Wills, Trusts & Estates Prof Blog

Connecticut & the Anti-Lapse Statute

Jeffrey A. Cooper (Associate Professor of Law, Quinnipiac University School of Law) has recently published his article entitled A Lapse in Judgment: Ruotolo v. Tietjen and Interpretation of Connecticut's Anti-Lapse Statute, 20 Quinnipiac Prob. L.J. 204 (2007) [the link to his SSRN version of the article].

Here is an abstract of the article based on his SSRN posting:

The Connecticut case of Ruotolo v. Tietjen concerns a will providing a bequest to a named individual “if she survives” the testator, language commonly employed in traditional estate planning documents. The named beneficiary did not survive the testator, raising the question of who should receive her “lapsed” bequest. Connecticut's “anti-lapse” statute drafted in 1821, provided that the beneficiary's surviving children would take the bequest unless the will effectively directed another result. The crucial question therefore was whether the affirmative condition “if she survives” negated operation of this default statute. The Connecticut Appellate Court, in a case of first impression, concluded that such words of survivorship failed to effectively negate application of the anti-lapse statute. The Supreme Court agreed, affirming the Appellate Court's opinion and sending shockwaves through the state's estate planning bar.

In this Article, I contend that the Appellate Court's opinion reached the wrong result, and that the Connecticut Supreme Court was unwise to embrace it. The judges of the Appellate Court adopted a widely-criticized minority rule without indicating, and perhaps without even realizing, they were doing so. The result potentially impacts the future interpretation of countless existing estate planning documents and leaves the Connecticut bar struggling to respond. In addition, the opinion casts a wider pall by according too little respect to the traditional role of estate planning attorneys in communicating their client's testamentary desires, while giving too much deference to the modern proposals reflected in the 1990 version of the Uniform Probate Code (hereinafter “the UPC”). While the case most directly impacts Connecticut probate practice, it implicates broader themes concerning the interaction between traditional estate planning principles and modern probate legislation.

Same-Sex Marriage in Iowa Suspended

Yesterday on this blog, I reported on the Iowa District Court for Polk County opinion of Varnum v. Brien which held that the Iowa law prohibiting individuals of the same sex from marrying violates "due process and equal protection rights."

Same-sex couples flocked to Des Moines to get married.  However, most were disappointed because the same judge, Robert B. Hanson, delayed granting licenses until the Iowa Supreme court decides whether to hear an appeal of his opinion.

In the "gap" period, however, one fast-acting couple, Timothy McQuillan and Sean Fritz, were able to obtain a marriage license and successfully get married.

See Monica Davey, Iowa Permits Same-Sex Marriage, for 4 Hours, Anyway, NY Times, Aug. 31, 2007.

Wills & Probate Cartoons

Follow this link for some humorous (and some not-so-humorous) cartoons about wills and probate.

The Gullah Coast-Inheritance Interface

Faith Rivers (Associate Professor of Law, Vermont Law School) has recently published her article entitled The Public Trust Debate: Implications for Heirs' Property Along the Gullah Coast, 15 S.E. Envtl. L.J. 147 (2006).

Here is the introduction of her article:

Heirs' property ownership is a significant problem facing the African American community in the "Lowcountry" of South Carolina. Heirs' property generally refers to real property purchased by African Americans and held within families for generations without clear title. The land is owned by a group of relatives - the heirs - who possess fractionated fees as tenants in common. This form of concurrent ownership is an undivided interest in a fractional share of property. All cotenants share unity of possession, but acquire titles to varying sized interests at different times. Each generation passes the property down to their heirs, as there is no right of survivorship for tenants in common. The disposition of tenants in common property is governed by the law of partition. Partition provides for the division of property, or its cash "equivalent," according to owner interests.

