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Wills and Trusts
University of Cincinnati School of Law
Chang, Felix B.

Wills and Estates
CHANG
FALL 2017
 
8/22:
Chapter 1: The Living and the Dead: Whose Money is it? p. 1-22
 
ARGUMENTS FOR INHERITANCE:
Encourages productive behavior, incentive to work hard.
Incentive for family to be more attentive to parents/ grandparents
Disposing of property is a natural and inherent part of property rights.
Politically popular.
Prohibition difficult to enforce, ppl would find ways to avoid it, ppl w/o money for lawyers will not. People with less income would stop working if they can’t leave anything to children.
Protects dependents of the deceased. (minor children.)
Families work together to amass wealth, w/o inheritance, death would disinherit rest of family.
Gives parents leverage to incentivize behavior in their children.
 
ARGUMENTS AGAINST INHERITANCE:
Ban levels the playing field; reduces incentive to work hard; may hide money from creditors.
 
Should we ever limit inheritance? “Daniel can have my money if he marries a Jewish girl.”-Conditional gifts are ok if they have reasonable restrictions and do not violate public policy. You can cut off kids any time during life, you cannot intentionally encourage divorce, but swaying choice w cultural values ok (Testamentary freedom).
Dead hand control vs. letting people dispose of property as they wish.
 
SLAYER STATUTES: a felonious and intentional murderer . . . may not profit by taking any portion of the estate of the one murdered (including life insurance.) R: no one should profit from his wrongs.
UPC 2-803(b): anyone who feloniously and intentionally kills decedent forfeits all benefits. In absence of conviction, the court must determine whether individual would be found criminally accountable by a preponderance of the evidence.
UPC 2-803(f) prevents “wrongful acquisition,”-a catch-all provision. (e.g. someone kills other siblings, not the decedent, to get will)
 
Ford v. Ford (1986) p. 11[MD] Pearl stabbed mom 40 times, not guilty b/c she was insane. H: Slayer rule does not preclude Pearl from inheriting will. R: she was insane, not criminally responsible, and would not have been deterred. A person who kills another can share in the estate if the killing was unintentional. Pearl would still get have gotten the will under the UPC 2-803.
 
Thurs 8/24:
Role of the Lawyer p 22-38
Hotz v. Minyard (1991). p 23. Minyard is a father who owns two car dealerships. He has lawyer, Dobson, write two wills and tells him to not tell his daughter about the second one. He did not tell her the first will was revoked, her brother fired her from the dealership. H: Dobson had a duty of good faith to Judy not to lie about the 1st will b/c she was involved w the attorney in a pre-existing relationship. But he did not have to violate the confidentiality of Model Rule 1.6 w/o informed consent, in disclosing the 2nd will.
 
Barcelo v. Elliot (1996) p. 29. Bright-Line Privity Rule (MIN).  Elliot was Barcelo’s estate lawyer who prepared a trust that was later deemed invalid, grandchildren filed a malpractice claim. H. Attorney who negligently drafts a will owe no duty to the beneficiaries; only duty is owed to client. R: Elliot owed no duty and did not represent the g-children. This would divide loyalties between the client and 3rd party beneficiaries.
2 Dissents (MAJ): (Cornyn) harm was foreseeable, there is a duty and broad COA; (Spector) should be a limited COA on the face of the instrument.
 
Chapter 2: Intestate Succession p. 57-65
 
Policy Reasons for preference of close family members:
Most likely to have contributed to accumulation of decedent’s property, to be dependent on property; it minimize costs and delay; one size fits all approach uses less judicial resources.
 
The Intestacy Statute Applies when:
There is NO will.
Valid will fails to make a complete disposition of property.
Will is invalid, and no prior valid will exists. (e.g. failed formalities, no testamentary capacity).
A will refers to the “heirs” of a particular person, and we use intestacy statutes to figure out heirs.
Those is entitled to intestate succession, including beneficiaries of prio will, have Standing to contest.
 
THE SHARE OF THE SURVIVING SPOUSE.  p. 63
Common Property States
Each spouse has half a share and power of testamentary disposition over his half of community property—CA and TX .
Property acquired before marriage is separate property of the respective spouse.
 
CL- Wyoming Statute 2-4-1-101
(a)(i) If children- ½ to wife; ½ to be distributed among Ds children only.
(a)(ii) If no children- all to wife.
 
UPC 2-102(1): Spouse takes all: [2 circumstances
When decedent has no children or parents.
“All decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent.”
Rationale is that parents have a common interest in providing for their children.
 
UPC 2-102(2) If No issue, but a Parent survives; Spouse gets first 300k + ¾ of the balance.
 
