Wills, Trusts & Estates Prof Blog

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

Sunday, November 19, 2017

Article on States and Their American Indian Citizens

Dm_140611_nfl_anti_redskins_adMatthew L. M. Fletcher recently posted an Article entitled, States and Their American Indian Citizens, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

This article is intended to provide a theoretical framework for tribal advocates seeking to approach state and local governments to discuss cooperation with Indian nations, with a special emphasis on Indian child welfare. While the federal government has a special trust relationship with Indians and Indian nations, Indian people are also citizens and residents of the states in which they live. Thus, states have obligations to Indians as well.

This article posits the fairly controversial and novel position that states have obligations to guarantee equal protection to all citizens, including American Indians (and non-Indians) residing in Indian country. In other words, states have an affirmative obligation to ensure that reservation residents, Indian and non-Indian, receive the same services from states that off-reservation residents receive.

November 19, 2017 in Articles, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Saturday, November 18, 2017

Article on Seizing Family Homes from the Innocent: Can the Eighth Amendment Protect Minorities and the Poor from Excessive Punishment in Civil Forfeiture?

Civil-asset-forfeitureLouis S. Rulli recently posted an Article entitled, Seizing Family Homes from the Innocent: Can the Eighth Amendment Protect Minorities and the Poor from Excessive Punishment in Civil Forfeiture?, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

Civil forfeiture laws permit the government to seize and forfeit private property that has allegedly facilitated a crime without ever charging the owner with any criminal offense. The government extracts payment in kind — property — and gives nothing to the owner in return, based upon a legal fiction that the property has done wrong. As such, the government’s taking of property through civil forfeiture is punitive in nature and constrained by the Eighth Amendment’s Excessive Fines Clause, which is intended to curb abusive punishments.

The Supreme Court’s failure to announce a definitive test for determining the constitutional excessiveness of civil forfeiture takings under the Eighth Amendment has led to disagreement among state and federal courts on the proper standard. At the same time, the War on Drugs has resulted in an explosion of civil forfeiture filings against the property of ordinary citizens — many are whom are innocent of any wrongdoing — and therefore there is a profound need for a robust constitutional test that satisfies the Eighth Amendment’s original purposes. This need has grown more urgent because civil forfeiture practices are increasingly plagued by police abuses motivated by self-gain, and recent studies show that civil forfeitures disproportionately affect low-income and minority individuals who are least able to defend their hard-earned property.

This Article documents the aggressive use of civil forfeiture in Pennsylvania and, by way of illustration, presents the plight of elderly, African-American homeowners in Philadelphia who were not charged with any crime and yet faced the loss of their homes because their adult children were arrested for minor drug offenses. In such cases, the Eighth Amendment should play a vital role in preventing excessive punishments. But some courts mistakenly apply a rigid proportionality test, upon prosecutorial urging, that simply compares the market value of the home to the maximum statutory fine for the underlying drug offense. When a home value is shown to be less than the maximum fine, these courts presume the taking to be constitutional. Under such a one-dimensional test, prosecutors routinely win because the cumulative maximum fines for even minor drug offenses almost always exceed the market values of modest, inner-city homes. This cannot be the proper test. Instead, this Article contends that the proper constitutional test for excessiveness must be a searching, fact-intensive inquiry, in which courts are required to balance five essential factors: (1) the relative instrumentality of the property at issue to the predicate offense; (2) the relative culpability of the property owner; (3) the proportionality between the value of the property at issue and the gravity of the predicate offense; (4) the harm (if any) to the community caused by the offending conduct; and (5) the consequences of forfeiture to the property owner.

 

November 18, 2017 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Monday, November 13, 2017

Article on Book Review: Mother. Orator. Woman Suffrage Leader: The Feminist Legacy of Elizabeth Cady Stanton

JL_Wonder_WomanPaula A. Monopoli recently posted an Article entitled, Book Review: Mother. Orator. Woman Suffrage Leader: The Feminist Legacy of Elizabeth Cady Stanton, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

Tracy Thomas’s new book, Elizabeth Cady Stanton and the Feminist Foundations of Family Law, provides extensive support for the claim that Stanton was “the intellectual giant of the [women’s rights] movement.” In this eminently readable yet deeply substantive work, Professor Thomas argues that Stanton was a foundational theorist for modern feminism. Until recently, Stanton’s intellectual contributions have not been widely explored, and Thomas aims to rectify that oversight. She situates Stanton in her rightful place by focusing on Stanton’s writings and advocacy in the area of family law. Thomas does a persuasive job, using Stanton’s views on marital property law, divorce, voluntary and involuntary maternity, and the custody of children as a lens through which to examine broader themes about women’s status as equal citizens in our republic. She also documents Stanton’s intellectual contributions in a way that informs current debates about gender equality.

