A. The Power to Transmit Property at Death: Justifications and Limitations 1.

The Right to Inherit and the Right to Convey i. History 1. Only males could own property which could be passed at the time of death. 2. Statute of Wills - Stood for principle that people could have control over where their property went at the time of death. ii. Right to pass property is created and sanctioned by the state. Therefore the state has the right to dictate how this will be accomplished. Hodel v. Irving 1. Issue: Whether the original version of the "escheat" provision of the Indian Land Consolidation Act of 1983, effected a "taking" of appellees' decedents' property without just compensation. 2. Rule: The right to transmit prop at the time of death is a significant right which cannot be totally abrogated by the legislature. 3. Notes: a. USSC protects the right to transmit property at the time of death. b. USSC does not protect the right to receive property. i. Exceptions: a. Spouses - never subject to complete abandonment unless he or she has determined voluntarily that it would be ok (prenup agreement). b. Children i. ii. iv. Minor Disabled

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Shaw Family Archives v. CMG Worldwide 1. Facts: Marilyn Monroe right of publicity case.

2. Issue: Whether Monroe passed through the residuary clause of her will a post mortem right of publicity. 3. Holding: No. Although post mortem rights of publicity are now property rights, Monroe died before such right existed. 4. Rule: A will passes all property the testator owns at death. v. Notes

2. The Problem of the Dead Hand i. Restatement (Third) of Property: Wills and Other Donative Transfers (2003) 1. Section 10.1 Donor's Intention Determines the Meaning of a Donative Document and is Given Effect to the Maximum Extent Allowed by Law. 2. The organizing principle of the American law of donative transfers is freedom of disposition. ii. Shapira v. Union National Bank 1. Facts: Will for father, specifies that son must marry Jewish girl to receive his portion of the estate. If condition not satisfied the portion goes to the State of Israel. 2. Issue: Whether the condition is 1. unconstitutional or 2. against the public policy of the state. 3. Holding: No. No. 4. Rule: Donor's intent controls unless it violates the law or public policy. 5. Reasoning: Not unconstitutional because the right to receive property is not a fundamental right. Daniel can marry whoever he wants but he will lose the inheritance. Not against public policy because it is only a partial restriction on marriage. Daniel is not being deprived of his "right" to receive property because no such right exists. 6. Notes a. You cannot condition an inheritance on not marrying at all. b. If it is a partial restriction --> how big is the field? How easy would it be for that person to find a person matching that description. B. Transfer of The Decedent's Estate

1. Probate and Nonprobate Property i. ii. Probate property is property that passes at the time of decedent's death. Nonprobate property is property that passes during the life of the decedent. 1. Avoids estate taxes 2. Ex. - Life insurance, Anything owned in joint tenancy with right of survivorship. 2. Administration of Probate Estates i. The Functions of Probate 1. Evidence of transfer of title to the new owners; 2. Protects creditors by providing a procedure for payment of debts; and 3. Distributes the decedent's property to those intended after the decedent's creditors are paid. ii. iii. Probate Terminology and History Summary of Probate Procedures 1. Opening Probate 2. Formal versus Informal Probate 3. Barring Creditors of the Decedent 4. Closing the Estate iv. The Costs of Probate

C. Client's Letter Example D. Professional Responsibility 1. Duties to Intended Beneficiaries a. Simpson v. Calivas i. Facts: Ps father Robert Sr. executed a will that had been drafted by the D (Calivas). The will left all real estate to the P except for a life estate in our homestead located at Piscataqua Road, Dover, New Hampshire, which was left to Robert Sr.'s second wife (Robert Jr.s Stepmom). P (Robert Jr.) and his stepmother filed a probate action to determine

whether homestead referred to all the Robert Sr.'s real property (which included a house, over one hundred acres of land, and buildings used in the family business), or only to the house. The probate court found the term homestead ambiguous, and in order to aid construction, admitted some extrinsic evidence of the testator's surrounding circumstances, including evidence showing a close relationship between Robert Sr. and the stepmother. The probate court did not admit notes taken by the D during consultations with Robert Sr. that read: House to wife as a life estate, remainder to son Robert H. Simpson, Jr. Remaining land to son Robert A. Simpson, Jr. The probate court construed the will to provide the stepmother with a life estate in all the real property. P negotiated with his stepmother to buy out her life estate in all the real property for $400,000. P alleged both negligence and breach of contract on behalf of D by failing to draft a will which incorporated the actual intent of Robert Sr. to leave all his land to the P in fee simple. The malpractice claim was based on negligence and the contract claim based on third-party beneficiary. ii. Issue: Whether an attorney who drafts a testator's will owes a duty of reasonable care to intended beneficiaries. Procedural History: TC directed a verdict to the jury for the D based on the plaintiff's failure to introduce any evidence on damages or breach of duty. The trial court also granted SJ on collateral estoppel grounds based on findings of the probate court that under NH law an attorney who drafts a will owes no duty to intended beneficiaries.