The scope of the heirs' property problem has been difficult to document. According to scholarly opinions rendered nearly three decades ago, more than one-third of all "black-owned" property in the rural South is owned as heirs' property. More recent research conducted for the Coastal Community Foundation of South Carolina (CCF) confirms that a significant portion of land in the Lowcountry is still held as heirs' property. Assessors identified nearly 2,000 property tracts of heirs' property in Charleston County, and another 1,300 properties (involving 17,000 acres) in neighboring Berkeley County. Within Berkeley County, the president of the Cainhoy Huger Community Development Corporation estimated that "85 percent of the *149 property [on the Cainhoy Peninsula] is owned as heirs' property." The prevalence of heirs' property is most evident on the Sea Islands and in isolated rural communities within the Lowcountry. At the time of the CCF study, there were 111 tracts of heirs' property on Wadmalaw Island in Charleston County. Likewise, on St. Helena Island, a small 64 square mile island in Beaufort County, researchers identified 124 heirs' property parcels.

Over the past three decades, scholars have proposed various strategies to re-conceptualize and protect heirs' property. Building upon work of scholars in the field, and the work of two generations of land preservation activists and lawyers who began the struggle in Hilton Head, this piece considers the state of heirs' property in the Lowcountry of South Carolina and evaluates various conservation strategies that may be utilized to preserve heirs' property. This Article examines the efficacy of utilizing the public trust doctrine and various tax incentive mechanisms as tools to conserve heirs' property. In particular, this Article proposes the development of a Gullah Culture Preservation Exemption as a conservation tool that preserves Gullah ownership and traditional use of coastal lands without hindering the property rights of heirs' property owners.

Iowa Court Says Ban on Same-Sex Marriage Unconstitutional

Yesterday (August 30, 2007), the Iowa District Court for Polk County issued its opinion in Varnum v. Brien.

The court held that the Iowa law which prohibits individuals of the same sex from marrying violates "due process and equal protection rights [because of] the absence of a rational relationship to the achievement of any legitimate governmental interest."

Accordingly, the court concluded, "[c]ouples * * * who are otherwise qualified to marry one another may not be denied licenses to marry or certificates of marriage or in any other way prevented from entering into a civil marriage * * * by reason of the fact that both persons comprising such couple are of the same sex."

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for being the first reader to bring this case to my attention.

Craig and Meegan's Million Dollar Mistake?

According to Wikipedia, the reason why Leona Helmsley did not leave anything to two of her grandchildren (Craig and Meegan Panzirer) is because they failed "to name any of their children after her late husband."

Special thanks to Chasity West (J.D. Candidate, Texas Tech University School of Law) for bringing this theory to my attention.

Better Copy of Leona M. Helmsley's Will

The New York Daily News has posted a better copy of Leona's will on which the names the three witnesses are visible although somewhat difficult to read.

Special thanks to Michael J. Hussey (Assistant Professor, Widener University School of Law) for bringing this copy to my attention.

More Leona Helmsley Tidbits

Terms of "Pet Trust" -- There has been a huge interest in the terms of the Leona Helmsley July 2005 Trust which probably contains all of the details regarding Trouble's care and what happens to any unspent funds upon the dog's death.  This would indeed be a fascinating document to examine!

Value of Leona Helmsley's Estate -- According to Peter Grant, Will Helmsley's Dath Break Up Her Empire?, Wall St. J., Aug. 21, 2007, at B1, Leona's estate is worth at least $2.5 billion.

Trouble -- At the time of her death, Leona was too incapacitated to take care of Trouble.  Rumor also has it that the dog was taken away because it bit some of her advisors.

Leona and Harry Helmsley Charitable Trust -- According to the same article, "[i]n recent years it has primarily been making donations to medical facilities that have been involved in her care, like New York-Presbyterian and Greenwich Hospital."

Capacity to Execute Will -- The best chance the grandchildren would have at obtaining $600 million or more each would be to set aside Leona's will on the basis that she lacked capacity when she wrote it.  According to the same article, "her mental abilities * * * were slipping."   Leona signed the will on July 15, 2005.  It will be interesting to see if her grandchildren decide to contest with such a big incentive to do so.  I would think, however, that Leona's attorney has a huge file of material to support Leona's capacity at the time of will execution such as affidavits of the witnesses, friends, doctors, etc., a video-recording of the will execution ceremony, etc.  And, perhaps the originals of prior wills so that if this will is deemed invalid, the property passes under a prior will rather than via intestacy.

