Wills, Trusts & Estates Prof Blog

Dutch Legal Science and Its Influence on Mutual Wills

Alexandra Braun (Junior Research Fellow at St John's, University of Oxford School of Law) has recently posted on SSRN her article entitled Revocability of Mutual Wills.

Here is the abstract of her article:

Mutual wills are wills made in substantially the same terms by two or more persons in pursuance of a previous agreement to testate in a specific way. This agreement is usually intended to remain unchanged over time. Mutual wills thus involve a conflict with a cardinal principle of the law of wills, ie. that a will can be revoked at any time before the death of the testator. Over centuries jurists and judges have engaged with this question in an attempt to find a satisfying compromise, but this was not an easy task and the difficulties eventually contributed to the abolition of mutual wills in many jurisdictions.

This chapter is occupied with an assessment of the contribution of seventeenth-century Dutch legal science in this field, and its influence on the Legal Science of Europe. It outlines the development of the ius commune up to the eighteenth century, and then compares the evolution of the law from the eighteenth century onwards in some jurisdictions where mutual wills are still in use, such as Germany, England, Scotland and South Africa.

60 Largest Charitable Contributions for 2007

Slate web magazine has posted The 2007 Slate 60, which lists the 60 largest American charitable contributions of the year. The donations are rated by size, and the listing provides information about the source of the donor’s wealth, the amount pledged and the identity of payment recipients.

The three highest ranking donors for the year 2007 were Leona Helmsley, Barron Hilton, and Jon and Karen Huntsman. This information was compiled by the Center on Philanthropy at Indiana University.

Special thanks Jeffrey A. Cooper (Associate Professor of Law, Quinnipiac University School of Law) for bringing this information to my attention.

Re-examining standing of heirs and beneficiaries to challenge decedent’s marriage after death

Terry L. Turnipseed (Assistant Professor of Law, Syracuse University College of Law) has recently posted on SSRN his article entitled How Do I Love Thee, Let Me Count the Days: Deathbed Marriages in America. 

Here are excerpts from the introduction to his article:

Should you be able to marry someone who has only days to live? If so, should the government award the surviving spouse the many property rights that ordinarily flow from marriage?

In almost every state, the only person allowed to challenge the validity of a marriage (or, by extension, the property consequences thereof) after the death of one of the spouses is the surviving spouse! Seems incredible, does it not? The expectant heirs of a dying man (or woman) who marries on his (or her) deathbed cannot challenge the marriage post-death. Ironically, the one person allowed to challenge is the only person who has absolutely no motivation to do so.***

This article explores these and other related questions, including a proposed theoretical framework for a model act giving heirs and beneficiaries standing to sue in order to negate the property consequences that flow from marriage, depending on the level of mental capacity at the time of the marriage.***

Extrinsic evidence deemed insufficient to permit the reformation of a document revoking a trust

The settlor sent a letter to the corporate trustee of her revocable lifetime trust stating , “I am revoking my trust.”  The settlor made statements indicating that she intended to revoke the trust but also made statements to a bank officer and an attorney which led them to conclude that she intended only to remove the bank as trustee and the attorney prepared documents to do so.  The settlor died from injuries sustained in an accident before she could execute the papers. 

In In re Trust Created by Isvik, 741 N.W.2d 638 (Neb. 2007), the court held that the Nebraska Uniform Trust Code applied to the question of whether the trust was revoked; that the letter could be subject to reformation because it met the definition of a “term of the trust”; that under Nebraska precedents dealing with the reformation of written instruments, the trial court was correct in hearing extrinsic evidence in determining whether to reform the letter to express an intent to remove the bank as trustee; and that the evidence of the grantor’s intent not to revoke was not clear and convincing.

Doctor accused of hastening patient’s death to retrieve organs faces criminal charges

The Following is from Jesse Mckinley, Surgeon Accused of Speeding a Death to Get Organs, NYTimes.com, Feb. 27, 2008:

On a winter night in 2006, a disabled and brain damaged man named Ruben Navarro was wheeled into an operating room at a hospital here. By most accounts, Mr. Navarro, 25, was near death, and doctors hoped that he might sustain other lives by donating his kidneys and liver.

