Trust and Estates - Ryan (Dukeminier) - Spring 2012
CHAPTER 1. INTRODUCTION
A. THE POWER TO TRANSMIT PROPERTY AT DEATH: JUSTIFICATIONS AND LIMITATIONS
The Right to Inherit and the Right to Convey
a.Legal Institution of inheritance(Donee) – Right to Inherit
(Donor) Right to Convey (transmit)Forced Succession (donor has nofreedom)
Testamentary freedom (donor gets to dowhat he wants with his property)Right to Disinherit (moving it to spousefrom kids)Natural Right – (Locke)
Civil Right - created by civil or municipallaws (Jefferson and Blackstone)b.
Shaw Family Archives v. CMG Worldwide
- California and Indiana postmortem right of publicity statutes recognize that an individual cannot pass by will a statutory property right thatshe did not possess at the time of her death. Note that: California now recognizes that publicityrights are devisable.2.
The Policy of Passing Wealth at Death
a.Right v. Privilege: A decedent has the right to dispose of his or her property at death. Althoughstates have broad authority to regulate the process states cannot completely abrogate theright.b.Public Policy debate: Some argue the power to transfer wealth at death is natural and good thatit encourages one to save and promote family value while others argue that the power totransfer wealth at death perpetuates economic disparity and unfairly rewards those luckyenough to have been born to rich parents.c.Economics of Inheritance
Justifications for passing wealth atdeathArguments against passing wealth atdeath
Society based on private property – thisis least objectionable way to deal withproperty at owner’s death Transfer of fortunes perpetuates wide disparitiesin the distribution of wealth, concentratesinherited economic power in the hands of a few,and denies equality of opportunity to the poor.Incentive for recipients to do certainthings (take care of parents,grandparents, so they will get)Danger - inherited wealth becoming the basis of enduring privilegeAllows for the taking care of dependents(rather than State having to)Encourages productivity and control(work hard so children can have betterlife) Tends to reward chance of ficaortunate birth,rather than merit or productivityEncourages earnings and savings (b/cyou know it will pass to children, so nowasting)Accumulation of wealth, rather than consumingit (which is better for society)
3.The Problem of the Dead Hand
“Dead Hand” control defined:
A decedent may condition a beneficiary’s gift on the beneficiarybehaving in a certain manner as long as the condition does not violate public policy.
Dead hand control is generally upheld unless the condition constitutes a completerestraint on marriage, requires a beneficiary to practice a certain religion, encourages divorce orstrife, or directs the destruction of property.a.
Restatement (Third) of Property: Wills and Other Donative Transfers §10.1
- Thecontrolling consideration in determining the meaning of a donative document is the donor’sintention. The donor’s intention is given effect to the maximum extent allowed by law.b.
Shapira v. Union National Bank -
Upholding and enforcing the provisions of the decedent’swill conditioning the bequests to his sons upon their marrying Jewish girls does not offend theConstitution of Ohio or the United States. The conditions contained in decedent’s will arereasonable restrictions. His unmistakable testamentary plan was for his possessions to be usedto encourage the preservation of the Jewish faith. The condition did not pressure plaintiff into1 |Levy