Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Friday, July 1, 2016

Article on Promise & Contract v. Personal Autonomy

Contract:promiseRobin Bradley Kar recently published an Article entitled, The Art of Promise and Power of Contract, JOTWELL: Jurisprudence (2016). Provided below is an abstract of the Article:

For those who accept the value of personal autonomy, it might seem easy to explain how promise and contract can give rise to genuine obligations. On closer inspection, however, both have features that may make their obligations too onerous to reflect genuine respect for personal autonomy. As Dori Kimel has recently argued, personal autonomy is best promoted by a combination of rules that give people some capacity to commit and some permission to change their minds. But both promise and contract have features that may be too onerous to achieve the right balance: e.g., both appear to be cases of strict liability; both appear to contain reparative obligations that are not completely under individuals’ voluntary control; and both purport to give promisees (or other contracting parties) relatively unbridled authority to demand or waive compliance.

Kimel offers an account of personal autonomy that is uncommonly rich for the legal literature. He uses this account to relieve some of the tensions between promissory obligation and personal autonomy. Although he also offers some suggestions with respect to contract, his suggestions are more tentative and ultimately less plausible. This essay argues that, in order to square contract with a genuine concern for personal autonomy, one must understand contract less on the model of promise (which Kimel calls an “art”) and more on the model of a power. More specifically, contract law gives individuals the power to influence others to act by making legally enforceable promises in circumstances where parties lack the thick relational background that might otherwise generate sufficient trust. That view, which I elaborate in Contract as Empowerment, 83 U. CHI. L. REV. 759, 767 (2016), holds the key to understanding how contract law can be genuinely squared with concern for personal autonomy.

July 1, 2016 in Articles | Permalink | Comments (0)

The Impact of Fiduciary Rules on IRA Trusts


Ira trustMany IRA owners today are naming a trust as the beneficiary, which gives protection to the owner’s loved ones. Trustees of this type of trust, however, should remain cautious when dealing with these trusts and look out for conflict of interest, especially with the new DOL fiduciary rules taking effect on April 10, 2017. Trustees, specifically CPA or attorney trustees, need to be aware of prohibited transactions of aggregate compensation for trust management and what is deemed reasonable. With such uncertainty, the DOL created a Best Interest Contract Exemption that might allow advisors to retain compensation even if there is a conflict of interest. 

See Seymour Goldberg, New and Old Fiduciary Rules Can Impact an IRA Trust, Ed Slott’s IRA Advisor Newsletter, July 6, 2016.

Download Article - Slotts Advisor 7.16-6

July 1, 2016 in Articles, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

New Mexico Supreme Court Rules Against Aid in Dying Law

Aid in dyingThe New Mexico Supreme Court ruled that there is no fundamental right for a terminally ill patient to seek assistance from a physician in ending their life. As this aid in dying trend is making its way across the United States, New Mexico resisted and upheld their Assisted Suicide Act. One Justice overseeing the case indicated that it would be hard to determine the qualifications for terminally ill patients or what constitutes a safe medical practice or medication. Some supporters of the decision also warn of coercion and abuse that could slip its way into the passage of an aid in dying law.

See Scott Sandlin, New Mexico Assisted Suicide Law Affirmed, Albuquerque Journal, June 30, 2016.

July 1, 2016 in Current Events, Death Event Planning, New Legislation | Permalink | Comments (0)

Article on the Theory of Sham

ShamAlexander A. Boni-Saenz & Reid K. Weisbord recently published an Article entitled, Sham and Remedial Doctrines, 22 Trusts & Trustees (Forthcoming 2016). Provided below is an abstract of the Article:

This Essay articulates a general theory of sham, understanding it as a species of fraud uniquely characterized by the deceptive misuse of an otherwise valid legal form to defeat a substantive rule of law or policy. It then considers two theoretical questions underlying the design and structure of civil remedial doctrines that protect potential victims and claimants against fraudulent sham transfers. First, should a sham avoidance doctrine require evidence of the challenged wrongdoer’s subjective fraudulent intent, or should the doctrine alternatively allow for more objective proof, such as circumstantial evidence of surrounding facts indicative of a sham transfer? Second, is a bright-line rule prohibition or a holistic standard for ex post evaluation more likely to be effective as a remedy for sham transactions and how do concerns about efficiency of judicial review weigh in this rendition of the rules-versus-standards debate? The Essay identifies the Fraudulent Transfer Doctrine as the dominant approach for addressing sham transactions in the United States, which imposes a standard rather than a rule, and allows for proof of either subjective fraudulent intent or objective circumstantial evidence of badges of fraud in connection with the challenged transaction. The Essay then surveys other specialized sham avoidance doctrines, developed to address abusive tax trusts and spousal disinheritance, which illustrate experimentation with both subjective state-of-mind criteria and rule-based prohibitions, with mixed reception and success.