But what happened to Mr. Navarro quickly went from the potentially life-saving to what law enforcement officials say was criminal. In what transplant experts believe is the first such case in the country, prosecutors have charged the surgeon, Dr. Hootan C. Roozrokh, with prescribing excessive and improper doses of drugs, apparently in an attempt to hasten Mr. Navarro’s death to retrieve his organs sooner.***

Dr. Roozrokh has pleaded not guilty, and his lawyer said the charges were the result of overzealous prosecutors. But the case has sent a shudder through the tight-knit field of transplant surgeons — if convicted on all counts, Dr. Roozrokh could face eight years in prison — while also worrying donation advocacy groups that organ donors could be frightened away.***

The Supreme Court's LaRue Decision CLE

ABA Joint Committee on Employee Benefits and the American College of Employee Benefits Counsel are sponsoring a teleconference and live audio webcast on April 8, 2008 entitled The Supreme Court's LaRue Decision: What's the Next Generation of 401(k) Litigation?

Here is a description of this program:

The Supreme Court’s decision in LaRue v. DeWolff, Boberg & Associates, Inc. makes it clear that a single participant can bring a fiduciary breach claim on behalf of a defined contribution plan, even if the losses relate only to that participant’s account. However, with two concurring opinions, the LaRue decision leaves many unanswered questions. Our panel of experienced ERISA litigators will discuss how the LaRue decision is likely to impact future 401(k) plan litigation.

Topics will include:

•  Do participants have to exhaust administrative remedies?
•  What are the implications of LaRue for other types of plans?
•  Are fiduciary claims in defined contribution plans really benefit claims?
•  What types of claims and equitable remedies will be available under Section 502 (a)(3)?
•  What actions should 401(k) plans take to lessen the possibility of lawsuits?
•  Will this case impact issues surrounding auto-enrollment and investment advice?
•  Can former participants bring suit if they’ve gotten a distribution?
•  Who's liable if the participant's investment instructions aren't followed?

Joint power to revoke limits the power of the sole surviving settlor to revoke

A husband and his wife created a joint revocable trust reserving to themselves the power to revoke and stating that the sale or other disposition of the trust property “by us” would be a revocation. 

A divided Pennsylvania Supreme Court reversed the appellate court, reported in the March/April 2006 column, and held that the language of the revocation provision unambiguously prevents the surviving settlor from exercising the power to revoke.  Scalfaro v. Rudloff, 934 A.2d 1254 (Pa. 2007).

Online Version of The Bluebook Now Available

Editors of the Harvard Law Review announced the launch of an online version of The Bluebook: A Uniform System of Citation on February 15. The standard citation guide for American legal writing, The Bluebook is widely used throughout legal practice, by paralegals, attorneys, professors, and students.***

The new online format responds to longstanding requests for a fully-featured electronic edition of The Bluebook that is easier to search, use, and teach. It allows practitioners and students with jurisdiction-specific or publication-specific citation rules to combine them with the general rules of The Bluebook, and it makes an essential tool of legal writing fully accessible to the visually impaired. The online version is also designed to allow future editions to address a wide array of foreign, international, and administrative material much more fully than is possible in the confines of a small printed handbook.***

You can read more about this exciting development at Harvard Law Review launches online version of The Bluebook, law.harvard.edu, Feb. 19, 2008.

Special thanks to Neil E. Hendershot, Esq. (Attorney at law, Goldberg Katzman, P.C., Adjunct Professor, Widener University School of Law) for bringing this information to my attention.

Presumption that amendments by the settlor were properly delivered applies even though the trustee accepted the amendments after the settlor’s death

An Illinois land trust provided that amendments are valid when made by a written instrument delivered to the trustee but that any amendment changing any “duty, right, power, liability, or responsibility” of the trustee would be effective on acceptance by the trustee.  The settlor executed an amendment changing the beneficiaries on her death, but the grantor’s attorney mailed the amendment to an incorrect address causing the amendment to be cosigned by the trustee the day after the settlor’s death. 

In upholding the amendment, the court held that the amendment did not concern the trustee’s duties, that therefore there exists a presumption that the amendment had been received before the settlor’s death and that the trial court’s holding that the evidence was not sufficient to overcome the presumption was not against the weight of the evidence.  Estate of Bantsolas v. Bantsolas, 878 N.E.2d 1227 (Ill. App. Ct. 2007).

