Wills, Trusts & Estates Prof Blog

Pauly Shore Files Lawsuit Against Brother Over Family Comedy Store

Actor and Comedian Pauly Shore recently filed a lawsuit asking that he be reinstated as a member of the board that oversees his family's comedy club and that his brother Peter turn over the club's financial records.  

Mitzi Shore, Pauly and Peter's mother, ran the Comedy Store, a comedy club in L.A., for many decades.  She now suffers from Parkinson's disease, and Pauly suspects that Peter is exerting undue influence over her.  

The comedy store scouted out the talents of many famous comedians, including Robin Williams, Jim Carrey, Carlos Mencia. 

See John Weinbach, Comedy Store family dispute is no laughing matter, LA Times, Dec. 15, 2009.

The Uniform Power of Attorney Act in Virginia

Andrew H. Hook (partner, Oast & Hook) & Lisa V. Johnson (attorney, Oast & Hook) recently published their essay entitled The Virginia Uniform Power of Attorney Act, 44 U. Rich. L. Rev. 107 (2009).  

The laws related to Durable Powers of Attorney (“DPAs”) have largely evolved from the common law of agency and are steadily moving toward a statutory framework. The statutory law is moving from relatively short statutes amending the common law of agency to a comprehensive framework supplemented by the common law.  The driving force behind this trend is the desire for increased acceptance and use of DPAs. However, DPAs are still relatively new legal tools. Case law and statutes regarding their interpretation and construction continue to develop and vary from state to state. 

The Uniform Power of Attorney Act (“UPOAA”) was promulgated in 2006 by the National Conference of Commissioners on Uniform State Laws (“NCCUSL”) in an attempt to bring uniformity to this area of the law, which is rapidly emerging as a significant, if not vital, estate planning tool. A UPOAA bill was introduced into the Virginia General Assembly in January 2009 and passed with a provision that requires the UPOAA to be reenacted in the 2010 Session in order to become effective. The authors recommend that the General Assembly re-enact the UPOAA in the 2010 Session with the amendments suggested in this article.

CLE to Discuss the Consequences of the Federal Estate Tax Repeal

The ABA Section of Real Property, Trust & Estate Law is sponsoring a teleconference and live audio webcast CLE entitled What Hath Congress Wrought? Dealing with Estate Tax Repeal, Carryover Basis and Other Potential Complications of Congressional Inaction on Jan. 21, 2010. 

A summary of the program is below:

When EGTRRA passed in 2001, no one anticipated that the temporary estate tax repeal and elimination of stepped-up basis scheduled for 2010 would occur without some permanent resolution. When the clock struck midnight on December 31, 2009, the unthinkable happened. Democratic leaders in Congress have indicated they plan to reinstate the estate tax at 2009 levels, retroactive to January 1. What will actually happen and when is unknown.

During this program our panel will discuss: 

• The complications this creates; 
• The planning possibilities created by this situation;
• Things to consider when advising clients.

Blog Reception at AALS Annual Meeting

Are you attending the AALS Annual Meeting in New Orleans?

If so, I would like to invite you to an informal reception on Friday, January 8, 2010 immediately following the Gala Reception.

I would enjoy visiting with my readers and contributors to see how you and your students use the blog and receive any input you would be willing to share.

If you are interesting in attending, please RSVP at your earliest convenience.

Note that I will find a a suitable location in the hotel (or nearby) and will post it once I arrive at the meeting.

End of Life Decision Could Include Terminal Sedation

The New York Times recently featured a fascinating article on terminal sedation:  

• Terminal sedation is a form of palliative care where very ill, near-death patients are given sedative drugs so that the patient's final days are spent sedated and free of pain or discomfort.  
• Some argue that terminal sedation hastens death and is thus a form of slow euthanasia.
• According to the article, terminal sedation is "widely used," although doctors agree that it should not become a routine procedure.

For more information on the challenges presented by terminal sedation, including ethical, guideline, and family decision issues, see Anemona Hartocollis, Hard Choice for a Comfortable Death: Sedation, NY Times, Dec. 26, 2009.

