Fall 2011– Syllabus & Reading Assignments

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WILLS AND TRUSTS Monterey College of Law

Fall 2011 – Syllabus and Reading Assignments

Prof. Yvonne A. Ascher yascher@ascherlaw.com 831-641-9019 Schedule: Class meets on Tuesdays from 6:30-9:30. This is a three unit course. Text: Dukeminier, Jesses et al. Wills, Trusts and Estates 8ed. (Aspen 2009)

(referred to as Text)

Susan F. French A California Companion for the Course in Wills, Trusts and Estates (Aspen 2009-2010) (referred to as CC)

Probate Code – I recommend an annotated version. I use McGovern California Probate Code Annotated (West 2010). Alternatively, you might want to purchase California, Probate Code and Related Provisions, w/ commentary by D. Kelly Weisberg, Aspen Publishers. It is part of their “student code book series”. It contains select provisions of the code with “explanations” and some brief case summaries. (This is the code book utilized by Hastings Law School for this course.) If you purchase this book, you will still need access to the California Probate Code as not all assigned sections are set forth in this text. (On-line access is generally sufficient.)

Grading: Your grade is fully based upon your final exam scores. There will be a

non-graded test during Week 7 or 8. Abbreviations: CPC = California Probate Code; UPC = Uniform Probate Code; UTC =

Uniform Trust Code; FC = California Family Code; CP = Community Property; QSP = Quasi Community Property. For abbreviations for text, see above.

Boldface: Statutes tested on the California Bar are in boldface. You can also see

the code sections that you are expected to know for the Bar by going to www.calbar.ca.gov/calbar/pdfs/admissions/ex1000900.pdf (Also Reprinted in CC on page XXVII and in the Table of Statutes on page 277)

Reading Assignments – Caveat: Reading Assignments: You are expected to read the

cases assigned. This particular casebook also includes a huge amount of explanatory information and commentary. It would be impossible to read all the text identified on the syllabus. The assigned cases, codes, class lectures and common sense will make clear what you will need to know. Codes that are expressly set forth in the CC need to be read, in addition to those identified in the syllabus.

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This subject matter is very “code” heavy. You will be responsible for knowing the CA codes identified.

Reviewing cases: Generally, the procedural issues are not significant or important for this

class. You can generally skip them unless the relevance of that case is a procedural issue.

Presentation of cases should begin with a summary of the important facts; pretend a client presented these facts to you. Apply the facts to the rules and show how the Court applied them in coming to its conclusion. Look at how the Court applied the facts to the rules. Focus on the issues that are relevant to this class – think “why is this case in this book here?” “What rule am I to get from this case?”

California law: You will only be tested on California law. However, on occasion, an understanding or awareness of rules applicable under common law or other jurisdictions is important. Accordingly, in some areas, UPC codes are referenced. They should be reviewed, but need not be committed to memory. The goal of this course is to enable you to recognize legal issues which arise in the context of Wills, Trusts and estate administration under California law.

Other comments: We may not get to discuss in class all the materials assigned. Nevertheless, you are responsible for all material (cases and codes) assigned. On occasion, due to various factors, the reading assignment may be revised. If you miss class, it is your responsibility to see if the reading assignment for the following week has been revised. You are also responsible for obtaining any materials passed out during class. Throughout the course, I will assign additional readings that are not in either casebook. For cases, I have tried to provide an on-line link to the case, but sometimes the link that worked when I found the case will not work when you try it. If you cannot download the document, it is your responsibility to let me know. If you contact me more than a week before the assigned reading is to be discussed, I would be glad to bring a hard copy to class so you can avoid the printing expenses. If you wait until that week, I can either fax it to you or email it as an attachment. I assume everyone has access to the internet, but if you do not, please let me know so we can make other arrangements. If an article is assigned, and the article is not available on-line, I will bring copies to class. If you miss that class, it is your responsibility to get a copy. For ease in review, the assignments in the Text are generally listed together, the assignments in the Companion Book (CC) listed together, and the outside reading listed together. That “order” is not always the order of the material. I leave it to you to decide how you wish to read the assignment. WARNING: WEEK 2 IS AN INTENSE WEEK - RECOMMEND THAT YOU TRY AND GET A HEADSTART

