Drafting of Wills and Trusts Spring 2010 Law 988-001 Professor Abravanel Thursday 3:00 4:50 P.M. COURSE ASSIGNMENTS Books The book for the course is Lucy A. Marsh, Practical Applications of the Law: Wills, Trusts, and Estates (2009). There will also be assigned material from Thomas L. Shaffer, Carol Ann Mooney and Amy Jo Boettcher, The Planning and Drafting of Wills and Trusts (5 th ed. 2007). There is also a recommended textbook by Paul Haskell, Preface to Wills, Trusts and Administration (2nd ed. 1994). Week 1: Assignment: Marsh, Pages 1 8. Additional exercises 1 3. Weeks 2 and 3: SYLLABUS Early in the course, you should review the wills of Georgia O Keefe, Elvis Presley and Mark Rothko in the Appendix. Think about whether the will is clear in describing what each testator wanted. If you don t understand part of a will, make a note and ask about it in class. Also, early in the course, read Chapters 8 and 9 in The Planning and Drafting of Wills and Trusts (5 th ed. 2007). This will give you helpful hints on drafting. (Copies of this book are available on reserve in the library. Assignment: Marsh, Chapter 1: Why Have a Will? Additional exercise 4 Drafting exercise 1: Provisions to Encourage Children to Finish College Drafting exercise 2: Including Children Adopted as Minors: Excluding Adopted Spouses and Lovers Week 4: Assignment: Marsh, Chapter 2: Capacity to Make a Will Drafting exercise 3B: To Include a Special Friend or Lover Despite Family Disapproval
Week 5: Assignment: Marsh, Chapter 3: Tools Available for Use in Wills and Trusts Drafting exercise 4: To Let Some Gifts Lapse, While Others do not Week 6: Assignment: Marsh, Chapter 3: Tools Available for Use in Wills and Trusts Drafting exercise 5: To Ensure that Gifts to Charities and Distant Relatives do not Become too Large a Percentage of the Total Estate Week 6: Assignment: Marsh, Chapter 3: Tools Available to Use in Wills and Trusts Drafting exercise 6: Providing for People who Have Cared Well for Testator Week 7: Assignment: Marsh, Chapter 4: Trusts Drafting exercise 7A: Support Trust for a Child who has a Medical Disability California Living Trust Form Weeks 8 and 9: Assignment: Marsh, Chapter 5: Special Provisions Regarding the Trustees Drafting exercise 8: Suggesting Investment Goals for the Trustee - - Green Investments Drafting exercise 9: Exculpatory Clause to Protect the Trustees - - and the Beneficiaries Week 10: Assignment: Marsh, Chapter 6: Pet Trusts Marsh, Chapter 7: Powers of Appointment Drafting exercise 10: Special Testamentary Power of Appointment Week 11: Assignment: Marsh, Chapter 8: Rule Against Perpetuities (RAP) Drafting exercise 11: Rule Against Perpetuities Savings Clause
Week 12: Assignment: Marsh, Chapter 10: Insuring That the Testator Gets His or Her Way Drafting exercise 12: Drafting The Strongest Possible No-Contest Clause Week 13: Assignment: Marsh, Chapter 11: Protecting the Will - - And the Client - - Durable Powers and Living Wills Drafting exercise 13: Draft your own Health Care Advance Directive Making Sure it Complies with Your Own State s Law N.B.: Assignments are subject to change by announcement in class.
ADDITIONAL EXERCISE 1 The following are matters which are traditionally covered in wills. Put these items in the order you think they should be covered in a typical will. Be prepared to explain why you included a matter in the order you used. Fiduciaries Powers Self-Proving Affidavit (see Will of Elvis Presley, page 268) Naming of Guardian Rule Against Perpetuities Savings Clause (see Item XIV, Will of Elvis Presley) Specific Bequests Payment of Debts Provisions of Residuary Trust covering disposition of trust after life income interest Naming of Executor Residuary Clause Ultimate Disaster Clause (see Article Ninth, Second Codicil to Will of Georgia O Keefe) Payment of Taxes Identification of Family Construction Provisions (see Items VII and IX, Will of Elvis Presley) No-Contest Clause General Bequests Overture (see page 4, footnotes 3 and 4 of Marsh text) Attestation Clause (see Will of Elvis Presley, page 267) Naming of Trustee Provisions of residuary trust covering income during life
ADDITIONAL EXERCISE 2 Review the will of Elvis Presley in the Appendix. What would you have done to improve the order of the will? How would your suggestions have improved the order of the will?
