Dedication 1 result
- Sherri Burr dedicates the Fifth Edition of Wills and Trusts in a Nutshell to her co-author Robert Mennell who passed away in 2013. Bob graduated from Harvard Law School and earned an LL.M in taxation from William Mitchell College. It was a pleasure to work with him because of his sense of humor and attention to detail. This book continues as one of his legacies.
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Chapter 9 Creation of Trusts 56 results (showing 5 best matches)
- The elements of a trust can be visualized as an electrical plug. The two prongs are the negative aspects of ownership (the duties) that are assumed by the trustee, and the positive aspects (the benefits of ownership) that are received by the beneficiary. The relationship is in regard to the property, the res, and is created by the intention of the settlor or trustor, the creator of the trust. Given these elements, the court of equity made them significant by imposing duties that are the electrical current or life of the trust. We examine those duties in the last portion of this nutshell.
- The subject matter of Trusts, unlike Wills, is evenly divided between creation and administration. To create a trust requires a res (trust property), trustee(s), settlor/trustor, beneficiary, and trust purposes. The administration of a trust focuses on a series of duties that can each be approached with the same technique used in discussing tort negligence issues: duty, breach, causation, damages and defenses.
- A trust is a device whereby a trustee manages property for one or more beneficiaries. The settlor or trustor is the person establishing the trust. The trustee is person responsible for managing the trust assets and holds the legal title. The beneficiary is the person who benefits from the trust assets, and holds the equitable title. The trust res is the trust property. While a private trust can be created without a trustee, it will fail if the settlor fails to name a beneficiary or what is the trust property. Finally, there must be a trust purpose that defines the trustee’s active duties toward managing the trust property. Otherwise, the trust is considered a dry trust and non-existent.
- The fixed sum (as opposed to an ownership of the thing) payable to C sounds in debt and the means of creating the arrangement (a will) suggests that an equitable charge, rather than a trust, has been created. Property subject to an equitable charge can be transferred; a bona fide purchaser for value without notice cuts off outstanding equities; if the conveyance was not to such a purchaser, then the charge remains on the property. There is no breach of trust unless there is a trust (or other fiduciary relationship). An equitable charge, although enforced in equity, does not impose equitable duties.
- The desires of persons to hold on to property until death, but also to indicate who should have the property upon death have resulted in situations to which a two-headed aphorism has been applied. The aphorism is that “Equity will not transform an imperfect [usually because of a failure of delivery] gift into a trust, but if the gift is incomplete by reason of some technicality [e.g., delivery] and if the essential elements of a trust are established, the manifest intention of the donor may be sustained through a trust.” The first part stresses the legal requirement of delivery; the second part permits a loophole in cases where the intention of the donor (usually dead at the time the controversy is to be resolved) is “clear.”
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Chapter 10 Elements of a Trust 238 results (showing 5 best matches)
- Failed portions of a testamentary trust will pass as directed by the decedent’s will, whether by specific alternate gift or the residual clause. If the failed trust itself was the (and possibly even if only part of the) residual clause, the failed residuary material passes by intestacy. A failed portion of a living trust goes by resulting trust to the settlor if still living. If he has died between the time of creation and the time that the trust is declared to be partially or completely invalid, the failed property passes by resulting trust to the settlor, through her to any subsequent unrevoked disposition (e.g., a quit-claim of any interest in the property) and, if none, to her estate for distribution in accordance with her will, if any, and if none, to his heirs.
- Trusts are further divided by the manner of their creation. Those created by will and effective at the time of the testator’s death are called “testamentary” trusts while those created during lifetime are called “inter vivos” or “living” trusts. The significance of the distinction is mainly found in the formalities for creation (a valid will if testamentary, a valid gift or contract or exercise of a power of appointment if inter vivos) and the recipient of property if a resulting trust arises for any reason. Further, a testamentary trust becomes a matter of public record when the will is filed, whereas an inter vivos trust remains private and free of public scrutiny.
- Classic trust theory says that a failure to segregate an identifiable portion of the trust will make the trust res too indefinite. Thus a trust of “$1,000 out of this $5,000” will not be effective. Cf., a trust of “one-fifth of this $5,000” which would probably be a valid trust res. Should the existence of a trust turn on the felicity of the phrasing?