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WEEK 1: Introduction to subject matter: power to transmit property at death/summary probate process/introduction to intestacy; Malpractice! CC Scope of California Bar Exam CC Chapter 1 skim chapter CC Chapter 2 Read thru top of page 11 Note – skip to and read CC Chapter 3 page 56-61 Case: MOORE V ANDERSON ZEIGLER DISHAROON GALLAGHER & GRAY Text Chapter 1: Introduction/Governmental Right to Control; Summary of probate procedure; Professional Responsibility Read page 1-10 Skim pages 10-20 (skim the Marilyn Monroe case) Read pages 27-38 (footnote page 35 of particular interest) Read intro to probate 38-top of 40 Skim pages 40-48 on the probate process Key Cases: HODEL V IRVING (pg 3) rights to transmit and receive property at death

SHAPIRA V UNION BANK (pg 28) right to condition inheritance Text Chapter 2: Introduction to intestacy (Estate planning by default) Read page 71-80 Compare UC Codes with California Codes Philosophy question of the week: question on page 74. Outside Reading: CHANG V LEDERMAN (2009) 172 CA4th 67; 90 Cal. Rptr. 3d 758 What are the Biakanja/Lucas factors? Focus only on the malpractice issues. Intestacy problems worksheet – will hand out in class – due Week 2 CPC Codes: 21105 - Will passes all property including after acquired property of T; 6400 -

property subject to intestacy provisions; 6401 - intestate share of surviving spouse/domestic partner; 6402 - share not passing to spouse; 6402.5 – portion of T’s estate passing to issue of T’s predeceased spouse; 6404 – escheat

UPC Codes: §2-602; Wills may pass all property including after acquired property of T

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WEEK 2: Rules of intestacy – continued; shares of spouses/domestic partners; who is a child? Will go over the intestate problem in class. CC Chapter 2 Pages 11- 35 Cases: ESTATE OF DYE ESTATE OF FORD ESTATE OF GRISWOLD ESTATE OF BURDEN Text Chapter 2 - continued: Page 80-117 Cases: JANUS V TARASEWICZ - pg. 80 - period required for survival of spouse

skim Minary v Citizens Fidelity Bank & Trust Co. -pg 103 – adoption of spouse O’NEAL V WILKES pg 109 – equitable adoption

READ THE FOLLOWING OUTSIDE CASES– make sure you email me if you need copies ESTATE OF JOSEPH (1998) 17 C4th 203; skim the dissent ESTATE OF FURIA (2002) 103 Cal.App.4th 1, 126 Cal.Rptr.2d 384 (2002) CPC Codes: 28 – community property defined; 66 – quasi-community property defined;

100 – community property; 101 – quasi community property; 103 – simultaneous death of spouses re. cp and quasi cp; 104 – community property held in revocable trust; 220 – simultaneous death; 221 – exceptions; 222 – gift conditional on survival of another; 223 – joint tenants; 224 – simultaneous death of insured and beneficiary; 240 – intestate distribution to issue by modern per stirpes rule – per capita; 245 – modern per stirpes rule; 246 – per stirpes, by right of representation; 247 – per capita at each generation; 6406 – intestate succession of half blood relatives; 6407 - posthumous heirs; 6450 – adopted and nonmarital children; 6451 – adoption and birth family; 6452 – inheritance by parents of children born out of wedlock; 6453 – determination of natural parent; 6454 – right to inherit from foster or step parent; 6455 – equitable adoption;

CA Family Codes:

7610 – establishing parent-child relationship; 7611 – presumed natural father; 7630 – paternity action; 7650 – determining mother child relationship*

UPC Codes: §2-106 – representation intestate succession; 2-102 – share of spouse in common law state; 2-102A – share of spouse in community property state; 2-103 – share of heirs other than spouse; 2-105 – no taker; 2-106 – representation (you’ll have to look this one up); 2-107 – half blood; 2-113 relationship to T through 2 lines; 2-114 parent/child relationship; 2-709 – representation; per capital at each generation; per stirpes

Recommend you diagram intestate rules. *These rules can be quite confusing – just have a sense of the basis issues being addressed.

