Wills & Trust OUTLINE Fall 2006 Eyster

Wills & Trust OUTLINE Fall 2006 Eyster - WILLS TRUSTS...

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WILLS & TRUSTS OUTLINE Impt: - testator’s intent o look to text of will o extrinsic evid when will is ambiguous - kids can’t own prop in COLO till 18 yrs old The right to Inherit and the Right to Convey - Rt to pass prop at death is not a natural right, not constitutionally protected o Jefferson though not nat rt, should go back to society - You have a constit rt to give away prop at death (Holdel v. Irving ) o Holdel v. Irving CT 1987 O’CONNOR – Constit rt to give away prop, if taken, must be compensated, but not necessarily a rt to inherit F: fractionalization of Indian lands after Allotment Act. Gov sought to fix w/ law (Indian Land Consolidation Act of 1983) that caused small prop to revert to tribe (“escheat”). Appellees are heirs and devisees Dist ct said law constit b/c appellees don’t have vested interest in prop prior to decedents’ death and Cong plenary pwr. App Ct decided you do have rt to transmit prop at death CT rules Act is an abrogation of rt to transfer, goes “too far”. Rts in bundle of sticks – Indians here don’t have some, but do have rt to trans at death and gov can’t take that away, but might be able to force people to have a will CT concludes Cong not solving prob by least restrictive means – ends v. means test Cong tried to fix again: law allowed transfer, but had to be to someone w/ land, also held unconstit b/c Cong can’t restrict people from giving prop to heirs/descendents/obj of bounty- Babbitt v. Youpee - Rt to rcv prop, if any, is a creation of law, not a natural right, not constit right ( Shapira ) - There is a general right to restrict inheritance ( Shapira ) o Religious restrictions regarding inheritance and marriage are valid: Valid b/c focus is on rt to transfer prop, not rt to receive Will in Shapira had condition that sons would only get inheritance if they married Jewish girl who’s parents are Jewish. A partial restraint on marriage that imposes reasonable restrictions is VALID, not contrary to public policy. The 7 yr period before forfeiture is adequate time frame. Focus is on ct’s role in enforcing discrimination – but it is different than Shelly (racial covenants) in that this involves individuals, not a public covenants These limits have been allowed by the cts, but should they be? What’s best for public policy? o Religious restraint on Marriage allowed by Rest 2d of Donative Transfers Restraint on marriage w/in relig faith allowed IF it does not unreasonably limit a person opportunity to marry (unreasonable if marriage is not likely to occur – a factual Q to be answered on case by case basis) o Conditions on inheritance: marriage w/ religion req’mts allowed in Shapira Diff btwn condition of a gift and condition of an inheritance in that in former giver is alive and can grant extensions or exceptions Maybe this flexibility should be allowed by cts with conditional inheritance (Posner) - There is a general right to disinherit (though spouses and minor kids may be given elective share) - Policy : o
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