UPC 2-102(3) Surviving Spouse parent of all decedent’s kids and has kids from prior relationship; Spouse gets first 225k + ½ of the balance to decedents kids only (not kids from prior marriage).
UPC 2-102(4) Deceased has child from previous marriage, surviving spouse not parent; Spouse gets first 150 k, + half of what’s left.
 
NY EPTL 4.1.1:  If decedent is survived by:
A spouse and issue—$50k and ½ the residue to spouse, balance to the issue by representation.  
A spouse and no issue—the whole to the spouse.
 
Problems pp 64-65 (for Problem 1 only, include the analysis under Ohio law): See PowerPoint
 
Tues 8/29:
Estate of Goick (1996) p. 65-72. D and wife had children. D signed for dissolution, had no final divorce decree. D’s family challenges surviving spouse. H: Barbara is surviving spouse b/c no divorce decree. Ds Mother has standing as creditor of estate. Ds bros/sis not heirs/creditors, no standing/creditor claim.
If a PR not named under will, and there are no devisees, Ds surviving spouse has priority.
Children’s interests protected through court-ordered supervision of the state’s administration.
 
The Share of Lineal Descendants, p. 72 -79
When D is survived by issue, issue takes to the exclusion of ALL collateral relatives.
Living descendants of D cuts off right of their own child to inherit. (If descendant is survived by child, child’s children don’t take by intestate succession.)
 
Strict Per Stirpes Distribution (Wyoming/CL)
Divide X’s estate at the generation of children—closest to D—whether or not any of X’s children are actually alive.
Descendants of X’s children would take their parents share “by stocks” or “per stirpes.”
Principle advantage: gives descendants same share they would have received had order of deaths been “normal.” What passed to deceased’s children would be passed to their children.
Assumes there is a “normal” order of death, X’s children would not consume their share during their lifetimes, children leave shares of X’s estate to own children.
Principle disadvantage: T’s closest living relatives may be treated unequally.
 
 
1) A, B, C, D all predecease X. A’s ¼ share gets split by all 3 children equally. All of B’s goes to H. IJK share C’s. *This unfairness led to modern pe

their descendants by representation. ½ to maternal in same manner. ½ goes to NOL, getting 1/6 each. Other ½ goes to P.
5) J and P died before X, but K survived: MA(4): All to K b/c K is a 4th degree relative, NOL are 5th degree. UPC 2-103 (4) split between descendants of grandparents on maternal and paternal side. No surviving descendants on paternal side, all goes to maternal grandparent’s descendants by representation, K gets ½, and N and O split other half. (K taking cuts off L’s right.)
 
Estate of Locke (2002) p. 84 Geraldine Locke died, survived by 1st cousins (4th degree) and 1st cousins once removed (5th degree), 4th degree wants entire estate, and wants to ignore statute mandate that says divide in half. Court treats 4th and 5th degree cousins equally. H: divide estate into two halves, then distribute by each side independently by representation.
 
DEFINING THE MODERN FAMILY: p. 95-96
A. Halfbloods : Two people who share only one parent; Modern trend is to treat half-bloods the same as whole bloods (UPC, NY)
 
UPC 2-107: Kindred of Halfblood: Relatives of the half-blood inherit same share they would as if they were whole blood.
NY EPTL 4. 1 (b): Ds relatives of half-blood treated as if they were whole blood. (same as UPC)
FL: half-bloods take HALF as much as whole bloods.
MS: Whole bloods take to the exclusion of half-bloods.
OK: half-bloods take equally with whole-bloods unless property in question came to decedent by devise, descent, or gift from one of his ancestors that is not a common ancestor of the half-blood.
 
Problem pp 96-97 (include the analysis under Ohio law)
B. Adoption
Estate of Donnelly (1972) p. 97-101. D had a will but did not say what happens if Wife dies before him.
 
UPC 2-118(a) adopted children are treated as children of adopted parents.
UPC 2-119(a) in general, a parent-child relationship does not exist between adopted child and genetic parents.
Exceptions: allow inheritance from genetic parents:
(b) Stepchild adopted by stepparent: spouse of genetic parent adopts child [Donnelly] Adoptee-stepparent: parent-child relationship exists
Adoptee-genetic parent whose spouse adopted the child: parent-child relationship exists
Adoptee-other genetic parent: parent-child relationship exists only for the purpose of inheriting from or through the genetic parent.
(c) Individual adopted by relative of genetic parent:
Parent-child relationship exists between the child and both genetic parents.
Parent-child relationship exists between the child and relative of a genetic parent, only for the purpose of inheritance.
(d) Individual adopted after death of both genetic parents
Parent-child relationship exists between the child and both genetic parents
Adoptee and her descendants can inherit through the genetic parent, despite adoption by someone unrelated.
(e) Child of assisted reproductions or gestational child who is subsequently adopted.