Wills, Trusts & Estates Prof Blog

Ludicrous Last Wishes

Drafting a will for the following individuals would have been an interesting challenge.

• Mary Kuhery: Left her husband $2 as long as he promised to spend half on a rope for hanging himself.
• Samual Bratt: Left $30,000 to his wife who hated smoking on the condition that she smoke five cigars a day.
• Juan Potoachi: Left 200,000 pesos to a Buenos Aires theater provided his skull be used in Hamlet productions.
• John Bowman: Ordered that house be maintained and dinner be served daily for his reincarnated family.
• Donal Russell: Requested that his skin be used for the cover of his poetry books, an unhonored request because it violated rules on disposal of human remains.

• Harold West: Instructed doctor to drive a stake through his heart to make sure he did not turn into a vampire.

See The 10 strangest will bequests ever, Money Central, July 2, 2009.

Special thanks to Stacy Stockard (JD, Texas Tech, 2009) for bringing these interesting last wishes to my attention.

Cancer Survivors Can Donate Organs and Blood

Cancer survivors may elect to be an organ donor.  Upon death, organs will be tested to determine which ones are useable.  Additionally, survivors of cancer, other than leukemia and lymphoma, may also donate blood after remaining cancer-free for one year.  

SeeBob Riter, Cancer Connections: Can we donate blood and organs after cancer?, Ithaca Journal, July 25, 2009. 

Jackson's Doctor Under Investigation

Michael Jackson's autopsy report is expected within the next week.  In the meantime, authorities are focusing their investigations on Jackson's doctor regarding fraudulent prescriptions.  It is alleged that Jackson received prescriptions under multiple aliases.

There's no doubt that AEG, the producer of Jackson's "This Is It" tour, is anxiously awaiting the outcome of the investigations and the autopsy report, as these could directly affect their ability to recover for money they invested in Jackson's canceled tour.  For more information on AEG's stakes, see my previous blog here.

See Steve Friess, Focus on Jackson Doctor Leads to Raids, NY Times, July 28, 2009.

CLE on Medicaid Eligibility in Estate Planning

The National Constitution Center is sponsoring an audio conference CLE entitled Medicaid Eligibility Nuts & Bolts: Strategies in Estate Planning on August 4, 2009.

Here is a summary of the CLE:

Failure to properly secure Medicaid during the estate planning process can result in the loss of crucial benefits for your client. What are the current Medicaid eligibility requirements & how can you protect the long-term needs of your clients? Join us for a 60-minute live audio conference, where you and your colleagues will discover:

• Keys for Meeting Medicaid Eligibility & Application Requirements
• Medicaid Planning for the Long-term Care of Your Client
• What are the Penalty Period Calculations for Gifts under Medicaid?
• Strategies to Meet the Deficit Reduction Act Requirements

Astor Update

I previously blogged about the Astor estate here, here, and here. 

Recent testimony in the trial of Mrs. Astor's son, Anthony Marshall, suggests that Mr. Marshall instructed the woman in charge of paying Mrs. Astor's bills not to give Mrs. Astor any information about her own finances.  The evidence also suggests that Mr. Marshall was responsible for limiting Mrs. Astor's promised charitable contributions to the Metropolitan Museum of Art while he spent large sums on his own projects.   

Mr. Marshall is accused of taking advantage of his mother's mental condition during her final years of life.

SeeA.G. Sulzberger, Son Limited Brooke Astor's Donations to Charity, Trial Evidence Shows, NY Times, July 27, 2009.

Wash. Domestic Partnership Law Stalled

A law that would expand the rights of domestic partnerships in Washington state was supposed to take effect this past Sunday but did not because opponents of the law submitted a petition with over 135,000 signatures, hoping to force a public referendum vote on the law in November.

The law would grant domestic partnerships all rights that married couples enjoy, including adoption, child support, and pension rights.  The state already grants inheritance, community property, probate, and trust rights to registered domestic partnerships.

See Rachel La Corte, Wash. gay partnership foes turn in signatures, Fort Worth Star Telegram, July 25, 2009.

Details on Farrah's Will

Farrah Fawcett's will leaves her million-dollar estate to her son who is currently in prison for drug offenses.  The will instructs her executor to establish a trust with two trustees to make sure that the money is used to help her son recover from a life-long battle with drug addiction. 

See Caroline Graham, Farrah leaves her 3 million pound estate to drug shame son ... but there's nothing for long-term lover Ryan, Mail Online, July 27, 2009.

Will containing "Beat" Author's Estate Challenged 20 Years Later

The Sixth Circuit recently ruled that the will of the mother of Jack Kerouac, a Beat generation author, is fake, relying on the mother's lack of mental capacity to write a will and the fact that her signature appears to be forged.