November 13, 2017 in Articles, Books - For Practitioners, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, November 8, 2017

Article on Can a Dead Hand from the Grave Protect the Kids from Darling Daddy or Mommie Dearest?

Article-0-00393B9500000258-909_468x433Lynne Marie Kohm recently posted an Article entitled, Can a Dead Hand from the Grave Protect the Kids from Darling Daddy or Mommie Dearest?, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

The natural connection between parent and child matters both in life and in death. This article considers the legal conflicts that may arise when a primary caregiver parent dies. Consider whether a manipulative, self-involved, child-abusing, alcoholic mother who beat and badgered her children, tied them to their beds, and whose abuse of the children became cinematic legend, should be able to maintain custody of her children when the children’s other parent dies? 

Can a parent take any testamentary steps to protect his or her children, even from the grave? Children who survive the death of their primary caregiving parent are generally, by operation of law, transferred to the care and custody of their surviving parent. However, should that surviving parent need to be “fit” for parenting? Should the court be required to protect the best interests of the children? Alternatively, can the deceased parent ever leave guardianship directions that are afforded weight against natural parental rights? Can a court determining custody of children in the death of the primary caregiving parent be allowed to entertain a rebuttal of the natural parent presumption if diverging wishes of the decedent parent are left by will? This article explores these questions and offers potential answers for practitioners working to protect clients’ children in the event of the demise of the primary caregiving parent, particularly when the surviving natural parent has exhibited conduct that does not seem to be in the best interests of the child.

Part I outlines the law, juxtaposing probate rules and family law rules surrounding natural parents and their children, and examines how states have handled or may handle the conflict of laws. Part II offers some suggestions to practitioners regarding how to best protect the rights of parents and the best interests of the children.

Shall a child in the decedent’s custody be left to the care and custody of a surviving parent despite the parent-testator’s wishes to the contrary? The answer, as always, lies in the law as applied to the facts of each case, but this article offers some solutions to protect the best interests of children in these challenging parental situations.

November 8, 2017 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Article on Fiduciary Access to Digital Assets: A Review of the Uniform Law Conference of Canada's Proposed Uniform Act and Comparable American Model Legislation

Funny-picture-meanwhile-in-canada-555x441Faye Woodman recently posted an Article entitled, Fiduciary Access to Digital Assets: A Review of the Uniform Law Conference of Canada's Proposed Uniform Act and Comparable American Model Legislation, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

No jurisdiction in Canada has yet enacted comprehensive legislation regarding fiduciary access to the digital assets of an individual who has died, become incapacitated, or has appointed an attorney or other representative. In August, 2016, the Uniform Law Conference of Canada (ULCC) adopted a uniform act on fiduciary access to digital assets (ULCC Uniform Act). This paper discusses why there may be a need for legislation, and then examines the most important elements of the ULCC Uniform Act. The act, which tends to favour fiduciary access and media neutrality, is compared throughout the paper with the two American acts prepared by the American Uniform Law Commission. The first American act was adopted in 2014 and then withdrawn due to concerns voiced by internet service providers and civil liberty groups regarding privacy issues, and the other, a revised version, was subsequently adopted in 2015.

November 8, 2017 in Articles, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Tuesday, November 7, 2017

Article on The Common Law Treatment of Lost Wills

DownloadPeter S. Spiro recently posted an Article entitled, The Common Law Treatment of Lost Wills, Wills, Trusts, & Estate Law eJournal (2016). Provided below is an abstract of the Article:

The legal principles affecting lost wills are quite simple, but in practice they often raise difficult evidentiary issues. Judges need to infer something as elusive as the intentions of the deceased when a will disappears. The type of weighing of evidence that is involved is quite subjective, and different judges will read it differently. Some of the decisions appear quite surprising, if not perverse. Clients in lost will disputes may be well advised to seek mediation rather than go to trial. Governments should help mitigate the problem by encouraging people to participate in centralized wills registries.

