021506

QUESTION ANALYSIS

2011 WILL

In 2011, Tess (T), age 85, executed a valid will (no validity of 2011 Will issue raised), leaving all her property (res, delivered) in trust for her grandchildren, (testamentary trust) Greg and Susie. Income from the trust was to be distributed to the grandchild or grandchildren (trust purpose) then living each year. (G & S are income beneficiaries) At the death of the last grandchild, any remaining assets were to go to Zoo for the care of its elephants. (charitable trust, trust purpose; Zoo is a remainder beneficiary) (There is no trustee.)

In 2012, the court appointed Greg as conservator for Tess, (undue influence issue) because of Tess’s failing mental abilities. (T is 85. possible will capacity issue)

2013 WILL

In 2013, the court authorized Greg to make a new will for Tess. Greg made a new will for Tess leaving Tess’s entire estate to Susie and himself outright. Greg, without consulting Tess, then signed the will,(fraud) in the presence of two disinterested witnesses, who also signed the will.

2014 WILL

In 2014, Tess found a copy of the will drafted by Greg, and became furious. She immediately called her lawyer, described her assets in detail, and instructed him to draft a new will leaving her estate in trust to Susie alone and excluding Greg. Income from the trust was to be distributed to Susie each year. At Susie’s death, any remaining assets were to go to Zoo for the care of its elephants. The new will was properly executed and witnessed. (No validity of 2014 Will issue raised; T's capacity) (charitable trust issue-there is no trustee.)

In 2015, Tess died. That same year, Zoo’s only remaining elephant died. (cy pres doctrine)

Zoo has petitioned the court to modify the trust to provide for the care of its animals generally. (general charitable intent)

(TRUST QUESTION)

1. Is Zoo’s petition likely to be granted? Discuss.

(WILLS AND SUCCESSION QUESTION)

2. What rights, if any, do Greg, Susie, and Zoo have in Tess’s estate? Discuss. Answer according to California law.

ANSWER OUTLINE

I. Is Z’s petition likely to be granted?

1. Validity of 2013 WIll which revoked 2011 Will

(1) Undue Influence

(2) Dependent Relative Revocation

2. Validity of 2014 WIll which revoked 2013 Will

(1) Capacity

3. Trust Creation

4. Charitable Trust

II. What rights, if any, do G, S, and Z have in T’s estate?

1. Distribution