WILLS AND TRUSTS - Hastings College of the Law

Prof. Lois Schwartz 

Room 331, 200 Building - (415) 581-8809 

schwartl@uchastings.edu or loisws@aol.com 

Office hours TBA 

WILLS AND TRUSTS 

Hastings College of the Law 

Spring 2012 - Syllabus 

Schedule: 

Class meets on Tuesdays from 1:10 to 3:20 and Thursdays from 1:10 to 2:10. This is a threeunit 

course. The midterm is on Tuesday, February 28, 2011. The date of the final exam is 

tentatively set at May 3. Exams are partial open book, that is, you may bring only the California 

Probate Code book into the exams. 

Texts: Dukeminier, Jesse et al. Wills, Trusts, and Estates, 8th ed. (Aspen 2009). 

Weisberg, Kelly. California Probate Code and Related Provisions (Wolters Kluwer – most recent 

edition). 

Course Reader. 

Grading: 

The course is subject to the Hastings grade curve. The final exam will comprise 67 percent of 

your grade. The midterm exam will comprise 33 percent of your grade. Class attendance is 

mandatory; class participation is encouraged. 

Abbreviations CPC = California Probate Code; UPC = Uniform Probate Code (1990, as amended); UTC = 

Uniform Trust Code (2000); FC = California Family Code; CC = California Civil Code; CP = 

Community Property; QCP = Quasi-Community Property. 

Reading Assignments – Caveat -- You are expected to read the cases, but 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 class lectures and the course reader will make clear what you will need to know. 

Expected Learning Outcomes 1 : Upon completion of this course, a student will have acquired knowledge of 

how property transfers when a person dies intestate or with a will. In addition, the student will learn how trusts 

are created, administered, and enforced. The student will be able to complete in the following tasks: 

Distribute property under common law, the Uniform Probate Code, the California Probate Code when a 

person dies intestate and the impact of family circumstances and actions taken by a potential heir. 

Determine whether a will is valid under the three systems described above. 

Understand the differences between various types of wills, including attested, holographic, and statutory. 

Appreciate the impact of changes in people and property after will execution. 

Determine the effect of changes on a potential beneficiary after will execution. 

Interpret and construe wills using appropriate statutory and judicial rules. 

Recognize situations which may increase the likelihood of a will contest. 

Ascertain whether a will may be successfully contested and, if so, on what ground or grounds. 

Protect a will from contest by taking fundamental steps. 

1 Based in part on Prof. Gerry Beyer, Wills, Trusts, & Estates Syllabus, Texas Tech University School of Law 

(Fall 2011). 

1

Understand why a person would elect to create a trust. 

Know the elements of a valid trust – settlor, trustee, beneficiary, corpus, and (sometimes) protector and the 

different types of trusts. 

Determine whether a valid trust was created. 

Know how to limit the interest the settlor grants to the beneficiary. 

Understand the trustee’s fiduciary duties such as the standard of care and duty of loyalty. 

Determine the liability of a trustee in contract and tort contexts. 

Appreciate how a trustee must account to the beneficiaries. 

Explain how a trust may be altered by the court or the parties. 

Enforce trusts and obtain remedies. 

Understand the workings of trust bank accounts, resulting trusts, and constructive trusts. 

Continued . . . 

2

Week One: Tuesday, January 10 and Thursday, January 12 

Introduction: the power to transmit property at death. 

Dukeminier 8th edition Pages 1-38 

Key cases 8th ed. Hodel (p. 3): rights to transmit and receive property at death. 

Shapira (p. 28): right to condition inheritance. 

Relevant CA statutes 

Relevant UPC (1990) 

provisions 

Summary of probate procedure. 


CPC § 21105 (will passes all property and after-acquired property of testator) 

§ 2-602 (will may pass all property and after-acquired property of testator) 

Introduction to intestacy: shares of spouses, domestic partners, descendants, ascendants, collaterals. 

Dukeminier 8th edition 

Pages 71-97. Basic intestacy scheme. 

