Wills, Trusts & Estates Prof Blog

Top SSRN Downloads

Here are the top downloads from April 17, 2007 to June 16, 2007 from the SSRN Journal of Wills, Trusts, & Estates Law for all papers announced in the last 60 days:

Rank	Downloads	Paper Title
1	125	American History of Inheritance Law Adam J. Hirsch, Florida State University College of Law, Date posted to database: April 26, 2007 Last Revised: April 26, 2007
2	91	Reforming the Gift Tax and Making it Enforceable Mitchell Gans, Jay A. Soled, Hofstra University - School of Law, Rutgers University, Date posted to database: May 2, 2007 Last Revised: May 17, 2007
3	73	Hester: A Saga of Greed Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: May 17, 2007 Last Revised: May 17, 2007
4	63	Big Bird Lays an Egg? Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: April 24, 2007 Last Revised: April 24, 2007
5	55	Janis: Two Perspectives of Basis Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: April 2, 2007 Last Revised: April 2, 2007
6	52	A Lapse in Judgment: Ruotolo v. Tietjen and Interpretation of Connecticut's Anti-Lapse Statute Jeffrey A. Cooper, Quinnipiac University School of Law, Date posted to database: May 14, 2007 Last Revised: June 8, 2007
7	44	Equitable Apportionment: Recent Cases and Continuing Trends Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: April 1, 2007 Last Revised: April 11, 2007
8	30	Legal Regulation of Religious Giving Pauline Ridge, Australian National University - ANU College of Law, Date posted to database: April 16, 2007 Last Revised: May 4, 2007
9	17	Drafting Wills for Indigenous People: Pitfalls and Considerations Prue E. Vines, University of New South Wales, Date posted to database: March 29, 2007 Last Revised: March 30, 2007

Life Sharers Featured by Time

LifeSharers is featured in Kathleen Kingsbury, Donor Deal, Time.com, June 14, 2007.  Here are a few excerpts from the article:

Americans love a square deal. The idea of the quid pro quo, the something for something, lies at the heart of our very sense of fairness. But there's one area in which something for nothing is much closer to the rule, and it's a transaction on which people's very lives turn: organ donation.

About 90% of Americans say they support organ donation, but only 30% have actually signed up to part with their parts after they die. * * *

A former insurance executive, [David] Undis is the founder of the Nashville-based nonprofit Lifesharers. Launched in 2002, Lifesharers is a no-fee network of about 9,000 members nationwide who have pledged to donate their organs when they die--but only to other members on the list. * * *

[Undis] maintains that giving an organ to a non-donor is "like giving the lottery jackpot to someone who didn't buy a ticket." Sadly, the odds of winning an organ under the current rules seem only slightly better.

The Passing of Prof. John Gaubatz

It is with great sadness that I report the recent death of Prof. John Gaubatz of the University of Miami School of Law.  As the UM website explains, Prof. Gaubatz

graduated in 1964 from Colorado State University with a B.S. in Physics and in 1967 from the University of Chicago Law School. After short stints in private practice and the United States Army, he joined the Case Western Reserve University Law School faculty in 1971. He was associate dean there from 1973 to 1976. Professor Gaubatz joined the Miami faculty in 1977 after a one-year visitorship. Since then he has directed both the graduate program on estate planning and the Philip E. Heckerling Institute on Estate Planning. His substantive teaching areas include trusts and estates, federal estate and gift taxation, estate planning, and employee benefits law. Before focusing his attention on casebooks, he wrote numerous articles on estates, trusts, taxation, taxation policy, and moot court.

His colleague, Prof. Patrick O. Gudridge, describes Prof. Gaubatz as:

a strong teacher in the classic socratic mold, a nationally recognized scholar in the field of trusts and estates, and (as chair of the admissions committee) a pioneer in the use of personal computers in law school administration. John was a vigorous proponent of moot courts as a law school teaching medium, writing an important book in support of his views. The law school’s moot court competition now bears his name — a fitting honor. We will remember John Gaubatz for his character, unquestioned integrity, intellectual honesty, and hard work — and also for the gifts of his friendship and humor.

Special thanks to Prof. Joel C. Dobris of the University of California-Davis for bringing Prof. Gaubatz's death to my attention.

