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WILLS, TRUSTS, AND PROBATE
GENERAL COMMENTS
You should find your students genuinely interested in how the law governs the transfer of assets upon
death. Given the young age of many college students, maybe it is just morbid curiosity. This chapter
provides an opportunity for you to make a real difference in their lives by introducing them to the concept
of estate and financial planning. All you can reasonably do is begin the discussion, but the introduction of
the traditional topics of wills and trusts does that well. We believe that college graduates should
understand and be prepared to utilize these important legal tools of personal finance and estate planning to
minimize costs and maximize desired benefits for themselves as well as for their loved ones.
This chapter presents legal ways to prevent problems such as those encountered in the Supreme Court
case of Cruzan by Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 110 S.Ct. 2841, (1990) as
discussed in the text on page 697. Public Law 101-508 (1990) requires that all adults be told, on
admission to a Medicare provider hospital, nursing home, or health maintenance organization, about the
nature of, and their right to, prepare a legally binding living will or durable power of attorney (See 42
U.S.C. 1866). In our experience, estate planning attorneys are among those most anxious to make class
visits, and you can have a great class with some current, real world examples of the issues with which
these folks are dealing.
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in even informal documents (holographic wills). The case of McConnell v. Beverly Enterprises-
Connecticut, Inc. is a heart-rending case that addresses the issues of life and death in the framework of
termination of life support for a comatose, terminally ill patient.
CHAPTER SUGGESTIONS
1. Much information on issues about dying can now be found on the Internet. A particularly
interesting site is “Aging with Dignity” and the information supplied about Five Wishes at
2. What is the pattern of intestate succession in your state? Does it distribute the decedent’s estate as
most testators presumably would wish if they had written their own wills? Could the statutory
scheme be improved? How, and why?
3. Have a mock will-drafting session. Confront the problems and concerns that someone drafting a
will should consider, for example: Who should get what, and when? Is there equality among
siblings’ equity? Is a substantial gift to a minor likely to harm, rather than benefit, such person?
Should there be treatment differences between children who are caretakers and those who are not.
Should it make a difference as to the reasons why some provide help to elderly parents and some do
not?
4. Invite an attorney who specializes in estate planning or related issues to speak to your class. Estate
planning attorneys are accustomed to making group presentations and usually welcome the
5. Does your state provide for living wills and/or durable powers of attorney? When can they be
created and what are the required formalities? Get a copy of each document and share them with the
6. Conduct a class discussion or debate about the “right to die.” Include the serious concerns of who
shall decide if and when to discontinue life support systems. Is there an opportunity for “legalized
murder” by unethical members of our society? Brainstorm with the class about ways those
unethical family members or outsiders might misuse liberal right-to-death statutes for their selfish
financial gain. Contrast these possibilities with a situation such as that described in the McConnell
case where a grief-stricken family is trying to provide surcease to extinguish pain, and to give a
measure of dignity to their dying loved one. Is it possible to draft a statute that provides a “right to
die” that is fair, efficient, and protective of persons against avarice and greed? At the same or at a
subsequent class meeting, invite a qualified physician or professional pharmacologist to discuss the
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availability, efficacy, and limitations of pain-killing drugs, and their possible self-administration in
many cases.
FOR CRITICAL ANALYSIS
Estate of Dorothy Southworth v. North Shore Animal League
1. Mrs. Southworth told the North Shore Animal League what she intended to do at a future time.
2. Send someone to meet with her and explain to her that her wishes had no legal effect, and if she
wanted to do what she said the organization could suggest an attorney to prepare appropriate
documents. The organization should suggest that the attorney not be directly related to the
organization to avoid conflict of interest challenges.
4. This is a good item for discussion.
McConnell v. Beverly Enterprises-Connecticut, Inc.
1. When one is speaking about motivations of others, one is guessing. However, having acknowledged
that people often have very strong views about issues of life and death, one basis for the attorney
2. A nonexclusive remedy or act means that a court can use a reason independent of the statute to
justify their holding.
3. Everyone is terminal, so its use usually has to do with imminent or predictable death. A good article
4. Present law says such a decision is not suicide or illegal.
ANSWERS TO QUESTIONS AND PROBLEMS
1. Yes. Joe Mariano can have another person sign the will for him, and so indicate on the document.
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2. Probably yes. The owner of money and other assets is legally entitled to dispose of them by will.
Preexisting debts, estate taxes, and legitimate claims of creditors against the estate (such as probate
3. Because the children are minors, a guardian must be appointed for the estate of each of them.
Although their widowed father is most likely to be so appointed, determining the guardianships will
entail avoidable red tape and costs, including: (a) annual charges for fidelity bonds; (b) costly, time
4. This presents an interesting question for those who believe the courts should follow the clear and
unequivocal language of a statute. The New Jersey Superior Court applied the rule that “no man can
profit from his own wrongdoing.” They imposed a constructive trust on Richard Kalfus and
compelled him to transfer the property to the minor children. “…[E]ven in the absence of a specific
statute, it has been held that a murderer cannot inherit from his victim under the statute of descent
and distribution…” This fact situation also provides an example of problems that often exist in
poorly drafted statutes. Estate of Kalfus v. Kalfus, 81 N.J. Super. 435, 195 A.2d 903 (N.J., 1963).
5. There was a presumption of undue influence by the attorney who prepared the testator’s will in
favor of the charity. However, evidence submitted rebutted the presumption. The attorney testified
6. The former Chief Justice of the Supreme Court left behind a self-written, 176-word witnessed will.
It thus is a formal will, even though it is short and brief. He gave his entire estate to his two
7. A directive to a physician can provide that life-support systems should not be used to keep a person
who is terminally ill alive after he or she has lapsed into a coma, nor should heroic efforts be used
to revive or resuscitate when the person’s condition has deteriorated to the point where the quality
of life is substantially impaired, or remaining life would be in substantial pain.
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can also cover situations where one is injured and lapses into a coma, or permanently loses mental
capacity.
Ethical dilemmas involve the very questions of the sanctity of life and who, if anyone, shall
decide at what time a person is to die. Any discussion should consider societal costs of rendering
aid to a brain-dead person who may live in a vegetative state for many years, yet require scarce
medical care which, if made available, could possibly cure others who could live normal lives.
8. An irrevocable trust is a permanent transfer of property to the trustee for the benefit of another
person or persons. It is a completed transfer. Obviously, if the trust was revocable, the settlor could
revoke it and receive full title to and control over the property.
9. The “prudent investment” rule is a common statutory standard for trustees and executors. The
purpose of the rule is to create a conservative “money-handling” standard for such fiduciaries when
10. The court was very concerned by the possible effect of parol evidence to vary the testator’s written
intent. The court was persuaded by the fact that the will was not damaged in any way that affected
11. At the age of 90 and in rapidly failing health, he cannot spend and consume $10 million on personal
needs. Nor can he effectively destroy his fortune. The stocks and bonds are documentary evidence
of equities in corporations and claims against debtors; destroying the documents does not destroy
the underlying assets and values they represent. The executor of his estate could request and obtain
12. It should be interesting to compare the answers from the various research sources.