Monday, June 26, 2017
Rafael Domingo recently published an Article entitled, Property without Personhood, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:
The property as personhood theory provides a dominant justification for legal theory and has shaped numerous legal doctrines. Although the theory has been criticized by many scholars, one important concern has escaped scholars thus far. Property as personhood limits identity and confines growth. The concept allows little room for experimenting with personality and testing one’s lifestyle. Access, a rising form of property use in the sharing economy, provides an important alternative. It allows for property use without personhood, emphasizing choice, flexibility and mobility. This Article presents this alternative and explains its significance to property legal theory contra the property as personhood theory. It also details the benefits and costs associated with property without personhood, and sketches out possible legal implications.
Angela Merkel, current Chancellor of Germany, was not prepared for the news that Helmut Kohl had died. Chancellor of Germany from 1982 to 1998, Kohl’s death is stirring much controversy. No German chancellor since WWII has been buried without the current chancellor speaking. Kohl’s widow has plans for a European funeral in Strasbourg rather than a German ceremony. This decision left open the possibility that Merkel would not be offered the opportunity to speak. Kohl and Merkel’s relationship deteriorated significantly when Merkel stabbed Kohl in the back years earlier over a party-donor scandal. While Kohl apparently mellowed significantly with age, his widow seems dedicated to bearing the torch of his revenge.
In addition to these political squabbles, Kohl’s widow may find herself subject to suit regarding a number of files that allegedly disappeared at the end of Kohl’s term as chancellor. Seemingly obsessed with controlling her husband’s legacy, Kohl’s widow has a hoard of files and papers, some of which arguably belong to the German government, that she is using as reference to write about her late husband. While a suit is not likely, there are a number of highly sensitive documents that academics and the public would like to see.
See A Raging Battle over Kohl's Legacy, Spiegel Online, June 23, 2017.
Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.
Litigation targeting estate-related trusts and trustees is continually increasing. The conflicts leading to these suits are often rooted in prior family dysfunction and slighted beneficiaries. In some cases, the trustee is at fault. When family members are appointed as trustee, they are often not able to manage estate assets in a manner that meets the high fiduciary standard. This failure subjects them to legal liability. In extreme cases, beneficiaries may become physically abusive in order to funnel assets for their benefit. A Massachusetts court recently heard a case where a violent and abusive son forced his father, suffering from dementia, to give him control of his estate. Because the father had also been acting as the fiduciary of a family member’s much larger estate, the abusive son was able to gain control of those assets as well.
There are a few solutions to help mitigate some of these issues. One possible option is to appoint co-trustees. In this case, a family member would be appointed as a trustee along with an institutional trustee. This ensures continued family control alongside professional management. Another possible avenue, the settlor may work with an attorney to draft a more flexible trust. Beneficiaries should have the power to remove a trustee if it becomes necessary. Finally, keeping lines of communication open is extremely important. Trustees and beneficiaries need to be able to pick up a phone and communicate issues when they arise.
See Matt Miller, Are Fiduciaries Setting Themselves Up to Be Sued?, Barron’s, June 16, 2017.
Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.
There is a gap between the passing of a decedent and the appointment of their personal representative. In Florida, once a personal representative is appointed, he is authorized to go back in time to authorize acts performed prior to his appointment that are beneficial to the estate. A recent case before a Florida court posited the question of whether or not the personal representative was simply allowed to make such authorizations, or if he had a legal duty to make such authorizations.
The question brought before the court stemmed from a car accident. The daughter of Christian Schnitzpahn, the decedent, occasionally used her father’s car prior to his death. After her father’s death and prior to the appoint of a personal representative, the daughter hit another vehicle while driving her father’s car. The passengers in the vehicle filed suit against Schnitzpahn’s estate. They alleged that the freshly assigned personal representative had an affirmative duty to take control of the vehicle prior to his appointment to the position. The Florida court declined to take this position. The court held that the intent of the legislature was to shield personal representatives from liability prior to taking the position as personal representative and that there was no duty to act prior to appointment.
See Jonathan A. Galler, Estate Not Liable for Car Accident After Decedent’s Death, Wealth Management.com, June 23, 2017.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Sunday, June 25, 2017
Rafael Domingo recently published an Article entitled, The Roman Law of Succession. An Overview, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:
The law of succession addresses the legal destiny of a person’s rights and duties after his death. Closely tied to the fundamental and peculiar features of Roman family and society, the law of succession presents vast difficulties for Roman lawyers because of its highly sophisticated nature and lack of systematic coherence. It is no coincidence that eleven out of fifty books in the Digest address the law of succession.
The development of the law of succession reflects important social changes in Roman economic structures and value systems. It echoes the progression from an old Roman agrarian society to a new commercial one. From a technical legal perspective, the law of succession reveals the tension between civil law and praetorian law. Without formally altering the civil law, the praetor introduced fundamental adjustments to protect emancipated persons, blood relatives in the female line, and surviving spouses, among others.
Frank Kerrigan buried his homeless son at a cemetery in Orange County, California last month. Friends and family travelled from as far as Las Vegas and Washington State to mourn at the $20,000 funeral. To Kerrigan’s great surprise, Bill Shinker, a longtime friend and pallbearer at the funeral, called on May 23 to tell him that his son was not dead. After speaking with his son, Kerrigan is seeking compensation from the coroner’s office. Initially, the coroner’s office told Kerrigan that it was not necessary to visually identify the body because they had used fingerprint identification. The lawsuit alleges that the Kerrigans’ civil rights were violated based on the coroner’s office failing to perform due diligence in correctly identifying the deceased.
