TRUSTS & ESTATES — ANNOTATED MODEL ESSAY
This essay models a high-scoring response to a layered wills/trusts question covering revocation, anti-lapse, pretermitted heirs, and the validity of a trust amendment. Read the black text as your timed answer; the gold boxes explain what each move earns.
In 2015, Harold validly executed a typewritten will. It left "$50,000 to my brother Ben, the residue to my then-living children in equal shares," and named his friend Olivia executor. At the time Harold had two children, Cara and Dan.
In 2018, Harold signed a valid revocable trust holding his brokerage account. The trust directed the trustee to pay income to Harold for life, then distribute the principal "to my children equally." The trust said it could be "amended only by a writing signed by me and delivered to the trustee."
In 2021, Harold's third child, Ellen, was born; Harold never updated his will. In 2023, angry with Ben, Harold drew a single line through the "$50,000 to my brother Ben" clause and wrote "VOID — H.H." in the margin, initialing it. He also typed a note reading "I amend my trust to add my friend Olivia as a one-fourth beneficiary," signed it, but kept it in his desk and never gave it to the trustee. Harold died in 2024. Ben survived him. Cara predeceased Harold in 2022, leaving one child, Grace.
(1) Is the gift to Ben effective? (2) What share, if any, does Ellen take from the probate estate? (3) Who takes Cara's share of the residue? (4) Is the trust amendment adding Olivia valid, and how is the trust principal distributed?
Model Answer — with annotations
Black text is the answer you could realistically write under timed conditions. The gold boxes explain why each move earns points.
I. Partial Revocation of the Gift to Ben
A will may be revoked in whole or in part by a subsequent instrument or by a physical act — cancellation, obliteration, tearing, or destruction — performed on the will with present intent to revoke. Most states and the UPC permit partial revocation by physical act. Here, Harold drew a line through the entire "$50,000 to my brother Ben" clause and wrote "VOID" with his initials. Drawing a line through specific words is a cancellation, and the "VOID" notation plus initialing supplies clear present intent to revoke that gift. Because the act touched only the Ben clause, it is a valid partial revocation, and the rest of the will stands.
A minority of states do not allow partial revocation by physical act and would treat the cancellation as ineffective, leaving the gift intact unless re-executed. But under the majority and UPC rule, the gift to Ben is revoked and Ben takes nothing under the will.
II. Ellen as a Pretermitted (Omitted) Child
Under pretermitted-child statutes, a child born or adopted after a will is executed, and not provided for or intentionally omitted, takes an intestate share of the estate. The presumption is that the omission was accidental rather than intentional. Ellen was born in 2021, after the 2015 will, and Harold never amended the will to mention her. Nothing shows an intent to disinherit her or that she was provided for outside the will. Ellen is therefore a pretermitted child.
Where the testator had other children when the will was executed and the will left property to those children, the omitted after-born child generally takes a share equal to what she would have received had the testator divided the property given to the then-living children among all the children, including the omitted child. Because the 2015 will left the residue to Harold's then-living children (Cara and Dan), Ellen shares in that class gift. The residue is effectively redistributed so that Ellen receives a share comparable to her siblings'.
III. Disposition of Cara's Residuary Share — Anti-Lapse
At common law, a gift to a beneficiary who predeceases the testator lapses and falls into the residue (or passes by intestacy if the residue itself lapses). Anti-lapse statutes override this: if the predeceasing beneficiary was within a specified degree of relationship to the testator (typically a descendant, or under the UPC a grandparent or descendant of a grandparent) and left surviving descendants, those descendants take the gift by representation. Cara, Harold's child, predeceased him but left a daughter, Grace.
Cara falls within the protected class (a descendant of the testator) and left a surviving descendant, so anti-lapse applies. Grace takes Cara's residuary share by representation. The class-gift language ("then-living children") does not defeat anti-lapse in most jurisdictions and under the UPC; words of survivorship in the abstract are not enough to show intent to override the statute. Thus Cara's share passes to Grace, not to Dan and Ellen by augmentation.
IV. Validity of the Trust Amendment Adding Olivia
A settlor of a revocable trust may amend it. Where the trust instrument specifies an exclusive method of amendment, the settlor must comply with that method; substantial compliance is generally insufficient when the document makes the method mandatory and exclusive. Harold's trust required amendment "only by a writing signed by me and delivered to the trustee." Harold signed a writing adding Olivia but never delivered it to the trustee, keeping it in his desk.
Because delivery to the trustee was a required and exclusive condition, the unfulfilled delivery means the amendment never took effect. Olivia is not a beneficiary. The trust principal therefore passes under the original terms "to my children equally." The settlor's children at distribution are Dan, Ellen, and Cara's line. Anti-lapse principles applicable to trusts (under the UPC's parallel rule for future interests in revocable trusts) substitute Grace for the deceased Cara, so the principal is divided equally among Dan, Ellen, and Grace (Grace taking Cara's one-third by representation).
- Uses tight IRAC for each of the four calls, with a bolded issue header signposting every section.
- States the majority/UPC rule first, flags the minority split on partial revocation, and commits to a conclusion rather than hedging.
- Handles the pretermitted-child computation, not just the label, applying the UPC's limited-share rule.
- Spots and resolves the anti-lapse trap in "then-living children," citing the rule that words of survivorship alone do not defeat the statute.
- Reads the trust's exclusive amendment clause closely and ties the failed delivery to the final distribution.
- Extends anti-lapse into the trust so every dollar is accounted for — nothing is left dangling.
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