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Wills, Trusts, and Estates
South Texas College of Law Houston
Jenkins, Helen Bishop

Wills, Trusts and Estates         Jenkins Fall 2012
Exam: 20-40 MC, 5 short essays—Only need to know the law in Texas, not in the uniform probate code.
Group A & B; Group A on Tuesday, Group B on Thursday
Bar review outline;
Go over the practice exam;
Listen to streaming lecture on “difficult bar issues”
For case recitation, very fact specific, wants the names and exact provisions
I.                   Introduction
A.    Defining Terms
a.       “Holographic”  will – self written will, wholly in the handwriting of the testator and signed by the testator;
                                                  i.      What is holographic?
1)      Doesn’t include “fill-in-the-blank” forms
2)      No oral wills in TX
b.      2 basic methods of transfer at death – by will or “testate”, and by statute (no will) or “intestate”
                                                  i.      Can transfer property at death by trust, non-testamentary instruments like life insurance
c.       “Testator” person who writes a will
d.      Testamentary Intent (takes effect at death) – one way to challenge a will,
                                                  i.      If the will does not have this intent to take effect at the date of death, then it is invalid
                                                ii.      “Bequeath,” “Devise” these words word for testamentary intent
                                              iii.      I “leave” does not because without specific context for testamentary intent.
                                              iv.      Must be apparent intent on the part of the testator to leave the property at death and not during the testator’s lifetime
e.       Courts more liberal in interpreting holographic wills;
                                                  i.      TX strict construction state – 4 corners of the document state
f.       Testamentary Capacity – in order for the testator to create a valid will, the testator must know the:
                                                  i.      Kind and character of his property
1)      Can’t give away community property
                                                ii.      Natural objects of his bounty
1)      Almost always family, the question is the kind of relationship with the testator that the testator intentionally left this person their property
                                              iii.      Effect of this act of making a will
1)      Know that making a will
                                              iv.      Undue Influence – must not be done under undue influence of someone trying to influence the outcome
g.      Testator must have the ability to form a plan for disposition of her estate
                                                  i.      Part of orderly plan, goes to soundness of mind
h.      Formal Execution Requirements – put in place to reduce fraud, requirements vary in exact details; in TX:
                                                  i.      2 witnesses if typewritten
1)      Should be disinterested
a.       Technical statute dealing with witnesses that are interested
2)      “Attestation clause”
                                                ii.      Testator’s signature (ALL wills)
                                              iii.      Competence of witnesses
1)      Above the age of 14
                                              iv.      Witnesses sign in testator’s presence
                                                v.      No publication required
1)      Testator does not have to say this is his/her will
2)      Witnesses don’t need to know that the document is a will (helps if they do if there is a will contest)
3)      Don’t have to share what is in the will with the witnesses
i.        Codicil (cod-eh-sil) – instrument modifying or adding to an existing will
                                                  i.      Everything that goes into a will and its execution must also go into the codicil
1)      Can be disputed/contested just like a will
                                                ii.      Can do anything the will does, should specifically revoke anything want revoked
j.        Revocation – subsequent will revokes a prior will
                                                  i.      May be revoked in whole or in part
                                                ii.      A number of ways to do this; once revoked, as if never written
                                              iii.      Divorce can revoke certain provisions; leaving some to a wife and get divorced subsequently
                                              iv.      Must have the intent to revoke
k.      “Probate of a Will” – court validates the will
                                                  i.      Process in which we bring the will to court and the court validates it;
l.        “Administration of Estate”
                                                  i.      Process is dealt with by personal representative
1)      Collects the assets, pays the debts, and distributes what remains
m.    “Executor” – named in the will; “Administrator” – appointed by the court
                                                  i.      If testator neglects to name an executor, then the court will appoint an administrator
                                                ii.      Texas has “unique” “Independent Executorship” – independent executor acts free of court control
1)      File an inventory, doesn’t need permission of the court;
2)      Less expensive
                                              iii.      Dependent administrator – acts under court supervision; if there is a will that does not name an independent executor
1)      Turns in inventory; every act will have to be approved by the court
B.     The Power to Transmit Property at Death: Justifications and Limitations
1.      The Right to Inherit and the Right to Convey
a.       Jefferson – dead have no powers and rights of property once dead and should go back to society
                                                                       i.      Usufruct – the right to use and enjoy something
                                                                     ii.      True that dead have no powers?  Property I question – when they give a LE in something, or a FISSEL. 
