Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
com
I.
Control of the Dead Hand: Property can be controlled by the dead, but should the law respect the control of the
dead hand? Freedom of Disposition includes the right to act in a way not favorable to people but is upheld by the law.
a. Conditions and Restraints Put in Wills
i. Rule: Conditions result when a decedent conditions a gift on the beneficiary behaving in a certain way.
Conditions will generally be upheld unless they violate the law or public policy. Invalid conditions include:
Absolute restraints on marriage.
1. Exceptions to restraints on marriage: partial restraints that impose reasonable restrictions are
generally not contrary to public policy and thus valid. The inquiry of reasonable restriction is fact
sensitive. Partial restraints generally upheld include: marrying within a reasonable time period, or
to someone within a certain religion. Example: Shapira v. Union National Bank Case
2. Other invalid restrictions:
a. Gifts that require someone to stay within a religion are invalid due to violating the
constitutional right to freedom of religion.
b. Gifts that encourage separation or divorce are also invalid. However, gifts in the event of
separation or divorce are not necessarily invalid.
c. Gifts that require you to commit a crime are invalid.
3. When analyzing on exam: make constitutional and policy arguments.
a. But, the right to inherit is not a constitutionally protected right, however, you can argue the
condition is violating another constitutional right.
b. Policy arguments require you to argue the reasonableness of the condition.
ii. Rule: Remedy and gift over clauses
1. Rule: if the conditional gift is void and there is a gift over clause, courts will distribute the gift to
the alternate beneficiary. If there is not a gift over clause, the condition is void and the original
beneficiary receives the property.
iii. Remember: Conditional gifts are generally valid unless they fall within an exception. Reason by analogy,
look at the nature of the beneficiaries affected right and the degree of unreasonableness
b. Wills requiring destruction of property
i. Rule: -courts will break down their analyses into a variety of factors. Public policy: evaluate the facts,
weigh the benefits and burdens of fulfilling the condition, and decide which factors weigh more heavily
than others.
1. Real property
a. Balance the public and private interests. In virtually every case when asking to destroy
real property the courts have said no and voided the provision. Because there are burdens
on the tax systems and creates nuisances and aesthetic harms.
2. Personal Property
a. Common v. public figure?
b. Motivation of the will maker? When the motivation is capricious, the court doesnt like this
but if the motivation is heartfelt, the courts will be more receptive.
c. Intent and Social Utility
i. What is the cost in destroying the property? Externalities? (in real property the
externalities are taxes and deterring ownership of property, deprives society of
realizing the wealth.)
c. Who can challenge wills?
i. Rule: the ability to challenge a will rests upon the pecuniary interest in the estate. A person who is named in
a will or who would get the property would have pecuniary interest in the will, and everyone else will not
have standing to challenge the will.
1. Another factor the courts consider is the economic interest of the individuals involves.
d. Posthumously Acquired Property
i. This property is property rights that the descendant acquired after death.
ii. Marylyn Monroe case: Rule:
1. The disposition of property only extends to property at death. But this case takes on the truism that
has been around extends to the testator the envisions of property earned after death.
II.
III.
a.
Tort basis is liability for negligence: an attorney has a duty of reasonable care with
foreseeability of injury to the foreseeability to intended beneficiary.
b. Contract theory: once the client identifies who the intended beneficiary is, that person becomes
a third party beneficiary and is in privity with the attorney. Sue for breach of contract.
3. There are two rationales for Modern rules: if the privity barrier is upheld, there is no recourse, and
second, there is incentive for attorneys to do well.
iii. Conflict of Interest: may have a duty to divulge confidential information. See A v. B.
IV.
Intestate Succession
a. Introduction
i. Intestate succession is a system of default rules that anticipate the next best plan for the testator. Intestate
Succession is when someone dies without a valid will, the property will pass by intestate succession
according to the statutory scheme.