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WEEK 3: More intestate succession issues; advances, bars to succession, disclaimers CC Chapter 2 Page 35 -54 Cases: VERNOFF V ASTRUE How does this case differ from Gillett-Netting, also a 9th circuit

case? ESTATE OF SHELLENBARGER ESTATE OF LOWRIE

Text: Chapter 2 – continued Page 117-136 (stop at guardianship) Page 145-157 Cases: WOODWARD V COMMISSIONER OF SOCIAL SECURITY page 118 –

posthumous conception Skim – see CA statute on point IN RE. MARTIN B. page 126 IN RE ESTATE OF MAHONEY page 145 – slayer statutes DRYE V US page 155 - disclaimer Outside Cases: ESTATE OF DELORETO (2004) 118 CA 4th 1048 http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2004/b166989.html adult adoptee case; don’t need to focus on the “technical” issues but understand the facts, basic issue and what the Court is trying to ascertain. Think about drafting issues; definitional issues. ESTATE OF CHAMBERS, JR. V MONEY (2009) 175 CA 4th 891; 96 Cal. Rptr. 3d 651; although it appears to be a case about the correct “standard” to use, it has a good discussion of the rules governing proving a parent-child relationship after death. Skim Article: “The California Supreme Court Considers Three Broken Up Lesbian Partnerships and Finds, in each, That a Child Can Have Two Mothers”, by Joanna Grossman (Sept. 2005) http://writ.news.findlaw.com/grossman/20050906.html OPTIONAL: Charisma R v Kristina S. new 2009 case on issue (175 CA 4th 361) http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/175/361.html&search=25 CPC Codes: 249.5 – child conceived after death of genetic parent; 260-295 (skim)

disclaimers; 6409 – advancement writing requirement; 250-254 – disqualification for killer; 259 – disqualification for elder abuse; 282-283 – disclaimer;

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WEEK 4: Capacity; Disqualified transferees NOTE: THE PROHITIVE TRANSFEREE STATUTES WERE RECENTLY AMENDED. CASES GENERALLY BASED ON OLD STATUTES. NEED TO UNDERSTAND PRIOR STATUTES AND NATURE OF CHANGE CC Chapter 3 Page 55; 67 (bottom)—92 (skip STEPHENS) Cases: RICE V CLARK BERNARD V FOLEY OSORNIO V WEINGARTEN Text – Chapter 3 Wills: Capacity and Contests Page 159-221 Cases: skip ESTATE OF WASHBURN page 159 – mental capacity of testator WILSON V LANE page 161 – mental capacity of testator IN RE STRITTMATER page 169 – undue influence BREEDEN V STONE page 171 – mental capacity ESTATE OF LAKATOSH page 182 – undue influence

IN RE MOSES page 186 – undue influence IN RE KAUFMANS’S WILL page 191 – undue influence by gay lover

LIPPER page 193 – undue influence skip PUCKETT page 209 - fraud

LATHAM page 210 - duress Skim SCHILLING page 215 – tortuous interference with expectancy Outside Cases: Skim: Munn v Briggs (2010) – California law on tortuous interference with expectancy CPC Codes: 6100 – who may make a will; 6100.5 – persons not mentally competent to

make a will; 6104 – duress, menace; fraud, undue influence; 21360-21392 - statutorily presumed disqualified transfers (newly adopted statutes); 8252- burden of proof;

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WEEK 5 – Disqualified Transferees- cont.; No Contest Clause; Formalities of attested wills; introduction to Holographic Wills CC Chapter 3 Page 92-99 Case: COLBURN V THE NORTHERN TRUST COMPANY CC Chapter 4 Page 101-120 Cases: ESTATE OF SAUERESSIG skim: this case has been resolved by new

legislation; what statute has been revised to address this issue? ESTATE OF WILLIAMS ESTATE OF SOUTHWORTH ESTATE OF BRENNER Text: Chapter 4 – Wills: Formalities and Forms; Interested Witnesses Page 228-264 (can skip page 242-246) Cases: STEVENS page 229 – formalities vs. intent of testator NOTE THE CASE Taylor v Holt on page 235-6; In re. Colling, page 237 ESTATE OF MOREA page 239 – bequest to witness PAVLINO’S ESTATE page 246 – switched wills IN RE SNIDE page 250 – reciprocal wills

SKIP - IN RE WILL OF RANNEY page 253 – substantial compliance with signature requirement ESTATE OF HALL page 259 – harmless error re witnesses (compare Montana’s statute with CA’s recent changes to CPC 6110)

Outside Cases: ESTATE OF WINANS (2010 – filed 3/25/2010) http://www.courtinfo.ca.gov/opinions/documents/A124263.PDF TUNSTALL V. WELLS 10/31/06 http://caselaw.lp.findlaw.com/data2/californiastatecases/b188711.doc

