust property
for personal profit;
ii. A trustee cannot transact where interest is adverse for
beneficiary;
iii. The trustee cannot use property for purpose unconnected
with the trust;
 iv. Cannot enforce claim against trust property if acquired
after or contemplating trustee appointment; may (court
discretion) recover good faith claim or as court approves
v. A transaction between the trustee and a beneficiary,
where trustee obtains an advantage from the beneficiary
is a presumed violation of trustee’s fiduciary duties. (P's
don't have to prove anything, you (the defendant) has to fight
the presumption)
● This is a presumption, may be rebutted
● Does not apply to regular hiring or
compensation of the trustee.  
 
5. Adverse Trusts – § 16005 – a trustee may not knowingly be
trustee for trusts with adverse interests, must eliminate conflict
or resign if conflict discovered
 
6. Enforcement of Claims - § 16010 & 16011 – a trustee must take
reasonable steps to enforce claims and defend actions as to trust
property
● Depending on the circumstances, it might not be
reasonable to enforce a claim in view of the likelihood of
recovery and the cost of the suit and enforcement. 
 
7. Delegation – § 16012  
i. Trustee may not delegate personal duties of the trustee
ii. May not delegate entire trustee duty,
iii. Trustee must supervise any delegates
 
8. Co-trustees – § 16013 – if there is more than one trustee, each
trustee has a duty to:
i. Participate in the administration of the trust
ii. Take reasonable steps to prevent co-trustee from
committing a breach of trust or compel a co-trustee to
redress a breach of trust 
 
3. DUTY OF PRUDENCE: – trustee must act with objective standard of
reasonable care in dealing with trust property; what a reasonable person
would do with their property.
i. History – came into effect in early 18th Century for investment in
stocks. Early formulations of duty of prudence was to invest into
safe investments rather than speculative investments – not to lose
corpus/principal. 
1. Prudent Man Rule – limits the trustees ability to invest in
certain stocks
 
2. Critique – beneficiary makes less money in safe stocks; higher
return in riskier stocks. Can lose investment to inflation. 
 
2. Model – Uniform Prudent Investor Act – not sole focus on default;
takes a more sophisticated approach. (California is)
i. § 16047
1. Trustee shall invest and manage trust assets as a
prudent investor would, by considering the purposes,
terms, distribution requirements, and other
circumstances of the trust. In satisfying this standard,
the trustee shall exercise reasonable care, skill, and
caution
 
2. Trustees investment and management decisions
respecting individual assets and courses of action
must be evaluated not in isolation, but in the context
of the trust portfolio as a whole and as a part of an
overall investment strategy having risk and return
objectives reasonably suited to the trust
 
3. Among circumstances that are appropriate to
consider in investing and managing trust and
following to the extent relevant to the trust or its
beneficiaries; [conditions listed; risk of return,
liquidity, tax and so on]
● Asks all the questions you should ask about
a trust
 
2. Diversification (James - kodak film company p.628) – stocks
dropping and trustees getting into trouble. Uniform Act
does not require diversification, but is a factor considered.
Not always a good idea to diversify especially if the trust
is:
i. Small Trust
ii. Diversification would outweigh benefit -- you
should diverse the types of things in the trust
iii. Tax reasons
When you get sued, you want record of
that. Should have letter from tax advisor
(helpful)
 
3. “Socially Responsible Investment” – SRI – take into
consideration matters of public policy when making an
investment
i. Past performance does not guarantee future
stock (case)
ii. Must act prudently when investing in stock ---
like having a paper trail
 
3. California Statutes 
i. Property Preservation – § 16006 –a trustee has a duty to take,
control, and preserve trust property
● Reasonable steps
 
2. Productivity - § 16007 – trustee has a duty to make property
productive in furtherance of the purposes of the trust
● Meaning put money into something that is beneficial
for the beneficiaries
 