- However, the attempt to make a trust of “50 head out of 500 head” instead of an “undivided one-tenth of 500 head” may cause the trust to fail for want of specificity of the identity of the trust res. If a cow dies, is it part of the trust or not? If there are five calves born to the 500 cattle, how many of the calves are in the trust? Note that if a trust is found (which is remotely possible), the trustee will have the immediate duty of separating and earmarking or otherwise identifying the cattle which are in the trust.
- The presence of a Totten trust raises the issue of its validity. Although most jurisdictions permit such a trust (and a number further validate the practice by statute), some decisions have considered such a trust to be too tentative or violative of the purposes of the Statute of Wills. If the Totten trust is valid, additional issues may arise such as whether the revocation can be by will and, if so, whether a residual clause of the will revokes the trust.
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Chapter 12 Trust Administration Problems 117 results (showing 5 best matches)
- The trust or statute may simply provide that the trustee is entitled to “reasonable compensation.” As a practical matter the size of the trust (or its income) is often very determinative, but writers traditionally state that the court in setting or approving the reasonable fees will consider, in addition to trust wealth, the skill and diligence of the trustee and the results of the trust administration.
- Trustee fees may be fixed by agreement, trust provision, statutory schedule or by the court supervising the trust. Modern corporate trustees generally have fee schedules which are adhesion contracts for most trusts, but tend to be negotiable in the case of multi-million dollar trusts. The schedule may be set out in the trust instrument or not. Even when not set out in the trust agreement, the corporate fee schedule tends to be enforced despite problems of the Statute of Wills and parol evidence rule. If the trust agreement provides a fee schedule, that schedule will be followed unless it was the product of overreaching by the trustee or there are reasons for deviation, such as a change in circumstances which makes trust administration far more difficult.
- Some of these remedies, such as removal and denial of compensation, are usually only used in egregious cases. A court may also order any other relief deemed appropriate. Since a number of alternatives are available and any one or more of the beneficiaries can sue to enforce the trust, the court will accept the choice of all beneficiaries if they all have capacity and agree. If not, the court will generally impose the remedy which is most beneficial to the trust as a whole.
- The ability of the trustee to pay from trust assets or seek reimbursement, if not at fault or in breach of trust, is itself not a breach of the duty of loyalty even though the trustee is given a lien and a claim which is hostile to that of the beneficiaries. The trustee is not allowed indemnity if there is no benefit to the trust and the liability arose as a result of a breach of trust duty. If the trustee, in mistaken good faith, exceeded his powers in incurring an expense and some benefit accrues to the trust, the trustee is entitled to indemnification to the extent of the lower of the benefit to the trust or the amount expended.
- Normally trust duties are owed by the trustee to the beneficiaries and few duties are owed by the beneficiaries to the trustee or to each other. The interest of a beneficiary in the trust may be subject to an equitable lien or charge because of a debt to the trust, including a debt resulting from a breach of trust. The breach of trust may be by a beneficiary who is also trustee or because of profit from or participation in a breach of trust or because the beneficiary agreed to be liable for a loss. An agreement by a beneficiary to create a debt to the trust or a lien against the beneficiary’s trust interest is valid if there was no improper advantage taken of the beneficiary, the beneficiary is not under a legal incapacity and the trust does not contain an effective spendthrift clause.
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Chapter 11 Trustee Powers and Duties 155 results (showing 5 best matches)
- This duty is generally applied in a practical and reasonable manner. If the assets of the trust include an unproductive asset, e.g. undeveloped land, and the duty to make productive exists, e.g., by express provision or implied from trust terms such as a long- term trust with a direction to pay “income” to the beneficiary, the trustee will be allowed a reasonable time to make the property productive.
- A situation in which potentially separate trusts can exist, but which is usually treated as one trust, occurs when there are additions or “pour-overs” to an existing trust. The settlor may reserve and exercise the right to make additions to his trust while living or by will.
