Wills, Trusts & Estates Prof Blog

Video Recordings of Will Execution Ceremonies Under Louisiana Law

Alison V. Nunez (J.D. 2007, Louisiana State University Law Center) has recently published her comment entitled A Testament to Inefficacy: Louisiana's New Legislation Allowing for the Admissibility of Videotape Evidence in the Probate Process, 67 La. L. Rev. 871 (2007).

Here are some excerpts from the article's introduction and conclusion:

Newly enacted Louisiana Code of Civil Procedure article 2904 provides for the admissibility at trial of a videotape of a testament's execution.  Videotape evidence may be entered in a contradictory trial to probate a testament or in an action to annul a probated testament. The videotape is to serve as proof of a number of factors associated with a will's execution.
   

This comment addresses several issues raised by the enactment of article 2904.  Specifically, it argues that article 2904 requires substantial revision before it can effectively serve the evidentiary purposes intended by the legislature. To develop this argument, Part II explains the grounds for videotape admissibility in the probate process. Part III focuses specifically on the Louisiana approach by giving an in-depth analysis of article 2904's shortcomings, providing corresponding suggestions for legislative revision, and suggesting the proper interpretation courts should give to the article. Part IV concludes by offering practical advice to practitioners who rely on the article's provisions. * * *
   

The legislators failed to debate thoroughly all possible issues when they unanimously voted to approve new Louisiana Code of Civil Procedure article 2904. The resulting article is in great need of assistance. Aside from its potential ability to aid in a court's determination of whether the testamentary execution was carried out according to proper codal requirements, the article does not add any additional support to a beneficiary's action to probate a testament or a challenger's action to annul a probated testament. As a result, Louisiana courts should not grant article 2904 undue importance. Likewise, practitioners must be wary of its potential effects. One commentator warns that the process of videotaping will “likely require longer office appointments and greater preparation [resulting in larger bills to clients] than presently needed to execute wills.”  Practitioners must also be aware of the risk that article 2904 could exacerbate malpractice actions for failure to videotape.
   

The fact remains, the vast majority of other states that have considered similar legislation did so in the late 1980s.  The only state to enact legislation was Indiana in 1988, while all other states that proposed legislation opted not to do so. Why, then, did Louisiana choose to take action in 2005, nearly twenty years later? Such action was not well considered, as evidenced by the deficiencies associated with the article; the legislature must make amends.

Decedent Got Mail

In Quick Fix: Accessing a Deceased Relative's Email, Wall St. J., June 19, 2007, at D3, Theo Francis summarizes the policies of the most popular e-mail providers:

• Google Gmail -- requires death certificate, a document giving authority such as a power of attorney, and the full header of the email.
• Microsoft's Hotmail & AOL -- will provide e-mail on CD to next of kin
• Yahoo -- requires a court order before it will release email

Accordingly, Francis recommends that, if you want survivors to access your e-mail, you should "leave passwords where they can be found--a safe deposit box, for example, or computer file encrypted with a password they'll figure out."

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

Wills Taxes on Partnerships be Doubled?

On June 22, 2007, "Representatives Charles B. Rangel of New York, the chairman of the House Ways and Means Committee, and Sander M. Levin of Michigan joined 12 other Democrats in introducing the legislation to tax the performance income earned by many partnerships, including private equity firms, at ordinary income tax rates of 35 percent instead of the current 15 percent capital gains rate"  This legislation would "rais[e] taxes on private equity and hedge fund managers [and] more than double taxes on most of the income earned by partnerships, including private equity managers, venture capitalists and some hedge funds."  Jenny Anderson & Andrew Ross Sorkin, Bill Is Offered to Increase Tax on Private Equity, NY Times, June 23, 2007.

Tenants in Common CLE

The American Bar Association Section of Real Property, Probate and Trust Law and the ABA Center for Continuing Legal Education are sponsoring a teleconference and live audio webcast on July 17, 2007 entitled Current Issues Involving Tenancies in Common.

Here is a description of this program:

Commercial real estate loans are increasingly being made to groups of investors or co-owners who hold the fee interest to real property under the common law form of ownership known as tenancy in common (TIC). The TIC is significantly different from other forms of property ownership, such as limited partnerships and limited liability companies. Mortgage lenders must know and understand the differences. These differences affect negotiation, drafting, enforcement of financing transactions, and related bankruptcy issues. In the event of bankruptcy, complex questions may arise as to whether one tenant can place the entire aggregation into bankruptcy and whether the right to partition will be enforced.