Johnson & Johnson Heir’s Films Cause Discord among Family and Friends

The following is from Robert Frank, The Rich Man's Michael Moore, online.wsj.com, Feb. 23, 2008:

Jamie Johnson, heir to the Johnson & Johnson fortune, used to be an accepted member of the New York elite, with a trust fund, a top education and loads of old-money friends. Now, thanks to his film career, he's not as welcome.***

The films have generated their share of controversy. "Born Rich," which featured several of Mr. Johnson's childhood friends talking about everything from drugs to prenuptial agreements, sparked a lawsuit and accusations from a few of his friends that Mr. Johnson portrayed them unfairly.***

"The One Percent," which is running on Cinemax until April 1, has spawned its own mini scandal. After Warren Buffett's adopted granddaughter, Nicole Buffett, spoke to Mr. Johnson on camera about her views on money, Mr. Buffett sent her a letter stating that she was not legally his granddaughter[.]***

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

Terri Schiavo Analogue Recurs

According to Sean O'sullivan, Parents battle over life of brain-damaged daughter, delawareonline.com, Jan. 31, 2008:

In a case with parallels to the 2005 uproar over Terri Schiavo, a Newark father is fighting a court order that could allow the removal of a feeding tube and end the life of his brain-damaged daughter.***

According to court records, Lauren Marie Richardson, 23, is in a persistent vegetative state following a heroin overdose in August 2006. She was pregnant at the time and was kept alive at Christiana Hospital -- with feeding tubes and a breathing machine -- to allow her to give birth, which she successfully did in February 2007 to a healthy baby girl.

Late last week, a court awarded guardianship of Lauren Richardson to her mother, Edith Towers, who maintains her daughter did not wish to live this way and seeks to end artificial life support measures.***

Lauren Richardson, a Glasgow High School graduate, did not leave a "living will" stating her desires in such a situation, or use a mechanism in the Delaware law called an Advanced Health Care Directive, a simple form a person can fill out to make their end-of-life wishes clear.***

Special thanks to Alyssa A. DiRusso (Assistant Professor, Cumberland School of Law, Samford University) for bringing this article to my attention.

Getting an estate plan in the State of Victoria, Australia

In Victoria, Australia, there is a wholly-owned Victorian Government Business Enterprise called "State Trustees" which exists to provide comprehensive estate planning and estate administration services.

The business employs more than 500 lawyers, accountants, and financial planners to prepare wills, trusts, enduring (durable) powers of attorney, etc.  They prepare the estate plan and then serve as the executor or trustee.  Follow this link for a complete list of services.  This "one stop shopping" for estate planning services is very different from the way things are done in the States.

Body Disposition -- The Aussie Way

On several prior occasions on this blog, I have discussed or referenced unusual ways in which Americans may dispose of their bodies upon death.  Here is a partial list:

• Diamonds from cremains 
• Cremains as cocaine additive 
• Cremains in fireworks 
• Pictures painted with cremains 
• Green Burial 
• Biker Hearse 
• Scotty's Ashes into Space 
• Event Planners for End of Life Celebrations 
• Cremains as gasoline additive 
• Do it at home cremation

Here are some of the non-traditional body disposition techniques which are used in Australia according to Richard Brewster, How you go out is a matter for style, The Age, Feb. 23, 208, at 10:

• Motorcycle hearse
• Releases, e.g., doves, butterflies, or balloons to symbolize the freeing of the soul
• Designs printed on cardboard coffins (environmentally friendly)

Organ Donation -- Australian Style

Last week was Australia's "Organ Donor Awareness Week."  According to Tim Richards, Unwrap the gift of life for those on hospitals' death row, The Age, Feb. 25, 2008, at 11, "it seems its impact on the number of donations in hospital will be negligible."

The article explains:

In Australia only about 10 people per million are registered as organ and tissue donors, giving Australia around 200 donors to transplant patients on the various transplant waiting lists each year. From these donors, around 650 transplant recipients are created. * * *

However, we have an unbearable situation where about 150 patients on transplant waiting lists die each year in Australia because there are not enough donors. * * *

It is an unbearable situation because there is a solution to the shortage of organs and tissue, a solution which has been applied in other countries, and which is being discussed presently in Britain. The solution provides the basis for having a donor rate of some three to three and a half times that found in Australia.

It is called a presumed consent or opt-out organ donation system, and it is where the law stipulates that everyone is a donor unless a person registers not to donate.

This opt-out type of system is the opposite of Australia’s current system, which is one where a person who wants to donate their organs must register their interest and so they must opt in to donate.

David Kessler Forms Consulting Business to Protect the Elderly

David Kessler is a retired police commander and is now speaking on the topic of exploitation of the elderly.

