I. The Living and the Dead: Whose Money is it?
A. Terminology
1. testator – person who has written a will
2. testate – die with a will
3. intestate – die without a will
B. Conditions restraining marriage will be upheld if reasonable and do not violate public policy.
1. Partial restraints on marriage are ok, as long as not a total restraint.
a. Shapira v. Union National Bank – Where father sets conditions in will for getting inherentence on son marrying Jewish girl within 7 years of father’s death, court found that the restrictions were reasonable because 7 years was long time, it wasn’t unconstitutional since no natural right to inheritance (limiting inheritance not marriage) via state action, and lot of Jews.
a. will sets up an alternative devise where if meets condition gets it, if not then to State of Israel
b. ongoing effect of 7 years condition, others are a one shot
b. “So long as unmarried” operates as a ongoing restraint on marriage which is a problem, compared to “if he is unmarried” not a restraint.
a. so long as clause – not self operative and implicates Shelley v. Kramer for judicial enforcement, if already has money, then taking
2. Gifts effective on condition of divorce are invalid for violating public policy.
C. Slayer’s Rule
1. A person who kills another may not inherit if killing is unlawful and intentional.
a. Negligent homicide is not in intentional. (involuntary manslaughter) or self-defense not unlawful
i. “intentionally kills” required – involuntary manslaughter, while reckless, is not intentional in killing
b. Insanity negates intent and criminally responsibility.
i. Ford v. Ford – where Pearl Ford (daughter) killed mother and then sought to obtain property under mother’s will. Pearl was found insane at time of crime. Son claimed she forfeited claim to property under Slayer’s rule, but insanity made her not criminally responsible and thus not intentional. Thus she could obtain property.
2. FL Statutes – Killer not entitled to receive property or other benefits by reason of victims death (unlawful and intentional killing)
a. §732.802 – Surviving person who participates, unlawfully and intentionally kills not entitled to any benefits under will..
i. (1)Acts as though the killer had predeceased the decedent.
a. since killer predeceased, property can go to grandkids. Traditionally, the grandkids or those under killer are shut out from claiming.
b. does not shut out those who recklessly kill.
c. mercy killing is not a defense in FL so if wife mercy killed husband, it would be an unlawful and intentional killing. Way to get around this provision is for H to transfer everything before hand.
ii. Applies to Joint Tenancy w/ RS, acting as a severing the interest of the descendant so share of descendant passes and killer has no rights of survivorship.
a. Acts as a severance such that cant get joint tenants share but keep your own
iii.. named beneficiary of bond, life insurance policy, or other K arrangement who kills not entitled to any benefit under bond…
iv. Absence of conviction of murder, court may determine by greater weight of evidence whether killing was unlawful and intentional for purposes of section.
a. thus if killer is acquitted, probate court may determine by preponderance of evidence if guilty.
b. or if killer pleads out, subsection 5 allows probate court to still determine inheritance.
b. §737.635 – Beneficiary of trust who unlawfully and intentionally kills another upon whose death such beneficiary’s interest depends, not entitled to any trust interest
D. Role of the Lawyer: Fidicuary Responsibility
1. Lawyer does not owe a fiduciary duty to intended beneficiaries of a will.
a. Barcelo v. Elliot – where attorney N drafts will such that inheritance instead of going through trust went through intestate succession, intended beneficiaries seek to sue on malpractice but no duty existed
i. idea that attorneys ability to render advice would be compromised if advice could be second guessed by persons named as beneficiaries under trust.
ii. suit on third party beneficiary instead has lost weight in this area, replaced by beneficiaries who are named in document and who cant collect under document bc of lawyers negligence can bring suit to recover from loss even though there is no privity. Court must find them named and that they didn’t take what was intended by the testator.
2. Fiduciary relationship exists when one has special confidence in another so that the
other is bound to act in good faith.
a. Hotz v. Minyard – Judy H. alleges that Dobson (attorney) breached fidicuary duty by misrepresenting her father’s will in Jan 1985. Father created 2 wills, the later one was the real one which he did not want daughter to know about (gave dealerships to son). Dobson did have an ongoing attorney client relationship w/ Judy and she had special confidence in him. Dobson owed Judy duty to deal in good faith and not actively misrepresent the first will.
i. wills are freely revocable and can be re-written, last one is one enforceable.
ii. wills prior to death of decedant are not public document, beneficiaries do not have the right to see them
iii. Dobson breached fiduciary duty to Judy by misleadingher, represented her in the past, she viewed him as having a lawyer obligation if not an attorney client relationship and when he gave her the morning will, led her to believe it was operative when it wasn’t. Disclosure of other will would have led to breach w/ decedant.
a. Shafer believes that lawyer represents the family – Dobson could have told daughter to get a lawyer, father’s interest is adverse to yours. Shaffer believes this is bad bc intrafamily litigation. If Dobson had done this he probably wouldn’t have been liable. Also could have encouraged father to remove impediment and share will.
