Freedom of Disposition

Question 1

Freedom of Disposition

Answer 1

i. No constitutional right to transfer property!
(a) The right to pass property at death is not a natural right – it is a legislatively created and controlled right
(b) The control lies with the probate codes of each individual state

Question 2

Testator’s intent

Answer 2

is valued – testator has almost complete say on how his property is disposed off

Question 3

Exceptions to testator’s intent

Answer 3

(a) All testamentary disposition is subject to rule and regulation in the probate code having to do with:
(1) Illegality – cannot incite/suggest criminal or tort activity

(2) Cannot violate public policy
a. Example: Cannot include provision in will that pets be euthanized because it could violate public policy

(3) Protection of spouses, children, and certain creditors
a. Cannot leave the spouse out of the will UNLESS you provide another way to provide for your spouse outside of the will (because it’s against public policy) AND Cannot leave out minor children from the will ………..
b. Reasoning = The idea of the marriage from contract theory. Spouses and minor children not provided for tend to become wards of the state

Question 4

Control of “dead hand” means:

Answer 4

i. Decedent may continue to have control over how their wealth is spent

Question 5

Determining if donor can do something in his will:

Answer 5

If testator could not do it in life, he cannot do it in death