Same-Sex Marriage in Massachusetts "Safe" at Least Until 2012

Yesterday (June 14, 2007), the Massachusetts legislature defeated a measure which would have placed on the ballot a proposed constitutional amendment to define marriage as between a man and a woman.

According to Pam Belluck, Massachusetts Gay Marriage to Remain Legal, NY Times, June 15, 2007:

the legislature voted 151 to 45 against the amendment, which needed 50 favorable votes to come before voters in a referendum in November 2008.

The vote means that opponents would have to start from Square 1 to sponsor a new amendment, which could not get on the ballot before 2012. Massachusetts is the only state where same-sex marriage is legal, although five states allow civil unions or the equivalent.

Hedge Fund Managers Advocate Postnuptial Agreements

The following excerpts are from Brooke Masters, 'Postnup' boom as hedge funds seek to trim exposure to spouses, Financial Times, May 31, 2007:

At least one US hedge fund is refusing to take on new partners until they sign a postnup barring their spouses from making any claims on the fund, says Ken Burrows, a New York attorney who has written all the fund's agreements. * * *

Another New York attorney, who has handled four postnups this year, says the people seeking them develop a "mindset" that makes them think "all my spouse is doing is spending my money. Let me staunch the flow now. Let me limit the goody bag and limit my future exposure." * * *

Most hedge funds do not mandate postnups, but partners often encourage one another to sign them, to protect both the firm and themselves.

Special thanks to Prof. Joel C. Dobris of the University of California-Davis for bringing this article to my attention.

Jury Finds Hospital Must Pay for Violating Patient's Living Will

Madeline Neumann executed an advance directive stating that she did not want to be kept alive by artificial means.  Later, when she was at death's door in a nursing home, rescue workers revived her.  She died in a hospital six days later after undergoing various unsuccessful life-saving procedures.

The jury awarded $150,000 in wrongful prolongation-of-life damages against the nursing home because they should have had procedures in place to be certain advance directives are followed.  The jury did not award damages against the doctor because they believed he did not have sufficient evidence to let her die without an evaluation.

See Missy Diaz, Jury: Home violated living will, Sun-Sentinel, March 17, 2007, reporting on Sheible v. Joseph L. Morse Geriatric Ctr., Fla., Palm Beach Co. Cir., No. CL 97 7021A0, Mar. 16, 2007.

Nursing Home for Dogs

Estate planning for pet owners is growing in popularity in the United States.

It appears that this trend may exist in other nations as demonstrated by the recent opening in Japan of a nursing home for aged dogs.  The Soladi Care Home  provides 24-7 care for canines.

The cost is approximately $800 per month.

See AP, Japan to get nursing home for dogs, seattlepi.com, June 13, 2007.

Phoenix School of Law Receives Provisional ABA Accreditation

On June 11, 2007, The Phoenix School of Law, Arizona’s first private law school, received notification of the ABA's provisional approval.

Prof. Mary Radford of Georgia State University School of Law served as a Visiting Professor of Law this past semester and will also serve as visitor during the Fall 2007 semester.

"Next Generation" Courses

The following excerpts are from Sharlene Goff, Inheritance is not child's play, Financial Times, May 29, 2007:

There are many worse problems than having more wealth than you can possibly spend in one lifetime. But the financial - and moral - issues that confront the extremely affluent when they pass their wealth on to the next generation are far-reaching.

It is for this reason that most private banks now offer "next generation" courses that clients can send their children on to learn the fundamentals of investment and the likely impact of a significant inheritance.

Offerings range from week-long courses in luxury European and Asian resorts, to more discreet personal meetings in at banks' private offices.  * * *

American Express has been running courses for the next generation since 2001. Like many private banks, the group gears its programme towards fairly broad subjects such as analysis of the different asset classes, trusts and estate planning, investment philosophies and the global economy. * * *

Each bank has its own boundaries for the level of wealth clients need to qualify. American Express says that typically the families of participants would be worth at least $1m. Many marketeers would now dub these the "mass affluent." Further up the scale, Coutts - a London private bank - runs personalised programmes for "ultra high net worth individuals", which translates as those with at least £10m to invest or a total wealth of £30m plus.

