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Wills, Trusts, and Estates
South Texas College of Law Houston
Festa, Matthew J.

The Power to Transmit Property at Death:  Its Justification & Limitations
1.       The Right to Inherit and the Right to Convey
  a.  Blackstone – no natural right, merely a civil right
  b.  Historically – (til the 1980s)
        (i)  no natural or constitutional right to inherit property
        (ii) Inheritance rights are of statutory creation
  c.  Minority View:  Locke
       Is it the right to inherit or the right to transmit that's important
2.       The Policy of Passing Wealth at Death
3.       An Introduction to the Problem of the Dead Hand (control from beyond the grave)
a.  The organizing principle of the American law of donative transfers is freedom of disposition.
     Property owner have the nearly unrestricted right to dispose of their property as they please
           b. American law does not grant courts any general authority to question the wisdom, fairness, or
               reasonableness of the donor's decisions..  The main function of the law in this field is to
               facilitate rather than regulate.  The law serves this function by establishing rules under which
               sufficiently reliable determinations can be made regarding the content of the donor's
Shapira v. Union National Bank – will said boys had to marry Jewish woman w/ Jewish parents to inherit
1.       P's Argument –
 a.  Unconstitutional –
       (i)  Right to marry being restricted -= Court – “who is restricting P's liberty?”
       (ii) Judicial enforcement – (like Shelley v. Kraemer) state action
             Court – “no – enforcing the inheritance gift, not enjoining marriage to non Jewish person”
       (iii) Is right to receive property protected? No – only to give
2.       Public Policy
 a.  We may not like restrictions on marriage but is this really a restriction on marriage or religion?  No
 b.  What if decedent were still alive?
      He could choose to give or not give to P
     So why can't he condition it from beyond the grave
 c.  How much is he required to leave P in his will?  Nothing
3.       Intent – Court gives effect to testator's intent regardless of whether it agrees with him.
Dead Hand Control – when it goes too far per courts
1.       Other situations – conditions
 a.  No remarriage  (unless intent is to support person until they marry)
 b.  Encouragement of divorce
 c.  Requirement of a name change
2.       Courts are more hesitant to enforce things that disrupt living families (unreasonable)
3.       What's troubling about dead hand control – Should courts be allowed to reform wills? A minority of courts will
Destruction of Property – after death
1.       Tension
 a.  Effect of testator's intent vs. Preventing Waste (highest and best use of property)
 b.  Courts usually will not allow it
2.       Tear down house after death
 a.  Court – no, Waste – no good reason to do it
 b.  But she could have destroyed it while alive
 c.  During life, you have disincentive to do it for foolish reasons
3.       Courts weigh motivation of testator and the social utility of destruction vs. the loss to society
1.       Pre 1540 – No wills allowed; “forced heirs”/primogeniture
2.       1540 – statute of Wills – freedom to direct disposition of property at death
3.       19th – 20th Century
 a.  Married Women's Property Acts
 b.  Elective share statutes
Freedom of Disposition & its Alternatives
1.       Forced Succession – most countries
2.       Freedom of Disposition – American Law
3.       Confiscation by the State – Failed Soviet Experiment
Policy of Passing Wealth at Death
Pro – up until recently estate was family farm or family business – heirs needed to inherit it in order to make a living
Con – today it's education rather than family business that enables people to pass on wealth to children
Hodel v. Irving  1987
1.       Indian Lands – people had tiny % of different lands – accounting was incredibly difficult and expensive
2.       1983 Act – prohibited devise/inheritance of small fractional shares of land allotted to Native Americans
Provides for escheat of such shares to the tribe
3.       Gov't said income from these tracts is de minimis
4.       Is consolidating these properties a good idea?
 a. Court said yes – highest and best use for Indian lands
 b.  Right in question – right to pass on interest in land at death
5.       Was Act a regulatory taking?
 a.  “investment backed expectations?”