b.      William Blackstone – children as heirs at law gave rise to testament or written or oral instructions properly witnesses and authenticated, according to the pleasure of the deceased – or to his will
c.       John Locke – men are not proprietors of what they have merely for themselves, their children have a title to part of it and have their kind of right joined with their parents
d.      Until the 80’s Jefferson & Blackstone’s views prevailed over Locke; 1942 SCOTUS decision – rights of succession and intestacy are statutory, nothing in the Federal constitution forbids the state to limit, condition, or abolish the power of testamentary disposition over property within its jurisdiction
                                                                       i.      Not a natural or a constitutional right until Hodel
e.       Hodel v. Irving
                                                                       i.      Whether original version of “escheat” provision of the Indian Land Consolidation Act effected a taking of appellees’ decedents’ property w/o just compensation
1)      Escheat – reversion of property back to the state
2)      Specific provision on p. 5 and indented
a)      No provision for payment of compensation to the owners of the interests covered by this section
                                                                     ii.      3 different appellees claiming taking of property w/o just compensation in violation of the 5th amendment – cannot take property without just compensation
                                                                   iii.      Reasons why the statute is OK
1)       Likening this case to the eminent domain and zoning cases; as if a regulatory taking – whether it interferes with the investment backed expectations;
2)      the decedents here are the ones with the investment backed expectation in passing it on or in receiving the value while they are alive
a)      not necessarily minimal value in each
3)      Purpose of act to prevent tiny ownership interests in the land from passing on, in hopes that the tribes could put the larger pieces of land to better use
4)      Consolidation of the lands would benefit the tribes; whole benefit is greater than the sum of the burdens imposed by the fractioned lands
                                                                   iv.      Reasons why the statute is not OK – if the court feels that the right is separate in the bundle of sticks, and will
1)      Right to pass on land is a constitutionally protected right
2)      Regulation amounts to abrogation of the right to pass on certain property to one’s heirs
3)      Abolishes descent and devise even if might result in consolidation of property—escheatable interests are not necessarily de minimus
4)      Holding that complete abolition of both the descent and devise of a particular class of property may be a taking, we reaffirm the continuing vitality of the long line of cases recognizing the States’ and the US’ broad authority to adjust the rules of devise and descent w/o implicating the just compensation clause
5)      Difference here is that both descent and devise are completely abolished—even when they effectuate the policy of the law enacted here
f.       Shaw v. CMG Worldwide
                                                                       i.      The Court appoints an administrator not an executor – court appoints Anna likely because Lee was the largest beneficiary and Anna was his wife, since he died she is likely the beneficiary under his will
                                                                     ii.      Case over the rights to use the images of Marilyn Monroe; Shaw Family Archives owns pictures of Marilyn the copyrights of which are purportedly owned by Shaw’s daughters; Strasburg became executrix of Monroe’s will and set up corp to handle the intellectual property assets of the residuary beneficiaries of Monroe’s will
1)      Shaws were se

                                                                    iii.      “Absence of a gift over” – what does this mean?
                                                                                                                      iv.      1854 decision – travel to neighboring areas difficult
3)      Arguing Maddox test of reasonableness should apply here – number of eligible Jewish women in the country is an extremely small minority in comparison to the entire population of eligible women
4)      Fineman v. Central Nat’l bank – held public policy is against a will conditioned upon divorce or beneficiary obtaining a separation
a)      Argues that the will would encourage him to marry a Jewish woman to get the bequest and then divorce here immediately after
                                                                                                                          i.      Court and Father should be able to assume the motivations of the son are proper in picking a wife
5)      Such a condition pressures him to marry within the 7 years rashly, without mature reflection upon his decision and jeopardizes his education
a)      Seven years is plenty of time for mature reflection
6)      Benefit of the state of Israel makes this different from the other cases found to violate PP;
a)      No bare forfeiture line in Maddox, andfrom the vagueness and indefiniteness of the English cases
b)      Demonstrates the depth of importance of the testator’s convictions of religious faith
                                                                                                                          i.      Duty of the court to honor the testator’s intentions within the limit of the law and PP
4.      Notes & Questions
a.       A will or trust provision is ordinarily invalid if it is intended or tends to encourage disruption of a family relationship
                                                                       i.      Bequest conditioned on survivor not remarrying is invalid unless is to provide support
b.      Provisions encouraging separation or divorce are likewise usually held invalid, unless the dominant motive of the testator is to provide support in the event of separation or divorce
c.       Restatement 3rd invalidates trusts that are contrary to public policy; calls for balancing of conflicting social values
5.      Note: Incentive Trusts and the Dead Hand
a.       Conditions incentive trusts might impose can be broken into 3 general categories:
                                                                       i.      Encourage beneficiaries to pursue an education;
                                                                     ii.      Provide moral incentives;
                                                                   iii.      Productive career
b.      Provided they do not violate PP, courts generally enforce
6.      Note: Destruction of Property at Death
C.     Transfer of the Decedent’s Estate
a.        Probate and Nonprobate Property
                                                  i.      All of the decedent’s property can be divided in to probate or non-probate property upon death
1)      Probate property – property that passes through probate under the decedent’s will or by intestacy
2)      Non-probate property – property that passes outside of probate under an instrument other than a will; does not involve a court proceeding but instead passes in accordance with the terms of the K or trust or deed
a.       Most property passes this way; common ways for property to pass this way:
                                                                                                     i.      Joint Tenancy, both real and personal property
                                                                                                   ii.      Life Insurance
                                                                                                 iii.      Ks with payable on death provisions
                                                                                                 iv.      Interests in trusts