3. Separation of Property – § 16009 – the trustee has a duty to
keep trust property separate from other property – no co-
mingling of funds - keep it designated
 
d. Special Skills – § 16014  
i. A trustee has a duty to apply the full extent of special skills
ii. If the settlor relied on the trustee’s representation of special
skills in choosing them as the trustee, the trustee is held to
standard of skills represented to settlor
 
e. Standard of Care – § 16040
i. The trustee shall administer the trust with reasonable care
that a prudent person acting under the circumstances
would apply.
ii. The settlor may expand or restrict this standard through
express provisions in the trust instrument.
iii. A trustee may rely on this provision in good faith. 
 
f. Effect of Compensation – § 16041 – the trustees duty of care is
not affected by whether trustee is compensated
 
g. Discretionary Power – § 16080 – a trustee must reasonably
exercise a discretionary power
 
i. Duty to Account - trustee must keep beneficiary informed of
what’s going on with the trust 
i. “Accounting” – benefits beneficiaries because they know
what’s going on; Trustees like them because prevents
lawsuits – puts people on notice
 
ii. Limitations – §16064 – accounting duty may be waived  
i. In the instrument, unless of court order that material
breach may be occurring
ii. By the beneficiary in writing;
iii. If beneficiary is the trustee, and
iv. Where trust is revocable
 
 ii. Duty to Inform – § 16060 – trustee has a duty to keep
beneficiaries reasonably informed of the trust and its
administration
 
iii. Contents – § 16063
i. Receipts and disbursements of income and principal;
ii. Assets and liabilities;
iii. Agents hired and payments;
iv. Trustee compensation;
v. Statement that accounting can be reviewed by the
court;
vi. Statements that claims against trustee for breach of
trust cannot arise 3 years after information distributed
to beneficiaries 
 
i. Fiduciary Principles – § 16081 - if the trust instrument confers
absolute/sole /uncontrolled discretion on a trustee, the trustee
must still act in accordance with fiduciary principals and not in
bad faith.
 
iv. TRUST ADMINISTRATION:
i. Administration 
1. Power must be exercised reasonably
2. Power must be exercised in good faith – despite broadness of
discretion
3. Must be exercised in accordance with the distribution standard (for
college, future education, etc.)
 
ii. California Statute  
i. Principal and Income Adjustments – § 16336 – assuming certain
conditions are met, trustee may adjust between income and
principal.
1. Manage under prudent investor rule
2. Factors to consider: trust purpose and intent; beneficiary
circumstances; trust property circumstances; trust
document limitations; trust investment purposes.
1. There is no duty to adjust or consider adjusting
2. Can’t adjust if various triggers occur: if trustee is a
beneficiary, if the trust is a unitrust, diminish the
income interest in a trust, etc.
 
ii. Beneficiaries Entitlement – § 16345 – an income beneficiary is
entitled to the net income from the date on which the income interest
begins 
 
3. Disbursements out of income – § 16370
a. Half trustee compensation and persons providing investment
advice
 b. Half of all expenses for accountings or judicial proceedings
c. Half of expenses that affect both income and principal
d. All other ordinary expenses in connection with management,
administration or preservation of the trust (repairs, taxes)
e. Recurring insurance premiums on income assets  
 
4. Disbursements out of principal – 16371
a. Half of trustee compensation;
b. Half of expenses that affect both income and principal;
c. All expenses that affect primarily principal;
d. Insurance on principal assets not already covered
e. Estate, inheritance, and other transfer taxes 
 
5. Entity Income – § 16350 – money received from a corporation,
partnership, LLC, investment company, real estate investment, trust,
etc. shall be allocated to income money received.
 
6. Contract Personal Liability - § 18000 – unless otherwise provided for
in the contract, a trustee is not personally liable for contracts entered
into in a fiduciary capacity unless the trustee did not reveal that
they were entering into a contract in a fiduciary capacity
 
7. Trust property liability – § 18001 - liens, encumbrances – a trustee is
liable for obligations arising from ownership or control of trust
property only if they are personally at fault.
 
