Wills, Trusts & Estates Prof Blog

Trust Officer in Jail for Estate Fraud

Ned Ephraim Frohlich, a former senior trust officer with the Office of the Public Trustee (OPT) in Edmonton, has just been put in jail for stealing over $120,000 in estate fraud. 

In 1995, Frohlich was assigned to handle William Vincent Thompson's estate.  In late 1996, he began submitting fabricated documentation alleging that he found a nephew of the deceased that was the sole beneficiary of the estate. He also forged all the necessary identification documents to substantiate the identity he created. With the help of the forged identification, Frohlich arranged for several checks to be made out to the nephew and signed the checks. 

Frohlich's defense lawyer told the court that Frohlich was depressed at the time he committed this fraud and he spent the stolen money betting on horse races due to his gambling addiction. Frohlich apologized in court to his family and the OPT.

See Tony Blais, Former Trust Officer Jailed for $120,000 Estate Fraud, Edmonton Sun, Mar. 2, 2013. 

Lawyer Wants to Withdraw Guilty Plea of Illegally Obtaining Money From Terminally Ill Patients

I previously blogged about how Joseph Caramadre pleaded guilty to illegally obtaining millions of dollars by using the identities of terminally ill patients.  Now, Joseph wants to change his plea, claiming that he was under duress at the time. On Thursday, Joseph's attorney filed a motion to withdraw the mid-trial plea. His lawyer argues that Joseph only pleaded guilty because his wife was suffering from severe depression and was under pressure from his previous attorneys. 

See RI Estate Lawyer Wants Death Fraud Plea Tossed, LDNews, Mar. 1, 2013. 

Trial Court Did Not Abuse Its Discretion When It Ordered Production of Trust Documents

Testatrix died with a will leaving her entire estate to the trustee of her inter vivos trust.  Seven years later, a dispute arose regarding the validity of the will and thus the passage of the estate under the trust.  Distant intestate heirs (first cousins, twice removed) were successful in getting the trial court judge to order the production of the trust instrument.  Executor sought a writ of mandamus asserting that the contestants lacked standing.

In in re Paschall, the Waco Court of Appeals denied the writ.  The court explained that the contestants have a contingent pecuniary interest in the estate, that is, if they are successful in setting aside the will and proving they are the intestate heirs, they would be entitled to the property that is now being held in Testatrix’s trust.  Accordingly, they have standing to seek discovery of the trust instrument.

Moral:  An inter vivos trust may not be as private as believed as even remote claims to the trust property may result in the trust instrument being discoverable. 

See Trial Court Did Not Abuse It's Discretion in Ordering Production of Trust Documents, Texas Probate Litigation Blog, Feb. 27, 2013.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

Article on Mineral Rights in Community Property States

Bryan Mackay (Business Manager, EPJ Vol. 5, J.D. Candidate, 2013) recently published an article entitled, Marriage and Minerals in Texas: Confronting the Community Property Presumption and Potential Improvements in California, 5 Est. Plan. & Community Prop. L.J. 195. Provided below is the introduction:

In Texas, widespread mineral interest ownership has created a complex body of law that presents owners with difficulties in proving ownership.

Texas recognized mineral interests early-not only in the state's constitution but also by various judicial decisions.Courts have held that the severed mineral estate contains five “essential attributes” that the owner has full authority to sever and convey as the owner sees fit. These interests are as follows:

(1) the right to develop (the right of ingress and egress), (2) the right to lease (the executive right), (3) the right to receive bonus payments [(a onetime payment in consideration for signing a lease)], (4) the right to receive delay rentals [(payments by the lessee for delays in drilling a well)], and (5) the right to receive royalty payments.

Difficulties arise when this “bundle of sticks” contained within the mineral estate becomes vested in different owners, which can happen when the surface estate owner reserves the interest by retaining the minerals or grants the interest by signing a lease for a lessee to develop the minerals.

As demand and prices have increased, Texas has experienced a boom in oil and gas production. The demand for mineral rights from oil and gas exploration companies and royalty clearinghouses has led to increasing pressure on families and estates to sell or transfer their rights as a viable means to wise estate planning choices. Consequently, estate planning attorneys should understand some of the basics of the mineral estate and some of the long-term implications marriage can have on these unique interests. Texas, as a community property state, presents the unique situation of a large number of married individuals owning interests in minerals such as oil and gas, which results in complex methods for classifying those interests. This leads to highly controversial disputes and begs the question: When dealing with the adjudication of these property rights between spouses, is there an easier way of classifying them or a solution that fixes some of the issues the community property system; creates for examining title? Thus, the discussion of statutes and presumptions seeks to simplify many of the issues that title and estate planning attorneys often confront.