Special thanks to Prof. Joel C. Dobris of the University of California-Davis for bringing this article to my attention.

The British View of U.S. Post-Nuptial Agreements

The following excerpts are from Patti Waldmeir, Why post-nups are good for marriage, Financial Times, June 5, 2007:

For most of us [married British], marriage will be the most important business deal we ever do. Now US courts are accepting that wedlock is just another contract, and letting husband and wife rewrite the terms – even after the nuptials. * * *

In theory, post-nups can be used for everything from regulating the frequency of in-law visits to determining who picks up the kids from daycare or which spouse vacuums the rug. But in practice, they almost always involve money – and usually large sums of it. Unless the parties have a lot to lose, they have little incentive to write a contract longer than "I do". * * *

On the face of it, post-nups may look a lot like legalised theft: if one spouse suddenly strikes it rich on the hedge mines – or founds another Google, or inherits a fortune – he (or, less likely, she) writes a post-nup to hog all the wealth. But neither the courts, nor the spouses, are likely to let that happen, Mr Williams says. Courts strike down post-nups that are unfair. And spouses – who know their mate’s bottom line – are likely to resist exploitative post-nuptials.

Things differ a lot from state to state: Ohio and Oklahoma ban all post-nuptial agreements, and other states impose varying restrictions, Mr Williams says.  * * *

Lawyers who write such contracts say adultery is the single most common factor that triggers a post-nup: spouses that have been burnt once by extra-marital infidelity often want an "adultery penalty" to discourage future indiscretions. * * *

Post-nups have got bad PR recently: the idea of hedge funds requiring partners to sign post-nups to disinherit their wives – rather than risk a divorce that could destabilise the fund – is obviously distasteful.

But if America believes it should allow divorce, why not permit spouses to negotiate contracts that could keep them married? Why not allow the nervous spouse to write a post-nup that insulates her from a profligate partner’s debts – and yes, why not let that hedge fund manager ring-fence some wealth, if it helps him stay married?

Special thanks to Prof. Joel C. Dobris of the University of California-Davis for bringing this article to my attention.

Trend for Wealthy British to Favor Charity Over Children

The following excerpts are from Jane Croft, A service for the very rich, Financial Times, June 7, 2007:

According to private banks, there is a new enthusiasm among wealthy clients to donate some of their riches to projects to improve the environment or society rather than leave all their wealth to their children.

High-profile cases, such as that of legendary investor Warren Buffett, the world's second-richest person, have acted as a catalyst. Mr Buffett has said he will give 85 per cent of his $44bn fortune to the Bill and Melinda Gates Foundation to fight poverty and disease around the world.

Special thanks to Prof. Joel C. Dobris of the University of California-Davis for bringing this article to my attention.

How Many People are REALLY Organ Donors?

The following is an entry on the LifeSharers Blog by David Undis:

Reuters reports that according to a recent poll by Harris Interactive, half of the adults in the United States say they have registered as an organ donor.

Humphrey Taylor, chairman of Harris Interactive, said he is not totally convinced by the poll's figures: "We know that when we do surveys like this, more people claim to have done the right thing than do the right thing. I think if half of all U.S adults really had registered, we would be in much better shape than we are, so I am skeptical on those numbers."

It's too bad the poll didn't ask those who said they had not registered as organ donors two more questions: "Would you be willing to accept an organ transplant should you ever need one?" and "Why on earth should anyone donate an organ to you if you're not willing to return the favor?"

Jerry Falwell's Estate -- What's Up??

Jerry Lamon Falwell, Sr. died on May 15, 2007.  I have started to receive queries regarding the disposition of his estate.

I have been unable to locate much information on this topic.  A discussion on Yahoo! Answers did not yield any useful information.

The only other "news" was a humorous account of a purported will which left the bulk of his estate to Tinky-Winky.   See Falwell Estate Scandal, The Smirking Chimp, May 16, 2007.

If you have any information, please let me know.  TIA.