Kerouac predeceased his mother and left his estate to her.  When his mother died in 1973, her will left the estate to Kerouac's third wife and not Kerouac's daughter. In 1994, Kerouac's family first challenged the will as a forgery.  All parties alive when the will was drafted are now dead.

Kerouac's estate should now pass to his surviving nephew.

See Christine Armario, Fla. judge rules will on Kerouac's estate a fake, AP, July 28, 2009. 

Special thanks to Raymond Sheffield (attorney, Sheffield Law Office, San Jose, CA) for bringing this article to my attention.

Hidcote Manor Garden Has a Colorful History

The famous Hidcote Gardens in England were created and owned by an American man named Lawrence Johnston.  At an elderly age and with a failing mind, he transferred the gardens to the country's National Trust.

The National Trust’s unofficial secretary, James Lees-Milne, recalls the tense moment of transfer in his diaries. In a downstairs room at Hidcote the “conspirators”, Sybil Colefax and himself, held their breath as Johnston held the pen poised and a shadow crossed his face. They felt unable to rely on Johnston’s failing memory and so they told him that the crucial document before him was one of lesser importance. He signed and the trust acquired its first garden.

Robin Lane Fox, A Living Legacy, Financial Times, July 24, 2009.

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

Maine Supreme Court Rules Lesbian Partner Adoption Valid

Maine's Supreme Court recently held that a woman's adoption of her lesbian partner is valid and thus, the adopted woman is family for inheritance purposes.  Adoption of Patricia S., 2009 ME 76 (Maine July 23, 2009).  The adoptee, Patricia Spado, was the partner of Olive Watson, the daughter of the late Thomas Watson, Jr., an IBM tycoon. 

The history of the case is as follows:

• In 1991, Olive Watson adopted her same-sex partner, Patricia Spado.  By doing so, Olive made Patricia her "child" so that she would be able to inherit from her upon Olive's death.
• In 2004, Olive's father's widow died triggering trusts which provide distributions to Olive's father's grandchildren.  Patricia, as an adopted grandchild, is claiming that she is entitled to a share of the trust.
• However, the relationship between Olive and Patricia is no longer harmonious and Olive's family is attempting to set aside the adoption by claiming that the proceeding was somehow fraudulent, e.g., that Patricia lied about her state of residence or that she deceived the court about the adoption by not telling the court about her sexual relationship with Olive.
• This case is receiving national attention because the family consists of the descendants of Thomas J. Watson, Sr., the founder of I.B.M.
• On April 24, 2008, a probate judge granted the family's request to annul the adoption on the residency issue.
• On appeal, the Maine Supreme Court ruled that residency is not an issue and that the adoption is valid.
• A Connecticut court will now have to determine if Spade is entitled to any inheritance.

Terry L. Turnipseed (associate professor, Syracuse University) offered the following commentary on the issue:

Yesterday, in a long-running inheritance dispute, the Maine Supreme Court ruled that an adult adoption of a same-sex partner was legitimate.  The dispute mostly surrounded a very large trust set up by one of the founders of IBM for the benefit of his descendants and whether the adoptee-lover of a descendant could gain a share of the trust (worth huge bucks).  The Court said she was indeed part of the trust beneficiary class.

This adoption was one of two case studies I used in my latest article to show why someone might wish to adopt one’s lover or spouse.  States go both ways in allowing the adoption of an adult lover or spouse.  Despite its liberal leanings, for example, New York State, by common law, currently does NOT allow adult adoption of lovers or spouses, though the cases have flip-flopped over time.  Most states do, however. 

If anyone is interested in knowing more about this quite fascinating subject, please feel free to download my article on SSRN.  The article looks at multiple angles on this story, including the distinct possibility that in about half of the states, the adoptor could be prosecuted for incest resulting in serious jail time (which has occurred on many occasions in many states in the past) and whether Lawrence now protects this behavior.

Terry Turnipseed's article is entitled Scalia's Ship of Revulsion has Sailed: Will Lawrence Protect Adults Who Adopt Lovers to Help Ensure their Inheritance from Incest Prosecution?, 32 Hamline J. Pub. L. & Pol'y 95 (2009).

See also AP, Maine Court Upholds IBM Heir's Adoption of Lesbian Lover, Fox News, July 23, 2009.

Another County Reports an Increase in Unclaimed Dead

I recently blogged about the increased annual rate of unclaimed dead in Los Angeles County here. 

Clarke County, Nevada, has reported a similar increase, citing a 22% jump in the number of residents unable to pay for their own burial. 

See Abigail Goldman, The afterlife of Clarke County's poor, Las Vegas Sun, July 24, 2009.