See Ariel Zilber, Outrage as Father Is Told His Homeless Son Is Dead and Buries Him in $20k Funeral - Only to Be Told 11 Days Later that It Was a Mistake by the Coroner and that His Son Is Very Much ALIVE!, Daily Mail.com, June 24, 2017.
Special thanks to Molly Neace for bringing this article to my attention.
Saturday, June 24, 2017
Emily Devaney recently published an Article entitled, How Can the Property (Relationships) Act Be ‘Trusted’? An Analysis of Trust Law and its Interface with Relationship Property Law, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:
Deficiencies in the Property (Relationships) Act 1976 (PRA) have led to allegations of sham trusts, alter ego trusts, the bundle of rights doctrine and illusory trusts. These claims are not the correct means to deal with the failure of legislation to fulfil its intention. They are ill-suited for trust law and are indicative of a growing pressure to allow access to trust capital, and to prevent excessive control of trusts defeating the rightful entitlement of a spouse to equal sharing of relationship property. In order to clarify the law of trusts and of relationship property this article recommends reform to s 44C of the PRA, to allow access to trust capital. It recommends repealing s 182 of the Family Proceedings Act. This article stands for the proposition that these reforms alone are insufficient. Indications of what constitutes intent to defeat rights should be included in s 44. Effective control of trust property by a defendant who is the claimants spouse or partner, should be an indication of intent to defeat rights that will allow the disposition to be set aside. These reforms will give effect to the purpose of the PRA and clarify trust law.
Funerals are generally somber, mournful events. The loss of a loved one is always a difficult, heart-wrenching experience and the funeral service mirrors this loss. Occasionally though, the life of the deceased may have been so unique or peculiar that the dreary edge of the funeral is dulled by an atmosphere reflecting the distinctive personality of the departed.
Miriam Banks was always the life of the party. This did not change at her funeral. Her family members propped up her carcass and placed a cigarette in her hand and her favorite beer at the table. Banks’s service was also replete with disco balls and dance music. While a party dynamic may not be to your taste, others have made their services unique by taking long-loved possessions to their graves. George Swanson was buried with his 1994 Chevrolet Corvette. Car aficionados in attendance may have been weeping for both Swanson’s passing and the loss of the car; it only had 27,000 original miles on it.
Whatever your individual pleasure, a funeral may maintain a traditional, somber tenor, or it may take on the special personality of the deceased to create a more palatable memory for the grieving.
See Amanda Green, 12 Strange Funerals and Funeral Traditions, Mental Floss, January 11, 2016.
Friday, June 23, 2017
Kaiponanea T. Matsumura recently published an Article entitled, Choosing Marriage, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:
Questions about the choice to marry have dominated the public discourse in recent years. But with the spotlight focused on the question of who can marry whom, few have paid attention to how a couple crosses marriage’s legal threshold. Yet a steady stream of cases in recent years — in which individuals have litigated whether they legally married — has revealed that answers to the latter question can have monumental consequences for the individuals who risk being deemed married or unmarried against their will.
This Article has descriptive and normative goals. Descriptively, it exposes the pervasive legal uncertainty regarding both the role and definition of marital choice. It also reveals the stakes of that choice for individuals, the state, and third parties. Normatively, it argues that a valid choice to marry must promote autonomy by facilitating self-authorship and manifesting consent to the legal rights and obligations of marriage. To perform these functions, the relevant act must be objectively measurable and intelligible to the spouses and the law. For this definition to be sufficiently protective of individual interests, states must adopt rigorous standards for establishing consent. Formalities are often crucial in this process, as they are the currency through which couples most commonly telegraph marriage or non-marriage, but they are not exclusive. This Article considers how burdens of proof, the timing and scope of relief, and objective conduct can also establish a valid choice to marry.
Estate planning involves more than simply drafting a will. It is a comprehensive strategy that has many facets. Competent estate planners can help protect you and your loved ones during retirement, set up plans in case of incapacity, help avoid taxes, and make sure assets are distributed according to a decedent’s wishes. Barry Kozak, an estate lawyer with October Three Consulting in Chicago, tells his students that estate planning does not have to be overly complicated. He offers five simple steps to make life and end-of-life easier on loved ones.
First, Kozak suggests pre-paying for a funeral. Planning and paying now takes a significant burden off a mourning spouse or child. Second, set up a family committee to manage a revocable trust. In case of mental incapacity, a family disability committee may help avoid court and dealing with an adult guardianship hearing. Next, use a different lawyer for each spouse when drafting an estate plan. While not a romantic notion, this option helps avoid conflicts in the future. Fourth, do not underestimate your life expectancy. A man reaching age sixty-five can expect to live, on average, to age eighty-four. Finally, match your lifestyle to your retirement income. Make sure to calculate your income needs during retirement. If you do not have enough, you may need to work longer or modify your retirement plans.
See Tom Anderson, Five Ways to Bulletproof Your Estate Plan, CNBC, April 7, 2017.