- Mortgages or other pledges of trust property in order to secure a loan to the trust are rarely permitted—or wise. Normally, such a power will not be inferred, even if a power of sale is given. Possibly a pledge may be allowed if there is an emergency and court supervision or approval of the mortgage or pledge cannot be obtained in advance.
- Normally a power of sale of trust assets is found in the trust instrument. If not expressly given, a power may be inferred from the duty to make the property productive, unless there is a specific prohibition against sale. Normally, a prohibition against sale will be given effect, but the court may allow a deviation in the administrative provision prohibiting a sale, if the circumstances warrant such a deviation.
- Uniform Trust Code § 801
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Copyright Page 6 results (showing 5 best matches)
- Nutshell Series, In a Nutshell
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- West, West Academic Publishing, and West Academic are trademarks of West Publishing Corporation, used under license.
- Printed in the United States of America
- © West, a Thomson business, 2007
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Chapter 6 Beneficiaries 106 results (showing 5 best matches)
- In Example #2, the “Joint Will” form, in which both parties sign the same document, may be used. This form suggests that a contract was intended. If a contract is found to exist, certainty of disposition is obtained at the expense of flexibility. Another form which could be used in satisfaction of a contract (or which might not indicate a contract at all) is the “Reciprocal Wills” in which mirror image provisions are made. Thus, in Example #2, Husband’s will would give the property to Wife for life (with, perhaps, some power of invasion or appointment) and the remainder one-half to Husband’s issue and one-half to Wife’s issue. Wife’s will, in turn, would make similar provisions for Husband and the identical disposition among the issue of Husband and Wife. The presence of a pair of reciprocal wills does not by itself prove a contract, but is consistent with the existence of a contract. The contract may also exist independent of the wills which were written. Thus, the wills of Husband
- A contract to make a will is an agreement by one party to devise or bequeath property to another, such promise being made in consideration of a promise or action by the purported beneficiary. The contract to make a will is enforced by a court of equity in appropriate cases. Normally, this enforcement is through the means of a constructive trust. Two typical situations in which a contract to make a will may exist.
- A testator may make contract to make a will which binds the testator in equity to make a certain disposition, thus causing a purported beneficiary to forfeit a gift. The enforcement of such a contract usually involves a constructive trust being imposed upon the will beneficiary for the benefit of the contract beneficiary.
- Performance by the party who is to make the will may be incomplete. If Testator in Example #1 were to write a will with the provisions for Friend which were promised, but Testator then revoked the will, the court of equity might be called upon to enforce an “implied covenant of good faith and fair dealing” to enforce the contract by constructive trust upon the heirs of Testator. Note that the heirs are not being punished for any wrongdoing. The court is instead preventing their unjust enrichment. Similarly, in Example #2, if Husband died having left all his property to Wife, Wife might be prevented by the court from giving away the property, although she might be entitled to use it for her necessary living expenses. Wife would therefore be like the owner of a legal life estate (who is not permitted to use principal), but Wife might have some of the rights of a beneficiary of a “discretionary trust” (in which so much of the principal as is necessary to maintain her standard of living...
- At the beginning of the twentieth century, legal writers and courts were reluctant both to let the slayer receive the property of the victim and to admit that courts made, rather than “found,” the law. Thus, the device of the “constructive trust” was utilized. The courts stated that the slaying heir or will beneficiary was entitled to receive by intestacy or, but then imposed a “constructive” trust upon the slaying heir or will beneficiary for the benefit of the persons who would “otherwise” have received the property. This verbal fiction of a trust imposed by operation of law was used to achieve the same effect as if the inheritance or bequest was denied to the heir or will beneficiary.
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Introduction 20 results (showing 5 best matches)
- is determined at one point in time—the death of an intestate decedent. No one is an heir before that time because living people do not have heirs. The heir does not necessarily receive any property. For example, the decedent may leave no property to be disposed of at his death. Even persons of great wealth may dispose of all their property using wills or will substitute provisions, such as joint tenancies, life insurance, gifts and trusts. Gifts may be given (while living) and trusts may be either established as living or testamentary trusts.