Topics will include:

• What are the basic underlying theories of a TIC?
• What is the partition right and why does it matter?
• What kinds of transactions are suitable for TIC structure?
• How do the enforcement and bankruptcy risks differ from lending to a limited liability company or a limited partnership?
• Will the co-owners’ buy-out right in a TIC be enforceable in the event of bankruptcy?
• Will a bankruptcy court permit a single tenant to obtain a partition, and sale of the entire property, even if the other tenants object to such a sale?
• Will a mortgage lender’s right to credit bid prove to be a highly valuable protection in the event of a bankruptcy case?

The Agent-Ademption Interface

The testator’s agent sold specifically devised real property to pay for the principal’s care and support.  Although the sale was a proper use of the agent’s authority, the court in In re Estate of Anton, 731 N.W.2d 19 (Iowa 2007), held that the devisee of the real property was entitled to the proceeds remaining at the principal’s death.  The court concluded that sale of specifically devised property by an agent should be treated like a sale by a guardian, unless the principal is competent and has approved the sale.

Brooke Astor Update

Earlier on this blog, I reported on allegations that Anthony Marshall has been mistreating his mother, Brooke Astor, and his response to those allegations.

The following developments are reported in Serge F. Kovaleski, Will of Mrs. Astor, Now 105, Gives Millions to Family and to Charity, NY Times, June 24, 2007:

• Brooke turned 105 years old in March 2007.
• The terms of her will, unknown publicly until recently, detailed gifts to her son Anthony (primary beneficiary), daughter-in-law Charlene (specific gifts of clothes and jewelry), grandsons ($1 million each), and New York City public school teachers (travel endowment), among others.
• The value of Brooke's estate is estimated to be $130 million plus the trust of her deceased husband valued at an additional $60 million.
• A fight over the validity of the will and several codicils is likely to occur after her death on the basis of lack of testamentary capacity, undue influence, and forgery.  These codicils enhanced the share of her estate to be received by or controlled by her son.

Special thanks to Dr. Natalie Tarenko for bringing this article to my attention.

What if Dannielynn Were Born in Illinois?

Professor Jeffrey A. Parness (Northern Illinois University College of Law) has recently published his article entitled Reforming Paternity Procedures: A Dannielynn in Illinois, 95 Ill. B.J. 324 (2007).

By considering how Dannielynn's paternity (the daughter of Anna Nicole Smith and Larry Birkhead) would have been determined under Illinois law, Prof. Parness recommends that Illinois law needs to be reformed to account for such fact patterns.  Here is the conclusion of his article:

Had Dannielynn been born in Illinois rather than in the Bahamas, inquiries into initial legal paternity and its later possible override may well have yielded different results depending on the establishment mechanism employed (birth certificate, marital presumption, lawsuit); the purpose for establishing paternity; and, whether the initially-designated legal father wished to continue to parent. Neither DNA nor birth into a married family is always dispositive.

The differing possible results for Dannielynn suggest the need for discussing reforms in paternity procedures in Illinois. What types of fraud should prompt paternity disestablishments in varying settings? When, if ever, should marital paternity presumptions be subject to rebuttals? What rationales, if any, support differing paternity tests in different contexts?

Confusion abounds while legal paternity issues continue to grow in varying civil case settings, with the public and their lawyers often confused. In the United States this year about 1.5 million children will be born to unwed mothers and about one half million of those children will have no father named on a birth certificate.

It is time to heed the Illinois Supreme Court's direction in John M. to petition the General Assembly, because any comprehensive paternity law reforms in Illinois are best done by statute. Possible reforms are discussed in my recent article, No Genetic Ties, No More Fathers, 39 John Marshall L Rev 1295 (2006), available at http://ssrn.com/abstract=958095.

Illinois and Estate Tax Apportionment

Carleen L. Schreder (Levin & Schreder, Ltd, Chicago) has recently published her article entitled Even More Uncertainty about Estate-Tax Apportionment, 95 Ill B.J. 306 (2007).

