I. aPRELIMINARY CONSIDERATIONS
a. Whose Money is it?
i. Generally:
1. Shapira v. UNB
a. conditions inheritance on his sons and marrying a jewish woman within 7 years
b. son brings declaratory j/ment action on a viol of const. rts OR contrary to public policy
c. tension b/w freedom of testation and rt to inherit, not to mention right to marry and freedom of religion
d. Is const rt to marry? YES, but there is no infringement on that right in this case b/c not forceably preventing him from marrying
i. Financial inducement is NOT inducement
ii. No state action, but rather private
e. freedom of religion?
i. Not state action
ii. Not about HIS religion in the will
iii. At most a financial inducement
f. right to inherit? Const or stat
i. NO, the right to receive property is a creation of the law
ii. Fund. Rt. (in Ohio law) a testator may entirely disinherit their children – if that’s true, they can certainly infringe your inheritance on conditions
g. societal interests? (public policy)
i. not concerned w/ beneficiaries, but w/ societal values
ii. this constitutes partial restraint, so not a violation of public policy – if a “general” restraint then definitely violates public policy
iii. its actually an inducement to marry
2. provisions where a person is to remain catholic or whatever are continually struck down as public policy – same w/ if a person must divorce to get money
3. bequests to those who violate law are struck down (beggar’s benches)
4. freedom of testation is the rule except for surviving spouse
ii. Politics of Inheritance
1. Riggs v. Palmer
a. G’pa leaves bulk of money to g’son – he finds out about it and then he kills his g’pa
b. You should not be able to profit from killing the testator
2. Any felonious and intentional killing regardless of motive, will prevent killer from inheriting and profiting
3. Ford v. Ford
a. What about “insanity” as to killer?
b. It prevents forfeiture of inheritance b/c negates intent
4. KS – 59-513
5. UPC 2-803 – Effect of Homicide (p. 144)
a. What if you have a JT w/ rt of surv – both have?
i. (c)(2): present undivided interest before killing – can’t make killer forfeit his share – turns it into a tenancy in common
b. what happens when killer actually gets the money before getting caught and either keeps it or sells it?
i. (h): rtd of innocent 3d parties, they are fully protected unless they have written notice
iii. Role of the Lawyer
1. generally
a. role of planner is most important
i. who’s your client
ii. what’s malpractice
iii. who is the atty liable to
b. w/ spouse, no conflict as long as full disclosure and consent
2. Hotz v. Minyard
a. Atty drafted will with one car dealership going to son, nothing said about other dealership
b. 2d will says son gets dealership and the real estate on which it is
c. atty not supposed to show anyone the will
d. atty also is daughter’s lawyer
e. duty to father not to tell, duty to daughter not to mislead
f. was there a genuine issue of material fact that the lawyer breached duty? YES
3. Problems pg. 32 – (1) w/draw
4. Barcelo v. Elliott
a. Lawyer drafts trust so that it terminates once she dies
b. Therefore, residue of property can’t be dumped into a trust that does not exist
c. Generally, no economic harm suffered to estate, so no malpractice
d. Majority of stats relax privity
iv. Probate and Non-Probate Transfers
1. what is it?
a. Probate refers to administering decedent’s estate
b. Example:
i. O to A for life, remainder to B (1980)
ii. A dies in 2000
iii. Is property in A’s probate estate?
1. NO b/c a “life” estate
c. Example:
i. A to A for life, remainder to B
ii. A dies
iii. Probate?
1. NO, see above
2. Gifts – Gruen v. Gruen
a. Dad buys painting, when he dies the painting is worth millions
b. One letter sent and then recanted w/ another for tax fraud reasons
c. Letters combined indicate dad’s intent to keep painting until he dies, and then give to son
d. Painting goes w/ son
e. LOOK at quote p. 47
f. Transfer present interest OR present transfer interest?
i. Present transfer interest b/c he presently received a future interest
g. Is this diff’t than a will?
i. YES, b/c w/ remainder he can only sell his interest in the painting until he died, then son would get it
ii. If a will, he would be free to sell, w/ not to son, a named beneficiary has no interest in property as long as testator is alive
h. Is there some way atty could have prevented case this far?
i. Possibility to pay gift tax, OR
ii. Make son the joint owner
3. Joint Interests w/ Right of Survivorship
a. Franklin v. Anna National Bank
i. Man who was sick and named sister-in-law as joint owner in checking and savings accts as a matter of convenience to take care of financial affairs not necessarily for donative intent
I J K L
4. M N O P Q U
5. facts
a. X dies – 59-506: all shall go equally to children
b. Lets say that D died before X
i. KSA – A,B,C, and L get equal shares
ii. UPC – pre 1990 (p. 24) same result as KSA
c. X survives all children, what now?
i. KSA – E, F, G collectively take only ¼; H takes ¼; I, J, K take ¼; L gets ¼ (always divvy up equally at CHILD level)
ii. Pre-1990 UPC – ignore child generation and start w/ GC’s – so GCs share equally
d. G dies before X, children dead too
i. KSA – share N and O share G’s 1/12 equally
ii. Pre-1990 UPC – N and O share G’s 1/8
e. Children alive now and so is G – C and D are dead though
i. UPC “representation” – per capita at each generation
ii. No differences b/w strict and modern when kids are alive
f. A, B, D, G, and H die before X
i. New UPC? C = ¼; 1/5 x ¾ = 3/20 to E, F, and L; 1/10 to N, O, and P
iii. Same family tree
1. situation 2
a. A,E,F, and G have died before X
i. b/c some living children, no difference b/w strict and modern per stirpes
ii. B, C, and D get ¼ each
iii. ¼ left: in KS A’s ¼ gets divided into 1/8 b/c F is dead; M gets 1/8; N and O divide 1/8 to get 1/16 each
iv. UPC (new): B,C,D get ¼ each; M,N,O divide their ¼ share into 3 shares, so they each get 1/12
2. situation 3
a. A,B,C,G, and H have died before X
i. D gets ¼ in either strict or modern
ii. KS – A’s ¼; E gets 1/12; F gets ½; N and O get 1/24; P = ¼; I,J,K