Mineral interests are treated the same as all other marital property in Texas, and courts subject these interests to the same presumptions found in the Texas Family Code. The Texas Legislature has classified a spouse's separate property during marriage as follows: (1) property owned by either spouse prior to the marriage; (2) any property obtained by gift, devise, or descent; and (3) personal injury rewards (excluding money) received for loss of earning capacity. Texas, historically rich in oil and gas, has produced many judicial decisions regarding the classification of marital property in minerals since petroleum first became a precious commodity. However, to gain a grasp of how Texas courts treat mineral interests in the context of marital property, one must first have a working knowledge of the basic rights of a mineral owner and the legal effects of multiple conveyances over time. Professor Kramer remarks, “One of the universal objectives of real property conveyancing rules is that courts will attempt to reach results which ensure title certainty. But at times, courts in Texas and Oklahoma pay little heed to this objective.” This opinion could relate not only to conveyances, as Professor Kramer discusses, but also to current judicial trends in marital property cases that stem from basic misunderstandings of the severable rights contained within the mineral estate.

The following is a straightforward analysis of current law that practitioners need to know and recommendations on potential improvements. Part II of this comment expands on the background of Texas as a community property state and provides an outline of the analysis required to determine marital property rights. Part III surveys the treatment of mineral interests under the analytical framework used to determine marital property rights and explains judicial trends of Texas courts characterizing marital property over time. Part IV uses the Texas Supreme Court case Pearson v. Fillingim to illustrate the problems caused by the community property presumption in Texas and offers potential improvements based on the burden of proof in California.

Part V briefly concludes this comment with a recap of the community property distinctions between Texas and California and stresses the importance of applying an equitable burden of proof in disputes over the characterization of mineral and royalty interests.

New Management for Tupac's Estate

Last month, Tupac Shakur's mother agreed to have Jeff Jampol's Jampol Artist Management oversee her son's estate.  Tom Whalley will work on music projects and attorney Peter Paterno will handle legal matters. Jampol will be exploring new ways to bring Shakur to the new generation of audiences.  He doesn't envision a hologram tour--instead he is thinking something more along the lines of the Pink Floyd laser shows. Since the estate has already licensed out many of its key rights and released most of the music the rapper left behind, Jampol is aiming to create fresh sources of cash for the estate. 

Right after his death, Tupac was known for advocating thug life, but in recent years, his image has evolved and the focus is now on his intellectual and activist activities during his life. Jampol hints that this will play a role in his estate's future moves.

See Zack O'Malley Greenburg, Tupac Has New Management, But Don't Expect a Hologram Tour, Forbes, Mar. 1, 2013.                                                                                                                               

Article on Establishing a Parent-Child Relationship in Texas

Chelsi Honeycutt (2013 J.D. Candidate, Texas Tech School of Law) recently published her article entitled Careful Cutting Too Many Ties: Issues with Establishing a Parent-Child Relationship Via Adult Adoption in Texas and a Potential Solution, 5 Est. Plan. & Community Prop. L.J. 171 (2012).  The introduction the the article is below:  

Country singer and songwriter Chris Young sang about his stepdad in a song released in 2006 titled “He's My Dad.”

I'm 6'4”, he's 5'10”, still I look up to him, like I did when I was just a kid.

When I'd strike out in little league, he'd sit with mom, and cheer for me.

And he's been there for me ever since.

He's more than my stepdad, he's my Dad.

. . . .

He taught me what it means to be a man, follow my heart and take a stand.

Cuz of who he is I know who I am today.

I'm his son, cuz he's the one that makes us family now.

Though we come from different worlds, love makes it work somehow.

We don't share the same last name don't look anything alike.

 

Through the good times, and the bad, he's more than my stepdad,

He's my Dad.