Great-Grandchildren -- Leona had 12 great-grandchildren.  None of them are beneficiaries of her will.

Satisfying the once per year grave visit -- For David and Walter to receive distributions from their trusts, they must visit their father's (Leona's son) gravesite "at least once each calendar year."  As pointed out to me by several people, this could be satisfied in a few minutes for two years if the visit was near midnight on January 1.  The grandchild could sign the register a few minutes before (meeting the requirement for the December year) and then a few minutes after midnight (meeting the requirement for the January year).

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for providing sending me the Wall Street Journal article discussed above and for sharing his thoughts on the "once per year grave visit" issue.

Leona Helmsley's Will -- A Detailed Analysis

The full text of the Last Will and Testament of Leona M. Helmsley is now available on-line.

Here is my detailed analysis of this will:

Technical Details:  The will is 14 pages long (mostly single-spaced) including the self-proving affidavit.  Leona signed the will on July 15, 2005.  The names of the three witnesses are blotted out.  I assume this was done for publication purposes and that the names are not blotted out on the original.  The will lacks a notation of the drafting attorney's name.

Body Disposition Instructions:  Although not the preferred place for body disposition instructions given that a person's will is typically not available until after the burial or cremation, Leona included several instructions in her will such as her desire to be interred wearing her gold wedding band and to be placed next to her predeceased husband (Harry) and predeceased son (Jay) at the Helmsley Mausoleum at Woodlawn Cemetery (Bronx, New York).

Mausoleum:  Leona granted permission for her brother (Alvin) and his wife (Susan) to also be interred in the mausoleum.  She also stated that no one else may be interred there.  She created "The Helmsley Perpetual Care Trust" with $3 million.  The trust will maintain not just her mausoleum but also the burial places of various other family members.  Among other instructions is the requirement that the mausoleums be "acid washed or steam cleaned at least once a year."  The trustees must inspect the mausoleums at least once every three months. 

Outright Gifts:  Leona made the following outright (not in trust) bequests:

• Brother (Alvin) = $5 million
• Grandson (David) = $5 million
• Grandson (Walter) = $5 million
• Chauffeur (Nicholas) = $100,000

Gifts in Trust:  With the intent of providing "a flow of income," Leona left $10 million in trust for her brother (Alvin) and $5 million in trust for each of David and Walter (two of her four grandsons).  Upon the death of a trust beneficiary, the remaining trust assets will pass to The Leona M. and Harry B. Helmsley Charitable Trust.  The trusts are "charitable remainder unitrusts" entitling the beneficiary to 5% of the net fair market value of the assets each year.  David and Walter may not receive distributions unless they visit their father's grave (Leona's son) at least once each calendar year, "preferable on the anniversary of [Jay's] death," unless they are physically or mentally unable to do so.  If a grandchild misses just one unexcused time, the trust for that grandchild ends.   The trustees must keep a register at the mausoleum to be signed by each visitor and they are to look in this book to determine if the grandchild has made the required visit.

Pet Provisions:  Leona left her dog, Trouble, to her brother (Alvin).  She also left $12 million to the Leona Helmsley July 2005 Trust.  This is the "pet trust" for Trouble's care.  The exact terms of this trust are unknown because the trust was create inter vivos (while Leona was alive) and is not required to be placed on the public record.

Express Disinheritance:  Leona expressly "cut out" her other two grandchildren (Craig and Meegan) "for reasons that are known to them."

Things Bearing the Name Helmsley:  Leona directed that "anything" with the name Helmsley must be maintained in "mint" condition.  This request will be difficult to enforce.  No money was left to carry out this request and she did not place any limitation on the items with the Helmsley name -- it could be items from different families who just happen to share the same last name.  A court may conclude that this request is too vague to be enforceable.

Residuary:  The balance of her estate (many billions of dollars) will pass to the Leona M. and Harry B. Helmsley Charitable Trust.  Like the pet trust, the exact terms of this trust are unknown.

No-Contest Clause:  Leona included an in terrorem provision.