8. Trust tort liability – § 18002 – a trustee is liable for torts committed
in the course of administration of the trust only if they are personally
at fault
 
 
V. POWER OF APPOINTMENT (POA) -- power that resides in another person other than
the settlor (think of the will as creating a blank for someone else to fill in; instructions are given
in the instrument).  A power of appointment is a right given to anyone to select who shall
receive trust property or how it shall be allocated (e.g., Income from real property, oil
income, anything that generates income)
Notes:
● A POA can be located in a will, trust, or any instrument -- RAP applies :(
● While settlor is alive, he can revoke or change trust with those unexpected
circumstances. However after he dies, trust becomes irrevocable and cannot
change -- By giving a beneficiary a POA, the settlor gives the beneficiary the
power to override the terms of the trust if change warrants it or if the holder
deems appropriate
● EXAM TIP: 2 key characteristics:
▪ Scope – (general v. special) and
▪ When it can be exercised (inter vivos v. testamentary)
 
● Terminology [§ 610]
▪ Donor – creates power of Appointment
▪ Donee – person who holds the power of appointment
▪ Appointee – when the power is exercised in favor of a person
▪ Object(s) of the power – the person whose favor the power may be exercised
(potential appointees)
▪ Taker in default – if the donee doesn’t exercise the power of appointment (i.e.,
write a name in the blank) the instrument may provide for a default taker
▪ Appointive Property – property or interest in property that is the subject of
power of appointment
▪ Creating Instrument – deed, will, trust, or other writing that creates or reserves
the power of appointment
 
● Common Law 
▪ Relation Back Doctrine - Donor owns the property until donee exercises power
of appointment. Until then, the transfer is incomplete.
 
● Allocution and Capture -- when a donee intends to exercise a power of
appointment, but the exercise is ineffective for some reason, it may still be
possible to carry out the donee’s intent through the doctrines of allocation or
capture.
 
1. Allocution – if you have a POA - limited in who you can exercise it to - and
Donee makes a general bequest, if there is a way to allocate those without
violating POA it will be done.  -- make it work doctrine --
● EX: N holds a power created by her father to appoint trust property
among N’s descendants worth $100k. N also owns $250k. N’s will
provides – All my property, including which I have power to appoint
as follows: $100k to my sister-in-law, B; and all the rest to daughter
D. --> Here, none of the trust property can be allocated to B because
she was not an appointee of the power. But, N’s intent can still be
carried out through allocating to B $100k of N’s property and to D
the trust property + the other $250k of N’s property. Pg. 826.
 
2. Capture –  the doctrine of capture applies only to general powers and
only if an attempted exercise of such a power is ineffective or
incomplete.
● EX: Blackacre = income to W for 10 years, principal to wife if she so
designates at any time.  W’s will states Blackacre to son. Rule of
capture says that W “captured” Blackacre and gave it to her son –
otherwise transfer would be invalid
● EX: "Income to A for life, and A can designate corpus to self at any
time. A's will "BA to Son" -- you connect the dots, to get this to
work, A deisngated the property to themselves, thus A "capture" it
and then is A's property
 ● EX: N is the donee of a general power under the will of X. N’s will
provides – I give all my property and any property over which I have
power of appointment under X’s will as follows: $10k to my friend B
[who predeceases N]; and $15k in trust to dog; and all the rest to C.
--> N has captured the appointive property by blending it with her
own. C takes everything including the appointive property.
 
c. California Statutes –
i. [§ 600] – common law governs except as modified by statute 
ii. General and Specific Powers - [§ 611]
1. Rules Summary:
a. Power jointly held with adverse party is not a general POA
b. A power that is not general is special
c. A power may be general as to some property and special as to other
property
 
b. Two Types of Powers
i. General Power -- [§ 611] – a power which can be exercised in favor
of the donee, his creditors, his estate, or creditors of his estate
● can fill in own name (i.e., the donnee's own name)
● Note –
● if donee exercises the power in his favor, he will have
complete ownership of property (fee simple) [most
commonly to Donee’s Issue] However, if they do not
exercise the power, the property passes to the taker
by default
● Creditors could reach properties subject to general
powers presently exercisable
● EX: Jennifer owns Greenacre in fee simple. She places this
property in trust, to pay income to Russell for life, or until such
time as he appoints, and with the principal to be paid to him on
his appointment, or distributed on his death among his issue as
he designates in his will. ---> This is a general power.
 