      Court – no interference here
 b.  Distribution of burdens/benefits
      benefits tribe; burdens individual
      Good policy – yes
 c.  Character of government action – took a stick – abolishes one's right to devise small interest in
      prop.   Totally abrogated that right – made right to transmit property a protected right
1.       T, intestate heir X; will leaves all to Y
2.       A: “to T if T survives me, but if not then to T's estate”
3.       After T dies, T's estate inherits Whiteacre
4.       Who gets it, X or Y?
5.       Precedent:  X, because T can't control disposition of property not owned at time of death
Shaw Family Archives v. CMG Worldwide (photo of Marilyn Monroe)
1.       Hodel:  government can't unduly limit the right to convey property at death
2.       Shaw:  can the government increase the property rights that pass with decedent's estate?
3.       Marilyn Monroe LLC – successor to residue to Marilyn Monroe's estate;  holds MM's “postmortem
 right of publicity”
4.       Shaw Family LLC
Filed Motion for Summary Judgment – right to photo did not exist at time of MM's death – statutes were created right after she died
5.       Issue:  Can you control the disposition of property not owned at time of death?  NO
6.       Court
 a.  If there was a postmortem publicity right, it could not have passed by will to MMLLC – could
      only pass to specified takers through intestacy
 b.  Intent?  – not there; new statutes don't abrogate rule
 c.  Do new statutes abrogate the rule?  No
BLL:  for something to be passed to your heirs , it must exist when you're alive
Restatement (Third) of Property:  Wills
The controlling Consideration in determining the meaning of a donative document is the donor's intention.  The donor's intention is given effect to the maximum extent allowed by law
1.       Constitutional Right to transmit property at death  (Hodel)
 a.  It's a stick in the bundle
 b.  Legislative control of default rules
2.       You (generally) can't control the disposition of property not owned at death (Shaw)
3.       Wills, Trusts & Estates law is a creature of  policy decisions
4.       Restatement:  donor's intent is the controlling consideration in determining meaning – Courts give effect to intent as expressed in will (Shapira)

Green died intestate
Statute:  1/2 spouse; 1/2 to children
TX Estates Code 201 – spouse 1/3; kids 2/3
           Informal settlement probably still OK
5.       Scenario 3 – Green owned real estate  – Deed:  Aaron
 a. Probably need probate – clear, marketable title
 b. Must still pay mortgage
6.       Green is alive no will – advise
 a.  Probably doesn't need will if all goes well
 b.  Minor grandchildren?
 c.  Intestacy – does he want sons to disclaim their 2/3 share of estate?
 d.  Things change – assets, relationships
Professional Responsibility
1.       Duties to Intended Beneficiaries
2.       Conflicts of Interest
Simpson v. Calivas
1.       Robert Sr. hired atty Calivas to draft will
2.       Written will:  “all real estate to Rob Jr. except Life Estate in “homestead at Piscataqua Rd” to wife”
3.       Property at Piscataqua was 100+ acrs – what does “homestead” mean?
4.       Roberta (stepmother) got LE in entire tract
5.       Robert Jr. bought her out for $400,000
Probate Court
1.       Some extrinsic evidence admitted
2.       Calivas' notes not admitted
 – notes said “house to wife as life estate – remaining land to Robert Jr.
3.       Roberta got LE in entire tract – Robert bought her out for $400,000
Malpractice action vs. attorney (Calivas)
Attorney's Defense
1.        privity with testator, not beneficiaries
2.       Probate court ruling collaterally estops malpractice claim – probate court construed the meaning of the will – How can you relitigate
Trial Court – held for attorney
NH SC – reversed – Malpractice
1.       Based on negligence, attorney must owe a duty
2.       Traditional duty – must have privity of K
3.       Exception in privity barrier for will beneficiaries
 a.  Foreseeability of harm by sloppy will drafter; and
 b.  Intended beneficiary can't recover
4.       Policy – otherwise no way to hold accountable will drafters of dead clients
Collateral Estoppel  – NH SC
1.       Probate courts job:  to construe testator's intent from language of will
2.       Malpractice action in trial court:  determine testator's actual intent vs. construed intent
Looking for lawyer's error
Barcelo v. Elliot – TX
1.       Issue:  does drafting attorney owe duty of care to intended beneficiaries of will or trust?
2.       Problem – no privity for Ps
3.       TX SC retains bright line privity rule – NO DUTY TO INTENDED BENEFICIARIES
 a.  Evidence – how do we prove the true intentions of the testator?
 b.  Attorney would be subject to extensive liability to persons with whom he has no relationship
 c.  Attorney would have divided loyalty
 d.  Client would lose control over attorney-client relationship
4.       Dissent – tort duties extend to anyone who would foreseeably be harmed in the event of  malpractice