Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

A Member of the Law Professor Blogs Network

Wednesday, September 2, 2015

Article On The Certainty Of Term Requirement In Leases

Article PictureIan Williams (Faculty of Laws, University College London) recently published an article entitled, Explaining the Certainty of Term Requirement in Leases: Nothing Lasts Forever, Cambridge Law Journal, Forthcoming. Provided below is an abstract of the article:

This article explains the rule that leases have a certain term from the outset by placing the lease within the wider context of the system of estates in land. There are no perpetual estates in land. However, some uncertain terms risk creating genuinely perpetual estates, conflicting with the nemo dat principle. All leases for uncertain terms cause considerable difficulties if a superior estate comes to an end. The article shows that the common law addressed this difficulty, not entirely consistently, before 1925, but there are still real difficulties in the operation of escheat were uncertain terms to be permitted.

September 2, 2015 in Articles, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Tuesday, September 1, 2015

Article On The Law of Human Remains

Article PictureTanya D. Marsh (Professor of Law, Wake Forest Law School) recently published an article entitled, The Law of Human Remains, The Law of Human Remains (Lawyers and Judges Publishing Company, 2015). Provided below is an abstract of the article:

A human cadaver is no longer a person, but neither is it an object to be easily discarded. As a result of this tenuous legal status, human remains occupy an uneasy position in U.S. law. Perhaps because of what anthropologist Ernest Becker called our “universal fear of death,” the law of human remains occupies a remarkably unexamined niche of U.S. law.

The Law of Human Remains is an ambitious effort to collect, organize and state the legal rules and principles regarding the status, treatment and disposition of human remains in the United States. The most recent comprehensive overview of the law was published in 1950 (Percival Jackson's The Law of Cadavers). The Law of Human Remains builds on that work by creating detailed summaries of each individual state’s laws and regulations. This unprecedented resource allows readers to quickly identify the often fascinating differences that exist between states.

By defining and describing this neglected area of law, The Law of Human Remains simultaneously establishes the theoretical and doctrinal basis for the law of human remains and provides a framework so that attorneys and courts can more easily discover, understand, and use the law.

The first part of the book establishes the foundational principles of the common law of human remains in the United States and outlines major federal statutes on the subject. It then restates and explains legal doctrines in five categories. The second part of the book includes detailed summaries of each state’s laws on each of the doctrines explained in Part I. Statutes and leading cases are cited and explained, providing a valuable resource for attorneys and courts.

September 1, 2015 in Articles, Death Event Planning, Estate Planning - Generally | Permalink | Comments (0)

Monday, August 31, 2015

Article On The Mutual Wills Doctrine

WillsYing Khai Liew (University College London - Faculty of Laws) recently published an article entitled, Explaining the Mutual Wills Doctrine, Current Issues in Succession Law (April 2016, Forthcoming). Provided below is an abstract of the article:

Although the mutual wills doctrine has been part of English law since the 18th century, it remains difficult precisely to define its operation, the legal principles involved, and its underlying rationale(s). These difficulties have caused many to doubt the usefulness and coherency of the doctrine. Recently, the Law Commission announced its plan commence a review of the law concerning wills in late 2015, with one of the four key areas to be reviewed being mutual wills. The review is said to ‘aim to reduce the likelihood of wills being challenged after death, and the incidence of litigation. Such litigation is expensive, can divide families and is a cause of great stress for the bereaved.’ This is reminiscent of Mummery LJ’s comments in Olins v Walters that the doctrine ‘continues to be a source of contention for the families of those who have invoked it. The likelihood is that in future even fewer people will opt for such an arrangement and even more will be warned against the risks involved.’ It is therefore a real possibility that the Law Commission might suggest abolishing the mutual wills doctrine completely.

This chapter proposes a new way of understanding the mutual wills doctrine which is consistent with orthodox principles. It distinguishes between what will be labelled ‘qualified interest’ and ‘absolute interest’ situations, each applying to a different type of mutual wills agreement. From this renewed understanding, it will be seen that the doctrine is underpinned by two distinct rationales which also form the basis of equity’s intervention in other areas. This indicates that the appropriate way of understanding the mutual wills doctrine is not to treat it in isolation, but in view of its relationship with other doctrines which give rise to constructive trusts such as the doctrine in Rochefoucauld v Boustead, secret trusts, and proprietary estoppel.