Skim: ESTATE OF AUSTIN (2010) 188 CA4th 512 – transferee was not a care custodian

Optional – ESTATE OF PRYOR (2009) 177 CA4th 1466 (or read a summary article discussing the holding) CPC Codes: 6110 – requirements of formal will; writing, signed, witnessed (note recent

changes to the law); 6111 – holographic will; 6112 – witnessed – competency & interest; 6113 – laws determining validity of will; 6105 – conditional will

UPC Codes: 2-502 – execution, witnessed wills, holographic wills – note 2008 revision to allow notarization as an alternative to two witnesses; 2-505 – who may witness

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WEEK 6: Formalities continued; preprinted forms, statutory Wills; revocation and revival; statutory revocation; CC Chapter 4 Page 120-133 Cases: LAUERMANN V SUPERIOR COURT ESTATE OF JONES ESTATE OF REEVES Text Chapter 4 : CONTINUED Page 268-305 Cases: KIMMEL’S ESTATE page 269 – letter serving as a Will ESTATE OF HARRIS page 273 – will on tractor fender ESTATE OF GONZALES page 274 – pre-printed will form ESTATE OF KURALT page 280 – letter as Codicil HARRISON page 287 – lost Will THOMPSON page 290 – requirements for revocation

LACROIX page 295 – dependent relative revocation (DRR) and revival ALBURN page 300 – DRR (make sure you read the Note on page 304 following otherwise the case is a bit hard to follow)

CPC Codes: 6111.5 – extrinsic evidence permitted in ltd. Cases to determine if document

is a will; 6223 – CA Statutory Wills (skin briefly); Oral wills, in contrast, are not recognized in CA.; 6120 – revocation by subsequent will or physical act; 6121 – revocation of duplicate will; 6122 – revocation by dissolution of marriage; 6122.1 – revocation by termination of domestic partnership; 6123 – revival of revoked will; 6124 – presumption of revocation; 6130 – writing in existence, incorporation by reference; 6131 – reference to act of independent significance; 6132 – new statute re. disposition of tangible personal property

UPC Codes: 2-502 – execution, witnessed wills, holographic wills; 2-503- writings intended as a will; 2-506- rejecting oral wills; 2-507; revocation by writing or act; 2-509 – revival of revoked will; 2-804 – revocation by divorce

OUTSIDE READING ESTATE OF BELVA C.P. SMITH (First Appellate District; 2/3/98) 61 CA4th 259 ESTATE OF EVELYN I. ANDERSON; Carole J. De Paul v Robert C. Irwin II 56 Cal App 4

th 235; 65 Cal Rptr 2d 307 (1997)

http://caselaw.lp.findlaw.com/data2/californiastatecases/b099006.doc REVIEW FOR EXAM NEXT WEEK

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WEEK 7: Revocation by Operation of Law; Components of A Will; integration; incorporation by reference; republication by codicil; acts of independent significance; extrinsic evidence & mistake; contracts related to a will; Construction of Wills; use of extrinsic evidence to correct mistake Open book exam in the second half of class CC Chapter 4: pages 132-137 Cases: STEWART V SEWARD Text Chapter 4 : CONTINUED Page 307-328; make sure you read the Notes on Acts of Independent Significance (page 323) as there are no cases illustrative of concept CASES: CLARK V GREENHALGE page 310 – incorporation by reference SIMON V GRAYSON page 315 – incorporation by reference JOHNSON V JOHNSON page 317 – republication of will by codicil

MAHONEY page 336 – judicial use of plain meaning of language in will ARNHITER page 343 –judicial willingness to strike mistaken term ESTATE OF GIBBS page 344 – judicial reformation to correct mistake ERICKSON page 345 – judicial reformation of will to correct mistake ESTATE OF RUSSELL page 359 – predeceased canine beneficiary CPC Codes: 6130 – incorporation by reference; 88 – will includes codicil; 6131 – acts of

independent significance; new code section 6132 – writing regarding personal tangible property; 21700 – contract to make a will or other instrument; 6122 – dissolution revokes provisions in favor of ex spouse; 5600 – revocation of non probate transfers after dissolution; 5601 – termination of joint tenancy interest after dissolution