Let us pretend for a moment that Chris is twenty. His mother and stepfather are happily married, and his entire family lives in Texas. Chris has done a lot of thinking before leaving his hometown to attend college next fall. He and his stepfather are very close, and his stepfather is the closest thing to a father Chris has ever known. He wants his stepfather to adopt him-he wants to be his stepfather's legal son-so Chris hires an attorney. The attorney puts together the paperwork, which includes a petition for Chris's stepfather to adopt him, signed and consented to by Chris. The judge signs off and it is official: Chris has a new last name. Chris is now his stepfather's legal son.

This story is sweet. This story is not uncommon. This story, unfortunately, has an unexpected ending for Chris. Why? Although this adult adoption process has legalized the relationship he had with his stepfather, under Texas law, Chris has likely severed all legal ties to his biological mother.

This comment seeks to educate the Texas legal community on the 2005 amendment to section 162.507(c) of the TexasFamily Code (Family Code) and section 40 of the Texas Probate Code (Probate Code) affecting the inheritance rights ofadopted adults in Texas. Part I explores adult adoption as a whole, including its regulation and growing popularity across the country. Part II looks at the technicalities of adult adoption in Texas, both pre- and post-2005 amendment. Part III considers potential legislative intent behind the amendment and the unintended impact on the more typical adult adoption scenario. Moving forward, Part IV covers the 2005 amendment from a practitioner's perspective. Part V suggests a potential solution to the problem by examining solutions from other states and includes a proposed revision to section 162.507(c) of the Family Code.

Primarily, this article's purpose is to draw attention to the complex issue of adult adoption as a means of preventing inheritance issues for families attempting to solidify a parent-child relationship between a stepparent and stepchild. The author's efforts serve to motivate the legislature to make a minor tweak that could resolve the problem entirely.

More on Stephen Seddon Murder Trial

As I have previously discussed, Stephen 'Nic' Seddon has been accused on murdering his parents to obtain his £230,000 inheritance. Now, the court has heard testimony from a family behavioral manager that met with Mr. Seddon to discuss his son's disruptive behavior. At the meeting, the manager told the court that Mr. Seddon told him that he was planning to use "a large inheritance to help his son." In particular, the manager said that "'[h]e said he was due to come into some money and he'd be able to sort (his son) out. Later on he said the money was due to come from an inheritance, that it was a lot of money and that he would use it to reward (his son) if he behaved at school."

See MEN Syndication, Murder Accused 'Boasted' of Large Inheritance Before Parents' Killing, Sunderland Echo, Feb. 28, 2013.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) and Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

New CLE on Gun Trusts

ABA Section of Solo, Small Firm and General Practice will sponsor a 1.5 hour live webinar and teleconference entitled, Gun Trusts and the Art of Protecting Your Client's Firearms for Future Generations on March 19, 2013 from 1:00-2:30 PM EST. Provided below is a description of the event:

Gun Trust Lawyer® David Goldman will discuss the history of firearms regulation, federal and state firearm policy and control, potential changes to firearm regulation, and how the Multigenerational Gun Trust can help assist your clients with protecting their right to bear arms under the 2nd amendment. The presentation will also encompass an overview of enacted gun laws, how they affect your current rights and options, and how Multigenerational Gun Trust helps solve some of the issues that may arise. Lastly, Mr. Goldman will discuss ethical and malpractice issues one should always consider when dealing with firearms.

Administration Urges Supreme Court to End Gay Marriage Ban In California

While the government is not a party in the case pending before the Supreme Court of the United States that involves the constitutionality of Proposition 8 in California, the administration has stated that they will provide support for the broad claim of marriage equality. As a result of lobbying from both the counsel who filed the challenge and gay rights groups, the Obama Administration stated that it will file a brief on this issue in Hollingsworth v. Perry. It is expected to file the brief by Thursday.

The administration has yet to give its opinion on this broader issue. The administration has already filed its brief in Windsor v. United States, but that case presents a narrower issue. In Windsor, the court has been asked whether the federal government may discriminate against same-sex couples even if they are legally married in states where same-sex is allowed. In its Windsor brief, "the administration argues that the factors that led courts to require heightened scrutiny for laws concerning gender and illegitimacy should also require if for those addressing sexual orientation."

See Adam Liptak, U.S. to Urge Justices to End California Gay Marriage Ban, New York Times, Feb. 28, 2013.

Article on Liquid Cremation

Kent Hansen (Comment Editor, EPJ Vol. 5, Candidate for a J.D. and M.S. in Financial Planning, 2013) recently published an article entitled, Choosing To Be Flushed Away: A National Background on Alkaline Hydrolysis and What Texas Should Know About Regulating “Liquid Cremation”, 5 Est. Plan. & Community Prop. L.J. 145.