August 31, 2015 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Sunday, August 30, 2015

Article On Mutual Exclusivity And The Nature of Property

Article PictureJames Y. Stern (Professor of Law, William & Mary Law School) recently published an article entitled, Mutual Exclusivity and the Nature of Property. Provided below is an excerpt from the article:

Property has long been understood to center on “exclusive” rights, but the nature of exclusivity in property law is poorly understood. This article shows that property is governed by a general principle of mutual exclusivity, which differs significantly from the various ways in which property theorists have described property’s exclusive nature. The mutual exclusivity principle holds that one valid property right forecloses the existence of an inconsistent property right held by someone else. While two people can have contractual rights to purchase the same item of property, for instance, those two people cannot have their own separate and independent ownerships of it. The article shows how the mutual exclusivity principle is fundamental to the structure of property law and is often the key determinant that distinguishes property from other kinds of legal relationships, in both form and function. Unlike other conceptions of exclusivity prevalent in commentary on property, mutual exclusivity holds true not only for ownership of land and physical objects but for other types of rights, such as security interests, servitudes, intellectual property, and corporate shareholding.

In addition to identifying the mutual exclusivity principle and demonstrating its fundamental role in organizing property, the article makes three other contributions to the literature on property. First, it shows how the mutual exclusivity principle explains a number of basic institutional features of property law, such as the use of possession-based rules, the system of future interests, recording acts, and the negative structure of property rights. Second, it modifies the influential theory that property is heavily shaped by problems of high information costs. Many of the ways property entails relatively high information costs result from the mutual exclusivity principle, rather than of the scope of property duties, as information cost theories often suppose. Finally, the article calls for a change in direction in the property literature more broadly, arguing that American property scholarship has been excessively preoccupied with questions about the scope and strength of property rights, overlooking the critical separate problem of ascertaining who happens to hold a given right. Property, it argues, is at least as much about title chains, patent searches, and creditor priorities as it is about trespass, remedies, and eminent domain.

August 30, 2015 in Articles | Permalink | Comments (0)

Saturday, August 29, 2015

Article On The Effect--And Non-Effect--Of Revocation On A Will Post-Divorce

Article PictureMolly Brimmer (J.D. Candidate, 2016, University of Maryland Francis King Carey School of Law) recently published an article entitled, When an ex can take it all: the effect--and non-effect--of revocation on a will post-divorce, 74 Md. L. Rev. 969-1000 (2015). Provided below is an excerpt from the article:

The National Conference of Commissioners on Uniform State Laws’ (now known as the Uniform Law Commission) decision to promulgate the UPC’s revocation upon divorce statute resolved a systematic inconsistency in American estate jurisprudence. The inconsistent state court decisions regarding revocation upon divorce contrasted sharply with the Uniform Law Commission’s executive goal of uniformity. This Comment will delve into this inconsistency, with the hope that such an analysis will exemplify why state courts should adopt the UPC’s recommended revocation upon divorce statute.  Part I.A will discuss the general purpose and development of the UPC. Part I.B will then focus specifically on the rationale and objective principles underlying Section 2-804. The Comment then conducts a jurisdictional case study, with each subsequent section addressing a different type of statutory scheme.  Part I.C.1 will discuss jurisdictions whose revocation upon divorce statutes mirror that of the UPC. Part I.C.2 will examine jurisdictions that have failed to adopt a specific revocation upon divorce statute and instead rely on general revocation statutes and a couple’s property settlement agreements when probating the testator’s will. Part I.C.3 will evaluate jurisdictions that refuse to revoke any will without an explicit revocation statute. Part I.C.4 will discuss the rare occurrence in which a jurisdiction will totally and explicitly abolish revocation upon any change in marital status. Part I.D will conclude the Background Section with an edifying case study analysis of the Maryland Court of Appeals case, Nichols v. Suiter.

August 29, 2015 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Friday, August 28, 2015

Article On Grantor Retained Annuity Trusts

Article PictureSteven Arsenault (Professor, Charlotte School of Law) recently published an article entitled, Grantor retained annuity trusts: after $100 billion, it's time to solve the great GRAT caper,63 Drake L. Rev. 373-399 (2015). Provided below is an excerpt from the article:

The Author proposes that the Treasury Department adopt an administrative exception under which the traditional valuation rules using the statutory assumed rate of return would not apply if, taking into account all facts and circumstances known to the grantor at the time of the creation of the trust, there is at least a 50 percent probability that, over the 36-month period following the transfer to the trust, the real rate of return on the assets transferred to the trust would exceed the assumed rate of return by 200 percent or more. This exception draws by analogy on an existing administrative mortality exception providing that the traditional valuation rules do not apply where the individual who is the measuring life for valuation purposes dies or is terminally ill at the time the gift is completed. The Author’s proposal does not seek to remove the traditional valuation method entirely. Rather, it is aimed at those situations in which the disparity between the statutory assumed rate of return and the real expected rate of return is so great that the use of the assumed rate is likely to be viewed as abusive.