Week Two: Tuesday, January 17 and Thursday, January 19 

Intestacy: shares of spouses & domestic partners 


Key case 

Janus (p. 80). Period required for survival of spouse. 

Relevant CA statutes CPC § 6400 (property subject to intestacy provisions); 6401 (intestate share of 

surviving spouse or domestic partner); 6402 (share not passing to surviving spouse 

or domestic partner); 6402.5 (portion of decedent’s estate passing to issue of 

decedent’s predeceased spouse); 6404 (escheat); 220 (simultaneous death); 

221(exceptions); 222 (gift conditioned on survival of another); 223 (joint tenants); 

224 (simultaneous death of insured and beneficiary). 

NOTE: CPC §§ 100-104 also govern distribution of community property at death 

but apply only when decedent dies on or after January 1, 1985. See especially § 

100 (CP) and § 101 (quasi-CP); 

Relevant UPC provisions § 2-101 (intestate estate); § 2-102 (share of spouse in common law state); § 2-102A 

(share of spouse in CP state); § 2-103 (share of heirs other than spouse); § 2-105 

(no taker); § 2-106 (representation). 

Intestacy: transfers to children 


Key cases 

Hall (p. 97) (adoption & dual inheritance); Minary (p. 103) (adoption of spouse); 

O’Neal (p. 109) (equitable adoption); Woodward (p. 118) (posthumous conception); 

In re Martin B., p. 126. 

Relevant CA statutes CPC §§ 240 (intestate distribution to issue by modern per stirpes rule); 245 (modern 

per stirpes distribution); 247 (per capita at each generation distribution); 249.5 (child 

conceived after death of genetic parent); 6406 (intestate share of half-blood 

relatives); 6407 (posthumous heirs); 6450 (adopted and nonmarital children); 6451 

(adoption & 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); FC 7610 (establishing parent-child 

relationship); 7611 (presumed natural father); 7630 (paternity action); 7650 

(determining mother-child relationship). 

Relevant UPC provisions § 2-106 (representation); § 2-107 (half blood); § 2-108 (afterborn heirs); § 2-113 

(relationship to decedent thru 2 lines); § 2-114 (parent/child relationship); § 2-709 

(representation; per capita at each generation; per stirpes); 

3

Week Three: Tuesday, January 24 and Thursday, January 26 

Advancements against intestate share 


Key cases 

None 


Relevant UPC provisions 

CPC §§ 6409 (advancement writing requirement). 

§ 2-109 (advancements) 

Guardianship, conservatorship, and other protections for minors. 


Key cases 

None 

Relevant CA statutes Statutes not required. 

Relevant UPC provisions UPC sections not required. 


Bars to inheritance: homicide; disclaimer. 


Key cases 

Estate of Mahoney (p. 145) (slayer statutes), Drye (pp. 155) (disclaimer). 



CPC §§ 250-254 (disqualification for killer), § 259 (disqualification for elder abuse), 

§§ 282-283 (disclaimer). 

§ 2-801 (disclaimer); § 2-803 (effect of homicide). 

Week Four: Tuesday, January 31 and Thursday, February 2 

Wills: capacity & contests. 


Key cases Estate of Washburn (p. 159) (mental capacity of testator); Wilson v. Lane (p. 161) 

(mental capacity of testator); In re Strittmater (p. 169) (mental capacity); Breeden 

(p. 171) (mental capacity); Lipper (p. 193) (undue influence); In re Will of Moses (p. 

186) (undue influence); Puckett (p. 209) (fraud); Latham (p. 210) (duress); Schilling 

(p. 215) (tortious interference with expectancy). 



CPC §§ 6100 (who may make a will); 6100.5 (persons not mentally competent to 

make will); 6104 (duress, menace, fraud, undue influence); 21350 & 21350.5 

(disqualified transferees); 21353 (disqualification if transfer fails – recipient treated 

as predeceased). 

§ 2-501 (who may make a will); § 2-517 (penalty clause of contest). 


