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Trusts and Estates
Southern Illinois University School of Law
Hoke, Patricia A.

Trusts and Estates
Patricia Hoke
Fall 2011
Hodel v. Irving (1987)
–          Decedents have a right to control the disposition of their property at death
Shaw Family Archives (Marilyn Monroe case)
–          Property not owned by a testator at the time of death is not subject to disposition by the will
–          IN Law: if a personality does not transfer right of publicity, the right will vest in the statutory heirs rather than the legatees named in the will
–          Place of residence is the state that controls distribution
UPC: will may pass prop acquired by the testator after the testator’s death; however, this view is not excepted by the majority of states
–          The will stated that the son had to marry a Jewish girl with Jewish parents w/in 7years of the father’s death; otherwise, the father’s money would go to Israel
–          Court said the bequest was okay because it was only a partial restraint on marriage; it did not affect the faith of the son, only his choice of wife
–          Issue was whether the “homestead” included the whole estate or just the actual home
–          Court said the testator’s intent controls
o   Extrinsic evidence of testator’s intent may be admissible as long as the evidence is not contrary to the language of the will
§  No hearsay
Class notes
–          3 purposes of probate:
o   Evidence of transfer of title
o   Protect creditors
o   Distribute decedent’s prop
–          Small estate statutes permit heirs to avoid probate, but you still have to file the will with the court
o   In Illinois, you must file a will with the court within 30 days or else a felony
–          In Illinois, joint wills of H & W are negated
Chapter 2 Intestacy
–          If no will, estate goes to heirs by intestacy
o   In Illinois, ½ to spouse and ½ to descendants
§  If no descendants, all to spouse
§  If no spouse, all the descendants
§  If no spouse nor descendants, goes to ascendants
–          If no evidence of H and W’s simultaneous death, then treat W as if she survived H (Uniform Simultaneous Death Act)
–          However, in ILL, if no evidence of simultaneous death; treat as if the insurance policy holder survived the named beneficiary of the policy
August 29, 2011
·         Under federal law, a child of a deceased parent is eligible for social security only if that child would inherit from the parent under state law
·         Shares of Descendants
o   Few statutes providing for in-laws
o   ILL follows English per stirpes
o   Negative disinheritance allowed
§  Intestate estate: disinherits someone but doesn’t say who does inherit:
·         Is the intentionally excluded child going to be included? No. but his children might inherit his share
o   If no descendants, look to ascendants p. 93
§  UPC 2-106(c): will look at parents if no spouse or children or grandchildren, then siblings. Then grandparents.  Then uncles and aunts.  Escheats to state after grandparents and their descendants.
·         If no grandparents, will allow estate to stepchildren
§  ILL: look until you find somebody
§  Should estate go to “laughing heirs”?
·         Important to make a Will!!!!
·         Leave to charity if nothing else so estate doesn’t go to the state
·         Transfers to Children
o   Hall v. Vallandingham
§  State denied adopted children inheritance from their genetic parent’s estate
§  Adoption laws:
·         Common law: could take from both natural and adoptive parent
·         Now, only from adoptive parent in majority of states
o   After this case, still the genetic parent’s child if person who adopts is a step-parent, then child of both
§  Same in ILL
§  Issue: could children inherit THROUGH genetic father after adopted by stepdad
§  Holding: children cannot inherit through real dad
·         ILL: exception: if natural parent died before adopted, could still inherit through natural parent. Case would’ve been different in ILL
§  Is it fair to inherit from both dads?
·         Some states say only the larger share
·         Only an issue when mutual inheritance
o   Minary
§  Son of grantor adopted his wife. Can she receive trust income? No.
§  Court looks at intent of donor v. strict reading of the statute
·         Against policy and intention of the donor in this case even though allowed by statute
§  Law at the time trust created would’ve excluded adopted wife; however, law at time of distribution may control. Have to determine which law controls.
o   ILL: adopted child not a descendant if adopted after age 18
o   Can't un-adopt anyone
§  Doris Duke – adopted daughter got $60 million even though Duke expressly tried to disinherit her
o   O’Neal v. Wilkes
§  O born out of wedlock and taken to paternal aunt who then contracted with the Cooks to take O
§  When Cook died, issue of whether O could inherit as a child? No formal adoption but equitable adoption
·         Aunt never had any real authority to contract for the adoption with the Cooks.
§  Case brought by estate administrator
o   Posthumous Children
§  Heir if living 120 hours after birth and in gestation at time parent died
§  Always non-marital child cuz marriage ends upon death
§  In ILL, same share as if born in decedent’s lifetime
§  Woodward
·         W used dead H’s sperm to birth his twins after his death
·         She applied for SS benefits and was denied on the basis that the children could not inherit from H under MA law
·         W wins cuz had children timely (2 years after death) and showed H’s dual consent:
o   Consent to use sperm to reproduce and
o   Consent for children to inherit
·         Court weighed best interests of the children, the state’s interest in administering estates orderly and the reproductive rights of genetic parents
o   Always child’s best interest to have benefits
o   Their share could affect other qualified heirs
§  However, in this case, not talking about estate admin., talking about SS benefits
o   H voluntarily deposited his sperm
·         What if sperm used 10 years after death?
o   Too hard to go back and recover distribution of estate
o   Different than a case dealing with SS benefits
·         Should Congress amend SSA to provide uniform national rule?
·         CA rule: d

nd intentionally
§  Most states do not allow assisted suicides – felony
o   ILL – Parent neglecting child
§  No inheritance
o   Disclaimers
§  Federal
·         Estate tax purposes – w/in 9 months of death
o   No time frame in ILL
·         Has to be in writing
·         Can't accept any benefits of the gift
·         Has to pass to someone other than you unless it’s your spouse – treated as if predeceased
o   Same in ILL
o   General rule
§  UPC
·         Irrevocable
·         Disclaimer can’t be used to expand the share of your direct descendants; can’t give them more than you would have got
§  DRYE:
·         If disclaimed, treated as if predeceased
o   Son of deceased disclaimed prop so it would pass to his daughter in order to avoid federal tax lien on his prop
o   Daughter put money in trust for her parents
o   Court rejected son’s argument
o   Gma should’ve given money to her granddaughter directly
§  Medicaid recipients cannot disclaim inheritance
·         Unless the funds go to a disabled child
Chapter 3 Wills: Capacity and Contests
o   Have to have capacity to make a will
§  Mental capacity w/o undue influence
·         Standard: on powerpoint
·         If not all elements met, issue of whether decedent meets mental capacity
§  Washburn
·         NH Law: presumed to be competent
o   Proponent of will has burden to prove otherwise
·         Will cut out relatives and left bounty to caregiver
·         Crt held decedent lacked capacity
§  Wilson v. Lane
·         Challenge to testamentary capacity of decedent
·         Court ruled she did not lack capacity cuz no indication she could not form a rational desire to the disposition of her will
·         Court looks at impact of will
·         Only small portion to caregiver – different from Washburn
o   Everybody still received something
·         Burden on proof to contestants
o   Easier to defend than it is to object
§  General rule: person objecting to the will has the burden of proof
§  Minority rule: person defending will has burden – Washburn
§  Anti-mortem probate: probate will while alive so you can prove competency
o   Insane delusion
§  If it effects the distribution under your will
§  False belief that you adhere to in spite of evidence to the contrary
§  Majority view: a delusion is insane even if factual basis for it if a rational person in the testator’s situation could not have drawn the conclusion reached by the testator
·         Will product of insane delusion