TV Pilot of "The Will" Airs on Investigation Discovery

Earlier this month the pilot episode of a new TV series called "The Will: Family Secrets Revealed" aired on Investigation Discovery.  The show documents interesting and entertaining family disputes over the estate of a deceased loved one, which should satisfy the American appetite for high-profile drama and reality TV.  If nothing else, the show will hopefully encourage viewers to get their affairs in order to avoid similar problems.

The full series should begin airing in July.  Those who missed the pilot episode may want to check the Investigation Discovery listings because cable networks often re-air programs multiple times. 

For more information, see New York Post, Out of the will, Dec. 18, 2009. 

California Court Holds that Settlor Incapacity Removal Requires Doctor to Review Incapacity Letters

In Rands v. Rands, 178 Cal. App. 4th 907 (App. Ct. 2009), the trust provided that settlor’s incapacity could be established by the certification of two physicians, and the revocation of such certification could be accomplished by the certification of two other doctors that the settlor was no longer incapacitated. The court held that the letters revoking the certification of incapacity were not sufficient when the physicians certifying the settlor was no longer incapacitated had not seen or read the earlier letters certifying incapacity, since the later doctors had to acknowledge a change in recovery of capacity.

Special thanks to Martin Beglieter (professor of law, Drake University) for providing this information.

Virginia Wills, Trusts, and Estates Update

J. Rodney Johnson (professor of law, University of Richmond) has recently published his article Wills, Trusts, and Estates, 44 U. Rich. L. Rev. 631 (2009).

The introduction to the article is below: 

The 2009 Session of the General Assembly enacted wills, trusts, and estates legislation (1) preventing, in cases where persons die after June 30, 2009, application of a regrettable 2008 Supreme Court of Virginia decision dealing with the rights of illegitimate heirs in intestate succession, and (2) amending Virginia's version of the Uniform Principal and Income Act to provide for taxpayer benefit and clarity in matters relating to total return unitrusts, the marital deduction, and the income taxation of trusts. In addition, there were several other enactments along with four opinions from the Supreme Court of Virginia during the one-year period ending June 1, 2009 that presented issues of interest in this area. This article reports on all of these legislative and judicial developments, and it concludes with a call to the 2010 General Assembly to repeal the one-year statute of limitations applicable to paternity claims of illegitimate persons in succession matters.

A Different Perspective on the 2010 Estate Tax Repeal

The following regarding the federal estate tax is taken from a New York Times editorial entitled An Estate Tax Mess, at A26, Dec. 27, 2009:

[U]nder today’s law, when heirs sell inherited property, no capital gains tax is due on the increase in value that occurred during the lifetime of the original owner. 

But when the estate tax is repealed in 2010, the capital gains tax will kick in once the gains in an estate exceed $1.3 million. There’s an extra $3 million exemption for assets left to a spouse. 

The bottom line is this: there will be many more losers than winners under estate-tax repeal, and the losers will be among Americans who are farther down the wealth ladder.

Should Trust Law's "Make-Whole" Relief Be Available Under ERISA § 502(A)(3)?

Susan Harthill (associate professor of law, Florida Coastal School of Law) has published her article entitled A Square Peg in a Round Hole: Whether Traditional Trust Law "Make-Whole" Relief is Available Under ERISA Section 502(A)(3), 61 Okla. L. Rev. 721 (2009).  

The following is taken from the introduction to the article:

In June 2008, the Supreme Court denied a petition for writ of certiorari in the case of Amschwand v. Spherion Corp. Amschwand involved a recurring remedial issue under ERISA-whether a participant or beneficiary in an employee welfare benefit plan is entitled to individualized monetary relief for losses caused by a fiduciary breach. The controversy stems from ERISA's detailed remedial scheme, which requires participants and beneficiaries to squeeze their request for relief into one of the statutorily defined categories. Participants and beneficiaries like the plaintiff in Amschwand are relegated to obtaining only “appropriate equitable relief” under ERISA section 502(a)(3), which the Supreme Court has interpreted so narrowly as to effectively preclude relief in many instances where a fiduciary breach has clearly caused a loss.  . . . 