UPC Codes: CA Civil Pro. 1856 – parol evidence Outside Cases/Reading: BATTUELLO V BATTUELLO 75 Cal Rptr 2d 548; 64 CA4th 842 (1998) http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/64/842.html Read Article by Stimmell, Stimemel and Smith Contract to Make a Will (hand out) Optional Reading – great article; if nothing else keep for future reference When Death and Divorce Collide; Trusts and Estate Quarterly – Spring 2005 (I’ll email those who want a copy)

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WEEK 8: Construction of Wills- continued; change in circumstances – changes in beneficiaries (lapsing gifts) changes in property; In class review of exam Review exam in class CC Chapter 5: pages 139-158 Cases: ESTATE OF DYE (PART II) ESTATE OF DYE (PART III) BROWN V LABOW Read ESTATE OF MOONEY and ESTATE OF BEGLEY both cited in the problems on page 147-8 of CC: Great review cases Text Chapter 5: Construction of Wills; Mistake or Ambiguity; Lapsing interests Page 335-392 CASES: Skim RUOTOLO page 367 – lapse of bequest (I don’t think well reasoned,

important facts not addressed but will discuss briefly) DAWSON page 376 – effect of death on class gift Skip IN RE ESTATE OF ANTON page 381 – ademption by extinction Make sure you read the sections on pages 390-392 Outside Reading: ESTATE OF AUSTIN (113 CA3rd 167) December 11, 1980; change in form; no extinction; http://login.findlaw.com/scripts/callaw?dest=ca/calapp3d/113/167.html CITIZENS BUSINESS BANK v CARRANO (KAZANJIAN) November 5, 2010 CA4th CPC Codes: 5000 – POD accounts; 5020 – transfer of community property; 5301- multiple

party accounts; 5302 – rights of survivor to joint account; 6300 – pour over wills; 21110 – anti-lapse statue; 21111 – effect of failed transfer; 12002 – specific devises of real property; 21117 – general, specific, demonstrative and residuary gifts; 21131 – no right of exoneration for loan on property; 21132 – ademption, change in form – entitlement to posthumous stock splits & dividends; 21133 – ademption, right to unpaid proceeds; 21135 – satisfaction – deduction from testamentary gift; 21402 – order of abatement; 21403 – abatement within class; 21612 – abatement to satisfy omitted spouse’s share; 21109 – failure to survive decedent; 21110 – anti-lapse statue; 21111 – effect of failed transfer;

UPC Codes: CA Civil Codes

682.1 – community property with right of survivorship; 683-683.2 – joint tenancy

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WEEK 9: Non probate Transfers; revocation of gifts on dissolution1 CC Chapter 6: pages 159-178 Cases: MASRY V MASRY LEE V YANG DORN V SALMON Text Chapter 6: Non probate transfers Pages 393-403; 416-417; 426-431; 443- article on pour over wills; skim 448-468 Cases: FARKAS page 398 – inter vivos revocable trust STATE STREET BANK page 416 – self settled trusts liable for debts of testator EGELHOFF v EGELHOFF page 426 – ERISA pre-emption Optional Reading: BUSH v SCHIAVO page 459 Outside Cases: ESTATE OF MIRAMONTES-NAJERA 118 CA 4th 750 (2004) http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2004/d042212.html ESTATE OF GLADYS MILDRED LENSCH; (2009) 177 CA 4th 667 CPC Codes: 6122- provisions revoked in dissolution; 12002 – specific devises of real

property; 21109 – failure to survive decedent; 21110 – anti-lapse statue; 21111 – effect of failed transfer ; 5000 – POD accounts; 5020 – transfer of community property; 5301- multiple party accounts; 5302 – rights of survivor to joint account; 6300 – pour over wills; 19001 – property subject to claims; ; 6400 et seq – California Health Care Decisions Act (summary review);

CA Civil Codes

682.1 – community property with right of survivorship; 683-683.2 – joint tenancy

I’ll discuss use of Powers of Attorney and Health Care Directives – Section F Chapter 6

1 I think this is when Moot Court Competition gets intense, so the reading is a bit light – reading may get re-arranged.

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WEEK 10: RESTRICTIONS ON THE POWER OF DISPOSITIONL PROTECTION OF SPOUSE AND CHILDREN; INTRODUCTION TO TRUSTS; CONSTRUCTIVE TRUSTS AND RESULTING TRUSTS CC Chapter 7: page 179-191 Cases: ESTATE OF WILL CC Chapter 8: page 193-202 Cases: CURDY V BERTON CABRAL V SOARES Chapter 7: Omitted Spouses and Children; Marital Agreements Page 469-483; skim the elective share provisions of other states and under the UPC; think about the different approaches; 499-500; 506-515; 519-520; bottom of 521-525; family maintenance (see statutes in CA below); 527-536 – not any good cases on the CA statutes so really important that you READ the applicable statutes CASES: Skim LAMBEFF page 522 – note Australian law

