Trusts and Estates Outline
Professor Steven Fast
Chapter 1: Introduction: Freedom of Disposition
A. The Power to Transmit Property at Death
1. Freedom of disposition and the dead hand
• A condition precedent to a bequest requiring the putative devisee to marry within a particular faith is a reasonable restriction that does not violate public policy or the Fourteenth Amendment of the United States Constitution.
3. Is freedom of disposition a constitutional imperative?
• A statute that completely abolishes the rights of property owners to devise their property interests by will or allow the interests to descend to their heirs effects takings that require just compensation.
• An escheatment provision that completely abrogates the right to devise a class of property interests constitutes a taking without compensation in violation of the United States Constitution.
4. Posthumously Acquired Property Rights
• A property right not owned by the testator at the time of death may not be devised by will.
C. Professional Responsibility
1. Duties to intended beneficiaries
Simpson v. Calivas p.52
• An attorney who drafts a will owes a duty to identified intended beneficiaries of the will who may enforce the attorney’s contract with the testator as third party beneficiaries.
2. Conflicts of interest
A v. B p. 57
Contingent Beneficiary, A beneficiary who stands to benefit only if the transfer to the primary beneficiary fails or if certain prescribed conditions are met.
• Under the New Jersey Rules of Professional Conduct, a lawyer may disclose a client’s confidential information where the lawyer’s services have been used to commit a fraudulent act and the disclosure is needed to rectify the consequences of that act.
Chapter 2: Intestacy: An Estate Plan by Default
B. The Basic Structure of Intestate Succession
1. Surviving Spouse
Janus p. 75
Right to Survivorship/Simultaneous Death Act/Contingent Beneficiary:
• Where spouses die very close in time to one another, the exact moment of death need not be determined to establish survivorship.
C. Transfers to Children:
1. Adopted Children
Hall p. 92
• A person who is not entitled to inherit from a natural parent as a result of having been adopted, also may not inherit through that natural parent after the parent’s death by standing in that parent’s shoes as a descendant under the intestacy law that permits descendants to receive an intestate share that would have passed to the natural parent had he survived.
Minary p. 98
• Where an adult is adopted for the purpose of making that person an heir entitled to inherit under a pre-existing testamentary instrument, that person will not be considered an heir if doing so conflicts with the intention of the testator.
O’Neal p. 104
• Under Georgia law, a contract for adoption is invalid unless entered into by a parent or guardian, the only persons with authority to contract for adoption.
4. Reproductive Technology and New Forms of Parentage
Woodward p. 112
Intestacy Laws/Posthumously Conceived Child:
• Posthumously conceived children have the right to inherit under Massachusetts intestacy laws if the genetic relationship to the decedent is established and the deceased parent consented to the posthumous conception and posthumous support of the child or children.
In Re Martin B. p. 120
Posthumously Conceived Child:
• In the absence of specific intent expressed in the governing instrument, post-conceived children have equal rights as a natural child if consistent with the transferor’s intent as gleaned from a reading of the instrument.
D. Bars to Succession
1. The slayer rule
In Re Estate of Mahoney p.132
Constructive Trust, A legal fiction employed by courts of equity to compel the owner of property to convey that property to the victims of that owner’s fraud. Generally, the goal of a constructive trust is to prevent unjust enrichment of a party who receives title to property but is not legally entitled to that property:
• Where the statutes of descent require distribution of a decedent’s assets to the party responsible for the wrongful killing of the decedent, the estate must pass as statutorily required but equity imposes a constructive trust requiring the killer to hold the assets in trust for the decedent’s next of kin.
Chapter 3: Wills: Formalities and Forms
A. Execution of Wills
1. Attested Wills
c. The strict compliance rule
In Re Groffman p. 153
• Even where a will accuratel
ply with statutory requirements for revocation cannot effect a revocation by cancellation unless the written revocation obliterates or defaces the text of the will.
In Re Estate of Stoker p.220
• A will can be revoked by a subsequent inconsistent will.
c. Presumption of Physical Act Revocation
Harrison p. 225
• The fact that a decedent’s original will that was in her possession before her death is missing after her death gives rise to a rebuttable presumption that she revoked the will by destroying the will.
2. Dependent Relative Revocation
LaCroix p. 230
• Under the doctrine of dependent relative revocation, if a testator revokes all or part of her will intending the revocation to be effective only if a subsequent will or codicil can be validly substituted, and the subsequent will or codicil is actually not valid, then the revocation fails to the extent that the condition on which it was based was not met.
3. Revival of Revoked Wills
In Re Estate of Alburn p. 234
• The doctrine of dependent relative revocation may be applied to invalidate the revocation of a will where the will was revoked in the mistaken belief that revocation would revive an earlier will.
C. Components of a Will
In Re Estate of Rigsby p. 241
• Where a purported will contains more than one page, it must be made clearly apparent that the testator intended that all of the pages together should constitute his last will and testament.
3. Incorporation by Reference
a. Existing writings
Clark v. Greenhalge p.245
• A will may incorporate by reference any informal document not executed in the manner of a will that was in existence at the time of execution of the will, or a codicil to the will, and is shown by adequate proof to be the document referenced in the will.
D. Contracts Relating to Wills
2. Contracts not to revoke will