4

Week Five: Tuesday, February 7 and Thursday, February 9 

Formalities of attested wills. 

Dukeminier 8th edition Pages 227 -267 

Key cases 8th ed. Stevens (p. 229) (formalities vs. intent of testator); Estate of Morea (p. 239) 

(bequest to witness); Pavlinko’s Estate (p. 246) (switched wills); In re Snide (p. 250) 

(reciprocal wills); In re Will of Ranney (p. 253) (substantial compliance with 

signature requirement); Estate of Hall (p. 259) (dispensing power based on 

testator’s intent). 

Relevant CA statutes CPC §§ 6110 (requirements for formal will – writing, signed, witnessed); 6112 

(witnesses – competency and interest); 6113 (laws determining validity of will); 

6105 (conditional will). 

Relevant UPC provisions § 2-502 (execution, witnessed wills, holographic wills – note 2008 revision to allow 

notarization as an alternative to two witnesses!); § 2-505 (who may witness) 

Week Six: 

Tuesday, February 14. No class on Thursday, February 16 (which is treated as a Monday) 

Formalities – Holographic wills; pre-printed form wills; statutory wills. 


Key cases 8th ed. Kimmel’s Estate (p. 269) (letter serving as will); Estate of Gonzales (p. 274) (preprinted 

will form); Estate of Kuralt (p. 280) (letter as will codicil). 



CPC §§ 6111 (holographic wills); 6111.5 (extrinsic evidence permissible in ltd. 

cases to determine if document is a will); 6223 (CA statutory wills). Oral wills, in 

contrast, are not recognized in California. 

§ 2-502 (execution, witnessed wills, holographic wills); § 2-503 (writings intended as 

wills); § 2-506 (rejecting oral wills) 

Revocation and revival 


Key cases 

Harrison (p. 287) (lost will); Thompson (p. 290) (requirements for revocation); 

LaCroix (p. 295) (dependent relative revocation [DRR] and revival); Alburn (p. 300) 

(DRR). 



CPC §§ 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). 

§ 2-507 (revocation by writing or act); § 2-508 (revocation by changed 

circumstances); § 2-509 (revival of revoked will); § 2-804 (revocation by divorce). 


5

Week Seven: Tuesday, February 21 and Thursday, February 23 

Will formation: integration; incorporation by reference; republication by codicil; acts of independent 

significance; extrinsic evidence & mistake; contracts related to a will. 


Key cases 

Clark (p. 310) (incorporation by reference); Johnson (p. 317) (republication of will by 

codicil); Via (p. 329) (contracts related to will). 



CPC § 6130 (incorporation by reference); § 88 (will includes codicil); § 6131 (acts of 

independent significance); § 6111.5 (extrinsic evidence); CCP § 1856 (parol 

evidence); CPC § 21700 (contract to make will or other instrument). 

§ 2-510 (incorporation by reference); § 2-512 (events of independent significance); 

§ 2-513 (separate writing identifying bequest of tangible property); § 2-514 

(contracts concerning succession). 

Thursday, February 23: In-class review for midterm exam 

TUESDAY, FEBRUARY 28: MIDTERM EXAM 

PARTIAL OPEN BOOK; YOU MAY BRING THE CODE BOOK ONLY. 

Week Eight: Tuesday, February 28 [MIDTERM EXAM] and Thursday, March 1 

Thursday, March 1. Non-probate transfers: will substitutes and revocable trusts. 

Will substitutes allow the decedent to pass property at death by means other than a will. Alternatives or 

supplements to a will include but are not limited to life insurance policies, payable-on-death accounts, pension 

accounts, bank and stock accounts, revocable inter vivos trusts, and joint tenancy, all of which allow 

“inheritance” by right of designation or survivorship. 


Key case 

Farkas (p. 398) (intervivos revocable trust). 



CPC §§ 5000 (P.O.D. accts); 5020 (transfer of community property); 5301 (multiple 

party accts); CPC §§ 5302 (rights of survivor to joint acct); 6300 (pour-over wills); 

Civil Code § 683-683.2 (joint tenancy); Civil Code § 682.1 (community property with 

right of survivorship). 