Respect for the dead is part of an unwritten standard of morality, but just how far does that respect go? In an increasingly urbanized world in which the value of land constantly rises, does digging up and consolidating graves cross the line as disrespectful? What about offering rooms in a corpse hotel where guests can wait for their turn at the crematory? Where does that rank? And what about new mechanical disposal methods? Are they too cold or ghoulish to be a respectful means of sending off our family; members and loved ones? Regardless of your answers to these questions, it is well-defined that after thousands of years of human existence, two methods predominate as the accepted methods for disposing of human corpses: burial and cremation. But must it always be that way?

Recently in Great Britain, corpses buried more than a century ago are being dug up and transferred into double-decker graves to make room for new occupants in otherwise full cemeteries. Legislation there allows for the consolidation of graves under special permits and subject to certain regulations. While the thought of exhuming corpses to create more burial space may sound disrespectful to some, the underlying issue is that land is a limited commodity.In reality, if every human being who ever lived on this earth were given his or her own burial plot, at some point the dead would crowd the living right off the earth.

Meanwhile, Japanese entrepreneurs are resorting to innovative tactics to deal with growing crematory queues, which result from Japan's aging population and increasing death rate. The Japanese funeral industry has not been able to meet the demand on the nation's crematories. As a result, one man opened a corpse hotel in Tokyo where up to eighteen deceased guests can wait in refrigerated coffins for their turn at the crematory. Although an innovative solution to the shortage of crematories in urban Japan, this hotel can hardly be the best solution the funeral industry can create.An alternative to consolidated graves and hotels for the dead exists: alkaline hydrolysis, the environmentally friendly alternative for corpse disposal.

Is it surprising that concern for the environment has led to a new method of corpse disposal? In a world filled with new ideas and evolving technologies, will alkaline hydrolysis soon rival the traditional methods of corpse disposal? All speculation aside, for those who are concerned about their environmental footprint, this new method of corpse disposal purports to ensure that even in death they can lessen their impact on the environment. However, some critics think a method that reduces a body to greenish-brown liquid and crumbly bones is disrespectful or even ghoulish, regardless of the purported environmental benefits.

This comment will review alkaline hydrolysis, the so-called “liquid cremation,” in light of the predominate methods of corpse disposal: burial and cremation. Part II will begin with an overview of the evolving perceptions of burial and cremation in Western society. Part III will introduce the emerging method of corpse disposal known as alkaline hydrolysis. Part IV will look at the seven states that have already approved the use of alkaline hydrolysis. Part V will look at the opposition to the process raised in Ohio and New Hampshire. Part VI will look at the states that, to varying degrees, have begun reviewing statutory language in light of alkaline hydrolysis. Part VII will discuss the state of corpse disposal in Texas and suggest lessons that Texas can learn from the states that have previously debated the propriety of alkaline hydrolysis. Finally, Part VIII will conclude that alkaline hydrolysis belongs alongside burial and cremation as an acceptable method for corpse disposal.

Companies Sign Brief Urging Supreme Court to Outlaw DOMA

On Wednesday, Facebook, Apple and Microsoft joined with hundreds of other companies to urge the U.S. Supreme Court to strike down the Defense of Marriage Act (DOMA).  

278 employers signed on to a friend -of-the-court brief before argument in the high court.  The brief they signed says,"'DOMA forces the businesses to administer dual systems of benefits and payroll, and imposes on them the cost of the workarounds necessary to protect married colleagues.'"

Only section 3 of DOMA is being challenged before the Supreme Court.  Section 3 defines "marriage" as a legal union between one man and one woman as husband or wife, and defines "spouse" as a person of the opposite sex who is a husband or wife.  

See Companies Ask Court to Outlaw DOMA, UPI.com, Feb. 27, 2013. 

Five Things to Think About After Having a Baby

Estate planning attorney Michael F. Brennan offers the following changes that new parents should consider making in their estate plan after having a baby: 

1. Consider guardians and trustees: When choosing a guardian, it is best to consider the physical location of the guardian, their lifestyle, religious, political and moral beliefs, and their financial situation. It is also very important to ask your potential guardian selection if they want to serve in that position. 

