Week 2

Question 1

What is the argument against inheritance? (5)

Answer 1

1. Cheats the state of resources (liberal view)
2. Disincentivizes work (conservative view)
3. Concentration of wealth/opportunity
4. Not a meritocracy
5. Dead Hand

Question 2

What is the argument for inheritance? (5)

Answer 2

1. Incentive to provide for children
2. Incentive to save/be productive
3. Incentive for children to care for their elders
4. Fosters family cohesion
5. Dead Hand

Question 3

What is the Dead Hand?

Answer 3

letting dead people control wealth for the living

Question 4

What makes Dead Hand a problem?

Answer 4

Changed circumstances

Question 5

What is Irving Crystol’s solution to the problems of freedom of disposition?

What are problems with this solution? (3)

Answer 5

Putting a cap of $1 million for inheritance

1. Disincentive saving past $1 million
2. Would not make long-term investments
3. Make people subvert during their lifetimes

Question 6

What is the current law on estate tax?

At what percent after that?

What else?

Answer 6

2014: Allowed to make tax-free gifts through your estate plan up to $5.34 million

18% at first and then maxes out at 40%

Can double it for married people ($10.68 million); i.e., married people can give that amount untaxed

Question 7

What was Shapira v. Union National Bank about?

Facts?

Issue?

Holding?

Rationale? (2)

Answer 7

Freedom of disposition

Son has to marry a Jewish girl of whom both parents were Jewish within 7 years, or money goes to Israel

Can such a prohibition be valid?

Yes

Because (1) not by the state and (2) not an unreasonable proposition; could have moved to find the right Jewish girl

Question 8

What were the conflicting principles in Shapira?

What amendment for the latter principle? Why?

What does the court in Shapira say?

Answer 8

Freedom of disposition vs. freedom to marry

14th Amendment - should not be forbidden by the state to marry whom he wants to

freedom of disposition wins, because testator isn’t the state

Question 9

Which case did the son (plaintiff) try to use in Shapira?

What were the facts and holding of that case?

What result?

Why?

Answer 9

Shelly v. Kraemer

Owners of neighboring properties sought to enjoin blacks from occupying properties which they had bought, but which were subjected to privately executed restrictions against use or occupation by any persons except those of the Caucasian race.

Couldn’t enjoin blacks from occupying; hate provision preventing an affirmative act

Distinguishable

No affirmative act being stopped; rather, some act is being incentivized, the result of which is not really hateful: “If the facts and circumstances of this case were such that the aid of this court were sought to enjoin Daniel’s marrying a non-Jewish girl, then the doctrine of Shelley v. Kraemer would be applicable, but not, it is believed, upon the facts as they are….”

Question 10

What did the son (plaintiff) argue in Shapira, referring to the common law?

What result?

Why?

Answer 10

There is a common law policy favoring marriage; the free choice of religious practice cannot be circumscribed or controlled by contract

Unsuccesful

This is not an unreasonable restriction; if there aren’t enough Jewish girls where you are, you can move

Question 11

What are two reasons the court decides for the D in Shapira?

Is either controversial? What does this mean?

Answer 11

1. not a state action - uncontroversial
2. not an unreasonable restriction - controversial (i.e., some courts come out differently)

Question 12

What is something that could have been brought up about the will in Shapira?

Why did the Court not have to look to this?

Answer 12

What it means to be Jewish - may be improper for a Court to determine this

The will asked for both parents to be Jewish - more strict than usual, so wasn’t a religious analysis

Question 13

What result if a Shapira-like will only allowed the gift if you married a non-African-American woman?

Why?

What about a black Doctor required to marry a black woman in order to get the gift?

Why?

Answer 13

Would be different than Shapira; would almost uniformly be struck down

Because it’s a hate provision; Shapira had a positive goal; the hate provision has no social good as a purpose

It’s OK

like in Shapira, the will wants to preserve a community; always upheld

Question 14

What drove the court’s opinion in Shapira, according to a legal realist perspective? (2)

Answer 14

1. Daniel had plenty of people to choose from;
2. Preserving a community that has been historically attacked doesn’t come up against any substantial principle