1. The first rule of intestate succession is that dead people cannot own property. If a dead person is
named in a will, there needs to be a backup because the dead person has no ability to exercise
dominion and control of the property.
2. Persons who benefit by intestate succession include family members by blood or marriage,
primary shares is the number of surviving persons in the first generation with a surviving member,
plus the number of deceased persons in that generation who have decedents who survive.
e. Half Bloods and what share they get
i. Sibling who is genetically related to you only through one parent happens in blended families original
sibling is a half sibling all you need to know is that most codes would treat those siblings as being related fully.
So where the probate code says distribute to siblings then they are treated as complete siblings treated the same
(intestate succession though)
f. Escheat
i. Rule: when a decedent has no relatives, the property will escheat to the state
g. Transfers to children
i. Adoption
1. There are two types of adoption: formal adoption and equitable adoption.
a. Equitable Adoption courts will look to the behavior and intent of the parties because no
formalities have been made need clear and convincing evidence. Adoptive parents
intestate.
2. Reproductive Technologies
ii. Nonmarital children(step children)
1. Are treated like marital children.
iii. Posthumous children
1. Common law, post-humous children can take.
2. In CA a post mortem conceived child will be an heir or beneficiary if certain requirements are met.??
h. Advancement (lifetime gifts may have post death consequences).
i. Common Law: if an heir receives a life time gift then that share is often counted against any distribution that
person would receive. The common law presumed gifts were advancements. Must present evidence
(preponderance of the evidence standard) to rebut.
1. Advancements of the heirs intestate share
a. An heir is by definition a person who succeeds to a decedents estate, identified at the time of
death. Thus, if you become an heir and you had a lifetime gift, that will count against you in
the distribution.
ii. If it is determined that a lifetime gift is an advancement, there is an accounting process that occurs known as
hotchpot.
1. Hotpot = adding the advancement to the estate, then dividing the property, and subtracting the
advancement from the advanced devisee.
2. If the person who received an advancement ends up owing the estate money, then that person would
simply not get a distribution. Owing money would be inconsistent with the law of gratuitous transfers.
i.
Bars to Succession/Inheritance
i. Rule: Generally, the law does not care if the descendant had a relationship with its spouse or children; however,
there are some acts that are so bad there is a need for dis-incentivizing and the law will step in.
ii. There are two conducts not tolerated: murder and elder abuse.
1. Slayer rule
a. If the jurisdiction does not have a slayer statute, there are three ways the court can decide:
i. Slayer gets the estate the policy is double punishment and the criminal justice system
punishes, not the civil system. However there are civil forfeiture laws.
ii. Slayer does not get the estate
iii. Slayer is a constructive trustee
1. This is essentially giving the property to the slayer, but it is distributed to the
next taker.
b. Slayer rule in CA
i. The slayer is treated as predeceased, the slayer is not entitled to any of the following:
1. Any property interest or benefit in a trust
2. Cannot receive any beneficial interest or administrative interest (fiduciary
interest as executor)
3. Any property under intestate succession
V.
b. Execution Generally
i. Common law
1. The common law required strict compliance with the wills formalities. If there was any deficiency
the will would not be valid.
ii. Substantial compliance with formalities:
1. Rule: even if a will is not executed in strict compliance, the court is able to probate the will if 10
clear and convincing evidence shows that the testator intended the document to be a will, and 2)
there was substantial compliance with the formalities.
iii. Harmless Error Rule:
1. Rule: A harmless error in executing a will may be excused if the proponent establishes by clear and
convincing evidence that the decedent adopted the document as his or her will.
iv. Signature of the Witnesses
1. Common law rule: the testator must ackonledge in the presence of witnesses and the witnesses
must sign in the presence of the testator. There are two approaches:
ii.
iii.