Here is an excerpt from her article:

"Estate-tax apportionment." Three words likely to cause any estate planning attorney to break into a sweat. Why? Because taxes can have a profound impact on an estate, and the estate-tax apportionment provision - which allocates the burden of paying the tax - can have a bigger dollar impact than any other part of a will or trust. What's more, even if you choose an appropriate tax payment clause based on your client's knowledge of the facts - including ownership of and beneficiary designations for all assets - those facts are almost certain to change by the time of the client's death.

Unfortunately, the choice and drafting of estate-tax payment clauses in Illinois has become even more difficult as a result of two cases decided in the last two years, one from the state appellate court and one from the seventh circuit.

In Estate of Williams, the third district held that when a decedent's will provides for estate taxes to be paid from the residuary estate and waives apportionment against other assets, but the residuary estate is insufficient to pay the taxes, the waiver of apportionment is ineffective with respect to the deficit.  Williams is significant primarily because the court overruled its decision in Estate of Fry * * * and in so doing created a conflict with the fifth district's decision in Landmark Trust Company v Aitken.

In Lurie v CIR, the decedent had executed a will with estate-tax payment language similar to that in Williams. However, the decedent had also executed a revocable trust that directed payment of estate taxes from its assets without apportionment.

The seventh circuit made two important holdings in Lurie: (1) the language in the "pour-over" will that effectively incorporated the revocable trust by reference governed the payment of estate taxes that exceeded the residuary estate and (2) even without such language in the will, it is proper under Illinois law to consider both the will and revocable trust agreement to determine the decedent's intent about payment of estate taxes.

Spring Issue of Wake Forest's E-Clinic News

The Wake Forest University School of Law's "Elder Law Clinic provides free legal assistance to moderate income seniors, and serves as a resource center for lawyers and other professionals.  In a partnership with the School of Medicine, the E-Clinic offers a unique opportunity to learn about medical and health law issues of older clients."

The Spring 2007 issue of the clinic's newsletter, E-Clinic News, is now available on-line so you may read about the activities of this innovative clinical program.

Prince William Gains Partial Access to Princess Di's Estate

Prince William, the son of Diana (Princess of Wales) and Charles (Prince of Wales), turned 25 years of age on Thursday, June 21, 2007.  Reaching this milestone entitles him to all of the income from his share (one-half) of Di's estate which is estimated to be over one-half million dollars per year.  Prior to reaching age 25, distributions of income were discretionary.

Another benefit of reaching age 25 is that he may marry the woman of his own selection without prior approval of Queen Elizabeth II, his grandmother.

Prince William must really be looking forward to his 30th birthday when he will be entitled to one-half of the corpus of the trust.

See Press Association, Prince William's inheritance boost, Guardian Unlimited, June 21, 2007.

Where is my son's brain?

Mark Hansen, The Body in Question, ABA J. e-Report, June 22, 2007, discusses the Ohio case of Albrecht v. Treon. In 2001, Christopher died and, as required under local law, an autopsy was performed.  However, Christopher's parents did not discover until five years later that Christopher was buried without his brain because tests on his brain had not yet been completed.  After the testing was complete, the brain was incinerated with other medical waste.  The parents claim that his remains were not treated with respect and that they were not given notice of the brain retention.

The article explains that:

The litigation has drawn considerable attention—and much concern—among coroners and medical ex­am­iners nationwide. If the plaintiffs prevail, the case could fundamentally change the way autopsies are conducted in this country, experts on both sides of the issue say.

The suit bares one of the more unsavory aspects of the forensic investigation. It also raises difficult, emotional issues regarding a coroner’s legal authority to conduct autopsies as he or she sees fit, as well as over the family’s desire to bury the body in as complete a state as circumstances will allow.

In almost every state, medical examiners and coroners remove brains, other body parts, tissues and fluids during autopsies for later laboratory examination. And while most inform the next of kin of the autopsy, they don’t often explain to grieving families exactly what an autopsy entails. Nor do they usually contact the family afterward to find out how they’d like to dispose of whatever remains.  * * *

Tracking down and documenting the next of kin’s wishes before an autopsy can eat up valuable time during a forensic investigation, he says. The value of an autopsy declines as the body deteriorates, even when refrigerated. In many cases, the next of kin is unknown, unavailable or in dispute. Family members often disagree over how to handle the body. And the next of kin in some cases could be the chief suspect in a murder.