b. Special Power -- [§ 611] – a power which CANNOT be exercised in
favor of the donee, the donee’s estate, or donee’s creditors
● Can only fill in other names - not your own.  
● A power of appointment that is limited by an
ascertainable standard such as health, education, support,
or maintenance = special
● A power jointly held with an adverse party = special
● Creditors CANNOT reach the property subject to the
power
 
 ● EX: Jennifer owns Greenacre in fee simple. She places this
property in trust, to pay income to Russell for life, and with the
principal to be paid to him on appointment as required for his
education or reasonable support, or distributed on his death
among his issue as he designates in his will. This is a special
power. An ability to invade principal that is linked to an
ascertainable standard relating to education or support
(among other things) does not make the power general.
● EXAM EXAMPLE: "To X to pay income to R for life, with the
principal to be paid to him on appointment as required for his
education or reasonably support"
 
● Most common type of special power – ability to designate
“among issue”
● Remember – a person can inherit as an heir
under an estate and may inherit as an appointee
● Someone other than a beneficiary can also
exercise the power.
● To W for life, then among our children as
W so designates
● To W for life, then as my brother B
designates 
 
c. Combos – A power of appointment may be general as to some
property and be special as to other appointive property.
i. EX: Jennifer owns Blackacre and Greenacre in fee simple. She places
them into a single trust. Greenacre is to pay income to Russell for life,
and to be distributed on his death among his issue as he designates in
his will. Blackacre is to pay income to him until such time as he
appoints, and principal to be paid to him on appointment. --> Each
piece of property is different. Russell has a general power of
appointment as relating to Blackacre, and a special power as relating
to Greenacre.
 
c. Creation - [§ 620] – a power of appointment can be created only by a donor
having the capacity to transfer the interest in property to which the property
relates (i.e. can’t give away property you don’t own)
● Not necessary to have the words “power of appointment” or
“appoint.”
● Any words or phrases are sufficient to create a power of
appointment if they establish that the transferor so intended.
 
d. Exercise of Appointment - [§ 630] -- If there are specific requirements as to the
manner, time, and conditions that a power of appointment can be exercised, the
power can only be exercised by complying with the requirements
 ● A power exercisable by an inter-vivos transfer is also exercisable
by a written will, unless specified otherwise in trust document,
does not allow a testamentary power to create an inter-vivos
transfer --> EX: “To A to life, principal to his issue as he designates
in his will” – cannot be transferred to issue during A’s life; only in
his will
 
v. Manifestation of Intent – [§ 640] -- The exercise of the power of appointment
requires a manifestation of the donee’s intent to exercise the power
1. A manifestation exists when: **Note: These circumstances are not exclusive
but illustrative.**
a. Declaration that the donee is exercising some or all of her powers
b. A purported transfer that would be invalid but for the power
c. Disposition that reflects donee understanding that she is exercising
power 
 
vi. Validity of Exercise – [§ 670] – an exercise of a POA is not void because it is
more extensive that authorized by the power, but it is valid only to the extent
that the exercise was permissible.
 
vii. Fraud – if the court believes that the agreement is an attempt to fraudulently
circumvent the law, the whole devise may be invalidated
 
viii. Creditors Rights - [§ 680] – Creditors rights cannot be limited by the
instrument.
 
ix. Creditors access to presently exercisable - [§ 682] – general power presently
exercisable can be used to satisfy debts that cannot be satisfied out of the
donee’s property (donee is alive). -- + -- A general power of appointment
presently exercisable at the time of the donee’s death, (or a general testamentary
power), is subject to the claims and expenses of the donee’s creditors to the
same extent as if the donee owned the property.
● Creditors can only seek payment for that which the power is
presently exercisable.
● This section applies whether or not the power has been exercised. 
 