Overall rule: An interested witness is someone who receives a pecuniary under the will. A disinterested
will is someone who does not take under the will.
a. Common law interested will is void, renders the will invalid.
b. More modern law: The witness has a conflict of interest only to the extent that the witness
stands to take more under the will than if the will were not valid. There is a presumption of
conflict, if the interested witness rebuts the presumption, then the gift under the will is not void.
c. Modern Law the presumption shifts dont invalidate an interested will, rather the court will
focus on the gift that the witness is receiving in the will.
Purging statutes
a. Rule: Purging statutes allow an interested witness to purge the excess interest under the will. (the
excess interest is void). To determine the excess interest 1) calculate how much the witness
would take if the will were not valid (prior will or intestacy) and 2) how much the witness stands
to take under the will.
California law
a. Presumption of fraud
b. Extra benefit test in the purging statutes: We purge the interested witnesses of any portion of the
gift that exceeds what the witness would have received if the will were not established.
i. Steps
1. Step 1: is the witness interested?
2. Step 2: apply the presumption of undue influence, fraud or duress
3. Step 3: if yes to (2) then the gift is purged (the extra benefit), if no to (2) then the
interested witness will take the gift.
d. Mistakes in execution
i. Swapped Wills
1. Under the traditional, common law approach the will is invalid. Even though the wills mirror each
other.
2. Rule: CA: provision that says courts should take conditions into account but for the most part the
wills are valid, they show an overall intent to make a unified estate plan will be held up even if
particular conditions did not come to pass.
e. Holographic Wills
i. Rule: A holographic will is written by the testators hand and is signed by the testator. A holographic will
does not need to be attested to by witnesses. The material portions of the will need to be in handwriting.
There must be testamentary intent.
ii. Testamentary Intent:
1. Rule: there must be intent that the document constitutes the last will and testament. There is no
ritualistic function because there are no witnesses.
VI.
i. Overall rule: Under DRR, if a will is validly revoked in whole or in part, it may be possible to probate the
will if the revocation was based on mistake of fact or law AND if the testator would not have revoked the
will if he or she knew the truth. it is presumed that the testator preferred the old will over intestacy and the
old will be admitted to probate in absence of evidence overcoming the presumption.
1. Testator revokes a gift by act on the belief that the new will or codicil is valid (but it is not
mistake of law). The intended beneficiary stands to take nothing because the new gift is not valid,
and old gift was revoked. DRR allows the old gift to be saved if that is what the testator would
have wanted if he or she had known the new will/codicil was invalid
2. If the testator revokes by writing there is almost always a mistake of fact. For DRR to apply, the
courts require the mistake of fact be set forth in writing and the mistake be beyond the testators
knowledge.
ii. IMPORTANT: You must argue for DRR, the court just does not apply it.
c. Revival
i. Revival is an issue arising when a will that was previously revoked is revived by revoking the revoking
instrument (second will). Extrinsic Evidence is ok.
1. Minority of jurisdictions require will #1 to be re-executed.
2. Majority/UPC: testator must intend to revive will 1. If will 2 is revoked by act any evidence is
allowed. If will 2 is revoked by writing, evidence must be in writing.
ii. Burden if proof is on the person trying to prove the first will is not revived.
VII.
1. Examples:
a. I leave all property to the class in the year of my death. The beneficiaries act of being in
the class has independent significance.
b. I give my car that I own at death to B. But if the testator buys a new car worth 100k, the act
was of independent significance as in the testator wanted a new car, therefore it did not
have testamentary impact, Normally you would need a new will to make a dramatic change
in a gift, but under this doctrine B still gets the car.
e. Contracts with respect to wills
i. A contract with respect to a will can do one of three things:
1. Enter into a contract to make a will in favor of someone or another person
2. Enter into a contract not to revoke an existing will
3. Enter into a contract not to make a will at all.
IX.
X.