ADDITIONAL EXERCISE 3 The following introduction of a will has been given to you for review. Do you have any suggestions for improvement? LAST WILL AND TESTAMENT OF I. AM VERBOSE KNOW ALL MEN BY THESE PRESENTS: IN THE NAME OF GOD AMEN. I, I. AM VERBOSE, being of sound and disposing mind and memory, and not being satisfied with the laws of the State of Exhaustion to dispose of my estate, hereby make, publish, and declare this document as and for my LAST WILL AND TESTAMENT, and hereby revoke all wills and codicils by me at any time heretofore made. For the purpose of this assignment, you may wish to read Thomas L. Shaffer, Carol Ann Mooney and Amy Jo Boettcher, The Planning and Drafting of Wills and Trusts Chapters 8 and 9 (5 th ed. 2007).
ADDITIONAL EXERCISE 4 The following clauses have been drafted for inclusion in the Will form of Parsley, Sage, Rosemary and Thyme, of which you are an associate. Garnish Parsley, the Senior Partner of the firm, has sent them to you with a memo asking if you think any of the clauses should be translated into English so the clients will better understand them. Give Mr. Parsley your opinion and, if required, your redrafting of the clause. If you believe anything else needs to be covered by the clause, add the appropriate language. You may assume the answers to any questions which you believe are not covered and should be. CLAUSE 1 Unless the contrary is expressly stated, any devise or bequest to a person or a member of a class of persons who shall predecease me shall lapse, each future interest shall be contingent upon survivorship at the time such interest vests in possession, all distributions or divisions to or among descendants or issue shall be made per stirpes and not per capita, and the sole member of a class or group shall take the whole gift if alone surviving. CLAUSE 2 My Trustee shall be free to exercise liberally any power to make discretionary payments of principal or income and shall not be restrained by the interests of persons other than the person to whom a given payment is to be made. In exercising said discretion, however, my Trustee(s) shall consider the income of said person and, in so doing, may rely upon any statement of income furnished by or on behalf of that person. The decision of my Trustee(s) as to the purpose, time and amount of any such payment shall be conclusive upon all beneficiaries of this my will.
CLASS PARTICIPATION Class participation will constitute 25% of the grade in this course. The grades will be based on the following factors: 1. A student s performance in suggesting language and comments for improvement in the drafting exercises worked on in class. 2. Submitting for examination by the class a clause as a starting point for the drafting exercises. For each drafting exercise listed on the syllabus (subject to a number of exceptions) to be done in class, one student should volunteer to submit to me a draft of the clause asked for by the exercise. Since there are more students than exercises, the student chosen to submit an exercise (except Additional Exercises 1 4) will be done by voluntary sign up. My administrative assistant, Ms. Rosalena Thompson, will have a list to sign up for the exercises. A student should sign up for one and only one exercise. The draft must be turned in to me by 3:00 p.m. on the Tuesday preceding the first week the chapter containing that exercise is scheduled in the syllabus. I will then disseminate the draft so the students can review it prior to class. These clauses will not be graded, except that they will count toward class participation. A good faith effort to draft an effective clause will be rewarded.
EXERCISES TO BE HANDED IN Each student in the class will complete and hand in his or her answer to each of the following drafting exercises: Drafting Exercise Number Page 4 58 6 69 12 203 The exercises are due at 4:00 p.m. on the due date (to be announced in class). They may be given to Ms. Rosalena Thompson in Room 475 or, in her absence, placed in my mailbox in Room 467. I will make a good faith attempt to return the first exercise with comments prior to the due date of the second exercise, and so likewise with the second exercise. Students should use examination numbers rather than names on all exercises.