Fiduciaries: Loena named five people as co-executors/co-trustees: Alvin (brother), David (grandson), Walter (grandson), Sandor Frankel (attorney), and John Codey (friend). If less than three are able to serve as executors, or less than two as trustees, than a corporate fiduciary is to serve instead with priority given to Citibank of New York.  Individual fidicaries are to receive reasonable compensation but not statutory commissions.  Leona waived bond and included an exculpatory provision.

Administration Instructions: The executors must sell all of Leona's personal residences and all of her tangible person property.  Thus, none of her personal affects, even jewelry and heirloom items, will pass to family members unless the executors sell the items to family members.

Leona Helmsley -- Text of Will Now Available

Here is a link to Leona Helmsley's will.

Tomorrow, I will post a more detailed (accurate) description of the terms of her will.  The prior newspaper accounts of the provisions of the will left out many interesting things!

How it Started -- The Text of Harry Helmsley's Will

The text of the will of Leona Helmsley's husband, Harry, who died on January 4, 1977, is available here.

Green Burial or Disrespect

Check out this Wizard of Id cartoon and see if you think it (1) advocates green burial or (2) shows disrepect for the decedent.

Special thanks to Andrew Vaughn (J.D. Candidate, Texas Tech University School of Law) for bringing this cartoon to my attention.

Marc S. Bekerman appointed as Associate Director of NYLS Graduate Tax Program

The following is from a news release issued by the New York Law School:

New York Law School, one of the oldest independent law schools in the nation, * * * announced the appointment of Marc S. Bekerman as Associate Director of its Graduate Tax Program. Bekerman [also] serves as an Adjunct Professor at the Law School, teaching a variety of courses related to trusts and estates in both the J.D. and LL.M. programs.

Now in its fourth year, the Graduate Tax Program at New York Law School embodies a unique, measured approach to graduate tax study, enabling students to increase their mastery of tax law and refine their practice skills in order to better serve their clients and communities. “We are so pleased to welcome Marc as our Associate Director. His broad and diverse experience with trusts and estates and his great understanding our program’s goals make him an ideal addition,” said Professor Ann F. Thomas, Managing Director of the Graduate Tax Program.   

“I am very excited at this new opportunity and look forward to helping the LL.M. program continue its growth as an important part of the national tax practice community,” Bekerman said.   

Bekerman received his Bachelor of Arts in Mathematics from the State University of New York at Binghamton, his J.D. from Fordham University School of Law, and his LL.M. in Taxation from New York University School of Law. He is admitted to practice in New York, New Jersey, and California, as well as a number of federal courts including the United States Tax Court. Bekerman has received a rating of AV from Martindale-Hubbell, the highest rating available.   

Bekerman’s practice in estate planning includes the preparation of wills and trusts, estate administration, and estate litigation. In addition, he currently serves on the Council of the Real Property, Probate, and Trust Law Section of the American Bar Association as Vice-chair of the Standing CLE Committee and member of the committees on Continuing Legal Education, Planning, and Community Outreach. Bekerman is a fellow of both the American Bar Foundation and the New York Bar Foundation.

Terms of Leona Helmsley's Will Released -- Dog "Trouble" to Benefit from $12 Million

[Note:  This posting is based on newspaper accounts of the will.  I have now received a copy of the actual will and will post a more accurate description tomorrow.  So, please check later postings.]

The terms of Leona Helmsley's will were released yesterday (August 28, 2007) in a New York Surrogate Court.

Here is a summary of the main provisions of her will:

