Restrictions on Testamentary Power
Our system provides very broad powers of testation
Courts try to honor will of testators, subject to several Public Policy Issues.
Shapira v. Union National Bank (Ohio 1974) – Daniel Shapira has 7 years to marry a Jewish girls w/ parents who were Jewish. Daniel is 21 and in college Youngstown Ohio.
1. Constitutional “State Action” Argument Fails → Court distinguished Shelly v. Kramer→ Court isn’t we’re not enjoining him from marrying a non-Jewish woman; Merely enforcing testator’s wishes.
2. Public Policy Arguments Fail
PUBLIC POLICY ISSUES
1. Religious Marriage Restrictions → OK unless Unreasonably Limit Transferee’s Opportunity to Marry
a. Test: Unreasonable = Permitted Marriage Unlikely to Occur.
2. Intent to Encourage Disruption of Family Relationship = Invalid
a. Examples: provisions to discourage children living w/ ex-wife; provisions not to communicate w/ disinherited siblings, etc.
b. Exception: Intent to provide support in event of separation or divorce
3. Commission of Crime
4. Destruction of Property
Problems Part I, P. 2.
1. Jane (a single parent) dies leaving a will that bequeaths $250,000 to establish a trust: “The Trustee shall pay all trust income to my daughter Nancy until such time as she divorces her husband Hobie Gates, at which time the trust shall terminate and the Trustee shall distribute the trust principal to Nancy free of any trust. But if Nancy does not divorce Hobie, on Nancy’s death the Trustee shall distribute the trust principal to the National Organization for Women.” Nancy brings an action seeking to set aside the condition attached to the trust gift. What result . . . if the case arises in Ohio? See Fineman v. Central Nat’l Bank, discussed in the Shapira opinion at p. 29; also see Ellis v. Birkhead, 71 S.W. 31 (Tex. Civ. App. 1902).
ANSWER: 1. In Ohio this would not be permitted. In TX, this would be permitted (see Ellis v. Birkhead, 71 SW 31). In Ohio, you might be able to re-word the Will (zealously represent your client) to make it OK.
2. Suppose, instead, that Nancy is unmarried, and the trust in Jane’s will provides: “The Trustee shall pay all trust income to my daughter Nancy for so long as she remains single; but if Nancy should ever marry, the trust shall terminate, and the Trustee shall distribute the trust principal to the National Organization for Women.” Nancy brings an action seeking to set aside the condition attached to the trust gift. What result? See Maddox v. Maddox, discussed in the Shapira opinion at p. 28.
ANSWER: She wants to marry w/out losing the property. Maddox v. Maddox (1854 Virginia) → Will required person to marry other Quaker in VA where there were were few eligible Quaker men; the Court said that under those circumstances that this was a total restraint on marriage, and therefore was invalid.
In Ohio or Virginia, we’d draft this one to say: “I want to support her while she’s single; but once she marries her reliance on the trust income will go away.”
3. Horace dies leaving a will that establishes a trust: “The Trustee shall pay all trust income to my wife Wilma for so long as she remains single; but if Wilma should ever remarry, the trust shall terminate, and the Trustee shall distribute the trust principal to my daughter Darlene.” Wilma brings an action seeking to set aside the condition attached to the trust gift. What result?
ANSWER: J says this is a common provision – provide for a widow or widower; This is OK.
Professional Responsibility in Will Drafting and Estate Planning
Privity of K Not Defense in Most States → There is a Duty to Intended Beneficiaries in these states
Simpson v. Calivas (SC of NH, 1994) → Plaintiff-son says attorney-
nges in family situations…
Arguments Against Liability
1. unreasonable expectation for me to remember things at social settings (Will Not a Retainer)
2. Different from Heyer → Problems arose after will drafting. In Heyer, the attorney failed to carry out the testator’s intent; here, he fulfilled her intent at the time the Will was drafted, but circumstances later changed.
Lack of Privity a defense in TX, (Barcelo v. Elliott (Tex. 1996)), Maryland, Nebraska, NY, Ohio.
Arguments Against Privity of K → W/ privity of K:
1. only person w/ a valid claim is dead and has suffered no loss;
2. only person w/ a loss has no valid claim.
Arguments for Privity of K → Noble v. Bruce (1998 Maryland) & Barcelo in TX
1. Attorney-client privilege → atty is having to explain his advice to the Longs to the Court.
– compels questions about what was motivation of testator (e.g. control of assets, my son sucks, etc.)
– try to protect atty-client confidences
2. Attorney’s Duty of Loyalty → Duty is only to the client, not the beneficiary; divided loyalty creates conflicts
3. ID Attorney’s Scope of Representation → Beneficiary representation opens Pandora’s Box as to whom attorney is responsible to…
In TX → the surviving spouse has been able to sue. (ask J about this)
LESSON: PLACE THE BALL IN THE CLIENT’S COURT BY MEMORIALIZING IN A LETTER THAT IF THERE ARE CHANGES IN FAMILY CIRCUMSTANCES, THEY NEED TO CHANGE THEIR WILL. MAY EVEN PERIODICALLY MAIL OLD CLIENTS AS REMINDER.
