TOPIC I
THE POWER TO TRANSMIT PROPERTY AT DEATH
JUSTIFICATIONS AND LIMITATIONS
Hodel v. Irving
Heirs and devisees of allotted land sue the govt. claiming that a statute mandating escheat of small parcels of land that would otherwise be inherited by descendants without compensation is a taking.
Right to pass on property is statutorily created
Where the right of descent and devise are both abolished without compensation a taking can occur.
O’Connor did not consider seriously enough the ease and simplicity of using intervivos transfer
Sometimes before a taking has occurred all the rights in the bundle of sticks have to have been impinged.
TYPES OF INTERVIVOS TRANSFERS OR NON-PROBATE TRANSFERS:
Trust
I hold in trust and upon my death the beneficiary shall receive it. Give it to a trustee and
the trustee gives the beneficiary after death.
Payable on Death Contracts
Annuities, pensions stocks and life insurance policies
Joint Tenancy with rights of survivorship
Shapira v. Union National Bank
Action by son of decedent to declare a clause conditioning receipt of benefits on son marrying a Jewish girl within 7 years of graduating.
· Partial restraint of marriage that imposes only reasonable restrictions is valid, and not contrary to public policy
PUBLIC POLICY ARGUMENTS AND RESTRICTIVE WILL CLAUSES:
Hackett
Clayton
Drace
Separation agreement that requires mother to raise daughter as a catholic is not okay
Gift of life estate conditioned on the beneficiary not marrying a woman of the catholic faith is okay
Life estate willed to grandchildren provided they remain faithful to the catholic faith is not okay
To be a religion or be in contempt is too far for the court to go
The word catholic is simpler for the court to enforce.
The court refuses to go into what a faithful catholic is because even the pope and the archbishop haven’t answered this.
The court is afraid to overstep its bounds
UNCERTAINTY: In re Tuck’s Estate:uncertainty may fatally flaw a will + what is Jewish? Orthodox and Reform have different views.
A will is problematic because of the lack of possibility of subsequent negotiation
In intervivos it is easier to figure out exactly what is meant
MODERN VIEW: Restatement 3: Restraint to marry w/in a religious faith is only valid if it does not unreasonably affect the transferees opportunity to marry. It is unreasonable if a marriage permitted by the restraint is unlikely to occur. Transferor’s motive is irrele
Calivas
Devisee/son/intended beneficiary suing lawyer who drafted decedent’s will alleging that lawyer’s breach of fiduciary duty to beneficiary to ensure that the intent of testator was reflected in will resulted in beneficiary’s step mother receiving assets testator intended to devise to son.
A lawyer hired by a testator to draft a will has a duty in tort to use reasonable care and a duty in contract (3rd party beneficiary) to ensure that the intent of the testator is accurately and unambiguously reflected in the drafted statement.
Privity is not the limit of the duty when the person not in privity has an uncommon risk of harm
NOTE:
Attach diagrams, maps, be repetitive and over precise when drafting a will. Include all possible information even notes taken so as to try to remove all uncertainty.
COLLATERAL ESTOPPEL ISSUE
PROBATE COURT
MALPRACTICE COURT
Issue: What is the expressed intent of the will?
Issue: Did lawyer represent actual intent of testator in the will?