State Constitutions: An Argument Against the Abolition of Perpetuities Law

John V. Orth (professor of law, University of North Carolina) has recently published his article entitled Allowing Perpetuities in North Carolina, 31 Campbell L. Rev. 399 (2009). 

The first two paragraphs of the article are below:

As one state after another acts to make perpetual trusts possible, a little-noticed provision in some state constitutions forbidding “perpetuities” is receiving new attention. The first such provision--originally in North Carolina's 1776 Constitution and later copied by other states--is now the subject of litigation that will determine the constitutionality of the state's recent repeal of the Rule Against Perpetuities as applied to beneficial interests in trust. The case, Brown Brothers Harriman Trust Co. v. Benson, seems set to become a landmark that could be influential as other states with similar constitutional provisions respond to the demand for allowing perpetual trusts.

Perpetuities and monopolies are contrary to the genius of a free state and shall not be allowed.

South Africa Rules on Intestacy Rights in Polygamous Marriages

On July 15, 2009, the Constitutional Court of South Africa issued a landmark decision in the case Hassam v. Jacobs.  As summarized by the New York Times, the South African court held that "when a husband dies without a will in a polygamous Muslim marriage, each of his wives is guaranteed legal rights of inheritance."  Barry Bearak, In a Complex Family, Death Adds to the Indignity, NY Times, July 23, 2009.

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

CLE on Special Needs Trusts

The ABA Section of Real Property, Trust & Estate Law is sponsoring a teleconference and live audio webcast CLE entitled Top Ten Tips Every Estate Planner Needs to Know About Special Needs Trusts on August 4, 2009.

The following is a summary of the CLE.

Special Needs Trusts (SNTs) are an important planning tool for families that wish to secure the future of persons challenged by disabling conditions. If SNTs for such persons are not drafted and administered carefully, clients may not achieve the desired result of maintaining the crucial means-tested government benefits upon which they rely.

This session will explain the important differences between first-party and third-party SNTs so that the estate planner will know when each type should be used.

The presenters will also cover the most critical considerations in preparing and administering estate plans that benefit persons confronted with disabling conditions, including:

• The types of available distribution standards for SNTs
• Considerations in selecting an appropriate Trustee for an SNT
• How to prevent an SNT from disqualifying the beneficiary from eligibility for means-tested public benefits
• Practical comprehensive tips to implement an estate plan that includes an SNT, including coordination of beneficiary designations for non-probate assets
• Whether to use an inter vivos SNT or a testamentary SNT (or both)
• How to use an SNT for a spouse with a disability
• Drafting Powers of Attorney and Living Trusts to allow distributions for family members with a disability
• Advising a family on how to prepare a letter of intent for the Trustee of an SNT
• Coordinating sources of funding for an SNT
• Helping a parent with a disability establish a "sole benefit" trust for his or her child with special needs

Advising families on how to divide assets among "typical" children and those with special needs.

Norwegian Rapper Claims Jackson as Father

Omar Bhatti, a Norwegian rapper, is seeking a DNA test to prove that he is Michael Jackson's secret child.  Mr. Bhatti first met Jackson in 1996 at the age of 12 and soon after, Mr. Bhatti's mother became a nanny for Jackson's son Blanket.  Insiders say that Jackson did not meet Mr. Bhatti or his family until 1996, after Mr. Bhatti's birth.

See Ben Leach, Michael Jackson met "secret love child" in Tunisian hotel, Telegraph, July 23, 2009.

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

An Argument for Unconscionability as a Defense in Trust Law

David Horton (lecturer in residence, UC Berkeley) has recently published his article entitled Unconscionability in the Law of Trusts, 84 Notre Dame L. Rev. 1675 (2009). 

The abstract of the article is below:

This Article claims that trust law should recognize the unconscionability defense. It begins by noting the symmetry between trust and contract defenses and the growing consensus among courts and scholars that trusts are contracts. It sketches the leading rationales for why courts enforce promises between private actors: the theories that free exchange allows parties to maximize welfare and exercise free will. It then argues that neither concept justifies upholding a contractual term if informational defects prevent one party from observing that it sharply deviates from her ex ante desires. It asserts that the unconscionability doctrine strikes down contractual terms that suffer from precisely that defect.

The Article then explains how the unconscionability doctrine could serve the same purpose in trust law. It discusses why the policies underlying freedom of testation depart from those behind freedom of contract and provide less support for a laissez faire regime. It then challenges the unarticulated but intuitive notion that controls in the trust-creation process are sufficient to align an instrument's text with a settlor's intent. It reveals that corporate fiduciaries, trust mills, and a revitalized do-it-yourself movement have spawned “procedurally suspect” trusts: those created without attorney involvement and laden with complex terms. It then examines three common but controversial “substantively suspect” terms--exculpatory, no contest, and arbitration clauses--and shows how a trust-specific unconscionability doctrine would improve outcomes in cases.

