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School: University of Chicago School of Law
Course: Trusts and Estates
Year: Fall 2002
Professor: Adrienne Davis
Text: Wills, Trusts, and Estates, 6th Ed.
Text Authors: Jesse Dukeminier and Stanley M. Johanson
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Trusts and Estates
I.Introduction – Themes (p. 1)
A.Freedom of Testation:
1.Definition: Functionally the right to disinherit your family, to determine the post- death disposition of your property instead of having it pass by universal default rules.
2.Origin: 1540 Statute of Wills – Previously all property passed by primogeniture with significant incidents to the Lord.
3.Concept: As one of the sticks in the bundle of property rights:
a.A € protected right
i.Hodel v Irving (US 1987 – p3): A complete abrogation of Indian’s right to pass property by devise or descent is Un€ as a taking.
Note: previous Irving case held that states may make laws changing the rules of inheritance and intestacy, Hodel says no abrogation.
b.Positive law: due process
c.Right belongs to testator, generally decedent (D), thus in Hodel, Π’s got standing by standing in shoes of Indian testators.
i.It was not the right of the Indians to inherit for which they sued.
ii.Rather the right of the Indians to dispose after death.
d.If T can give property inter vivos, he should be able to do so post-mortem
i.Encourages productivity and saving inasmuch as we recognize a motive to provide for future generations.
ii.Society supports taking care of kids so they will take care of you.
iii.True Paternalism (father knows best state supports father).
4.In Tension With Minimalist Approach (non-enforcement of testamentary restraints):
a.The social investment in the Free Alienability of Land (and Personalty). Called the “Dead Hand Problem.”
i.What if T would have new info that changes his mind
ii.Cuts into individual freedom.
iii.Mitigated by Rule against Perpetuities: Puts an effective limit on the dead hand of 100yrs or so.
b.Formalism: if freedom of Testation is indeed important, than why make people jump through hoops. In other areas of law, (e.g. Ks) courts will enforce property rights and have moved away from forms.
c.Social Investment in Family: why allow people to disinherit?
i.Mitigated by Forced Succession Laws.
d.Expensive Administrative Procedure (judges must use balancing tests, ascertain T’s intent, ensuring B’s are fulfilling conditions, etc.)
e.Social cost: esp. free marketability and alienability of land
5.Case: Shapira v Union National Bank
a.Father leaves $$ to son contingent on his marrying a Jewish Girl of Jewish Parentage. This is a perfect example of the Dead Hand.
b.Son makes arguments of grounds of (i) state interference with € right to marry; and (ii) public policy argument as against state interest in having citizens marry and procreate.
c.Court upholds will stating that:
i.Not Un€ where state does not step in between two willing actors.
ii.Not against Pub Policy where there is a reasonable chance to marry
Here, plenty of Jewish girls in area
6.Courts support FOT in most situations.
a.Restraints on Marriage:
i.Total restraints on marriage are always Struck Down.
ii.Total restraints on 2d marriages are Upheld by ½ the states and Struck Down by the other ½. Judges tend to uphold so sometimes by statute.
iii.Partial Restraints on Marriage: Upheld if:
Clear (i.e. what is a member in good standing); and
Appoint 3d party to determine standing, and this saves clarity always.
Reasonable: not really a total restraint masquerading as a partial one.
I.e. marry a Mormon if only 10 Mormons not OK.
b.Religious Restraints (In General – EX: so long as he remains a member in good standing of the Church of England): Almost always upheld, unless divisive of families (i.e. raise your daughter in a faith not your own).
c.Inducements to Divorce: Near universally Struck Down, Unless:
i.Economic Motive for support of woman in case of divorce.
Question is factual one as to Intent of the testator
d.Vague Restraints on Personal Habits: Upheld, Unless
i.Too Vague: cured by 3rd party arbiter again
e.Charitable Restraints: Upheld universally.
7.Effects of Struck Down Wills
Escheat to estate and pass by intestacy; OR
a.Void only the clause in question and uphold the will
i.Look to specific jurisdiction
b.Savings Clause can overcome jurisdictional habit of total voiding of will.
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