Question 15

Aaron Green died three weeks ago. His wife has come to your law firm with Green’s will in hand. The will devises Green’s entire estate “to my wife, Martha, if she survives me; otherwise to my children in equal shares.” The will names Martha Green as executor. An interview with Mrs. Green reveals that the Green family consists of two adult sons and several grandchildren and that Green owned the following property: car ($15,000), furniture ($20,000), mutual fund ($10,000), joint checking account ($3,000), and life insurance policy naming Martha Green as beneficiary ($50,000). Mr. Green also had a pension plan naming Martha Green for survivor’s benefits. Green owned no real property; he and his wife lived in a rented apartment. Green’s debts consisted of last month’s utility bills ($80) plus the usual consumer charge accounts: Visa card ($600 balance) and a local department store ($250). There is also a funeral bill ($8,000) and the cost of a cemetery lot ($600). Mrs. Green wants your advice. What should she do with the will? Must it be offered for probate? Must there be an administration of her husband’s estate?

Answer 15

1. Joint checking account: non-probate; joint tenancy
2. Mutual fund: non-probate; POD K
3. Pension plan: non-probate; POD K
4. Life insurance: non-probate; LI (contract has its own provision)
5. Furniture: probate; if parties agree, don’t have to go to court; if don’t, will go to court, but mom will win
6. Car: probate; cars have title, but in CA, probate court isn’t needed; DMV, as part of the executive branch, can transfer title extra-judicially; acts like a mini-probate court - present evidence
7. Debt: creditor has to show up in 4 month statutory period; don’t go to court, because there is no advantage to the debtor to going to court, because all of the creditors are sophisticated

Question 16

When is a time the Dead Hand will not be obeyed?

Answer 16

Destruction of property after death; no waste; will give way to notions of efficiency

Question 17

Green also owned a house and lot worth $170,000 and another lot worth $16,000. The deeds to both tracts name Aaron Green as grantee. The residential property is subject to a mortgage with a current balance of $85,000; title to the other lot is free of encumbrances.

Should Green’s will be probated and his estate formally administered?

In CA?

Answer 17

Yes; Probate Court deals with title clearing (except cars);

in CA, there is a way to expedite if everyone is uanimous

Question 18

Suppose Green comes to you and tells you that he does not have a will. He describes his family situation and the property owned by him: the property listed in Problem 1 but not the real estate described in Problem 3.

In view of his family situation and his modest estate, does he really need a will?

Answer 18

Yes; things change, so why not

Question 19

What are two classes of things that change that make wills appealing?

Answer 19

1. Estates
2. People

Question 20

Why is probate law such a hot spot for professional responsibility? (3)

Answer 20

1. You represent a number of people
2. It’s difficult
3. People get angry about gifts not given to them; it’s personal

Question 21

What is Simpson v. Calivas about?

Facts?

Issue?

Holding?

Rationale?

What evidence rule does this implicate?

Answer 21

privity: liability to intended beneficiaries

In March 1984, Robert Simpson Sr. executed a will that was drafted by Calivas (defendant)in which Simpson left all real estate to his son, Robert H. Simpson Jr., (plaintiff), except for a life estate in “our homestead located at Piscataqua Road, Dover, New Hampshire”. The will was ambiguous and resulted in a a great deal of land to the plaintiff’s stepmother. The plaintiff eventually settled with his mother for $400,000, but sought that amount from Calivas. He claimed the notes clearly show his father’s intention to leave most of the property to him and but for Calivas’ negligence he wouldn’t have had to pay the $400,000. The trial court dismissed the action and the New Hampshire SCt reversed.

Does an attorney drafting a will owe a duty to intended beneficiaries?

Yes

An attorney drafting a will owes a reasonable duty of care to the intended beneficiaries of the will.

Parole evidence rule - when there is a written instrument that is clear and answers the question, can’t look at other evidence

Question 22

What is the rule coming out of Simpson v. Calivas?

Answer 22

Concept of privity between the beneficiaries of the will and the attorney who drafted the will; i.e., can sue the lawyer for malpractice

Question 23

What is A v. B about?

Facts?

Issue?

Holding?

Rationale?

Answer 23

Conflicting principles of PR: Duty of Confidentiality and Duty of Competence/Communication

Joint representation of husband and wife for estate planning; waiver generally of conflicts, but not of communication. During the conflict check, the person misspells the name of the husband. Turns out the husband was having an affair, and had a child in that affair. Affaired mother retains same law firm to get maternity. Client knows about conflict, but doesn’t tell anyone, and hires another law firm. Wife has unknowingly agreed to an estate plan that gives money to a child she doesn’t know about. The existence of the additional child was vital to the defendant’s and W’s estate plan. The firm withdrew from representation in the paternity suit and ordered the defendant to tell his wife W of his other child or the firm would notify plaintiff. The defendant sued Hill Wallack to prevent disclosure.