July 1, 2016 in Articles, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Thursday, June 30, 2016

Article on New Zealand Trust Taxation

Trust taxationMark Brabazon recently published an Article entitled, Trust Residence, Grantor Taxation and the Settlor Regime in New Zealand, New Zealand J. Taxation L. & Policy (Forthcoming 2016). Provided below is an abstract of the Article:

International trust taxation in New Zealand is dominated by the settlor regime under which the claim to tax accumulated trust income on a worldwide basis depends on the fiscal residence of the settlor. A trust entity is constituted by the trustees collectively, together with their right of access to trust assets, augmented by the agency obligations of a resident settlor. Although the statute avoids mention of trust residence, a trust is resident from an international and comparative viewpoint if the settlor nexus for worldwide taxation is satisfied. Analysis of historical material and the fiscal role of the settlor reveals a degree of tension between recognising the trust as economic agent for the settlor and statutory treatment of the settlor as agent for the trust. Comment is also made on the use of New Zealand as a tax haven.

June 30, 2016 in Articles, Estate Planning - Generally, Trusts | Permalink | Comments (0)

The Florida Fiduciary Access to Digital Assets Act

Digital assetsAs the age of technology flourishes, digital media assets are becoming increasing popular. The Florida Governor signed the Florida Fiduciary Access to Digital Assets Act into law on March 10, 2016. The Act allows people to plan for the management and disposition of their digital assets, such as emails, text messages, and social media accounts, by vesting fiduciaries with the authority to access, control, or copy these assets. Additionally, the Act has rules of priority for the disclosure documents where an online tool of disclosure will trump a user’s estate planning documents. Further, a custodian must comply with a request for disclosure of the digital assets when necessary. The Act goes into effect on July 1, 2016, and will apply to all fiduciaries acting under a will, trust, or guardianship.

See Jennifer J. Wioncek & Michael D. Melrose, Florida Passes Fiduciary Access to Digital Assets Act, Wealth Management, June 27, 2016.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

June 30, 2016 in Current Events, Estate Administration, Estate Planning - Generally, Guardianship, New Legislation, Trusts, Wills | Permalink | Comments (0)

Article on Exceptions to Traditional Texas Partnership Interests

Partnership interestNikki L. Laing recently published an Article entitled, Planner Beware: A Peculiar Exception to Traditional Texas Community Property Rules, 8 Est. Plan. & Community Prop. L.J. (Book 2) 423 (Forthcoming 2016). Provided below is an abstract of the Article:

A number of puzzling inconsistencies exist in the application of traditional Texas community rules to partnership interests. Estate, business, and asset protection planners alike should be aware of the exceptions that exist in the treatment of partnership interests. Whether a client is considering investing separate property in a partnership, making a distribution from a partnership, or giving a partnership interest to a child with the expectation that it will remain the child’s separate property, advisors should warn the client of the risks involved.

June 30, 2016 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Talking About Death Can Make Your Future Easier

Talking about deathNo one wants to talk about the inevitable, but talking about death before it nears could make things a lot easier on both parents and children. With the improved economy, a survey reveals that children are pushing off this uncomfortable topic and waiting till after their parent’s retire or become ill. The survey also reported little discussion about wills and estate planning with more than 27% of children being unaware that they were the executor of their parent’s estate. It is important to talk about these issues before something unforeseen happens because it can become difficult to make critical decisions in the midst of a crisis.

See Everybody Dies. It’s Time to Have the Talk, Financial Advisor, June 28, 2016.

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

June 30, 2016 in Death Event Planning, Estate Planning - Generally, Wills | Permalink | Comments (0)

Wednesday, June 29, 2016

Absence of Marriage License Does Not Invalidate Marriage

Marriage licenseFollowing a divorce, a husband and wife reconciled in 2012 and married in late 2013 when the husband became hospitalized. The couple, however, did not obtain a marriage license, and the husband died intestate the day after the wedding. Shortly after his death, the wife’s surviving spouse claim to her husband’s estate was denied due to the absence of the marriage license. When the wife appealed this decision, the judge reviewed North Carolina and United States Supreme Court precedent, concluding that the lack of a marriage license did not invalidate the marriage. The only question left was whether the couple consented to be married, or rather, did they understand all the legal consequences of marriage. With no evidence to the contrary, their marriage was confirmed upon appeal, entitling the wife to her surviving spouse allowance.

See Julianne Tobin Wojay, Lack of License Didn’t Invalidate Marriage, Bloomberg BNA Family Law Reporter, June 22, 2016.

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.

June 29, 2016 in Estate Administration, Intestate Succession, New Cases | Permalink | Comments (0)

New Woman Claims to be Prince's Half-Sister

Prince's siblingsAfter Monday’s court hearing to determine Prince’s heirs, a woman is claiming to be Prince’s half-sister, alleging that his father is not his biological father. Venita Jackson Leverette claims that her and Prince share the same father, a man that was previously in a relationship with Prince’s mother. A DNA test could be permitted, but the Minnesota judge has already determined that this process will be lengthy.

See Chris Spargo, New Woman Stakes Her Claim for Slice of Prince’s $300 Million Estate as she Claims to be His Half-Sister, Alleging the Singer Was Actually the Son of His Mother’s Ex-Boyfriend, Daily Mail, June 28, 2016.

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

June 29, 2016 in Current Events, Intestate Succession, Music, New Cases | Permalink | Comments (0)