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Wills, Trusts, and Estates
Charleston School of Law
Compton, Amanda E.

Wills, Trusts, & Estates
Instructor: Amanda Compton
Fall 2013
Chapter 1 – Introduction
Section A – The Power to Transmit Property at Death: Justifications and Limitations
1.       The Right to Inherit and the Right to Convey
Hodel v. Irving
Brief Fact Summary. Appellees filed suit alleging that the escheat provision of the Indian Land Consolidation Act resulted in a taking of their property without just compensation which was in violation of the Fifth Amendment.
Synopsis of Rule of Law. The States’, and where appropriate, the United States, has broad authority to adjust the rules governing the descent and devise of property without implicating the guarantees of the Just Compensation Clause.
Facts. In 1889, pursuant to a series of land acts enacted by Congress, which divided communal reservations of Indian tribes into individual allotments for Indians and unallotted lands for non-Indian settlement, each male Sioux head of household took 320 acres of land and other individuals took 160 acres. The lands were held in trust by the United States in order to protect the allottees from improvident disposition of their lands to white settlers. The allotment program quickly failed because the Indians leased their allotted lands to white ranchers and farmers, which resulted in parcels being splintered into multiple undivided interests that could not be alienated or partitioned, due to the fact the land was held in trust. To address this problem, Congress enacted the Indian Land Consolidation Act of 1983, which contained an escheat provision. The escheat provision essentially provided that any undivided fractional interest in a tract within a tribe’s reservation or jurisdiction,would escheat to that tribe and could not be passed by intestacy or devise, if the interest represented two percent or less of the total acreage of the tract and it earned its owner less than $100 in the preceding year before it was due to escheat. The statute became law o January 12, 1983 and it contained no provision for the payment of compensation to the owners of interests covered by the escheat provision. Mary Irving, Patrick Pumpkin Seed, and Eileen Bisonette, appellees, are or represent heirs or devisees of members of the Oglala Sioux Tribe who died in March, April, and June of 1983. But for the escheat provision of the Act, $2,700 which represents 26 escheatable interests in the Cross estate and $1,816 which represents 13 escheatable interests in the Pumpkin Seed estate would have passed, in ordinary course, to appellees or those they represent. Appellees filed suit in the District Court alleging the escheat provision resulted in a taking without just compensation under the Fifth Amendment. The District Court held the statute was Constitutional. The Court of Appeals reversed concluding that while appellees’ had no vested rights in decedent’s property, their decedents had a right to control the disposition of their property at death. The Court held that appellees had standing to invoke that right and that the taking of that right without just compensation to decedents; estates violated the Fifth Amendment.
Issue. Whether the original version of the escheat provision of the Indian Land Consolidation act of 1983 constituted a taking of appellees’ decedents’ property without just compensation?
Held. Yes. Judgment affirmed.
Since the escheatable rights are not de minimis, nor does the availability of inter vivos transfer obviate the need for descent and devise, a total abrogation of these rights cannot be upheld. The regulation virtually amounts to the abrogation of the right to pass on a certain type of property-a small undivided interest-to one’s heirs.
Discussion. In this case, both descent and devise of a particular class of property are abolished and thus may be a taking.
Shaw Family Archives v. CMG Worldwide
Defendants moved for summary judgment on the right of publicity claims set forth in Count II of its complaint, and plaintiffs filed a cross-motion for summary judgment on Count II against defendants.
Plaintiffs argued, inter alia, that even if a postmortem right of publicity in a public figure’s name, likeness, and persona existed, defendants could not demonstrate that they were the owners of that right because only property actually owned by a testator at the time of her death could be devised by will.
Since neither New York nor California (the only possible domiciles of the public figure at the time of her death)–nor Indiana–recognized descendible postmortem publicity rights at the time of the public’s death, she could not transfer any such rights through her will.
Moreover, plaintiffs contended, neither the California nor the Indiana right of publicity statutes allowed for the transfer of the publicity rights they recognize through the wills of personalities who were already deceased at the time of their enactment.
Regardless of the public figure’s domicile at the time of her death, and regardless of any rights purportedly conferred after her death by the Indiana Right of Publicity Act, Ind. Code §§ 32-36-1-1 to -20, or by Cal. Civil Code § 3344.1, the public figure could not devise by will a property right she did not own at the time of her death.