GRAY page 528 – unintentional omission KIDWELL page 536 – pretermitted heir Chapter 8: Trusts; Introduction and Creation Pages 541-543 (skim historical discussion); 547-588 (skip taxation section); 593-95 CASES: JIMENEZ page 558 – beneficiary’s demand that Trustee provide accounting

HEBREW UNIVERSITY page 563, 566 characterization of failed transfer as a trust

UNTHANK page 569 – characterization of donative promise as trust declaration BRAINARD page 572 – trust corpus based on expectancy

SPEELMAN page 572 – trust corpus based on expectancy CLARK page 579 – necessity of ascertainable beneficiaries

Skim SEARIGHTS ESTATE page 582 – Trustee’s obligations in honorary trust (see CA statute on point)

OLLIFFE page 593 – secret and semi-secret trusts; what is the law in CA? CPC Codes: 6540 et seq, - family allowance during administration; 60 et seq, - homestead

exemption; 6501 et seq – personal property exemption; 100 – disposition of cp after death; disposition of quasi cp; 140-147 – waiver of spousal rights; 15211 – duration of trust for non charitable purpose; 15212; pet trusts; 21610- share of omitted spouse; 21620; 21611- exceptions to omitted spouse rules; 21612 – exceptions to omitted child rule; 6560 – share of omitted spouse when T died prior to 1/1998; 15205 – no requirement for designation of beneficiary;

UPC Codes: Family Code 1615 – premarital arrangements

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Outside Cases: ESTATE OF ALLEN 12 CA4th 1762 (1993) http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/12/1762.html IN RE. MARRIAGE OF RUELAS http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2007/b191655.html

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WEEK 11: Trusts- continued; revocation; administration; creditor issues; CC Chapter 9 page 203-241 Cases: LAYCOCK V HAMMER Rights of Beneficiary’s creditors VENTURA COUNTY Special creditor status YOUNG V MCCOY Restitution Creditor – discretionary trusts

CANFIELD V SECURITY –FIRST NATIONAL BANK spendthrift provisions/support trust

IN RE KURAISHI- self settled trusts IN RE. NEUTON – bankruptcy and trusts Skim CONSERVATORSHIP OF KANE – changed circumstances

DEMILLE V RAMSY – limits on spendthrift protection (local case – example of good lawyering in drafting of documents)

Chapter 9: Rights to Distributions from Trust Fund – Beneficiaries and Creditors; Page 597-634 (skip Arbitration Clauses); much of the creditor discussion you can skim as it is cover by CA cases, except for specific assigned cases CASES: MARSMAN page 598 – right of beneficiary to distribution from trust SCHEFFEL page 616 – spendthrift trusts as shields against creditors FTC V AFFORDABLE MEDIA page 628 – offshore trust IN RE LAWRENCE and Epilogue #1 page 634 – top 635 CPC Codes: 15300—15309 – restrictions on voluntary and involuntary transfers (creditor’s

rights);15400 – presumption of revocability; 15410; methods of revocation, modification; 15402 – modification; 15403- modification of irrevocable trusts; 15040; 15409; - what is the difference between this three statutes?

Outside readings: OSSWALD V. ANDERSON (1996) 49 CA4th 812 http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/49/812.html GARDENHIRE V. SUPERIOR COURT (2005) 127 CA4th 882 http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/127/882.html If you want a good overview of trusts go to: http://www.scselfservice.org/probate/prop/TransferringTrustProperty.htm