- An is a person entitled to inherit by ; that is, when the person dies without a will. An heir may be a spouse, a descendant, an ancestor, or a collateral relative. The individual must be related to the decedent by either marriage or blood. Friends, business partners, charities, and passers-by in the decedent’s life cannot inherit by intestate succession. They may only receive estate gifts under a valid will or trust document.
- We begin our conversation about Wills and Trust law with an overview of terminology that you will see throughout this book and hear spoken while studying or practicing this subject.
- and property, may be inherited by intestate succession or disposed of by a will or trust.
- Using this basic terminology, we begin our analysis of intestate succession, followed by sections on the rights of spouses and issue, wills, and trusts.
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Preface 5 results
- This book is designed to help law students master Wills and Trusts law and pass examination questions. It does not teach how to draft wills, trusts, or other documents. Instead, it provides an overview of basic legal knowledge.
- Welcome to the law of sex, greed, and family animosity. Wills and trust cases can often be as entertaining as they are educational.
- Some subjects, such as nuncupative (oral) wills and exoneration of liens, are barely mentioned while others, like intestate succession, anti-lapse statutes, disclaimers, and pretermitted heirs, are given extensive coverage because of the difficulties they present when interacting with other doctrines.
- A few references are made to cases found in the common casebooks, but footnotes do not appear. The book is designed to be read easily so that the student can tie together classroom and casebook discussions.
- My co-author Bob Mennell prided himself on creating the first and second edition of this book with one footnote, which he considered sufficient. This tradition continues in this edition.
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Chapter 13 Probate Administration 35 results (showing 5 best matches)
- The Adult Guardianship Act, along with the Uniform Probate Code, the Uniform Trust Act, and the Uniform Principal and Income Act are examples of attempts to unify laws in the wills and trusts area.
- Probate administration diverges in procedures among states. The administration of a decedent’s estate involves a process of passing certain landmarks. The process may be “formal” use of a petition to the court, notice to the interested parties and a court hearing resulting from a hearing. Or, it may be the “informal,” the most common form, of proceeding until someone objects. The probate court’s jurisdiction will be over a will, which may or may not contain trust provisions. The process may contain part or all of the following, each of which is usually represented by a document:
- Powers of attorney save time and money. To obtain legal guardianship and conservatorship over a minor or disabled person through the court system can involve an extensive investment of time and cash in the legal system. As a guardian, a person becomes responsible for managing the ward’s personal affairs, including dealing with doctors, nurses, case managers, and dietitians. As the ward’s conservator, a person will manage the ward’s assets, including qualifying him for Social Security disability insurance and Medicaid if necessary and obtaining control over bank accounts and real estate.
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Chapter 4 Revoking and Changing Wills 55 results (showing 5 best matches)
- You cannot set up a provision in a will to revoke it conditioned upon the occurring of some event. This may be treated as a nullity because it is an attempt to revoke the will in a manner not specified in the applicable statute. Similarly, even though a testator contractually promises not to revoke his or her will, he or she still has the power to revoke the will, but may be liable for a breach of the contract or a constructive trust might be imposed upon the takers of the estate.
- In these jurisdictions, they may impose a constructive trust on the beneficiary to keep the person from profiting from murdering the testator. While the will itself would not be “revoked,” the beneficiary would be prevented from enjoying the will gift. Similarly, changes in a will by a codicil or the inability of a beneficiary to take or enjoy the share which the will purportedly gives him or her are not, technically, “revocations” although they have the same effect as far as the beneficiary is concerned.
- As the foregoing examples demonstrate, a precise knowledge of and adherence to the statutory requirements for revocation is demanded. Despite this strictness, there is a situation in which the courts operate by “presumption.” In the situation where the will is in the “secure possession” of the decedent and the will is either not found or found in an altered condition, courts may presume that the testator did the act of changing or destruction and that the testator intended it to be a change or revocation of the will. In summary, the court presumes all that the statute requires in such a situation.
- In another example, a Testator can telephone his lawyer and say “Rip up that will of mine; I want to revoke it.” If the lawyer hangs up the telephone and complies, the will is not revoked because the act for a testator by another person must be “in his presence.” Query whether maintaining the telephone connection would consist of being “in his presence.”