Here is an excerpt from his website, Protecting the Elderly:

David M. Kessler is a retired Police Officer (former Commander of the Financial Crimes Unit) with the Dekalb County Police Department in Decatur, Georgia. He has dedicated his professional life to providing education and guidance for public and private sector professionals on the topic of exploitation of the elderly, and making certain those who prey on elderly victims are punished.

David was recruited by the Ohio Attorney General in 1999 to serve as Chief Investigator of the Attorney General's Consumer Protection Unit. Within this role, David's primary focus became the protection of senior citizens against those who would prey upon them.

With extensive knowledge and vast experience in the area of elder exploitation, David chose to leave the government sector in 2008 to form his own consulting business, Protecting The Elderly. As a keynote speaker and trainer on the topic of exploitation of the elderly, David addresses all facets of these crimes, including: Undue Influence, Sweetheart Swindles, Power of Attorney Thefts, and Home Improvement Scams.

Call for Information -- AALS Donative Transfer Section Newsletter

Each year, the AALS Section on Donative Transfers publishes two newsletters for its members.

The Section welcomes news about its members' publications, professional activities, conferences, teaching and service.  The Section is in the process of assembling the Spring 2008 newsletter.

Please send any news you would like to share by March 1, 2008 to Professor Bridget Crawford (Pace) at bcrawford@law.pace.edu.

Ex-Microsoft Developer Leaves $65 Million to Benefit Same-Sex and AIDS Organizations

Ric Weiland, who was a high school classmate of Microsoft founder Bill Gates, committed suicide in 2006 at age 53.

Details have recently been released regarding his estate.  According to AP, Ex-Microsoft worker leaves $65 mil to gay rights, AIDS groups, CNN.com, Feb. 24, 2008:

[T]he Pride Foundation said Weiland's estate had established a fund at the foundation that would give $46 million over the next eight years to 10 national gay rights and HIV/AIDS groups, including Lambda Legal; the National Gay and Lesbian Task Force; Parents, Families and Friends of Lesbians and Gays; the Gay & Lesbian Alliance Against Defamation; and amfAR, the Foundation for AIDS Research.

His estate also bequeathed $19 million directly to the Pride Foundation for scholarships and grants supporting the gay, lesbian, bisexual and transgender community in the Pacific Northwest.

Increasing Elder Abuse Calls for Legislative Action

Jane A. Black (J.D. Candidate 2008, St. John's University School of Law) has recently published her Note entitled The Not-So-Golden Years: Power of Attorney, Elder Abuse, and Why Our Laws Are Failing a Vulnerable Population, 82 St. John's L. Rev. 289 (2008).

Here is the conclusion to her Note:

While the allegations of financial abuse and neglect involving Astor may never be proven, the Park Avenue socialite's story brings to the forefront one of the gravest legal issues affecting the elderly in the twenty-first century. The selection of who will hold one's power of attorney is, undoubtedly, one of the most significant decisions an older individual will make. Depending on the type of power granted, such an individual has the ability to thwart the elderly's desired disposition of money after death, or worse, infuse fear, helplessness, and deceit into the final years of an elderly person's life.

Without immediate action by lawmakers though, there is no indication that financial exploitation of the elderly will subside. Abuse is certain to swell as longevity increases, technology improves, and the lines of communication become easier to cross. As evidenced from the cases and statistics above, the day has passed where the American legal system can fail to recognize elder abuse as a widespread attack on the most vulnerable members of our population. To combat these abuses, federal and state legislatures need to enact uniform laws and sanctioning mechanisms to create a legal system with a hard stance against abuse of the elderly.

Trust provision prohibiting the exercise of powers reserved to the settlor by anyone other than the settlor includes the settlor’s agent

The decedent created a revocable trust naming her husband as the trustee.  She also executed a durable power of attorney naming her husband as her agent and giving him the power to transfer property to her revocable trust.  Two years later, her husband purportedly acting as her agent executed an amendment to the trust which removed certain property from the trust which he then transferred to one of the couple’s three children. 

After the decedent’s death, the other children sued to set aside the amendment.  The court held that the language of the trust prohibiting a conservator or guardian of the settlor or “any other person” other than the settlor from exercising the rights reserved to the settlor extended to an agent.  Gurfinkel v. Josi, No. 3D06-1616, 2007 WL 4322156 (Fla. Dist. Ct. App. Dec. 12, 2007).