• Her dog, Trouble (a white Maltese shown in the photo) will benefit from a $12 million trust fund.  Trusts for pet animals are valid under New York law (N.Y Est. Powers & Trusts Law § 7-8.1).  However, the court may reduce the amount of the property if it determines that it substantially exceeds the amount required for Trouble.  The excess would then pass as part of the residuary estate as described below (unless her will provides otherwise).  It appears that her brother, Alvin Rosenthal, is the trustee of this trust.
• Her brother, Alvin Rosenthal, will receive a multi-million dollar bequest.
• Two of her grandchildren will receive $5 million each conditioned on their visiting their father's grave site at least once each year.  I am uncertain how compliance with this condition will be monitored.
• Two of her grandchildren will receive nothing for "reasons that are known the them."
• $3 million for the upkeep of her mausoleum (discussed earlier on this blog) which must be "washed or steam-cleaned at least once a year."
• When Trouble dies, she will be buried in the mausoleum.
• Nicholas Celea, her chauffeur, will receive $100,000.
• The remainder of her estate worth many billions of dollars, will pass to the Leona M. and Harry B. Helmsley Charitable Trust.  Because the remainder is huge and goes to her charity, it is unlikely that Trouble's trust will be contested (in my opinion).

See Helmsley's Will: Dog - $12 million, 2 Grandkids - 0, CNBC.com, Aug. 29, 2007.

James Brown Update

It appears that the fold of children of James Brown has another new member.  The following is from One more child for James Brown, Ireland On-line, Aug. 26, 2007:

DNA testing has proved the late funk legend James Brown fathered one more child- the third such case since his death last year.

Dozens of people underwent foolproof DNA analysis after claiming to be the offspring of the late star - and now Brown's attorney and longtime friend Buddy Dallas confirmed on Monday one more result came back positive, bringing the total to three.

While Dallas refuses to release any details as other tests are pending, one of the first new-found children LaRhonda Pettit has already gone public with the results of her test - a 99.99% probability she is the soul man's daughter.

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) and Diane Marie Amann (Professor of Law, UC Davis School of Law and Visiting Professor of Law, University of California, Berkeley School of Law) for bringing this historical note to my attention.

Deeds and Prisoners -- Texas Style

In an interesting Texas statute (H.B. 2566) to take effect on September 1, 2007, a person may not file various documents with the court if he or she is currently an inmate, that is, a person "housed in a secure correctional facility." The documents which the inmate may not file include deeds, abstract of judgments, and all other instruments concerning real or personal property.

The statute does provide exceptions.  The inmate may file the document if he or she includes a statement in the document that he or she is an inmate or, if the document is filed by a non-inmate on behalf of the inmate, that the filing is on behalf of the inmate.

Post-Mortem Conception, Inheritance, and New York Law

Erica Howard-Potter (J.D., 2006, Albany Law School) has recently published her article entitled Beyond Our Conception: A Look at Children Born Posthumously Through Reproductive Technology and New York Intestacy Law, 14 Buff. Women's L.J. 23 (2005-2006).

Here is an excerpt from the article's introduction:

This comment will first discuss the different types of assisted reproductive technologies, common law presumptions of paternity and the law behind posthumous (or after-born) and non-marital children. Next, this comment will look at the United States cases that have dealt with the issue of posthumously conceived children, followed by the approaches taken by the American Law Institute, the National Conference of Commissioners on Uniform State Laws, the American Bar Association and the few state legislatures that have specifically dealt with this issue. A focus on current New York law will follow, including the intestacy statute, a section of the domestic relations law, the non-marital children statute, case law and a look to policy recommendations made by a New York State task force created specifically to discuss children born as a result of assisted reproductive technology. Additionally, there is current proposed legislation in New York concerning after-born children and children of assisted reproduction that will be discussed. There will then be a brief discussion about wills, detailing the difference between posthumously conceived children's rights under a will versus under intestacy law. Finally, there will be some proposals and suggestions made to the New York State Legislature on how New York should handle this issue.

Elder Law: Readings, Cases, and Materials (3d ed.) Released

A. Kimberley Dayton (Professor of Law, William Mitchell College of Law), Molly M. Wood, Esq. (Stevens & Brand, LLP, Lawrence, Kansas), and Julia Belian (Visiting Associate Professor of Law, University of Missouri at Kansas City School of Law) have recently published the third edition of their book entitled Elder Law: Readings, Cases, and Materials.