Whether MMLLC is the successor-in-interest to the postmortem right of publicity that was devised through the residuary clause of Ms. Monroe’s will
Whether the commercial use of Ms. Monroe’s picture, image, and likeness by SFA and Brad ford without MMLLC’s consent violates its rights under Indiana’s 1994 Right of Publicity Act, which creates a descendible and freely transferrable right of publicity that survives for 100 years after a personality’s death and applies to an act or event that occurs within Indiana, regardless of personality’s domicile, residence, or citizenship
Ms. Monroe could not devise by will a property right she did not own at the time of her death on 1962.
Postmortem publicity rights not recognized in NY, CA or IN in 1962.
NY does not recognize these rights still (to date of opinion)
At the time of her death in 1962 Ms. Monroe did not have any postmortem right of publicity under the law of any relevant state. As a result, any publicity rights she enjoyed during her lifetime were extinguished at her death by operation of law.
Ms. Monroe did not have the testamentary capacity to devise property rights she did not own at the time of her death.
Ms. Monroe did not “intend” to devise any rights she may have acquired under the Indiana or California right of publicity statute through the residuary clause of her will.
Neither the California nor the Indiana postmortem right of publicity statutes allows for testamentary disposition of the rights it recognizes by celebrities already deceased at the time of its enactment.
Motion for summary judgment denied
The Problem of the Dead Hand
Restatement (3rd) of Property: Wills and Other Donative Transfers
10.1 – Donor’s intention determines the meaning of a donative document and is given effect to the maximum extent allowed by law
a.       Rationale – The organizing principle of the American law of donative transfers is freedom of disposition.  Property owners have the nearly unrestricted right to dispose of their property as they please.
b.      Effect of a donative document – Unless disallowed by law, the donor’s intention not only determines the me

clears title and makes property marketable again.
o   2.) it protects creditors by providing a procedure for payment of debts
o   3.) it distributes the decedent’s property to those intended after the decedent’s creditors are paid
–          A person dying testate devises real property to devisees and bequeaths personal property to legatees.  Using devise to refer to land and bequest to refer to personal property
–          When intestacy occurs we use different words to describe what happens to the intestate’s real property and what happens to his personal property.  We say real property descends to heirs; personal property is distributed to next-of-kin.
A Summary of Probate Procedure
Formal versus Informal Probate
–          Formal probate under the UPC is a litigated judicial determination after notice to interested parties.  Formal proceedings become final judgments if not appealed.  In a formal probate, the court supervises the actions of the personal representative in administering the estate.  This supervision can be time consuming and costly.
–          In Informal probate, after appointment, the personal representative administers the estate without going back into court.  The representative has the broad powers of a trustee in dealing with the estate property and may collect assets, clear titles, sell property, invest in other assets, pay creditors, continue any business of the decedent, and distribute the estate—all without court approval.
–          Under the UPC, informal probate is the norm.
Barring Creditors of the Decedent
–          Every state has a statute requiring creditors to file claims within a specified time period; claims filed thereafter are barred.  These are known as nonclaim statutes.
Universal Succession
–          The heirs or the residuary devisees step into the shoes of the decedent at the decedent’s death, taking the decedent’s title and assuming all the decedent’s liabilities and the obligation of paying legacies according to the decedent’s will.
–          P.77 – Problem 2
o   Suppose H and W have been married one year.  H dies intestate, survived by W and a brother, but no parent.
§  What is W’s share?
·         W takes all
§  Why should a shorter marriage lead to a smaller forced share?
·         It shouldn’t matter because a marriage is protected and is viewed as stronger than that sibling relationship.
–          P.77 – Problem 3
o   Suppose Henry dies intestate.  Anne, with whom he has been living, would like to claim a spouse’s share.
o   Is Anne entitled to such a share if she married Henry, but the marriage is bigamous?
o   Suppose that Henry and Anne had married, but Henry had moved out and filed for divorce.  What result?
§  Are they technically divorced?  No.  So she is still a surviving spouse.  The way to address this as an attorney, is that when the client comes and says they are getting a divorce, you make sure that they update their will.