- Without an express revocation clause in a subsequent testamentary document, the prior will is not wholly revoked, and thus usually becomes a codicil to the prior will. Only if the subsequent testamentary document is wholly inconsistent with the old will does it become the single new will. Thus, the reference to the “Last” will is the first to be examined to determine if indeed the document does revoke all prior dispositions by implication.
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Chapter 3 The Statute of Wills 125 results (showing 5 best matches)
- There are many phrasings for the factors which prevent the testator from being able to form the intention to make a will. Incapacity, fraud and undue influence are almost always included in any such list. Other terms such as duress or menace may also be used. You will note that these factors are “equitable overrides” in the sense that the courts of equity would negate an otherwise valid transaction (be it a purported will, contract, trust or other arrangement).
- Fraud is a ground to prevent the probate of a will that has been duly executed. Another application of fraud, but not involving a “will contest,” is the equitable action to impose a constructive trust to avoid unjust enrichment. Thus, where beneficiaries of a purported will that was to be executed alleged that the beneficiary of a prior will murdered the testatrix in order to prevent the execution of a new will, a constructive trust for the purported new will beneficiaries was the proper remedy, not the denial of probate of the earlier will,
- Between the two points—the unremediable mistake and the fraud which voids the will—is the innocent beneficiary of another’s fraud. Is his or her gift more in the nature of a mistake which will be left uncorrected or is it so tainted by the fraud that it must be set aside? Courts differ. In a non-probate action for fraud, it may depend upon whether the relief sought is equitable (constructive trust) or legal (a tort action for deceit).
- Holographic wills must be written on a permanent surface. They have been probated as letters, on a handbag, bottom of a chest of drawers, eggshell, plaster on wall, and a tractor fender. The Montana Supreme Court upheld a letter that television personality Charles Kuralt wrote to his mistress as a holograph codicil to Kuralt’s formal will. [
- The issue of whether a will is truly conditional often arises in the context of a self-drawn will in which the testator makes psychologically explainable rationalizations as to why he or she is writing the will: “In case I fail to return from the trip to Idaho which I am making, this is my will.” The testator completes the journey successfully, retains the will and then dies.
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Chapter 2 Rights of the Spouse and Children 86 results (showing 5 best matches)
- Pretermission is a doctrine that applies to wills in probate estates. Although pretermission may be affected by a transfer made during the testator’s life (e.g., an advancement or a settlement will prevent pretermission), the doctrine of pretermission is not applied to will substitutes such as trusts, gifts, life insurance or joint tenancies.
- Dower and curtesy, being rights in the probate estate, only became effective when one spouse died. Most states have varied the dower provisions. The fraction of the estate has often been increased from one-third to one-half. The property affected has been expanded from only realty to both realty and personalty. The time of ownership has tended to be changed from “seised during marriage” to “owned at death” with extensions to certain lifetime dispositions which are considered to be will substitutes, e.g., joint tenancy, life insurance, gifts, revocable trusts, and so forth. The type of interest given to the surviving spouse has been expanded from a life estate to a fee in most cases. The statutes usually make identical provisions for widows and widowers.
- (1) If the testator had no child living when he [or she] executed the will, an omitted after-born or after-adopted child receives a share in the estate equal in value to that which the child would have received had the testator died intestate, unless the will devised all or substantially all of the estate to the other parent of the omitted child and that other parent survives the testator and is entitled to take under the will.
- There exists two amplifications of this doctrine. First, although the term “pretermission” is sometimes used with the spouse, certain purists insist that pretermission applies only to issue and the post-will spouse is a distinct category. Second, since the post-will spouse (and in some cases any spouse with a statutory forced share) is allowed to take despite the will’s language (unless the will specifically provides for him or her as spouse or shows an intention to exclude the post-will spouse), secondary questions often arise as to how much of the will’s dispositive scheme can be salvaged and in what order other bequests should abate to satisfy the spouse’s share.