● EX 1: Jennifer owns Greenacre in fee simple. She places this property in
trust, to pay income to Russell for life, or until such time as he appoints,
and with an ability to invade up to 10% of the principal annually if he elects
to do so. Russell runs up a series of debts, and his creditors wish to
collect from property on which he may exercise a power of
appointment. May they do so?
● Yes. Creditors may collect from property subject to a presently
exercisable general power of appointment. Here, this is 10% that R
may access.
 ● EX 2: Jennifer owns Greenacre in fee simple. She places this property in
trust, to pay income to Russell for life, or until such time as he appoints,
and with an ability to invade up to 10% of the principal annually if he elects
to do so. Russell runs up a series of debts, and his creditors wish to seize
the entire trust principal in order to pay Russell’s debts. May they do
so?
● No. They may only seek payment from the property on which Russell
has a currently exercisable general power of appointment.
 
vi. FUTURE INTEREST: EXAM TIP: review everything you learned in property.
1. Future Interests - **we will be tested on it** --
a. Types of estates – Present possession 
1. Fee simple
2. Life estates
3. Defeasible Fees
a. Fee simple determinable – “so long as, while, during, until”
b. Fee simple subject to condition subsequent – “but if, provided
however, on the condition that”
 
ii. Remainders – future interests that can become possessory at a later time
(transferee interests) 
1. Vested – (1) given to an ascertained person (know person) and (2) there is
no condition precedent
a. Indefeasibly vested remainder
b. Subject to total divestment
c. Subject to open
 
ii. Contingent – (1) given to an un-ascertained person (unknown person) or
(2) subject to a condition precedent.
 
3. Executory interest – interest that divests someone else’s interest in a piece
of property
a. Shifting: the right to possession is being taken from a 3rd party (i.e.
someone other than the grantor).
b. Springing: the right to possession is being taken from the grantor.
● (classic example - gift to child on marriage)
 
3. Transferor Interests 
a. Reversion – any time the grantor transfers less than he owns, the result is
a reversion in the grantor. (operation of law)
● EX: O says "Life estate to A" this automatically creates a reversion because
after A dies, it reverts back to O. If O is dead, it goes to O's heirs
● Notes: this is the one we will be working with most in this class.
 
 2. Possibility of reverter (FSD) – operates automatically (operation of law)
 
3. Right of re-entry (FSSCS) – transferor must exercise his right of re-entry
(operation of law)
 
b. Class Gifts: – a gift to an identifiable group (children, grandchildren, siblings, etc.)
i.  Gift vests as soon as named heir dies -
▪ EX: O conveys Blackacre to “W for life, then to sister if sister survives W, or if
she does not survive to sisters heirs.” Sister dies in 1980 – her heirs are
ascertained as of 1980, even though W died in 1991 because the measuring life is
the sister, not W.
 
b. Class closing – different ways to approach -- Best is to make sure the class is
closed, don't let your client leave an open class. Open class gifts cause lots and
lots of problems. Courts hate them & prefer vested remainders and try to close
the group as soon as possible.
▪ Examples/Problems:
● All of those living at the time of the conveyance
● Including all of the after-born children, until no conceivable way that
anyone else may add to the class
● Many class members may have died by then
● Allow others to add to the class and take part of the other
beneficiaries shares
● Unless they have spent it all
● On-going questions with Posthumously conceived children 
 
c. Doctrine of Worthier Title – abolished in California & don't need to know –
where there is an inter-vivos conveyance of land (made while alive) with a
remainder or executory interest in the grantor’s own heirs, no future interest in
the heirs is created but a reversion is retained by the grantor. 
i. EX: O conveys Blackacre “to A for life, then to O’s heirs.” Under the DWT, O’s
heirs have nothing; O has a reversion.
 
