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Wills and Trusts
University of California, Hastings School of Law
Zamperini, Michael A.

TEXTBOOK: ESTATES AND TRUSTS, Cases and Materials, Third Ed.

Introduction and Overview
1. Vocabulary
a. Intestacy: Dying without a will. State determines what happens with your property through Probate laws
b. Descent: What happens to your real property when you die
c. Distribution: What happens to your personal property when you die
d. Ascendant: Person related to you “going up” (e.g. grandparents)
e. Descendant: Person related to you “going down” (e.g. grandchildren)
f. Lineal: Person related to you in a “straight line” (e.g. Parents and grandparents)
g. Collaterals: Person related to you not in a straight line, but through common ancestor (e.g. uncle)
h. Collaterals of the Half Blood: e.g. same grandmother but different grandfather
i. Affinity: Related to someone through marriage (e.g. spouse)
j. Consanguinity: Related to someone through blood (e.g. siblings)
k. Escheat: State takes your property (e.g. orphan with no relatives)
l. Testacy: Dying with a will
m. Testator: Person who has a will
n. Testatrix: Old term for female testator
o. Devise: Old term for disposition of real property
p. Bequeath: Old term for disposition of personal property
q. Legacy: Old term for disposition of money
r. 3 ways to have a valid will – each one has own formalities for validity:
i. Attested: Witnessed will
ii. Holographic: Handwritten will with no witnesses
iii. Nuncupative: Oral will (in some jurisdictions)
s. Codicil: Some sort of change to a will
2. Introduction
a. 1540 – Parliament enacted the Statute of Wills which gave decedents testamentary control over the disposition of real property for the first time
i. Supreme Court has held today that “total abrogation of the right to pass property is unprecedented and likely unconstitutional.” Hodel v. Irving (1987)
ii. While completely abolishing descent and devise, the government has “broad authority to adjust the rules governing the descent and devise of property without implicating the guarantees of the Just Compensation Clause.” Id.
b. Shapira v. Union National Bank (1974)
i. Father’s will divided estate into 3 equal shares. Daughter Ruth, who lives in Tel Aviv got one share outright. Sons Daniel and Mark received 1 share on condition that they are married to a Jewish girl within 7 years of Father’s death. If not, then the share goes to the State of Israel. Mark sued, claiming condition was unconstitutional, contrary to public policy and unenforceable because of unreasonableness.
1. Not unconstitutional because the court is not enforcing a restriction on the son’s constitutional right to marry, but rather a restriction upon the son’s inheritance
a. The right to receive property by will is a creature of the law and is not a natural one guaranteed by the constitution
2. Condition not contrary to public policy because it was a restraint upon marriage, not a covenant to restrain freedom of religious practice
a. The court is not being asked to hold the plaintiff in contempt for failing to marry a Jewish girl
3. Not unreasonable because there are plenty of Jewish girls he the son had chosen to meet the condition. Seven year time limit is reasonable to give son opportunity to reflect on fulfillment of condition without constraint
4. Main Point: As long as not contrary to the constitution, public policy, and not unreasonable, a person can do whatever they want with their money in a will because it is their money
c. Terminology
i. Testator – Person who has written a will
1. Will has no legal effect until the moment of testator’s death
ii. Dying Testate – Dying with a will
1. Testate decedent’s property passes to that person’s devisees
2. A clause directing disposition of property is called a devise
iii. Dying Intestate – Dying without a will
1. Intestate decedent’s property passes to that person’s heirs
2. Heirs are designated by the jurisdiction’s statute on intestate succession
d. Rationales for allowing freedom of testation
i. Creates incentive to industry and saving
1. Normative goal of wealth maximization is the best available barometer of utility maximization
ii. Persons derive satisfaction out of bequeathing property to others
iii. If persons were not given the opportunity to bequeath freely, the value of property would drop for one of its potential uses will have disappeared
iv. Bequests within family may repay the beneficiary for value received of the sort not recognized as consideration under common law
v. If power to bequeath freely was rescinded, testators would find other, less efficient ways to direct the distribution of their wealth
e. Limits on the power to transfer wealth
i. Public Policy rationales
1. Promotes spreading out of money (e.g. rule against perpetuities)
2. Promotes people to go out and try to make money
3. Don’t want people to use testamentary power to do evil things
3. Role of the Lawyer
a. 3 Roles of Estates Lawyers
i. Litigators: Represent clients with claims to a decedent’s estate
ii. Policymakers: Devise and evaluate rules for transmission of wealth from one generation to the next
iii. Planner: Assure that clients’ property reaches its intended beneficiaries
b. If estate lawyer drafts a document that results in litigation, he has not done his job
c. Estate Lawyers who represent both spouses may require husbands and wives to sign engagement letters which deal explicitly with the problem of potential conflict
i. In California, such letters are mandatory
d. Hotz v. Minyard (1991)
i. Minyard signed a will leaving Greenville Dealership to son Tommy, Anderson Dealership to daughter Judy, and remainder of estate equally divided between the two. Minyard then signed a second will without telling anyone that gives real estate upon which Greenville dealership was located to Tommy outright. Due to actions by her brother, Judy planned a lawsuit. As a result, Minyard removed Judy as a beneficiary under his will. Dobson, the attorney who wrote the wills told her that if she dropped plans for the lawsuit, she would be restored under her father’s will. Judy was unaware of the second will and sued Dobson for breach of fiduciary duties.
ii. Issue: Does Dobson owe a Judy?
iii. Court held that a fiduciary relationship exists when one has a special confidence in another so that the latter, inequity and good conscience, is bound to act in good faith. Although Dobson represented Minyard, not Judy, he had an ongoing attorney/client relationship with Judy and she had “a special confidence” in him. Dobson had no duty to disclose the existence of the second will, but had a duty to deal in good faith and not actively misrepresent the first will.
1. The Court allows the lawsuit to go ahead because Dobson is the family attorney. She is basically claiming a tort by someone who had a duty to her because he is also the family attorney.
e. Barcelo v. Elliot (1996)
i. Barcelo retained attorney Elliot to draft a will. Due to the attorney’s negligence regarding a trust, Barcelo’s grandchildren, beneficiaries under the will, received less than what they would have under a valid trust.
ii. Issue: Does an attorney who negligently drafts a will owe a duty of care to persons intended to benefit under the will, even though he never represented them.
iii. Court rejected a broad cause of action in favor of beneficiaries recognizing problems with proving attorney failed to implement testator’s intentions. This minority rule is known as the privity rule
f. Majority rule of the malpractice revolution holds lawyers accountable for their mistakes
i. Attorney only required to use care and skill of reasonable attorney under comparable circumstances
1. Need to prove that attorney knew of your existence as a class and had a duty to you.
ii. Malpractice concern will likely lead to improvement in procedures of execution, more care in drafting instruments and could result in an increase in specialization
4. Probate and Non-Probate Transfers
a. Judicial process that transfers title from the estate of the decedent to the recipient