- (2) If the testator had one or more children living when he [or she] executed the will, and the will devised property or an interest in property to one or more of the then-living children, an omitted after-born or after-adopted child is entitled to share in the testator’s estate as follows:
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Chapter 5 Will Components 36 results (showing 5 best matches)
- Courts regularly accept a bequest of “the residue” of my estate (the extent and character of which is known only at or after death) to “my heirs” (who are determined at the time of death). In such a bequest, the identity of both the property given and the recipient is determined by reference to a fact having significance independent of the testamentary plan. Similarly, a bequest of “all automobiles which I own at my death” to “such of my children as survive me” will be resolved by reliance upon facts outside of the will. A gift of “the contents of my safe deposit box” to “the person with whom I dine on Christmas in the year before my death” is more difficult and may be ineffective unless it can be proven with absolute certainty. Few courts will give effect to a bequest of “the sum of money which I mentioned to my attorney” to “a certain person to be designated by me to my attorney.” This amounts to an attempt to create a secret trust. The attorney may be “independent” and “legal,”...
- A specialized statute, designed to resolve problems encountered in the theories of integration, incorporation by reference and reference to facts of independent significance is the Uniform Testamentary Additions to Trusts Act, also found as . This provision authorizes “pour-overs” by will to trusts, without regard to the chronology of creation, funding and amendment.
- For example, what if the testator wrote entirely in her own handwriting 21 pages of dispositive provisions? The materials used (type of paper and ink) and provisions (references to persons born and dying between the relevant dates) indicate that the will was written in three stages. Each of the pages has the testator’s name written on it, and there are three different dates on the document. What, if anything should be admitted to probate? Is it a will or a will and codicils? Probably the most common, but not the only position, would be to treat the document as one 21-page will and admit it to probate. Another approach would be to proclaim it a will with two codicils. An unfortunate possibility would be to hold that the document could not be admitted to probate because it has no certain date (since it has three possible “certain” dates). Utilizing such an approach, it is possible that Louisiana might invalidate the document as an olographic will.
- Integration of a will is the act of deciding what parts constitute the will. Integration problems are more frequently encountered in jurisdictions which permit holographic wills. The term integration is used in both an external and internal sense.
- Fifth, when there are changes in the beneficiaries, such as class gifts in which members could be added by birth or deleted by death between the date of the will and the date of the codicil, which date should the will’s “now” refer to? The original date seems likely, but this may not carry out the intention of the testator, either because of a desire to include subsequent members or the operation of other policies of the law. For example, T provides “I make no provision for my children now living.” in a will, has another child born and writes a codicil making an unrelated change in the will.
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Chapter 7 Estate Property 70 results (showing 5 best matches)
- EXAMPLE: T bequeaths 100 shares of each of A, B and C Corporations to beneficiary in a 1989 will. Between the date of the will and T’s death, each of the corporations has the same earnings, but they react differently. A Corporation pays $1,000 in dividends; B Corporation declares a 10% stock dividend in 1994 and C Corporation simply increases in value.
- In the case of the oil painting (B) that was given during T’s lifetime to the beneficiary, we have an ademption by satisfaction, rather than extinction. The will bequest will be, and should be, ineffective to pass the value of the painting to the person who already has the painting.
- The growth can be of various sorts. No account is ordinarily taken of shrinkage due to inflation. Thus, a 1990 bequest of $100,000 by a decedent dying in 2012 will pass $100,000 in 2012 (or whenever distribution is made) purchasing power, not the purchasing power of 1990. Similarly, growth due to income separated and paid is not considered.
- Accretion is the growth of an item bequeathed between the time the will was written and the testator’s death. It is used here to include the possibility of shrinkage, as well as growth. There can also be a growth between the date of death and the date that the estate is distributed. In this latter case, the growth (or shrinkage) of a specific bequest clearly passes with it and the residual bequests receive the additional growth unless the testator or a statute provides otherwise.
- EXAMPLE: Testator’s will bequeaths “100 shares of American Telephone and Telegraph Company” to A and devises “160 acres of farmland in Washington County, Minnesota,” to B. Although testator’s estate is solvent, it does not include any such stock or land.