Whether a firm that represents a husband and wife may disclose to the wife their knowledge that the husband fathered another child by another one of their clients

Yes

The Court will allow the firm to tell the wife that her husband has a child by another woman because it is crucial to her needs in her won estate planning.

Question 24

How does the court explain its decision in A v. B? (2)

Answer 24

1. the husband was withholding information that went to the subject of representation; was effectively making his lawyers perpetrate fraud
2. found about the child from the mistress, so not really client confidentiality

Question 25

What’s the argument that the law firm screwed up in A v. B?

Answer 25

They took too long to withdraw; withdrawing would have prevented any duty from being violated

Question 26

What’s a potential problem with a straight-forward engagement letter for joint representation of husband and wife?

Answer 26

the clients will not be so free with information

Question 27

What is community property? (2)

Who owns what part?

What is separate property?

Answer 27

Community property, absent an agreement to the contrary, is all property acquired:

1. during marriage; and
2. by the labor of either spouse.

Both own the entirety of this property.

Everything else is separate property.

Question 28

What’s importantly not community property? (2)

What’s the rationale?

Answer 28

1. Gifts to either spouse
2. Inheritance

No labor

Question 29

What is quasi-community property?

How is it treated?

Answer 29

Community property you acquire outside of the state

The same as CP inside the state

Question 30

Why is there no big industry for wills right now?

Answer 30

Because more money in trusts; ongoing maintenance

Question 31

What are the core functions of probate? (3)

Answer 31

1. Provide evidence of transfer of title to the new owners
2. Protect creditors by providing a procedure for payment of debts
3. Distribute the decedent’s property to those intended after the decedent’s creditors are paid

Question 32

What are the three ways of dying, with regard to probate court?

Answer 32

1. Testacy - there is a will, with terms that cover all property
2. Intestacy - there is no will
3. Partial Intestacy - there is a will, but the terms don’t cover all the property

Question 33

What about intestacy and the construction of valid wills?

Answer 33

Intestacy helps to interpret valid wills; like canons of construction

Question 34

What is intestacy supposed to approximate?

Answer 34

the intent of the average testator

Question 35

What happens in a CP state when one of the spouses die?

Answer 35

the other spouse gets the rest of the CP, entirely

Question 36

How much of the separate property does the surviving spouse or domestic partner get if there is no surviving issue?

What statute and provision?

Answer 36

surviving spouse or domestic partner gets all of it (only the SP);

6401(c)(1)

Question 37

How much of the separate property does the surviving spouse or domestic partner get if there is one surviving issue or parent(s) or their issue?

What statute and provision?

What about this provision?

Solution?

Answer 37

half of the SP

6401(c)(2)

most people don’t give SP to children or grandchildren if their spouse is still alive if you don’t like it

don’t die intestate

Question 38

How much of the separate property does the surviving spouse or domestic partner get if there is more than one issue?

What statute and provision?

Answer 38

a third of the SP

6401(c)(3)

Question 39

What about stepchildren and 6401?

What statute?

What can you do about that?

Answer 39

They don’t count as issue

50, defining issue: all his or her lineal descendants of all generations, with the relationship of parent and child at each generation being determined by the definitions of parent and child.

Adopt the step-child

Question 40

Howard has two children by Wendy. Wendy has an additional child from a previous marriage.

If Howard dies intestate, what will be Wendy’s share under 6401?

If it is Wendy who dies intestate, what will be Howard’s share?

Answer 40

W = Howard’s half of the CP and QCP (she has the other half already) + (1/3)SP [6401(c)(3)]

H = Howard’s half of the CP and QCP (she has the other half already) + (1/3)SP [6401(c)(3)]

Question 41

Suppose H and W have been married one year. H dies, survived by W and a brother, but no parent.

What is W’s share?

What statute provision?

What if by a brother and 4 sisters?

Answer 41

W = 1/2(CP) + 1/2(SP)

6401(c)(2): issue of one of the parents of the decedent

Same thing; (c)(3) is only about decedent’s children or issue of deceased children (not issue of parents of decedent)