3. Many states require engagement letters dealing with explicitly with problem of potential conflict between husband and wives when drafting wills
a. Ex: Married couple come for estate planning. L advises them of potential conflicts of interest, H and W consent to joint representation. L would maintain open communications, all communications open to each of them, if something goes wrong, L can withdraw. Put this in writing with a waiver of confidentiality requirement.
E. Probate and Nonprobate Transfers
1. Gifts
a. Intervivos Gift requires
1. intent on part of donee to make transfer
2. delivery
a. actual
b. constructive –put an instrument in hands of another
3. acceptance
4. Gruen v. Gruen – where father wrote 2 letters to his son on his 21st
birthday telling him that he was giving the son a painting as his gift, but would retain possession of painting during his life. There was a gift as letters were evidence of intent, constructive delivery, and acceptance. Because gave away gift, at death, nothing to pass away via will.
b. Gift causa mortis – gifts made in contemplation of death
1. Requires that donor must fear that death is impending and imminent
a. most courts say donor can get gift back since made in contemplation of death and includes an implicit condition that gift would revert if recovered from illness
i. Gift is legally revocable
b. there will be disputes over whether really gave it away and will has no effect if decedent dies.
2. Joint interests with Right of Survivorship
a. Holding property through JTRS or TE, at death of decedent share passes automatically to survivor. IF more than two hold in JTRS, at death of first, decedents share is divided equally among surviving tenants.
i. These permit automatic transfer of ownership interests at death
c. Real Estate Held Jointly – FL 689.15 – T/C created unless instrument creating estate shall expressly provide for R/S
i. A devise shall create a tenancy in common, unless the instrument creating the estate shall expressly provide for right of survivorship.
ii. at death don’t own property, so nothing to transfer, goes to survivor, applies to JRTRS and TE. LE cant be passed as well.
iii. remainder interest that is not posse
cedants whom are not lineal of spouse gets benefit of inheritance too
D. Lineal Descendants
1. Distribution
a. strict per stirpes
i. divided decedents estate at the generation of children, whether or not actually living or that closest to decedent
i. FL 732.104 uses strict per stirpes
b. modern per stirpes
i. divides decedents property at closest generation to decedent in which there is at least one descendant living.
2. 732.103 Share of heirs – part of estate not passing to surviving spouse, or if no surviving spouse, descends as follows:
(1) lineal descendants of decedent
(2) if none, to decedent’s father and mother equally, or survivor of them
a. Equally doesn’t = JTRS, so if both alive, they split it, if one alive, takes all.
(3) if none, to decedent’s brothers and sisters and descedants of deceased brothers and sisiters
(4) if there is none, estate shall be divided, ½ shall go to decedant’s paternal, and other half to decedent’s maternal kindred in following order:
a. grandfather and grandmother equally, or survivor of them
b. if none, to uncles and aunts and descedants of decased uncles and
aunts of decedent
c. if there is no paternal kindred or no maternal kindred, estate shall go to other kindred who survive in order state above
i. if grandparents are dead on one side, entire estate goes to grandparents on other side
(5) if there is no kindred of either part, whole property shall go to kindred of last
deceased spouse of the decedent as if deceased spouse had survived and then died intestate
(6) if none, if Holocaust victim stuff.
3. Examples using 732.103 (1) Share of Heirs + 732.104 (Inheritence per stirpes)
(1) X
|
A—————B———–C
| |
D ———E F———G
X dies intestate with 60k. Strict per stirpes divides it at 20k since closest descendants are A, B, C, divde it at generation closest to decedent. B and C get 20, D and E would get 10 each.
If B dided, UPC would divide it at next level where living.
(2) IF any of the dead descendants had spouses, it wouldn’t matter because dead cant inherit, so if A had a spouse cant inherit since it was never As to begin with.
(3) Take the original shares by first line of lineal descendants and divide up intestate money according to that. So if you have 3 kids, 1/3. If one of kids is dead at time and has say 2 grandkids, each grandkid gets 1/6th (1/3 divided by 2)
(4) If entire line of one of descendants is gone, you disregard them and pretend they didn’t exist, such that the division to the others is in larger shares.
a. Ex: if A, D, E died. B and C would get 1/2 instead of 1/3. Cuts the per stripe of A out, by definition out of the loop.