Part I provides an overview of the Amschwand case, which frames the litigation posture in this sub-set of breach of duty to inform cases. Part II reviews the pertinent provisions of ERISA's regulatory scheme. Part III summarizes the major Supreme Court decisions that forced ERISA commentators and litigants into the pre-fusion trust world and examines how make-whole relief fits into this emerging jurisprudence. Parts IV and V line up the arguments for and against the availability of make-whole relief under ERISA section 502(a)(3) and analyze the viability of these competing views by digging more deeply into traditional trust law using the only tools available, the major trust law treatises and pre-fusion trust law cases that addressed individualized remedies for analogous fiduciary breaches. The Article first concludes that equity courts recognized two types of make-whole relief, one of which contemplated recovery to the trust and is echoed in ERISA section 502(a)(2) and one which contemplated recovery to the aggrieved beneficiary and is echoed in ERISA section 502(a)(3). The Article also concludes with the argument that make-whole relief's required harm to the trust corpus is irrelevant. The traditional trust law corpus finds its analogue in the present day employee welfare benefit plan context in the promised benefit, such as Mr. Amschwand's life insurance proceeds. Thus, to the extent that harm to the corpus is required, such harm exists in the loss or depreciation of the benefit. And, in any event, make-whole relief in the traditional trust law context was available even where there was no trust corpus, usually because it had ceased to exist, or there was no harm to the trust corpus itself. 

This Article concludes, therefore, that make-whole relief was an equitable remedy available to individual beneficiaries to redress breaches of fiduciary duty, even in the absence of harm to the trust corpus. Under the Supreme Court's precedents, such relief should be available to Mrs. Amschwand. 

New Edition of Texas Elder Law Released

Molly Dear Abshire, H. Clyde Farrell, Patricia Flora Sitchler, and Wesley E. Wright have recently published the 2009-2010 edition of their treatise, Texas Elder Law (Vol. 51, Texas Practice Series).

Here is the publisher's description of this book:

This book provides an up-to-date, comprehensive resource for Texas elder law practice. Authored by well-known elder law practitioners in Texas, it covers the common issues facing elderly clients, providing explanations of the foundational law and practical guidance and illustrations for addressing those issues, such as Medicaid planning, Social Security and retirement plans, advance directives, Medicare, Medigap insurance, health insurance, long-term care insurance, housing options, and prevention of abuse and neglect.

Boxer Arturo Gatti Leaves Behind Questions, Money, and Two Wills

The controversy surrounding the recent death of retired boxer Arturo Gatti was recently covered by the New York Times:

• Gatt was reportedly strangled with the strap of a purse belonging to his wife.
• Initially, Brazilian authorities accused Gatti's wife of murder after an evening of heavy drinking, but they later ruled the death a suicide.
• Gatti's family is pursuing additional investigations into Gatti's death.
• Additionally, Gatti's two contradictory wills are likely to cause dispute over Gatti's millions in winnings.

See Carlo Ratella, Arturo Gatti: On the Ropes, NY Times, Dec. 23, 2009.

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

D.C. AG Argues Anti-Gay-Marriage Initiative Would Violate Human Rights Act

A group in the District of Columbia sued after the D.C. Board of Elections and Ethics denied a ballot measure that would invalidate a bill allowing same-sex marriage in the district.  The Board found that the ballot measure would discriminate against homosexuals and thus violate the D.C. human rights act.

The D.C. Attorney General's office has now asked the court hearing the lawsuit to dismiss the case, arguing that "the Human Rights Act trumped the right to propose initiatives" and "that the D.C. Code outright bans initiatives that would 'authorize discrimination.'"  Jordan Weissmann, D.C. Pushes to Dismiss Suit Over Gay Marriage Initiative, Blog of Legal Times, Dec. 21, 2009. 