Capacity to Create a Trust

Anne is an elderly widow with two children, Mari and Al.  In February of 2000, she executed a will that left her entire estate to her son Al and expressly disinherited her daughter Mari. Later that year, Anne suffered an acute stroke and was hospitalized. When she was released, Mari and her family moved in with her to take care of her. Mari found the will that disinherited her and told her mother that she would not take care of her “for nothing.” Mari arranged for several meetings between her mother and her mother’s attorney. At their conclusion, Anne had Mari appointed her agent for both property management and health care. Also, Anne executed an irrevocable trust appointing Mari as trustee and leaving Anne’s home and the bulk of her estate to Mari. Anne’s attorney recorded the execution of the trust in which Anne orally acknowledged what she was doing. Anne later sued to have the trust rescinded, and the trial court found that “at the time of the creation of the Trust, Anne did not have capacity to enter into a complicated legal document and that she was unduly influenced by [her daughter Mari].”
 

In Hunter v. Klimowicz, 2007 WL 1599221 (Ind. Ct. App. 2007), the Court of Appeals of Indiana upheld the trial court’s decision de novo. Anne’s physician testified that while Anne could have made simple decisions, such as where to go to eat, or completed simple tasks, such as writing a check, the complexity of the Trust and other legal documents put them beyond her range of competent understanding. In reviewing the doctor’s testimony, the court explained that,
   

[h]er attending physician * * * testified that although Anne became more alert and cooperative during her rehabilitation, she was still struggling with understanding written and spoken language [at the time the trust was executed]. Dr. Simaga attested that based on Anne’s neurological condition and the medications she was taking, she was unable to appreciate and understand a complicated legal document at that time.
 

The court then held that,
 

Although Anne’s statements recorded at the time of the Trust could be viewed as evidence of her mental capacity, we find them to be ambiguous and note that, at a later date, she could not recall the meeting at all and was perplexed when shown the documents bearing her signature. * * * Under these circumstances, we conclude that the trial court properly ordered that the Trust be rescinded.
 

Special thanks to Sean J. Fahey (Hall Render Killian Heath & Lyman, P.C., Indianapolis) for bringing this case to my attention.

Charitable Giving in 2006

The following are the key points reported in Stephanie Strom, Absence of Major Disaster in ’06 Affected Giving, NY Times, June 25, 2007:

• Charitable giving was up an inflation-adjusted 1% over 2005.
• Disasters in 2005 such as Hurricane Katrina triggered an increase in giving, especially when coupled with the accompanying tax incentives.
• "When donations for disaster relief are excluded * * *, giving rose 5.7 percent on an inflation-adjusted basis" in 2006.
• Religious-based gifts made up 32.8% of charitable giving in 2006.
• The biggest gains in 2006 was in the category of universities, private schools, and other educational institutions.
• Arts organizations saw a 6.5% inflation-adjusted increase in 2006.
• Organizations focusing on international affairs such as disaster relief saw a 12% inflation-adjusted decrease in 2006.

Davenport Analyzed

Prof. Wendy Gerzog (Professor of Law, University of Baltimore School of Law) has recently posted her article entitled Davenport: Res Judicata Applied on SSRN.

Here is the abstract of her article:

The Fifth Circuit applied res judicata in Davenport and the gift tax on 1980 gifts may finally be paid. The article details a long history of litigation culminating in this case.

Prof. Gerzog's article also appears in 115 Tax Notes 1199 (June 18, 2007).

Popularity of Estate Planning for Pet Owners

The love owners have for their pets transcends death as documented by studies revealing that between 12% and 27% of pet owners include their pets in their wills. The popular media frequently reports cases which involve pet owners who have a strong desire to care for their beloved companions.  You may follow these links for a FAQs and state statutes.

As evidence of the increasing interest in estate planning for pet owners, see Roberta C. Yafie, Trust-Fund Pets, NY Post, June 24, 2007 (stating that "[m]ore and more middle-class pet owners are opting for Pet Trusts to ensure their dependant's are cared for").

Top SSRN Downloads

Here are the top downloads from April 24, 2007 to June 24, 2007 from the SSRN Journal of Wills, Trusts, & Estates Law for all papers announced in the last 60 days:

Rank	Downloads	Paper Title
1	140	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	102	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	64	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	56	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
6	47	Why Limit Charity? Miranda Perry Fleischer, University of Illinois College of Law , Date posted to database: June 14, 2007 Last Revised: June 17, 2007
7	46	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