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Trusts and Estates
Temple University School of Law
Baron, Jane B.

*At the end of each problem, say what the intent of the testator was and whether his intentions will be defeated by following the Wills Act
I.        Introduction
A.     Themes
1.      Freedom of testation – people can do what they want with their property at death
2.      The government may not regulate what you say, but it does regulate how you say it
a.       There are regulations about will – must be a signed writing and other formal requirements
b.      Your story will not be given legal effect without following the requirements
3.      The non-probate revolution
4.      The law in this area is becoming increasingly statutory rather than case law
5.      Behind every will provision is a real, human story
B.     Inheritance and Testation: Overview
1.      Hodel v. Irving found unconstitutional a statute which prevented Native Americans from devising their tiny fractional interests by effectively removing their ownership rights without compensation because it violated the Fifth Amendment
a.       The right to devise property by will and the right of inheritance are very important and cannot just be taken away
2.      Two sets of reasons for having free testation:
a.       Instrumental – it would be bad for society to not have it b/c people would not work as hard if they could not give it away; they would not put money in the bank so there would be less access to startup capital for business, etc. – incentives for saving would be reduced
b.      Emotionally grounded reasons – it is in the nature of people to want to be able to give their stuff away and to not allow this is to deprive people of something; by owning property, you should have a right to give it away if you yourself do not use it
c.       This is controversial b/c we do not actually know what would result w/o free testation
3.      Downside of free testation
a.       Wealthy families stay wealthy long after they did whatever it was to become wealthy – the people taking advantage of the fruits of their families labor did not actually do anything
b.      This is also controversial
c.       People try to control the behavior of others from beyond the grave
4.      We also do not know if we got rid of free testation if it would make things equal – Capital vs. Social Capital
a.       Social capital – spend money to get your children better educations and expose them to other better off things (culture, etc.) and therefore these people are better off by gaining this social capital w/o any actual transfer of wealth
b.      It is hard to equalize wealth because it is so much more than just money
5.      Introduction to the Problem of Dead Hand
a.       The controlling consideration in determining the meaning of a donative document is the donor’s intention and it is to be given effect to the maximum extent all

ndition upon the inheritance
v.       Class Notes
(a)        The same argument from Shelley v. Kramer appears to apply here
(b)        The court wants to keep 14A out because otherwise every time a will was probated where the will was irrational it would be state action to figure out what the will meant and therefore there would be no free testation because you would not be able to be irrational, which you have a right to be in a will, since it would be state action for the court to enforce those provisions
(c)        The father is trying to control his son – free testation as an exercise of power
(i)      There appears to be a conflict when the will was written
(ii)    But this conflict is now perpetuated forever – it can never be changed
(iii)   This is the problem of dead hand control
C.     The Probate Process
1.      Probate and Nonprobate Property
a.       Probate property – property that passes under the decedent’s will or by intestacy
b.      Nonprobate property – property passing under an instrument other than a will
c.       Distribution of probate assets may require a court proceeding (not always)