WILLS &TRUSTS – Spring 2013
Dean Charles Nelson
I. INTRODUCTION
A. Do you have the right to control your prop. At death
1. Policy of presumption in the Probate code – what we think you want.
2. Omitted spouse and Omitted Children statutes
3. Hodel – Right to will ppty is CXN protected.
4. You can’t will what you don’t have at death.
B. Power to will vs. Power to inherit
1. PTW – CXN protected, PTI – not CXN protected
2. You can’t will what you don’t have at death. 2-602
a. Shaw family –post mortem right of publicity did not exist yet.
1. Does his family have the right to publish?
C. Power to devise how I want
1. Destroy it, bury it, control it.
2. DEAD HAND CONTROL
a. Shapiro
1. Forced to marry jewish girl to get devise.
2. CXN issues, how narrow are the instructions
2. Are the instructions reasonable?
b. 3rd Rest. – Donor’s intentions control to the maximum at law.
c. Incentive trust – You can force a change in behavior
1. Work ethic trusts discourage slothfulness.
2. Problem with unforeseeable disability
d. Minimum instruction necessary
1. To much will give fodder for will contest, sometimes
inflammatory.
II. PROFESSIONAL RESPONSIBILITY IN WTE
A. Two theories
1. Privity in Contract – Liable to 3rd party beneficiary.
2. Negligence theory (SC hasn’t ruled which theory prevails).
B. Simpson
1. Vague language screwed up and left 3rd party with nothing.
2. Held that privity of K not necessary.
3. Probate is inferior but can be referred to Circ. Ct.
C. Don’t take client if you can’t complete before their death, don’t rush but if you know death is imminent you must be careful.
D. Jt. Representation.
1. Disclosure agreements
2. Conflict of interest checks and waivers.
E. Engagement Letters
1. Clear understanding of what I am doing and fees
2. Jt. Rep. issues/waivers/future conflicts
3. timing issues
4. Termination letter at conclusion. Effectively ends your rights.
III. INTESTACY
A. Intro.
1. No will, gov’t rules.
2. Partial intestacy – will disposed only part of estate, the rest/residue
thru intestacy.
B. Simultaneous Death
1. Janus – When does intestacy kick in? Who dies first.
2. Burden of proof on who is trying to proof they outlived.
3. SC SIMULTANEOUS DEATH ACT 2-104
1. 120 Hours survivorship for intestacy
2. If not then the beneficiary is determined to predecease.
3. In testacy can write around this.
C. SC intestacy statutes
1. Surviving spouse
1. Issue = ½
2. No issue = full
2. Remainder takes by representation
1. No issue, no spouse then parents.
2. Then parents issue
3. Follow table of consanguity by representation.
1. Your half-bloods are treated as whole bloods. 2-107
4. Disclaimers 2-106 – Does not alter determination of generations
5. Afterborns 2-108 – Conceived before and born within 10 mos.
Are treated as child.
3. Representation rules
1. In laws get nothing, 1st gen. split evenly
2. Modern per stirpes – Divide equally @ first then so on, see p. 87
3 English modern, p. 90 – no divide until we have survivor.
D. Negative disinheritance
1. 2-101(b) – SC does not have.
2. In SC – does disinherit an intestate heir, the decedent must devise 100%
E. Transfers to Children
1. What is a child
a. Hall – Adoption extinguishes right to inherit from natural parent
1. Except if from the spouse of the natural parent 9 -760, 2-109
2. Illegitimate Child/Non-marital children 2-109(2)
1. permitted from mother
2. permitted from father if,
1. parents participated in invalid ceremony,
2. paternity adjudicated before death, or
3. clear & convincing evidence.
3. Father can inherit only if he treated as child.
3. Adoption of Adult 9-1120, 9-760
1. Minary – trust issue, beneficiary is children and their children.
a. adopt wife as child so she can inherit?
b. Court said it is against the intent of grantor.
2. SC – generally not effective in intestacy unless in “best interests” of all parties. Grantor’s intent for written things.
4. Reproduction Tech.
1. Woodward – Need for time limits to determine finality
1. Did the deceased intend for this to happen?
2. Did they intend to support this child?
3. No SC law or case law. 2-109
due relationship (malpractice).
2. Used independent lawyer (what you’re suppose to do, but failed the duck test.)
4. Lipper
1. The will appears unnatural because it excludes clear inheritors.
2. Is decedent susceptible? Bad facts but court found no UI.
3. COURTS VARY A LOT, LITTLE CONSISTENCY
6. In Terrorem/No contest clause.
1. If you challenge will and lose, you get nothing.
1. Not if there was probable cause (good faith) for action.
2. Courts will uphold these.
7. Bequests to Attorneys
1. Presumption is undue influence under the will and it is voided out, Unless you are related. MRPC 1.8©.
1. “close, familial” relationship
2. Can be Person. Rep. and get reasonable fee
3. SC – judge reprimanded for receiving too much as PR.
C. Will contest planning
1. Need to warn client about possible challenges/contests like above.
2. Record discussions, create write ups, have their capacity checked.
3. Make sure they read and understand the document.
4. Be wearing of new/weird testamentary schemes.
D. Fraud
1. Deliberate misrep. (2 types)
1. Fraud in the inducement
1. cause the execution or revocation of devise.
2. Fraud in the execution
1. misrep. the character of the instrument, which does not in fact carry out the intent of testator.
E. Duress – overly coercive undue influence
1. Threat or wrongful act that creates coercion.
2. Latham
1. Clear duress but what is the remedy?
2. Constructive Trust- Equitable remedy that allows for equitable
beneficiary aside from legal title holder.
F. Tortuous interference with an expectancy
1. Interested parties with expectancy interest, SC court has noted that they would consider this COA.
2. A COA that might be brought because the probate estate is closed and this is the only remedy.
3. Must exhaust all probate remedies, not an alternative remedy.
4. Damages are different, eligible for legal fees.