Descendent Seeks Art Nationalized During the Communist Revolution

The great-grandson of a man whose property was nationalized during the Communist Revolution in the former Soviet Union is seeking the return of some of that property.  Specifically, the grandson seeks ownership of a Vincent Van Gogh painting entitled The Night Cafe, which was bequested to Yale University nearly 50 years ago.   

Yale University attorneys have sued in federal court to assert Yale's ownership rights, arguing that "[i]nvalidating title to the painting would set U.S. courts at odds with the Russian government and cloud title to . . . at least $20 billion of art in global commerce."  

See John Christofferson, Yale: Suit over Van Gogh work imperils other art, Sacramento Bee, Dec. 26, 2009.

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

Estate Tax Receives "Lump of Coal" Award

Howard Gleckman has included the estate tax on his top ten list entitled Tax Vox’s Lump of Coal Award: The Worst Tax Ideas of 2009.

Here is what he has to say:

The Estate Tax. Now you see it. Now you don’t. Wait, there it is again. So what if nobody has any idea how to do estate planning anymore. On the other hand, Congress has had only eight years to fix this mess.

Trusts & Estates (as well as Elder Law) Deemed Hot Areas of Practice

According to Robert Denney’s report on What's Hot and What's Not in the Legal Profession, Trusts & Estates and Elder Law are among the "hot" areas of practice.

Special thanks to Paul Caron (Associate Dean of Faculty Charles Hartsock Professor of Law Univ. of Cincinnati College of Law and editor of the Tax Prof Blog) for bringing this report to my attention.

Blog Reception at AALS Annual Meeting

Are you attending the AALS Annual Meeting in New Orleans?

If so, I would like to invite you to an informal reception on Friday, January 8, 2010 immediately following the Gala Reception.

I would enjoy visiting with my readers and contributors to see how you and your students use the blog and receive any input you would be willing to share.

If you are interesting in attending, please RSVP at your earliest convenience.

Note that I will find a a suitable location in the hotel (or nearby) and will post it once I arrive at the meeting.

Top SSRN Downloads

Here are the top downloads from October 27, 2009 to December 26, 2009 from the SSRN Journal of Wills, Trusts, & Estates Law for all papers announced in the last 60 days.

Rank	Downloads	Paper Title
1	461	2009 Federal Tax Update Samuel A. Donaldson, University of Washington - School of Law, Date posted to database: October 13, 2009 Last Revised: October 13, 2009
2	116	Linton Family LLC and the Step Transaction Doctrine Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: December 2, 2009 Last Revised: December 1, 2009
3	88	A Beneficiary as Trust Owner: Decoding Section 678 Jonathan G. Blattmachr, Mitchell Gans, Alvina H. Lo, Milbank, Tweed, Hadley & McCloy LLP, Hofstra University - School of Law, Credit Suisse Private Banking, Date posted to database: November 25, 2009 Last Revised: November 26, 2009
4	87	Family Deferred Payment Sales: Installment Sales, SCINs, Private Annuity Sales, OID and Other Enigmas Elliott Manning, Jerome M. Hesch, University of Miami - School of Law, Greenberg Traurig, LLP, Date posted to database: November 10, 2009 Last Revised: November 10, 2009
5	83	Preventive Adjudication Samuel Bray, Columbia Law School, Date posted to database: October 8, 2009 Last Revised: October 15, 2009
6	73	Revisiting Dickman: Are Loans of Tangible Property Gifts? Joseph M. Dodge, Florida State University College of Law, Date posted to database: November 26, 2009 Last Revised: November 26, 2009
7	60	Policing the Good Guys: Regulation of the Charitable Sector Through a Federal Charity Oversight Board Terri Lynn Helge, Texas Wesleyan University School of Law, Date posted to database: November 24, 2009 Last Revised: December 6, 2009
8	51	Tax Court Fumbles Substance-Over-Form Ball in Estate of Brown Paul L. Caron, University of Cincinnati - College of Law, Date posted to database: November 4, 2009 Last Revised: November 7, 2009
9	51	U.S. Supreme Court Amicus Brief of Law Professors in Support of Respondents, Conkright v. Frommert, No. 08-810 Paul M. Secunda, Marquette University - Law School, Date posted to database: November 25, 2009 Last Revised: November 25, 2009
10	50	Tax-Motivated Income-Shifting and the Kiddie Tax Samuel D. Brunson, Loyola University of Chicago - School of Law - Faculty, Date posted to database: November 7, 2009 Last Revised: November 10, 2009