November 7, 2017 in Articles, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)

Sunday, November 5, 2017

Article on Fraudulent Conveyances Masquerading As Asset Protection Trusts

I-asset-protection-8James J. White recently posted an Article entitled, Fraudulent Conveyances Masquerading As Asset Protection Trusts, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

Viewed with a dispassionate but slightly skeptical eye, transfers to asset protection trusts are fraudulent conveyances pure and simple. I think so and the evidence points that way.

The asset protection trust is a simulacrum of the well-known and thoroughly conventional mode of holding assets for a “beneficiary” by a “trustee” under the terms of an elaborate document. Trusts, of course, are widely used in estate planning and elsewhere in circumstances where one person, the settlor, wishes to make assets available to another on the settlor’s terms; a parent might use a trust to put aside assets for a minor child or for several grandchildren to share for their education. Typically the settlor wishes to direct or limit the beneficiary’s use of the principal and income because of the beneficiary’s tender age or because the settlor fears that the beneficiary will waste the assets or otherwise use them for a purpose contrary to the settlor’s wishes. 

The prototypical asset protection trust is different. In it the settlor and the beneficiary are the same person. When he is also the beneficiary, the settlor has the direct right to enjoy the assets; even when he is not the beneficiary, the settlor frequently has the indirect right to enjoy the assets by retaining the power to remove any trustee who does not honor the settlor’s requests. Invariably these trusts have “spendthrift” terms that purport to remove the trust assets from the reach of the settlor’s creditors. 

Seventeen states have adopted statutes that authorize asset protection trusts. All of these statutes change the law that prevailed before their enactment. Prior to the adoption of these statutes, the law in all of the states invalidated self-settled spendthrift trusts under a common law principle that found all such provisions to be a violation of public policy or because they were found to be fraudulent conveyances. As elaborated below, these statutes wipe out the contrary common law in the states where they are enacted and they modify the state fraudulent conveyance law to make a creditor’s fraudulent conveyance path more difficult.

November 5, 2017 in Articles, Trusts | Permalink | Comments (0)

Saturday, November 4, 2017

Article on Inheritance and the Posthumously Conceived Child (2017) Conveyancing and Property Lawyer (November)

In-vitro-fertilization-the-milan-court-rejects-lawNeil Maddox recently posted an Article entitled, Inheritance and the Posthumously Conceived Child (2017) Conveyancing and Property Lawyer (November), Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

A child may be born after the death of its natural father. That has always been the case. Modern advances in technology now create a new possibility and a child may be both conceived and born after the death of its father. This creates many legal complexities and uncertainties, one of which relates to the posthumously conceived child’s capacity to inherit from the deceased father’s estate. This article examines the novel legal questions that arise in relation to such children and succession. In particular, the extent to which sperm is inheritable, the obstacles faced by posthumously conceived children in inheriting from the natural father and the circumstances when a duty to provide for the child from the estate will arise.

 

November 4, 2017 in Articles, Estate Planning - Generally, Science, Technology | Permalink | Comments (0)

Article on Absorbing South Australia's Wills Act Dispensing Power in the United States: Emulation, Resistance, Expansion

CPwyQClXAAA7D9cJohn H. Langbein recently posted an Article entitled, Absorbing South Australia's Wills Act Dispensing Power in the United States: Emulation, Resistance, Expansion, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

How the spread of the dispensing power -- South Australia's excusing doctrine to cure formal errors in wills -- has led to enforcement of electronic (digital) wills in the US and elsewhere.

November 4, 2017 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Friday, November 3, 2017

Article on Compound Fiduciary Duty

Ccc0054Robert Flannigan recently posted an Article entitled, Compound Fiduciary Duty, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

Most observers know that fiduciaries must avoid unauthorised conflicts and benefits. Some however claim that other duties properly are classified as ‘fiduciary’ duties. Here I address the compound duty claim.

November 3, 2017 in Articles, Estate Planning - Generally | Permalink | Comments (0)