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Chapter 1 Intestacy 107 results (showing 5 best matches)
- A parent can disinherit both illegitimate and legitimate children by writing a will. Elvis Presley, for example, left the bulk of his estate in a residuary trust for his “lawful children.” He also directed his trustee to pay maintenance and support for his daughter “Lisa Marie Presley, and any other lawful issue I might have.” When Deborah Delaine Presley came forward in 1989 claiming to be Presley’ illegitimate child, the court held in , that Elvis Presley’s will expressly excluded her because she was not born during Presley’s marriage to her mother. Indeed, he never married her mother.
- Further, the partners may break-up and sever their sexual relationship but their adoption ties remain until legally voided. This problem arose in 2007 when Patricia Ann Spado, the lesbian former partner and adopted daughter of Olive Watson, sued to be considered a grandchild of her former partner’s mother in hopes of receiving a share of her estate. At the time of the adoption, Olive was 43 and Patricia was 44. Although the parent was older than the adopted child, age is of little consequence with adult adoptions. Olive Watson’s mother (a descendant of Thomas J. Watson Sr., the founder of I.B.M.) died in 2004, leaving multimillion-dollar trusts to be divided among her grandchildren.
- The technique of adopting a person to qualify as “issue” of the adoptor, usually for the purpose of an already established irrevocable trust, meets with varied judicial reaction. In a strict sense, the adopted person qualifies as a child. As a practical matter, the adoption is often a sham which has little substance of the traditional adoption.
- These adoptions are sometimes referred to as equitable adoptions in that the law will construe done what ought to have been done. For example, if there was an agreement to adopt and the child fulfilled her portion by making herself available to be adopted but the parent did not legalize the relationship, then a court sitting in equity may permit the child to inherit from the parent. Equity essentially enforces a contract between the child and parent by decreeing that the child is entitled to the fruits of a simulated legal adoption.
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Outline 102 results (showing 5 best matches)
Chapter 8 Interpretation 12 results (showing 5 best matches)
- The Holy Grail of the interpretation process is the “intention of the testator.” In search of that intention, various techniques have been used. Most words have varying degrees of clarity. Some words, especially “technical” words such as “heir” have precise meanings which will be attributed to the testator unless it is obvious that he did not intend them. (For example, a will which starts “This is my will if I die intestate. . . .”) The more usual legal approach to a word is Justice Holmes’ much quoted assertion, “A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used.” Beyond this approach is the circular and less helpful semantic approach by
- Third, what is the effect of certain provisions? For example, a gift to a class which includes a person specifically excluded in another provision of the will, percentages which do not total 100, whether a fee simple or a life estate is given to a beneficiary, implied bequests, gifts over in default, bequests for “college education” or “maintenance” and gifts to the executor who does not so serve.
- Interpretation of the terms of a will is a process which does not lend itself to facile explanation. For each trend or technique, there seems to be an opposing trend or technique. In some cases rigid rules of future interests dictate what the testator is deemed to have intended by a certain word. In other cases, typically when an “ambiguity” is found, words take on entirely new meanings.
- Recall that the application of wills doctrines may give an unexpected meaning to words: Anti-lapse and ademption doctrines may cause a bequest of “My 100 shares of Microsoft stock to my brothers” to be interpreted “200 shares of Apple to my nieces.”
- In the event of disputes, courts will try to discern the intent of the testator to interpret the will.
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Title Page 3 results
Index 130 results (showing 5 best matches)
Table of Cases 17 results (showing 5 best matches)
Acknowledgments 1 result
WEST ACADEMIC PUBLISHING’S LAW SCHOOL ADVISORY BOARD 6 results (showing 5 best matches)
- Publication Date: February 17th, 2017
- ISBN: 9781634604871
- Subject: Trusts and Estates
- Series: Nutshells
- Type: Overviews
- Description: The fifth edition of this book updates laws affecting intestate succession, wills, guardianships and trusts. It introduces wills terminology to the lay audience and summarizes the law of trusts with references to the Uniform Trust Code and the Restatement of Trusts. It uses problems arising from celebrity peccadilloes and deaths, such as those of Prince, and the mother/daughter team of Debbie Reynolds and Carrie Fisher to illustrate legal issues. The book can be adopted to supplement a traditional wills and trusts class or as the sole text for a seminar.