or appointment of personal representative. A distribution agreement was entered into between Barbara and children through their guardian as the only potential heirs of Michael. Michael’s mother and sibling s filed motion for court to reconsider the agreement.
iii. Court found that the siblings lack standing to appeal because they are neither creditors nor heirs of the estate.
1. Mother had standing because if Barbara did not qualify as SS, the mother who filed a claim as creditor, might have been eligible to serve as personal representative
iv. Court held that since no divorce decree was ever issued, Barbara and Michael are not divorced and therefore, Barbara was the SS for purposes of intestate succession
b. In some states abandonment or failure to comply with an obligation to support a spouse terminates the right to take by intestate succession.
c. §6401: Surviving Spouse
i. Community Property: One half of CP that belongs to decedent under §1000
ii. Quasi-Community Property: One half of QCP that belongs to decedent under §1001
iii. Separate Property
1. Entire intestate estate if decedent did not leave any issue, parent, sibling or issue of deceased sibling
2. One half of estate when decedent leaves one child, issue of one deceased child, or no issue but leaves a parent or parents or their issue
3. One third of estate when decedent leaves more than one child, one child and issue of one or more deceased children, issue of two or more deceased children
3. Lineal Descendants
a. When an intestate decedent is not survived by a spouse, decedent’s lineal descendants generally succeed the entire estate.
b. When an intestate decedent is survived by a spouse, the lineal descendants succeed to that portion of the state which does not pass to the surviving spouse
c. Any living descendent of the decedent cuts off the right of the descendant’s own children to inherit
i. §240 – Modern Per Stirpes
1. Divided into equal shares starting at the nearest generation of issue then living.
a. Each living member of the nearest generation gets a share
b. The living issue of each deceased member of the generation divides the deceased person’s share
ii. §246 — Strict Per Stirpes Distribution
1. Divides X’s estate at the level of X’s kids (whether or not living at the time of X’s death)
iii. §247 – Per Capita at Each Generation
1. Idea: Love all members of each generation the same
2. Divide at level of nearest generation with living members. Then gather all shares of deceased members and divide that amount to per capita at next lower generation.
4. Collaterals
a. If no issue, look for collaterals
b. Estate of Locke
i. Jean and Marion, first cousins on mother’s side (4th degree) claim that Ann, Carl, Frank and Raelene, first cousins once removed on father’s side (5th degree) cannot take by right of representation because the statute prohibits representation among collaterals beyond the fourth degree of kinship
ii. Court says that in NJ, the estate is divided into maternal and paternal sides at the grandparent level. Therefore, Jean and Marion take because they are the first sign of life in the maternal side. Because they are both of the same degree to Geraldine, they split equally.
J and M each