§ 2-706 (construction of life insurance, retirement plan, acct with POD designation, 

etc.); § 2-511 (pour-over provisions in wills). 


6

Week Nine: 

No class 3/6 or 3/8 -- SPRING BREAK 

Week Ten: Tuesday, March 13 and Thursday, March 15 

General rules of judicial interpretation and construction of wills 

CPC § 21102 

CPC § 21120 

CPC § 21120 

CPC § 21122 

Intention of testator is controlling. 

Every expression in a will should be given effect if possible. 

Preference should be given to an interpretation that avoids intestacy. 

Words of a will are to be given their ordinary meaning unless a different intention 

can be ascertained. 

Judicial construction of wills: latent and patent ambiguities; mistake. 

► Patent ambiguities are apparent on the face of the will; latent ambiguities are not apparent. 

► Mistake applies to: (1) omission; (2) execution; (3) description; (4) inducement. 


Key cases 

Mahoney (p. 336) (judicial use of plain meaning of language in will); Arnheiter (p. 

343) (judicial willingness to strike mistaken term); Erickson (p. 345) (judicial 

reformation of will to correct mistake). 

Relevant CA statutes CPC § 6111.5 (admissibility of extrinsic language to determine meaning). 

Relevant UPC provisions UPC § 2-805 (2008) 

Week Eleven: Tuesday, March 20 and Thursday, March 22 

Judicial construction of wills: death of beneficiary preceding death of testator. 


Key cases 

Estate of Russell (p.359) (predeceased canine beneficiary); Ruotolo (p. 367) (lapse 

of bequest); Dawson (p. 376) (effect of death on class gift). 

Relevant CA statutes CPC §§ 21109 (failure to survive decedent); 21110 (anti-lapse statute); 21111 

(effect of failed transfer). 

Relevant UPC provisions § 2-603 (anti-lapse statute); § 2-604 (failure of testamentary provision). 

Judicial construction of wills: changes in property after execution of will. 

► Changes in property after the will is executed may require application of the following doctrines: ademption, 

satisfaction, abatement, and exoneration. 

► Note also that testamentary gifts often must be classified as specific, general, demonstrative, or residuary for 

purposes of applying these doctrines. 


Key case 

In re Estate of Anton (p. 381) (ademption by extinction). 



CPC §§ 12002 (specific devises of real property); 21117 (specific, general, and 

demonstrative 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); 

21403 (abatement within a class); 21612 (abatement to satisfy omitted spouse’s 

share). 

§ 2-609 (ademption by satisfaction); 2-607 (non-exoneration); 2-606 (nonademption 

of specific devises); 2-605 (accession to increased value in securities); 

2-606 (1997) (nonademption of specific devises).. 

7

Week Twelve: Tuesday, March 27 and Thursday, March 29 

Restrictions on the power of disposition: general family protections in California 

CPC §§ 6540 et seq. 



Family allowance pending administration of estate 

Homestead exemption 

Personal property exemption 

Restrictions on the power of disposition: rights of surviving spouse. 


Key cases 

Estate of Cooper (p. 483 note) – application of spousal rights to same-sex 

relationship Estate of Cross (p. 484) (spousal election of intestate share over 

provision in will); Sullivan (p. 488) (extension of elective share to non-probate 

transfer); Reece (p. 503) (premarital waiver of spousal rights) 



CPC §§ 100 (disposition of CP upon death); 101 (disposition of quasi-CP upon 

death); 140-147 (waiver of spousal rights); FC § 1615 (premarital arrangements); 

CPC § 21610 (share of omitted spouse); 21611 (when omitted spouse does not 

receive share); 21612 (property to satisfy omitted spouse’s share); 6560 (share of 

omitted spouse when decedent died before 1/1/98). 