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WEEK 12 Rights to Distributions From Trust Funds; Modification of Trust; Trust Administration; the Fiduciary Obligation CC Chapter 10 page 243-256 Cases: ESSLINGER v CUMMINS ESTATE OF IVEY Chapter 9: Modification Of Trusts: Pages 641-659; Note on page 658; Cases: IN RE TRUST OF STUCHELL page 643 – modification of trust Skim IN RE RIDDELL page 645 – special needs trust IN RE ESTATE OF BROWN page 653 – termination of trust Chapter 10: Introduction to Trust Administration; Fiduciary Duty; Duty of Loyalty; Prudence Pages 675-685; read article on Co-Trustees, page 687; 694-699; 702-709; 712-721 Cases: HARTMAN V HARTLE page 675 – duty of loyalty IN RE GLEESON’S WILL page 676 - conflicts IN RE ROTHKO page 678 IN RE ESTATE OF JONES page 702 – risk, return diversification WOOD V. US BANK page 712 CPC Codes: 15620 – co-trustees; 16000 – duty to administer trust; 16002- duty of loyalty;

16003 – duty of impartiality; 16004 – conflicts of interest; 16012 – duty not to delegate; 16045 et seq – Prudent Investor Act –skim, but note 16052 re. delegation of investment responsibility; 16060-16064 – duty to notice and accounting; 16440- breach of trust – damages; skim powers of a trustee 16200 et. Seq; Prudent Investor Act (skim)

UPC Codes: Outside Reading: KAREN THOMAS V. ROBERT GUSTAFSON (2006) 141 CA4th 34 Good over all review case of use of trusts, interpretation of trusts, right to invade principal.

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WEEK 13: Trust Administration Continued; Charitable trusts; Introduction to Powers of Appointment ADMINISTRATION CONTINUED; TRUST CHARITABLE TRUSTS TAX PLANNING, POWERS OF ATTORNEY, REAL PROPERTY TAX ISSUES, ETHICS Text: Chapter 10 Read page 725-730; 736-750 (skim sections on accounting) Cases: HOWARD V HOWARD page 726 – income v principal, impartiality FLETCHER V FLETCHER page 739 – duty to inform Text: Chapter 11 Read page 751-787 (skim supervision of charitable trusts); optional page 795-799 Cases: SHENANDOAH BANK page 752 – charitable purpose required IN RE NEHER page 761 – cy pres doctrine The Philadelphia Store – the Barnes Foundation – page 769 SMITHERS page 776 – supervision of charitable trust Looks like a lot, but not a lot of cases; easy reading (and I think interesting) Text: Chapter 12 803-810; 813-821 Cases: IRWIN UNION BANK page 806 – rights of creditor to reach property subject to

a general power of appointment (See CPC 682 – CA has specific statute on point)

BEALS V. STATE STREET BANK page 813 – exercise of power of appointment

CPC Codes: 16100 – charitable trusts; 4947 - non exempt charitable trusts; 21000

charitable trusts in educational institutions; 15205 – no requirement for designation of beneficiary; 16061.5 and 16061.7 – duty to provide note, copy of trust; skim powers of appointment 600 et seq (read the headings primarily) , but read this in particular: PC 641- residuary clause does not normally exercise power of appointment

UPC Codes: Outside Reading: good review case ESTATE OF POWELL (2000) 83 CA4th 1434; 100 CR2d 501

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WEEK 14: Power Of Appointment – Continued; Construction Of Trusts - Future Interests; Rule Against Perpetuities CC 12-14 Text: Chapter 12-14 Read pages 832-836; 837-846; 853-854; 862-883; read summaries of the rule of perpetuities and the law in California; skim page 897-909 Cases: LORING V MARSHALL page 832 – failure to exercise power

FIRST NATION BANK OF BAR HARBOR page 853 – survival to time of possession – vested interests DEWIRE V HAVELES page 863 gift of income ESTATE OF WOODWORTH page 869; when do interests vest LUX V LUX page 880; when does a class close

CPC Codes: PC 21111 – failed transfers; PC 21114 – transfers of future interests, when

interest determined – favor late vesting; PC21200 et seq Uniform Statutory Rule Against Perpetuities; PC 21205 – 21 years after life in being or 90 years;

UPC Codes: Read articles concerning the following: Rule In Shelley’s Case Doctrine of Worthier Title Rule Against Perpetuties Outside Cases: ESTATE OF EDDY 134 CA3d 292 http://login.findlaw.com/scripts/callaw?dest=ca/calapp3d/134/292.html ESTATE OF BERDROW 5 CA4th 637 http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/5/637.html TIME PERMITTING AND INTEREST – WILL DISCUSS TAXES (ESTATE,

PROPERTY AND INCOME)

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WEEK 15: REVIEW/PARTY As this is the day before Thanksgiving, we’ll probably move this to Tuesday night – for most of you, you will no longer have a Tuesday night class…