2. Review who should receive your assets: Go back and look at previous wills, retirement accounts, insurance policies, real estate titles, and TOD account designations to ensure they properly reflect any new wishes you might have after your child's birth. 

3. Think about education: With the rising cost of education, you might want to start setting aside money for your child's education.  Among other ways to accomplish this, you could set up 529 plans or create educational trusts for children. 

4. Retitle assets to avoid any unnecessary transfer delay: Transferring assets to a living trust can be a way to get around the potentially slow process of probate that is required to legally transfer many assets of a deceased individual. 

5. Gifts and taxes: For those couples whose assets are worth more than $10.5 million, to minimize tax liability, it is a good idea to discuss ways to reduce the value of the estate through trusts and gifting prior to death. 

See Alan Moore, 5 Changes to Make to Your Estate Plan When You Have a Baby, Serenity Financial Consulting, Feb. 25, 2013. 

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

Article on The Demise of Dynasty Trusts

Lucy A. Marsh (Professor, Sturm College of Law at University of Denver) recently published her article entitled The Demise of Dynasty Trusts: Returning the Wealth to the Family, 5 Est. Plan. & Community Prop. L.J. 23 (2012).  The introduction to the article is available below: 

 

Recently, a flurry of state legislation has made it possible for an individual to create a long-term private trust, called aDynasty Trust, in close to one-half of the states of the United States. What is unusual about Dynasty Trusts is that they may be established to last for 150 years, 1,000 years, or some other extremely long period of time, depending on the jurisdiction.

Many lawyers, banks, and tax advisors are rushing to try to persuade their clients to set up such Dynasty Trusts, claiming that such trusts will provide a way of protecting the clients' descendants for the next 1,000 years or so.

But who is likely to derive the most benefit from the existence of Dynasty Trusts? Upon close inspection, it seems clear that in reality, corporate fiduciaries-hereafter simply referred to as banks-are likely to reap the major benefits from aDynasty Trust, rather than the descendants of the settlor. That may explain why the banks lobbied so hard to try to get states to adopt the legislation that made Dynasty Trusts possible.

This article is designed to try to speed the demise of Dynasty Trusts by bringing some common sense to the discussion ofDynasty Trusts. It is time for people to feel confident in leaving assets to their children and grandchildren, rather than to the banks.

After an introductory review of some of the fundamentals of a trust, Part II of this article will attempt to illustrate why banks have lobbied so strongly for Dynasty Trusts and why the existence of such trusts may cause serious problems. Part III will discuss the attractions of Dynasty Trusts. Part IV will point out how little money would actually be available for remote descendants of the settlor of a Dynasty Trust after 1,000 years. Part V will discuss historical experience with fractionalization of beneficial ownership. Part VI will suggest several clear, relatively simple solutions.

 

The Testator’s Signature on the Self-proving Affidavit Does Not Cure Lack of Signature on the Will

The testator’s signature on the self-proving affidavit does not cure lack of signature on the will. The named executor offered for probate a two-page document purporting to be the decedent’s will. The testator and the witnesses had initialed page one but only the witnesses signed page two; the testator’s signature did not appear on the will. The testator and the witnesses did sign the self-proving affidavit accompanying the will. The trial court denied probate, a divided intermediate appellate court reversed, and the Tennessee Supreme Court reversed and denied probate. The court held that the will was not signed by the testator because the self-proving affidavit is a separate document which is not part of the will and stated that the court has no authority to relax the statutory requirements for properly executing a will.

Estate of Chastain, No. E2011-01442-SC-R11CV, 2012 WL 5828609 (Tenn. Nov. 16, 2012).

Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.

CLE on Irrevocable Trusts and Virtual Representation Statutes

ALI CLE is sponsoring a telephone seminar/audio website entitled, Refining The Irrevocable Trust Using Your Jurisdiction's Virtual Representation Statute, on Wednesday, March 20, 2013 on 1:00 - 2:00 p.m. EST. Provided below is a description of this program:

Whether it's a marital trust, family trust, insurance trust or dynasty trust, applicable provisions can be construed in different ways:

• What did the grantor intend?
• Can a change be made without seeking court intervention?
• Whom do you have to tell? And whom should you tell?
• If you cannot avail yourself of your jurisdiction's virtual representation statute, can you resolve the issue by way of a Trust Protector or other means?