Star Trek Creator Travels to Space After Death

Eugene Wesley Roddenberry, the creator of Star Trek, was cremated after his death in 1991.  Some of his remains were taken on the Space Shuttle Columbia, some were launched into orbit via a rocket, and some will be launched into space with the remains of his late wife.

See TruTV, Weirdest Wills.

Top SSRN Downloads

Here are the top downloads from May 26, 2009 to July 25, 2009 from the SSRN Journal of Wills, Trusts, & Estates Law for all papers announced in the last 60 days.

Rank	Downloads	Paper Title
1	99	Review of Federal Income Taxation of Estates and Beneficiaries Ronald H. Jensen, Pace University School of Law, Date posted to database: April 16, 2009 Last Revised: April 16, 2009
2	75	Estate Tax on Gift Tax: The Liability Conundrum Bridget J. Crawford, Jonathan G. Blattmachr, Pace University School of Law, Milbank, Tweed, Hadley & McCloy LLP, Date posted to database: June 8, 2009 Last Revised: June 12, 2009
3	44	Max's Taxes: A Tax-Based Analysis of Pet Trusts Gerry W. Beyer, Jonathan P. Wilkerson, Texas Tech University School of Law, Author - affiliation not provided to SSRN, Date posted to database: May 23, 2009 Last Revised: May 23, 2009
4	43	On Estate Tax Repeal and Charitable Bequests David Joulfaian, U.S. Department of the Treasury, Date posted to database: June 5, 2009 Last Revised: June 27, 2009
5	35	No Bonds but Those Freely Chosen: An Obituary for the Principle of Forced Heirship in American Law Vincent D. Rougeau, Notre Dame Law School , Date posted to database: April 29, 2009 Last Revised: April 29, 2009
6	31	Negron: Circuits Now Split 2-2 Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: May 21, 2009 Last Revised: May 21, 2009
7	24	The Communicationally Challenged Testator Gerry W. Beyer, Texas Tech University School of Law, Date posted to database: June 5, 2009 Last Revised: June 5, 2009
8	14	Time Traveling to Strangle Strangi (and Kill the Monster Again), Part 2 Richard L. Dees, McDermott, Will & Emery - Chicago Office, Date posted to database: May 27, 2009 Last Revised: May 27, 2009

Preserving the Integrity of Land Trusts

Erin B. Gisler (J.D. candidate, Santa Clara University School of Law, 2009) has recently published her comment entitled Land Trusts in the Twenty-First Century: How Tax Abuse and Corporate Governance Threaten the Integrity of Charitable Land Preservation, 49 Santa Clara L. Rev. 1123 (2009).

The introduction to the article is below:

Paralleling dramatic population growth and sprawl, land trust growth gained momentum in the 1980s with the passage of the Uniform Conservation Easement Act, as well as a new tax provision that allowed for an income tax deduction for a charitable contribution of land. The conservation movement also encouraged the passage of additional tax incentives in the twenty-first century. However, as with any kind of financially motivating laws, abuse is inevitable. Particularly with the fair market valuations that must occur when a donor contributes land, appraisals hinder the conservation process by enabling self-interested landowners to attain an inaccurately high land value estimate so as to deduct more income taxes. Today, land trusts' goodwill suffer from transacting with landowners who attain dishonest appraisals. The reputations of land trusts have also been tarnished by the unethical practices of The Nature Conservancy, one specific land trust that has drawn the negative attention of journalists and Congress.

This comment explores the pivotal role of land trusts in the conservation boom and in upholding the integrity of land conservation. Part II provides a background of land trusts and their functions; it also reviews how land conservation and land trusts became popular as a result of statutory changes in federal tax law, and how such popularity has encouraged even more pro-conservation legislation.  Part III presents one of the major threats to the conservation movement: tax abuse.  Part IV analyzes this problem from the viewpoint of individual landowners seeking hefty income tax deductions and discusses how land trusts, and The Nature Conservancy in particular, can lose sight of their missions to conserve by engaging in unethical, profit-motivated behavior. Part V's proposal suggests a number of methods all parties involved in land conservation can implement to adhere to ethical and responsible standards.

More Unclaimed Dead

A recent LA Times article discusses the increased cremation rates by the LA county coroner and morgue, stating that "[t]he poor economy is taking a toll even on the dead, with an increasing number of bodies in Los Angeles County going unclaimed by families who cannot afford to bury or cremate their loved ones."  Molly Hennessy-Fiske, More bodies go unclaimed as families can't afford funeral costs, LA Times, July 21, 2009.