The Mental Patient--Body Disposition Interface

According to Andrea Stone, Groups seek to give dignity to dead, USA Today, June 8, 2007, at 3A, there are

hundreds of thousands of former mental patients in unmarked or numbered graves on the grounds of mental institutions. Many date to the 19th or early 20th century, when the mentally ill were often warehoused in state hospitals until they died. For those whose family didn't claim their remains, a pauper's burial awaited.  * * *

Mental health advocates met Thursday [June 6, 2007] in Washington to finalize plans to honor those nameless former patients with a national memorial garden on the grounds of Washington's St. Elizabeths Hospital, which opened in 1852 as the nation's first federally-run psychiatric institution. * * *

Some states have changed their laws to allow the names of former patients to be released publicly, including Maine, Massachusetts, Minnesota, Texas, Washington and Wisconsin. In March, Oregon Gov. Ted Kulongoski signed a law allowing release of the names of patients whose ashes have lain in storage as far back as the 1880s.

Some states still refuse to divulge the identities of the buried. They say it would violate laws that protect patients' privacy. Nebraska last month became the latest to refuse to open records when the attorney general rejected a request from the historical society in Hastings. 

Anna Nicole Smith Teleconference

Special thanks to Bill Riggs who supplied the press release from which this posting is adapted.

Horace Cooper, writer and legal commentator, will be discussing the legal myths in the Anna Nicole Smith case on Tuesday, June 12 at 1:00 p.m. EDT.  He will explain why Dannielynn may not be the million-dollar baby that so many have made her out to be.  Cooper feels the real tragedy is that Dannielynn is more likely to be saddled with substantial legal debt if Larry Birkhead and Howard K. Stern decide to proceed with Smith’s claims.  Cooper will be featured in Smith’s much hyped E! True Hollywood Story on Monday, June 11 at 8:00 p.m. EDT.

Few remember that the trial of record was not Anna Nicole Smith’s much hyped Supreme Court appearance, but rather a five-month jury trial in the Texas Probate Court in 2001 finding that J. Howard Marshall’s son Pierce was the legal heir.  Furthermore, the jury found that there was no evidence to indicate that the will was interfered with and the case affirmed that Marshall had no intention of making Smith his heir. 

Tuesday, June 19 will mark the first hearing in Anna Nicole Smith’s probate trial, and after the courts declare official custody this Friday, June 8, both Stern and Birkhead will begin their legal posturing to move full speed ahead with their pursuit of J. Howard Marshall’s estate.  Behind the high profile, celebrity nature of the case is an example of audacious and alarming forum shopping and serious questions about state and federal jurisdiction.

The telephone number is 877-719-9804 and the confirmation code is 6264197.

Top SSRN Downloads

Here are the top downloads from April 11, 2007 to June 10, 2007 from the SSRN Journal of Wills, Trusts, & Estates Law for all papers announced in the last 60 days:

Rank	Downloads	Paper Title
1	110	American History of Inheritance Law Adam J. Hirsch, Florida State University College of Law, Date posted to database: April 26, 2007 Last Revised: April 26, 2007
2	74	Reforming the Gift Tax and Making it Enforceable Mitchell Gans, Jay A. Soled, Hofstra University - School of Law, Rutgers University, Date posted to database: May 2, 2007 Last Revised: May 17, 2007
3	66	Hester: A Saga of Greed Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: May 17, 2007 Last Revised: May 17, 2007
4	59	Big Bird Lays an Egg? Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: April 24, 2007 Last Revised: April 24, 2007
5	54	Janis: Two Perspectives of Basis Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: April 2, 2007 Last Revised: April 2, 2007
6	44	A Lapse in Judgment: Ruotolo v. Tietjen and Interpretation of Connecticut's Anti-Lapse Statute Jeffrey A. Cooper, Quinnipiac University School of Law, Date posted to database: May 14, 2007 Last Revised: June 8, 2007
7	40	Equitable Apportionment: Recent Cases and Continuing Trends Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: April 1, 2007 Last Revised: April 11, 2007
8	30	Legal Regulation of Religious Giving Pauline Ridge, Australian National University - ANU College of Law, Date posted to database: April 16, 2007 Last Revised: May 4, 2007
9	15	Drafting Wills for Indigenous People: Pitfalls and Considerations Prue E. Vines, University of New South Wales, Date posted to database: March 29, 2007 Last Revised: March 30, 2007