§ 2-202(a)(elective share of surviving spouse grows with years of marriage; 

augmented estate includes non-probate transfers), § 2-301 (entitlement of spouse – 

premarital will); § 2-213 (waiver of right to elect). 

Week Thirteen: Tuesday, April 3 and Thursday, April 5 

Restrictions on the power of disposition: rights of omitted issue. 


Key cases 

Lambeff (p. 522) (family maintenance statute); Gray (p. 528) (unintentional 

omission); Kidwell (p. 536) (pretermitted heir). 



CPC §§ 6540 (family allowance during administration of estate); 21620 (share of 

omitted child); 21621 (when omitted child does not receive share); 21622 (unknown 

child or child believed dead); 21623 (property to satisfy omitted child’s share; 6570- 

6573 (share of omitted child when decedent died before 1/1/98). 

UPC § 2-302 (omitted children). 

Trusts: creation & characteristics of different types of trusts 

Dukeminier 8th edition Pages 543-544, 547-595 

Key cases 

Jimenez (p. 558) (beneficiary’s demand that trustee provide accounting); Hebrew 

University (p. 563, 566) (characterization of failed donation as trust); Unthank (p. 

569) (characterization of donative promise as trust declaration); Speelman (p. 572) 

(trust corpus based on expectancy); Clark (p. 579) (necessity of ascertainable 

beneficiaries); Searight’s Estate (p. 582) (trustee’s obligations in honorary trust); 

Olliffe (p. 593) (secret and semi-secret trusts). 

Relevant CA statutes CPC §§ 82 (creation of trust); 15204 (trust for general purpose); 15205 (designation 

of beneficiary). 

Relevant UTC provisions 

§ 401 (methods of creating trust); § 402 (requirements for creation); § 404 (trust 

purposes); § 407 (oral trust); § 408 (trust for care of animal); § 409 (ascertainable 

beneficiary). 

8

Week Fourteen: Tuesday, April 10 & Thursday, April 12 

Trusts: rights of beneficiaries and creditors 


Key cases Marsman (p. 598) (right of beneficiary to distribution from trust); Scheffel (p. 616) 

(spendthrift trusts as shields against creditors); FTC v. Affordable Media (p. 628) 

(offshore trust). 



CPC §§ 15300-15309 (spendthrift trusts & restraint on transfer of income and/or 

principal), including but not limited to 15302 (education or support trusts); 15303 

(discretionary trusts); 15304 (protection of settlor under spendthrift trust); 15305 

(claims against trust for child and spousal support); 15305.5 (judgment awarding 

restitution or damages for felony); 15306 (liability of spendthrift trust for public 

support of beneficiary or spouse or minor child). 

§ 501 (rights of beneficiary’s creditor or assignee); § 502-503 (spendthrift provision 

& exceptions); § 504 (discretionary trusts); §§ 601 et seq. (revocable trusts). 

Modification & termination of trusts 


Key cases 

In re Trust of Stuchell (p. 643) (modification); In re Riddell (p. 645) (special needs 

trust); In re Estate of Brown (p. 653) (termination). 

Relevant CA statutes CPC §§ 15211 (duration of trust for noncharitable purpose); 15212 (duration of trust 

for care of domestic animal or pet). 

Relevant UTC provisions §§ 410-412 (modification or termination); § 415 (reformation to cure mistake); § 706 

(removal of trustee). 

Tuesday, April 17: 

Last Day of Class -- one hour 

Charitable trusts 


Key cases 

Shenandoah Bank (p. 752) (charitable purpose required); In re Neher (p. 761) (cy 

pres); Smithers (p. 776) (supervision of charitable trust); 



§§ 16100 (charitable trusts defined by Internal Revenue Code); 4947 (nonexempt 

charitable trusts); 21100 (charitable trusts in educational institutions); 15205 (no 

requirement for designation of beneficiary); 

§ 405 (standing); § 413 (modification under doctrine of cy pres). 

Good luck on your final exam! 

Tentative date May 3 

Have a great summer! 

9

WILLS AND TRUSTS - Hastings College of the Law

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