Saturday, March 7, 2015


Official Text and Comments Approved by the National Conference of Commissioners on Uniform State Laws.
AN ACT Relating to affairs of decedents, missing persons, protected persons, minors, incapacitated persons and certain others and constituting the Uniform Probate Code; consolidating and revising aspects of the law relating to wills and intestacy and the administration and distribution of estates of decedents, missing persons, protected persons, minors, incapacitated persons and certain others; ordering the powers and procedures of the court concerned with the affairs of decedents and certain others; providing for the validity and effect of certain non-testamentary transfers, contracts and deposits which relate to death and appear to have testamentary effect; providing certain procedures to facilitate enforcement of testamentary and other trusts; making uniform the law with respect to decedents and certain others; and repealing inconsistent legislation.
The long title of the Code should be adapted to the constitutional, statutory requirements and practices of the enacting jurisdiction. The concept of the Code is that the “affairs of decedents, missing persons, disabled persons, minors, and certain others” is a single subject of the law notwithstanding its many facets.
PART 1. SHORT TITLE, CONSTRUCTION, GENERAL PROVISIONS SECTION 1-101. SHORT TITLE. This [act] shall be known and may be cited as the
Uniform Probate Code.
(a) This [code] shall be liberally construed and applied to promote its underlying purposes and policies.
(b) The underlying purposes and policies of this [code] are:
(1) to simplify and clarify the law concerning the affairs of decedents, missing

persons, protected persons, minors and incapacitated persons;
(2) to discover and make effective the intent of a decedent in distribution of his

(3) to promote a speedy and efficient system for liquidating the estate of the decedent and making distribution to his successors;
(4) to facilitate use and enforcement of certain trusts;
(5) to make uniform the law among the various jurisdictions.
SECTION 1-103. SUPPLEMENTARY GENERAL PRINCIPLES OF LAW APPLICABLE. Unless displaced by the particular provisions of this [code], the principles of law and equity supplement its provisions.
SECTION 1-104. SEVERABILITY. If any provision of this [code] or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the [code] which can be given effect without the invalid provision or application, and to this end the provisions of this [code] are declared to be severable.
SECTION 1-105. CONSTRUCTION AGAINST IMPLIED REPEAL. This [code] is a general act intended as a unified coverage of its subject matter and no part of it shall be deemed impliedly repealed by subsequent legislation if it can reasonably be avoided.
SECTION 1-106. EFFECT OF FRAUD AND EVASION. Whenever fraud has been
perpetrated in connection with any proceeding or in any statement filed under this [code] or if fraud is used to avoid or circumvent the provisions or purposes of this [code], any person injured thereby may obtain appropriate relief against the perpetrator of the fraud or restitution from any person (other than a bona fide purchaser) benefitting from the fraud, whether innocent or not. Any proceeding must be commenced within two years after the discovery of the fraud, but no proceeding may be brought against one not a perpetrator of the fraud later than five years after the time of commission of the fraud. This section has no bearing on remedies relating to fraud practiced on a decedent during his lifetime which affects the succession of his estate.
This is an overriding provision that provides an exception to the procedures and limitations provided in the Code. The remedy of a party wronged by fraud is intended to be supplementary to other protections provided in the Code and can be maintained outside the process of settlement of the estate. Thus, if a will which is known to be a forgery is probated informally, and the forgery is not discovered until after the period for contest has run, the defrauded heirs still could bring a fraud action under this section. Or if a will is fraudulently concealed after the testator’s death and its existence not discovered until after the basic three year period (Section 3-108) has elapsed, there still may be an action under this section. Similarly, a closing statement normally provides binding protection for the personal representative after six months from filing (Section 3-1005). However, if there is fraudulent misrepresentation or concealment in the preparation of the claim, a later suit may be brought under this section against the personal representative for damages; or restitution may be obtained from those distributees who benefit by the fraud. In any case innocent purchasers for value are protected.
Any action under this section is subject to usual rules of res judicata; thus, if a forged will has been informally probated, an heir discovers the forgery, and then there is a formal proceeding under Section 3-1001 of which the heir is given notice, followed by an order of complete settlement of the estate, the heir could not bring a subsequent action under Section 1- 106 but would be bound by the litigation in which the issue could have been raised. The usual rules for securing relief for fraud on a court would govern, however.
The final limitation in this section is designed to protect innocent distributees after a reasonable period of time. There is no limit (other than the two years from discovery of the fraud) against the wrongdoer. But there ought to be some limit after which innocent persons who have built up expectations in good faith cannot be deprived of the property by a restitution action.

The time of “discovery” of a fraud is a fact question to be determined in the individual case. In some situations persons may not actually know that a fraud has been perpetrated but have such strong suspicion and evidence that a court may conclude there has been a discovery of the fraud at that stage. On the other hand there is no duty to exercise reasonable care to discover fraud; the burden should not be on the heirs and devisees to check on the honesty of the other interested persons or the fiduciary. 

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