Assisted Suicide and Inheritance in Wisconsin

Matthew Berry Reisig (J.D. Candidate, May 2010, American University, Washington College of Law) has published his comment entitled O To A, For Helping Kill O: Wisconsin's Decision not to Bar Inheritance to Individuals who Assist a Decedent in Suicide, 17 Am. U. J. Gender Soc. Pol'y & L. 785 (2009).

The introduction to the article is below:

It has been a long-standing, fundamental maxim of common law that no one shall be permitted to profit by his own fraud, take advantage of his own wrong or to acquire property by his own crime. Like other states, Wisconsin has used this “slayer rule” to disqualify an individual's inheritance rights when he kills the decedent. States have used the slayer rule and subsequently enacted slayer statutes to deter crime and prevent unjust enrichment. 

Nearly every state legislature has codified the common law principle into a slayer statute and has agreed that a prospective beneficiary who murders the benefactor may not collect his inheritance. State courts, however, have inconsistently applied their slayer statutes to crimes other than murder. Most recently, the Wisconsin Court of Appeals did not apply its slayer statute to the offense of assisted suicide in the case of In re Estate of Schunk. 

This Comment argues that Wisconsin should not allow an individual who commits assisted suicide to inherit from a benefactor whose death resulted from the assistance.  Part II examines the historical development of Wisconsin's slayer statute and the State's ban on assisted suicide. Additionally, Part II of this Comment explores canons of statutory interpretation, explains the principles of causation in Wisconsin's criminal code, and discusses the facts and decision in the Schunk case. Part III argues that the Wisconsin Court of Appeals erred in Schunk because its decision frustrated the purpose of the slayer rule by allowing individuals who commit assisted suicide to inherit. Part IV offers policy arguments in support of disqualifying individuals who help others commit suicide from inheriting property of the decedent. Finally, Part V of this Comment concludes that by barring inheritance to individuals who have committed assisted suicide, Wisconsin courts would be consistently applying the State's slayer statute while simultaneously respecting the State's criminal prohibition of assisted suicide. 

'Gender Dimensions of Inheritance'

Daphna Hacker (assistant professor, Tel-Aviv University) recently posted on SSRN an article entitled The Gender Dimensions of Inheritance: Empirical Food for Legal Thought, J. of Empirical Legal Studies (forthcoming, Vol. 7, No. 2, 2010). 

The following is an abstract of the article: 

Inheritance is an extremely significant personal, familial, social, and legal phenomenon. Due to the significance of inheritance in wealth distribution and family relations, it is essential to uncover and discuss its gendered dimensions, which have surprisingly benefitted from little empirical or legal attention. 

This Article provides an updated state-of-the-art review of the limited available empirical data on women as legators and on women as heirs in different parts of the world. 

The review is based on 23 studies, including the original results from a study the author conducted on inheritance in Israel, which illuminates the reach insights that can be drown from an inheritance study that focuses on gender. 

The review shows a sharp dichotomy between the ongoing discrimination women experience in non-Western societies in relation to inheritance and the social reality in the West in which inheritance is a rare economic space in which women enjoy privilege, power, and control. Although egalitarian inheritance laws have had a dramatic impact on women's representation in intestacy and their participation in will-writing in the West, the data demonstrate that even in this part of the world, cultural patriarchal practices persist and limit women's inheritance rights and, accordingly, point to the importance of creating legal mechanisms that can counterbalance these practices. Moreover, the available data indicate the value of freedom of testation for women and the importance of ceasing to regard care as cause for suspicion in inheritance law, and instead viewing it as a practice deserving of reward. 

Finally, the Article identifies the areas in which further research on gender and inheritance is warranted, hopefully spurring greater interest and developments in the field.