Here is the publisher's description (LexisNexis):

As people age, they often face a bewildering array of legal issues, ranging from age discrimination to retirement planning, and elder abuse to assisted suicide. Elder Law: Readings, Cases, and Materials is designed to serve as the main textbook for courses and seminars on the intersection of law and aging. Thoroughly updated with new cases, COLA amounts, and URLs, the Third Edition of Elder Law includes new materials on kinship care giving, grandparent rights, and a lawyer’s duty to incompetent third parties. The authors have also expanded the coverage of SSI. New materials include the Medicare Modernization and Prescription Drug Act of 2003, an update on Social Security reform, expanded coverage of reverse mortgages and subsidized housing for the elderly, and recent tax legislation.

Elder Law is also accompanied by a documentary supplement, Elder Law: Statutes and Regulations. This companion volume contains selected federal and state statutes, uniform acts, federal regulations, the viatical settlements model regulation, and miscellaneous provisions.

Law Review Article Submission Humor

For a humorous view of the law review submission process, see Daniel J. Solove, A Sample Law Review Submission Policy, Aug. 22, 2007.

Oldest Canadian Will

On Christmas Eve 1584, Basque whaler Joanes de Echaniz dictated his final will and testament from his ship which was trapped in the ice at Terra Nova near Carol's Cove in Red Bay.  See Canadian Museum of Civilization, Canada Hall: Shipboard Life, Dec. 16, 2004.  The Museum has a display of this event as shown in the photo.

According to Sympatico, this may be "the oldest surviving will in Canadian history."

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) and Diane Marie Amann (Professor of Law, UC Davis School of Law and Visiting Professor of Law, University of California, Berkeley School of Law) for bringing this historical note to my attention.

Top SSRN Downloads

Here are the top downloads from June 28, 2007 to August 27, 2007 from the SSRN Journal of Wills, Trusts, & Estates Law for all papers announced in the last 60 days:

Rank	Downloads	Paper Title
1	242	Taxing Privilege More Effectively: Replacing the Estate Tax with an Inheritance Tax Lily L. Batchelder, New York University School of Law, Date posted to database: June 18, 2007 Last Revised: July 30, 2007
2	199	Erickson: A Primer on FLPS Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: July 21, 2007 Last Revised: July 21, 2007
3	129	Fiduciaries Kenneth M. Rosen, University of Alabama - School of Law, Date posted to database: July 17, 2007 Last Revised: August 13, 2007
4	67	Outsourcing Intimacy: The Taxation of Powers of Attorney Bridget J. Crawford, Pace University - School of Law, Date posted to database: June 25, 2007 Last Revised: August 24, 2007
5	56	Speak Clearly and Listen Well: Negating the Duty to Diversify Trust Investments Jeffrey A. Cooper, Quinnipiac University School of Law, Date posted to database: August 10, 2007 Last Revised: August 23, 2007
6	30	Anna Nicole Smith and the Right to Control Disposition of the Dead James T.R. Jones, Louis D. Brandeis School of Law, Date posted to database: June 28, 2007 Last Revised: August 2, 2007
7	28	Davenport: Res Judicata Applied Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: June 25, 2007 Last Revised: June 25, 2007

Rev. Jerry Falwell's Life Insurance Beneficiaries

Rev. Jerry Falwell died in May 2007 leaving life insurance policies worth $34 million payable as follows:

• $29 million to Liberty University, the school that Falwell founded, and
• $5 million to the Thomas Road congregation.

See AP, Falwell's insurance pays off school debt, Chic. Trib., Aug. 24, 2007.

Special thanks to Raymond Sheffield (San Jose, CA) for bringing this development to my attention.

Should insane delusion as a will contest ground be abandoned?

Bradley E. S. Fogel (Professor of Law, Saint Louis University School of Law) has recently published his article entitled The Completely Insane Law of Partial Insanity: The Impact of Monomania on Testamentary Capacity, 42 Real Prop., Prob. & Tr. J. 67 (2007).

Here is the editors' synopsis of the article:

In this Article, the author discusses the doctrine of monomania, which permits a court to invalidate a will based on the testator's insane delusion if that insane delusion caused the testator to dispose of his property in a way that he otherwise would not have. The author argues that the monomania doctrine is fatally flawed and that the doctrine should be abandoned in favor of using the general test for capacity to make all testamentary capacity decisions.