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P is appealing the directed verdict and the grant of SJ by the trial court. iv. v. vi. Holding: Yes. R&R Rule: A lawyer who drafts a will owes a duty of reasonable care to intended beneficiaries. Reasoning: As a General principle, the concept of duty ... arises out of a relation between the parties and the protection against reasonably foreseeable harm. Morvay v. Hanover Insurance Co. The existence of a contract between parties may constitute a relation sufficient to impose a duty to exercise reasonable care, but in general, the scope of such a duty is limited to those in privity of contract with each other. Robinson v. Colebrook Savings Bank. There are exceptions to the privity rule, such as where the risk to persons not in privity is apparent. In Morvay, the court held that investigators hired by an insurance company to investigate the cause of a fire owed a duty to the insureds to perform their investigation with due care despite the absence of privity. Accountants may be liable in negligence to those who reasonably rely on their work despite lack of privity and banks owe a duty to beneficiary of accounts with survivorship features set up by the account holder. The court look to other jurisdictions. Majority of courts

have found that a duty runs from an attorney to an intended beneficiary of a will. Most have recognized a duty based on the foreseeability of injury to the intended beneficiary. California Supreme Court reaffirmed the duty owed by an attorney to an intended beneficiary as: When an attorney undertakes to fulfill the testamentary instructions of his client, he realistically and in fact assumes a relationship not only with the client but also with the client's intended beneficiaries. The attorney's actions and omissions will affect the success of the client's testamentary scheme; and thus the possibility of thwarting the testator's wishes immediately becomes foreseeable. Equally foreseeable is the possibility of injury to an intended beneficiary. In some ways, the beneficiary's interests loom greater than those of the client. After the latter's death, a failure in his testamentary scheme works no practical effect except to deprive his intended beneficiaries of the intended bequests. This court agreed with the California Supreme Court. As recognized in this case, there was obvious foreseeability of injury to the P for failure to correctly draft the will. D argued that if the court recognized an exception to the privity rule, they should limit it to those cases where the testator's intent as expressed in the will, not what was shown by extrinsic evidence. The court disagreed with the Ds argument. Under that limited exception, a beneficiary whose interest violated the rule against perpetuities would have a cause of action against the drafting attorney, but a beneficiary whose interest was omitted by a drafting error would not. Contract Theory: General rule is that a nonparty to a contract has no remedy for breach of contract is subject to an exception for third-party beneficiaries. Arlington Trust Co. v. Estate of Wood. Third-party beneficiary status necessary to trigger this exception exists where the contract is so expressed as to give the promisor reason to know that a benefit to a third party is contemplated by the promisee as one of the motivating causes of his making the contract. Tamposi Associates, Inc. v. Star Market Co. The court agreed with that those identified in the will may enforce the terms of the contract as a third-party beneficiary. II. Collateral Estoppel The court disagreed with the D that the TC properly granted SJ on collateral estoppel grounds. The court did so because it determined that the probate court and the TC heard the case for different issues. The task of the probate court is a limited one: to determine the intent of the testator as expressed in the language of the will. Collateral estoppel is only applicable if the finding in the first proceeding was essential to the judgment of that court. The probate court is simply to determine and give effect to the intent of the testator as expressed in the language of the will, a finding of actual intent is not necessary to that judgment. Accordingly, even an explicit finding of actual intent by a probate court cannot be the basis for collateral estoppel. 2. Conflicts of Interest

a. A v. B i. Facts: The estate planning section of Hill Wallack, a New mid-size New Jersey law firm, represented both husband, B, respondent, and wife, W. Both executed mutual wills transfer all the property to the survivor with the reasonable expectation that each would provide for their children. Meanwhile, the family law section of Hill Wallack mistakenly took on another client plaintiff, A, a woman who sued B for paternity. The existence of the additional child was vital to the defendants and Ws 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. Issue: 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. Holding: Yes. Rule: A firm that represents a husband and wife may only disclose to the wife the fact that the husband had fathered another child but may not disclose the identity of the other woman or the child. Reasoning: Where a firm represents a husband and wife and another woman who has a child by the husband, the firm may disclose to the wife that another child exists, however the firm may not disclose the identity of the other woman or the child.

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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. However it must protect the confidentiality of its client, the other woman, because it also owes her a duty because they had formerly represented her.