b. Effect Today - the DWT today is applied as a rule of construction rather
than a rule of law; it
i. Can be overcome by a showing of contrary intent.
ii. Can be applied to personal as well as real property.
 
d. Rule in Shelley’s case – abolished in California & don't need to know
i. Rule:
▪ If one instrument
▪ Creates a life estate in land in A, and
▪ Purports to create a remainder in persons described as A’s heirs (or
the heirs of A’s body), and
 ▪ The life estate and remainder are both legal or both equitable, then:
▪ The remainder becomes a remainder in fee simple [or fee tail] in A.
 
b. Merger - O conveys Blackacre “to A for life, then to A’s heirs.” Under the
merger doctrine, the life estate in A will then merge into A’s vested
remainder in fee, and A will have a FSA or fee tail.
● The Rule in Shelley's Case transforms a remainder in A's heirs into a
remainder in A if the conveyance that created the interest in A's heirs
also created an interest in A. Thus if O conveys a present interest in a
life estate to A and a contingent remainder in fee simple absolute to
A's heirs, the Rule in Shelley's Case changes the contingent
remainder in A's heirs into a vested remainder in A.
● Then the Merger Rule merges A's present interest in a life estate with
A's vested remainder in fee simple absolute to give A a present
interest in fee simple absolute
● Does not work if there is some intervening interest
 
 
c. Construction
i. Common law: 
▪ Preference – preference for vested interests rather than contingent
remainders. We want the property to go to someone instead of
escheating to the state. 
● Vested remainders can be sold, devised, satisfy debts, etc.
● We still want this, because courts don't like contingent remainders
that hang around forever
 
b. Acceleration – under common law on vested remainders were
accelerated
● Acceleration – if the prior estate ends, the remainder accelerates
into possession. (can do this in most jurisdictions)
● Gilbert – court treats the son as though he predeceased his father
– essentially disinherits future heirs.  
 
b. Survival requirements: 
i. Common law/Modern – do not need to survive to take – heirs,
estate, devisees may take in place -- Children or their heirs may take
– survival not required. Anti-lapse may also be implicated.
ii. Exam Tip: Keep track of what happened to who and when
 
g. RULE AGAINST PERPETUITIES: comes up when there is some future interest
i. Common Law – look for the after-born child
▪ Rule – No interest is good unless it must vest, if at all, within 21 years of a
life in being at the time of the creation of the interest.
 ● Short rule: Lives and being + 21
● It has to vest or fail with in the lives/beings +21 -- uncertainty of
who owns the property is NOT allowed (that would violate RAP)
 
b. Rationale – to allow land to be alienable rather than allow the dead hand
to control for generations.
 
3. Application  
a. RAP potentially applies only to:
1. Contingent remainders
2. Executory interests
3. Class Gifts - Certain vested remainders subject to open
(to A until WWIII and then to all of the victims families) ALL
members must vest/fail to not violate RAP
 
2. Restriction on remote vesting – property can be subject to
contingent interests only for lives in being plus 21 years.
 
c. Test is applied at the outset – we do not wait and see if it vests or
fails. No assumptions are made as to the length of a person’s life.
● Interest would be void (i.e., fails the RAP test) if it does not
vest/fail - meaning void if undecided.
 
d. If the interest fails the RAP, under the common law the entire interest
fails.
 
e. Fertile Octogenarian – presumption that a person can have a child,
or adopt, until their death.
● Basically, you ignore age logic that a 90 year old can't have
kids.. RAP likes the "what if" factor.
 
f. Unborn Widow – a person that may not be alive at the time of the
conveyance, but could be the widow of a beneficiary
● EX: "To A for life, then to A's widow, then to A's surviving
issue" -- the first part if a contingent remainder and passes
RAP. But the second is a contingent remainder and does not
pass RAP because A may marry X, and now X's could survive
more than 21 years and have issues, since we wouldn't know for
the sure who takes the property within the 21 years of live-and-
being. Under common law -- this whole thing is VOID
 
g. Measuring Lives - can have measuring lives of people not in the
conveyance– death of the last child from a family that has a long
history of longevity. 
  