Join ALI CLE's expert, Benjamin Feder, as he explores the answers to the above and other questions.

Article on Marital Property Characterization in Trusts

James L. Musselman (Professor of Law, South Texas College of Law) recently published an article entitled, Separate But Equal: Proposal For Harmonizing the Rules for Marital Property Characterization of Beneficial Interests In and Distributions From Trusts With Those Applicable to Similar Types of Property, 5 Est. Plan. & Community Prop. L.J. 55 (Fall 2012). Provided below is the introduction:

The marital property rules currently used in Texas for characterizing beneficial interests in and distributions from trusts have not been formulated and applied consistently by the circuit courts. Thus far, the Supreme Court of Texas has not resolved this inconsistency. To make matters worse, the circuit courts currently do not use rules logically consistent with the marital property rules generally applicable to characterization of similar types of property. This article will describe the different approaches circuit courts have used and the different rules they have developed. The article will also propose the adoption of standard rules that will harmonize all of these approaches and allow the rules for characterizing beneficial interests in and distributions from trusts to exist in logical parity with the rules for characterizing similar types of property.

Under the inception of title doctrine in Texas, marital property is characterized as separate or community property. Property is characterized at the time of its acquisition and retains that character until the marriage is dissolved. Ownership interests in and distributions from organizations that constitute legal entities are subject to special rules.The marital property subject to characterization is the ownership interest in the entity. Because the entity-not the spouse-owns the property, it is not marital property subject to characterization. Thus, property owned by a corporation or partnership is not marital property of a spouse owning an interest in the entity; instead, the marital property is the ownership interest in the entity, such as the corporate stock or partnership interest. In addition, income earned by a corporation or partnership belongs to the entity and not to a spouse owning an interest in the entity until the entity distributes the income to the owner.

In some jurisdictions, a trust is a legal entity separate from the owners of the beneficial interests in the trust. If that is true under Texas law, then the rules for characterizing beneficial interests in and distributions from trusts should be consistent with the rules for characterizing ownership interests in and distributions from other separate entities, such as corporations and partnerships. However, none of the characterization rules currently used by the circuit courts are consistent with the rules applicable to other separate entities. The Supreme Court of Texas has ruled in cases not involving marital property law that trusts are not legal entities at all; rather, they constitute a fiduciary relationship between the trustee and the trust property. Accordingly, the property interest owned by a trust beneficiary is simply an equitable interest in the trust property. If that is also true under Texas marital property law, then the rules for characterizing beneficial interests in and distributions from trusts should be consistent with the rules for characterizing ownership interests in and income earned by other types of income-producing property. However, none of the characterization rules currently used by the circuit courts are consistent with those rules either.

This inconsistency exists because trusts are created for many different reasons and, as a result, take many different forms. Many trusts are structurally complex, and courts have struggled to apply marital property characterization rules to them in a consistent manner. The result is a hodgepodge of different approaches and rules applied by the various circuit courts. The problem is confusion for litigants and trial courts attempting to determine applicable rules for characterizing interests in and distributions from trusts. Therefore, a logical and consistent set of rules is necessary.

Section II of this article will describe the marital property rules not only for characterizing income-producing property and the income produced by such property, but also for characterizing the ownership interests in and distributions from separate entities other than trusts, such as corporations and partnerships. Section III will discuss the issue of whether a trust is, or should at least be treated for marital property characterization purposes as, a legal entity separate from the owners of the beneficial interests in the trust. Section IV will describe the different approaches utilized by the circuit courts, and the different rules they have developed as a result, to characterize beneficial interests in and distributions from trusts. Section V will propose standard rules that will (1) harmonize these various approaches and rules currently used and (2) allow the rules for characterizing beneficial interests in and distributions from trusts to exist in logical parity with the rules for characterizing similar types of property, regardless of whether a trust is treated as a separate legal entity or not. The source of the legal reasoning underlying these proposed rules is the United States Supreme Court, which utilized such reasoning to resolve a complex issue that arose in the first two decades after the adoption of the United States federal income tax.

Justice For James Brown's Estate

As I have previously discussed, the legal battle over the estate of James Brown ended in settlement, with 50% of estate going to his charitable trust, 25% going to his widow Tomi Rae Hynie, and the other 25% to his heirs. On appeal, the Supreme Court of South Carolina in Wilson v. Dallas has overruled the settlement agreement, arguing that deal that was reached completely ignores the intent of the late-singer. Here, the court also ruled that it was clear that Brown was of sound mind when he drafted his will. As a result, the court remanded the case to the lower courts for reconsideration. However, the court did agree with the decision of the lower court to remove the original trustees of Brown's estate.

