a. Inheritance and Testation: Overview
i. Value of Inheritance
ii. Inheritance as Power
Shapira v Union National Bank: The court finds there is a lack of state action as defined in Shelley. I think the court had a better argument under the fundamental right prong; the right being infringed is the right to inherit, which is not a fundamental right, not the right to marry. The courts real motivation for validating this will is that not enforcing it would call into question, millions of wills on the grounds of irrationality.
b. The Probate Process
i. How, when, what
In many circumstances it will not be necessary to obtain a court order to move title when the spouse survives the decedent. Change of title for a car or transfer of funds may only require the will, an affidavit and a death certificate.
Joint bank accounts and life insurance policies will also not require judicial intervention for movement of title.
Situations where the decedent did not leave a will or where there are multiple legatees are more likely to require probate; especially if there is disagreement. Large estates, especially those with real estate are also going to require probate.
Reasons for Probate: collect decedent’s property, pay debts and disburse remaining property.
Simpson v Calivas: Attorney’s use of ambiguous term ‘homestead’ causes frustration of testator’s intent and unjustenrichment. Court makes an exception to the privity doctrine, allowing the intended beneficiary to sue the attorney as a 3rd party beneficiary. Court also rejects the attorney’s claim the П is collaterally estopped by the probate of the will; the issue resolved in probate court was limited to the intent of the testator as evidenced by the will; here the court is also looking at extrinsic evidence.
Hotz v Minyard: Court overruled summary judgment and remanded for consideration of factual issue whether ∆ had a fiduciary duty to П when he was both her attorney in several matters as well as her father’s, the testator’s, attorney. If there is a fiduciary duty, it was breached when the ∆ attorney misrepresented to the П the will he was showing her was the testator’s controlling last testament.
a. Statutory Schemes
i. Basic Concepts
ii. The (not very clear) meaning of “Per Stirpes”
English per stirpes: Division of the estate begins with the first generation after testator. This system treats each line of descendants equally.
Modern per stirpes: Division of the estates begins with the first surviving generation after the testator.
Per Capita at each Generation: Division of the estate starts again with each successive surviving generation. Each taker at each generation is treated equally with the other takers at that generation.
b. Family Law and Inheritance
i. Unanticipated aspects of Adoption Law
Hall v Vallandingham: The right
consent to the posthumous conception and to supporting his children through his estate.
c. Transfers of Intestate Shares
i. Advancements and Disclaimers
Advancement- A child seeking to take against parent’s intestate estate must declare gifts made by parent before death which are included in the hotchpot. The gifts, under common law, are presumed to be advancements unless the child can prove otherwise; under the UPC gifts are presumed not advancements.
Disclaimer- Common law disclaimer, renouncement, in cases of intestate disposition, treated the disposition as if the heir had taken and then passed to that heir’s successor. But testate succession and refusal was treated as if the heir never took; this led to different results for tax purposes. ALMOST all states have adopted the refusal method; as if the heir had predeceased the decedent.
Drye v United States: A particularly egregious exploitation of disclaimer followed by a spendthrift trust allowed heir to avoid massive tax liabilities but was overruled by a unanimous Supreme Court.
III. Requirements for a valid Will
Ensuring that the will is the product of the testator’s “Free Will”: Are the legal standards for evaluating testamentary capacity clear and determinate