ii. RAP & Class Gifts – all of the interests in the class must vest or fail within lives
in being plus 21 years or the entire interest is void. 
1. Exceptions: the court doesn’t like the harshness of the RAP, so it has
sometimes allowed for sub-classing and specific sums 
a. Sub-classing – if there is a class of beneficiaries that can take, the
court may allow for the subclass to benefit
b. Specific Sums – the court may allow specific sums to be distributed
to ascertained takers.
 
iii. RAP & POA – must not be able to be exercised outside of the perpetuities
period or else it is void. 
1. Limitations: 
a. Valid at the time it is exercised
b. Any interest created must vest or fail within the perpetuities period
c. Second Look – take into account things that happened from the time
of the conveyance to the exercise of the POA
 
iv. Savings clause – clause inserted into an instrument to prevent a perpetuities
problem; terminates the trust at the end of the perpetuities period (avoids
malpractice). This means the trust never violates the RAP
▪ EX: page 890
 
v. RAP Reform - CALIFORNIA /USRAP
1. Summary
a. California: USRAP – two prong test
1. Common law
2. Wait & See for 90 year period
● Wait and see if it vests within perpetuities period
● Most things pass, you have to go out of your way to made
this type of conveyance void, because the usual answer is
"maybe, we will have to wait & see"
 
ii. Statutes
1. Common Law Superseded – § 21201 –this chapter supersedes the
common law.
 
ii. USRAP – § 21205 – a non-vested property interest is void unless: 
1. Common Law -- When the interest is created, it is certain to vest
or fail no later than 21 years after the death of an individual
then alive,
OR 
 ii. Wait and See -- The interest either actually vests/fails within 90
years after its creation
 
Note: If it passes the Common Law - you don't have to do it under the
Wait&See
 
c. Reform - § 21220 – court shall reform a disposition that violates the
RAP to most closely approximate the testator's intent.
● A party can petition a void conveyance and the court "shall" fix
it
● Reform may occur where a class gift might become invalid, and
a distribution is needed, or where an interested may vest but
not within 90 years.
● Where possible we fix it.
 
d. General Powers - § 21206 – a general POA not presently exercisable
because of a condition precedent is invalid unless: 
● Common Law -When the power is created, the condition
precedent is certain to be satisfied or impossible to satisfy no
later than 21 years after the death of an individual then alive,
OR
 
b. Wait and See - The condition precedent either is satisfied or
becomes impossible to satisfy within 90 years after its creation 
 
e. Limitation on validating lives - § 21230 – cannot be so numerous or
broad that it cannot be determined whether the validating lives are
still alive
 
f. Application to POA – § 690 – the statutory RAP applies to POA
 
vi. Questions to ask:
a. What kinds of interests are there?
b. When were they created?
c. When does the clock start? Lives and being as of when.
i. Intervios - when written
ii. Testamentary - when the will maker dies.
b. Is there a validating life?
c. If it fails common-law - does it potentially satisfy USRAP wait and
see?
 
vii. Steps for RAP:
a. Identify the conditions precedent to the vesting of the suspect future
interest—what has to happen for future interest holders to take?
b. Find a measuring life—look for a person alive at the date of the
conveyance and ask whether that person’s life or death is relevant to the
condition’s occurrence
● One way to perform a RAP analysis is to look for the
“validating life.” This is the life that makes the interest vest or
fail to vest, by definition.
● To find this person, focus on the “contingency” that the grantor
has set up. The validating life (if there is one) will have
something to do with this contingency.
b. Will we know with certainty within 21 years of the death of our
measuring life whether or not our future interest holder can or cannot
take?
i. If yes -- then the conveyance is good
ii. If not -- & in California - apply the Wait&See approach.
Usually passes, since there is a 90 year waiting period.
If the future interest is void (but the rest of the conveyance is valid
and the future interest becomes a reversion to O or his heirs)
 
Note: If it passes the Common Law - you don't have to do it under the Wait&See