In particular, the justices of the court did not agree with the actions of Attorney General Henry McMaster. The justices argued that if the actions of the Attorney General were to stand, this could discourage people from donating money to charity through testamentary gifts mostly out of fear that their wishes could just be discarded. In this case, the Attorney General orchestrated a compromise among the parties that disregarded the wishes of James Brown. James had originally wanted the vast majority of his estate to go into a charitable trust for the education of needy children. The compromise, which I stated above, gave large portions of Brown's estate to people he never intended to give to, such as his self-proclaimed widow.

See Meg Kinnard, James Brown Estate: South Carolina Supreme Court Nixes Settlement, The Huffington Post, Feb. 27, 2013.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention

Round Two of Gina Rinehart Legal Battle

As I have previously discussed, the legal battle between billionaires Gina Rinehart and her three eldest children continues. Recently, Gina's children secured funds from wealthy associates to pay their legal bills down and keep their case alive after depleting $300,000 of their own money. The children hope to remove their mother as trustee of the four billion dollar family trust set up by Gina's late father Lang Hancock. Since the legal proceedings, the children have been financially cut off from the trust benefits. One of the children, John Hancock, did not receive trust benefits even years before the legal battle began. The parties will be back in court in March. The case turns on the allegation that Gina breached her duty as trustee. The trust was supposed to vest in 2011 when Gina's youngest daughter turned 25. However, Gina withheld the money. She reasoned that the costs resulting from the vesting would have left the children bankrupt. Gina declares she upheld her fiduciary duty to protect and build the inheritance. In fact, according to Yahoo Finance Gina has increased the trust asset value by some 40,000%.  

See, Rinehart Children Borrow for Family Trust Battle, Yahoo!7Finance.com, Feb. 26, 2013. 

Special thanks to Thomas Hackett (Attorney at law, Washington Attorney in an Estate Admistration and Business Planning Law Firm) for bringing this article to my attention.

Other Assets of Beneficiary Taken Into Account in Evaluating the Trustee’s Exercise of Extended Discretion.

The trust instrument directed the trustee to distribute principal and income in trustee’s sole discretion to provide for the beneficiaries’ “maintenance, support, education, health and welfare” and purported to exempt the trustee’s exercise of discretion from judicial review.  The beneficiaries petitioned for removal and replacement of trustee, their mother and daughter of the settlor, on the grounds that she refused to make distributions to pay for the beneficiaries’ college education and to purchase automobiles.  The trial court granted the petition and the appellate court reversed, holding that while the language purporting to forbid judicial review of the exercise of discretion was nugatory, it did indicate that the settlor intended the trustee to have the greatest latitude permitted by law.  The court then held that the beneficiaries had other resources, including 529 plans, adequate to pay their college expenses.  In re Trusts for McDonald, 953 N.Y.S.2d 751 (N.Y. App. Div. 2012).

Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.

Article on Fiduciary Litigation

Sarah Patel Pacheco (Shareholder, Crain, Caton, & Jamesrecently published her article entitled Fiduciary Litigation: Avoiding (or Minimizing) The Traps, Tribulations, and Trials, 5 Est. Plan. & Community Prop. L.J. 95 (2012).  The introduction to the article is below: 

The term “fiduciary” means “any person who occupies a position of peculiar confidence towards another.” While these appointments often arise out of a relationship of trust, the fiduciary role can be a thankless one. Once appointed,fiduciaries face a host of issues including deciding to serve, balancing divergent interests, facing threats of litigation, and accounting for and defending their own actions.

As the number of lawsuits involving the role and responsibilities of a fiduciary continues to increase, professionals representing and advising these individuals face an equally difficult job. Unfortunately, neither the Texas Probate Code nor the Texas Property Code-which contains the Texas Trust Code-provides definitive guidance for the role, responsibility, and potential liability of a fiduciary. Adherence to some central considerations and measures may allow fiduciaries to fulfill their fiduciary duties and also substantially reduce (but not eliminate) the potential claims against, and the liability of, thefiduciary. The following is a discussion of ways to reduce potential litigation in this area.