August 28, 2015 in Articles, Trusts | Permalink | Comments (0)

Thursday, August 27, 2015

Article On Succession Disputes In Israel

Article PictureDaphna Hacker (Tel-Aviv University) recently published an article entitled, The Rights of the Dead Through the Prism of Israeli: Succession DisputesInternational Journal of Law in Context, 11(1): 40-58, (2015). Provided below is an abstract of the article:

This paper aims at contributing to the evolving debate over the rights of the dead by providing it with concrete empirical socio-legal context. A pioneering study of succession disputes, conducted in Israel, exposes a gap between a prominent judicial promise to respect the wishes and guard the dignity of the deceased testator, and the actual action taking place behind this rhetoric. The findings reveal that the testator’s dignity and wishes are trampled during testamentary procedures, when demeaning allegations about his or her mental and physical competence are allowed, and personal and medical information is exposed, and when the judge approves settlements that diverge from the testator’s last will in the name of familial reconciliation, even though in most cases there are no nuclear family ties between the rival parties. These findings are discussed in the light of an original typology mapping the theoretical controversies over posthumous rights, to highlight some of the possible normative implications of the project for the law on the books and law in action related to property division after death.

August 27, 2015 in Articles, Wills | Permalink | Comments (0)

Wednesday, August 26, 2015

Article On Loyalty And Politics In Fiduciary Relationships

Article PictureLionel Smith (McGill University - Faculty of Law) recently published an article entitled, Loyalty and Politics: From Case Law to Statute Law9 Journal of Equity (2015). Provided below is an abstract of the article:

Holders of public office, whether elected or not, exercise a range of legal powers, and it would seem to go without saying that they should do so in the public interest. There have always been opportunities to misuse such powers and, what is a separate but overlapping problem, to extract personal gain. These are the same problems that animate the principles governing fiduciary relationships in private law. In this paper, I examine the extent to which the fiduciary principles relating to conflicts and unauthorized profits have been applied to elected politicians. The courts in the UK and in Canada were willing to apply them, as a matter of non-statutory law, directly to elected municipal politicians. In relation to governments with sovereign powers (as opposed to the delegated powers of municipalities), however, the picture is different. While fiduciary principles have been applied to servants of such governments, there is no evidence that the courts have been willing to apply these non-statutory norms to elected members. In Canada, however, recent years have seen an expansion of statutory interventions aimed at subjecting politicians (and other public office holders) to legislated versions of fiduciary principles.

This article examines these developments, offering some reflections on why the courts have made the distinctions that they have. It also asks whether these statutory interventions are well conceived and well designed. Finally, it suggests that fiduciary norms do not belong exclusively either to private law or public law, but rather to certain kinds of relationships wherever they may arise.

August 26, 2015 in Articles, Trusts | Permalink | Comments (0)

Tuesday, August 25, 2015

Article On Employee Life And Health Trusts In Canada

Trust AltS.B. Archer (York University - Osgoode Hall Law School) recently published an article entitled, Origins and Prospects for Employee Life and Health Trusts in Canada, 45 Estates, Trusts & Pensions Journal 419 (2015). Provided below is an abstract of the article:

A discussion of the events and factors behind the establishment of pre-funded health benefit plans in Canada with reference to the experience of voluntary employee benefit associations in the United States and the auto sector restructuring in North America during 2008-2009. It is argued that "employee life and health trusts" are used in effect to defease legacy cost liabilities of employers and only likely to be used in the context of restructuring of a workplace or industry. their structure is compared to other target benefit programs currently being proposed in Canada and elsewhere. The key issues in their negotiation and administration are summarized.

August 25, 2015 in Articles, Disability Planning - Health Care, Trusts | Permalink | Comments (0)

Monday, August 24, 2015

Article On 2015 Texas Estate Planning Legislation

Texas FlagGerry Beyer (Professor of Law, Texas Tech University School of Law) recently published an article entitled, 2015 Texas Estate Planning Legislative Update. Provided below is an abstract of the article:

This article reviews the highlights of the legislation enacted by the 2015 Texas Legislature relating to the Texas law of intestacy, wills, estate administration, trusts, and other estate planning matters. Some of the key topics include judicial modification and reformation of unambiguous wills, trust protectors, and the Texas versions of the Uniform Real Property Transfer on Death Act and the Uniform Disclaimer of Property Interests Act.

August 24, 2015 in Articles, Current Affairs, New Legislation | Permalink | Comments (0)