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Wills and Trusts
St. Thomas University, Florida School of Law
Ronner, Amy D.

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.
NOTE:
O’Connor did not consider seriously enough the ease and simplicity of using intervivos transfer
Conceptual severance:
The decision that a taking has occurred when only one stick in the bundle is affected. Here the only right lost was the right to transfer. Could have been because the statute gace the Indians these 2 rights and so it was particularly sharp to remove them
Sometimes before a taking has occurred all the rights in the bundle of sticks have to have been impinged.
The escheat provision was particularly weird because it gave land only to those that already had it.
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.
A partial restraint of marriage which imposes only reasonable restrictions is valid, and not contrary to public policy.
PUBLIC POLICY ARGUMENTS AND RESTRICTIVE WILL CLAUSES:
Provision does not violate equal protection unless state laws are involved.
Distinguishing cases used by the court:
In re Clayton’s Estate
and Drace v. Klinedinst
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 and the bite of the 3 requirements is different
UNCERTAINTY:
In re Tuck’s estate
Uncertainty may fatally flaw a will
What is Jewish? Orthodox and Reform have different views on this.
NOTES:
MODERN VIEW:
Restatement 3rd
Joint Tenancy
·1
Decedents Property interest vanishes at death
·2
Survivor has whole property relieved of decedent’s participation
·3
File death certificate and everything is okay
Life Insurance
·1
Benefits in decedent’s life insurance policy paid to designated survivor/beneficiary
Contracts w/payable on death clauses
·2
Contract w/bank employer to distribute property under contract at death to named beneficiary
·3
Pensions, IRA’s, Stock custodian accounts
Interests in trusts
·4
Trustee holds property for the benefit of named beneficiaries who may have life estates.
·5
Revocable trusts are valid in all states
·6
Irrevocable trusts are not valid in all states
·1
Will admitted to probate BUT trust assets are distributed directly by trustee to beneficiaries named in will and the assets themselves do not go through probate.
Trusts passed in a will:
PROFESSIONAL RESPONSIBILITY
Simpson v. 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?
Privity makes no sense because then the only person who has a valid claim has suffered no loss and the only who has suffered a loss has no claim.
No CE because issues and evidentiary rules for proving intent in probate court and general jurisdiction courts is different.
Attorney has duty to refer client to a specialist if he doesn’t have the specific knowledge OR he may be held to the same level of skill as a specialist.
Attorney not required to be infallible but to know plain and elementary principles of law or to research them.
 
Former beneficiary suing testator’s lawyer with whom beneficiary had a separate professional relationship for breach of fiduciary duty because of misrepresentation as to validity of initial will when lawyer was aware that a second will existed invalidating the initial will.
The auto dealer/ son/daughter case.
Fiduciary duties often overlap and one decision may put you in an irreparable position.
Look for red flags and get signed statements or recuse yourself rather than take the chance.
Be aware of conflict of interest problems an fraud problems
GO WITH THE GUT FEELING
Once you are in a conflict of interest situation you become blind
TOPIC II
INTESTACY: AN ESTATE PLAN BY DEFAULT
Distribution of property of someone who dies w/out a will is governed by the intestacy statute or the statute of descent and distribution of the pertinent state.
Personal property Law of state of decedent’s domicile at death
Real Property Law of state where decedent’s real property is located at death
UNIFORM PROBATE CODE:
§2-201 Intestate Es

n implied existence of the right.
UNIFORM PROBATE CODE
§2-113
§2-114 (a)
(b)
(c) parent must have been willing to support child and have treated child like their own to be able to inherit from natural children. Minority Rule
ADULT ADOPTIONS
VIRTUAL ADOPTIONS
O’Neal v. Wilkes
Action by an adult never statutorily adopted by decedent but raised by decedent who identified her as his child to be deemed an heir to decedent’s intestate estate because of virtual adoption.
For virtual adoption you need:
Agreement between natural parents (or parent’s legally authorized to contract on child’s behalf) and adoptive parents.
Natural parents give up custody
Performance by child living in home of adoptive parents
Partial performance by foster parents in taking child
Intestacy
Difference in family acceptance and participation
Usually okay but may be challenged for undue influence and mental capacity.
 
Child is child of adopting parents but if new spouse of natural parent adopts then child is considered a child of the remarried natural parent and can still inherit through the other natural parentExcept as in (b) and (c) an individual is child of natural parent regardless of their marital status.Related to decedent through 2 lines entitled to only one share. The larger one.Are you punishing a child for the good actions of another? Or is it just trying to have equitable distribution of wealth.
TRANSFERS TO CHILDREN
POSTHUMOUS CHILDREN
Hotz v. Minyard.
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. Transferror’s motive is irrelevant
Restatement 2nd
Name Changes
Okay if not disruptive. BUT
Invalid if based on a whimsical obsession or vanity or if unreasonable or interfering with familial harmony.
Destruction of Property at death:
Waste is discouraged especially where the waste will affect others. The doctrine of waste. Cost benefit analysis.
In terrorem transfers are contrary to public policy.
A trust is invalid if it is contrary to public policy.
TRANSFER OF DECEDENT’S ESTATE
PROBATE Passes after death
Will, Intestacy
NONPROBATE Passes while still alive
NON PROBATE PROPERTY
Restriction to break up family is usually invalid. Transferror’s Intent is important.
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
hints