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Wills, Trusts, and Estates
University of South Carolina School of Law
Medlin, S. Alan

T&E – MEDLIN – Fall 2006                                                                         
Chapter 1: Introduction to Estate Planning
The Power to Transmit Property at Death: Its Justifications and Limitations
·        Arguments FOR Allowing People to Transfer Property at Death
o       Inheritance is a privilege, NOT a Constitutional right. You have a constitutional right to bequeath, though. State can limit or eliminate death-time transfers as long as due process and equal protection concerns are met
§        Hodel v. Irving: Congress enacted law which provided that certain fractional interests in land would escheat to the tribe upon the death of an intestate decedent.
·        Complete abrogation of both descent and devises of a particular class of property will violate the takings clause (unconstitutional).
o       Encourage familial responsibility. To protect family members from disinheritance and prevent society from having to care for them.
o       Incentive to be productive. Allow people to accumulate wealth and keep it in the family or have it “work for them” after death.
·        Arguments Against Allowing People to Transfer Property at Death
o       To limit dead hand control over property. We are worried about allowing people to make decisions from the grave because the decedent can’t change their mind (can’t be convinced their wishes were unreasonable) and they don’t feel the “sting.”
o       To redistribute wealth. Great accumulation of wealth goes against our sense of fairness because there is a correlation between money and power
o       To prevent waste: Economy. Knowledge of testamentary restrictions encourages persons to spend rather than save wealth, thereby supporting the economy.
Limitations on Inheritance
·        Due Process, Equal Protection and the Takings Clause
o       If state action eliminates the right to devise and descent of a certain class of property, it is an unconstitutional taking.
·        Influence by Decedent (No State Action) upon the fundamental rights of another
o       Shapira v. Union Nat’l Bank: “To my son only if married to Jewish girl w/n 7 years of my death.”
§        Reasonable restraints on fundamental rights like marriage are permissible. General or total restraints on marriage are invalid as against public policy, but partial restraints are ok.
§        Can place restriction on wife’s remarriage
§        Court enforcement of will partially res

and W ask atty to draft wills, atty should tell both of them that there will be no secrets – atty will tell both of them everything that the other says. This avoids any conflicts of interest and confidentiality problems. If H and W don’t like this – do not represent them
o       Hotz v. Minyard – father changed will – atty represented father, daughter, etc. Atty showed 1st will to D rather than second will. Court – lawyer owed fiduciary duty to D b/c she had special confidence in him and their atty-client relationship. The atty should have told the father that he wouldn’t lie to the D or told D to get a different lawyer.
o       Beware of noisy withdrawal
Liability for Malpractice
·        Causes of Action for Malpractice
o       Negligence
o       Breach of K
·        Standard for negligence/malpractice
o       What the reasonable lawyer in that community would have done.
o       Those with special skills, such as estate planners, are held to higher standards