Will Lapse
a. Lapse: Overall Rule: If a beneficiary fails to strive the testator, the gift is said to lapse. A lapsed gift fails.
b. Default takers of failed gifts:
i. If a specific gift or general gift fails, it falls to the residuary, otherwise intestacy.
ii. If a residuary gift fails completely, it falls into intestacy
iii. If part of a residuary gift fails, there were two options. Under common law, the no residue of a residue rule
apples, and that part goes to intestacy. Under the UPC, the part that fails is distributed among the rest of
the residue.
c. Classification of Gifts
i. Specific Gifts: Rule: A specific gift is a gift of specific items of property either real or personal, a particular
piece of property the most common type of property is real property. Anything that can spec. identified.
10
ii. General : gift of monetary or pecuniary benefit is known as a general gift it is a gift of some pecuniary
amount, particularly in cash.
iii. Residuary : The rest of the estate.
iv. Class Gifts: A class gift is a gift to two or more individuals who share a common attribute. Children,
nieces, nephews, the members of my book club, the people of my church etcIf circumstances of a
particular case would intend the consequences of class gift, it should be presumed a gift was made.
v. Section 2111 of the Cal, Probate Code
XI.
11
XII.
XIII. Trusts
a. The Use of trusts in estate planning
i. Rule: a trust is a method of holding title to property and transferring private wealth. The settlor/trustor is
the person that has the property to transfer. The trustee has the responsibility to manage the property on
behalf of the beneficiaries. The trust property is known as the corpus, res or principle. Whatever the settlor
wants in the trust instrument will generally override the default rules.
ii. Three main reasons why clients want to put property into trusts
1. Avoid probate: a trust created during someones lifetime is a will substitute and as a will substitute
it avoids probate for the property that is placed in the trust.
2. Assures proper management of the property
3. Allows for interfamily wealth transmission
a. For example S to T for the benefit of then to C, D, and E
i. The trust res would be the property (aprt building, stocks and savings)
ii. W gets the life estate in the assets also known as the income, so the rents from the
building and interest from accounts.
iii. Transfers in trust and declarations of trust
1. The way in which an asset is transferred into a trust is the same as in the main. Thus, if real
property transfers are required to be in writing, then a transfer of real property to a trust must be in
writing. Also, if a corp has rules on how to transfer stock, those rules must be followed.
2. Declaration of Trust I hereby declare today .myself trustee for the benefit of.
12
13
3. Support trust
a. The discretion has to be exercised to provide support for the beneifacy. Typically the
support is tied to a group of standards the settlor wants to give the benes. Traditionally
these standards are: health, maintenance, and education of the beneficiary.
b. Creditors cannot compel the trustee to make payments but there are more exceptions to the
support trust. Creditors can ask for distribution if the purpose of the support is for the
creditors (ex: medical service or food suppliers)
c. Family obligations, child support, alimony, or maintenance upon dissolution also seek to
reach trust.
f.
Testamentary Trusts: typically created in a testators will, and must be in writing. If the testamentary trust fails
for wont of writing, the result will depend on if the trust was secret or semisecret.
i. Secret and semisecret trusts
1. A secret trust is a testamentary trust that fails because the terms of the trust are not set forth in the
will. On the face of the will, the secret trust looks like a gift. Nothing indicates the devisee is taking
as trustee. courts use the extrinsic evidence to impose a constructive trust.
2. A semi-secret trust includes no terms of the trust, but hints at the devisee being the trustee, courts
will not take extrinsic evidence, but the gift fails, and the courts will impose a resulting trust. falls
to the residuary, or if trust was residuary, falls to intestacy.
Secret
Remedy
Court will impose a
constructive trust imposed
on the named beneficiary for
the benefit of the intended
beneficiaries
14
Distribution
Intended Benifiaries will get the
money. (if not then they would bring an
action in an unjust enrichment context and
then the remedy applies )
Semi Secret
Resulting trust
h. Pour-Over Wills
i. Pour over wills have two documents, a will and a trust. A will directs the executor to our over any existing
assets to a trust. Intervivos revocable trusts may be funded during the lifetime of the testator / settlor.
15