Wills, Trusts & Estates Prof Blog

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

Friday, October 19, 2018

Article on Making Directed Trusts Work: The Uniform Directed Trust Act

TrustJohn Morley & Robert H. Sitkoff recently published an Article entitled, Making Directed Trusts Work: The Uniform Directed Trust Act, Wills, Trusts & Estates Law eJournal (2018). Provided below is an abstract of the Article.

Directed trusts have become a familiar feature of trust practice in spite of considerable legal uncertainty about them. Fortunately, the Uniform Law Commission has just finished work on the Uniform Directed Trust Act (UDTA), a new uniform law that offers clear solutions to the many legal uncertainties surrounding directed trusts. This article offers an overview of the UDTA, with particular emphasis on four areas of practical innovation. The first is a careful allocation of fiduciary duties. The UDTA’s basic approach is to take the law of trusteeship and attach it to whichever person holds the powers of trusteeship, even if that person is not formally a trustee. Thus, under the UDTA the fiduciary responsibility for a power of direction attaches primarily to the trust director (or trust protector or trust adviser) who holds the power, with only a diminished duty to avoid “willful misconduct” applying to a directed trustee (or administrative trustee). The second innovation is a comprehensive treatment of non-fiduciary issues, such as appointment, vacancy, and limitations. Here again, the UDTA largely absorbs the law of trusteeship for a trust director. The UDTA also deals with new and distinctive subsidiary problems that do not arise in ordinary trusts, such as the sharing of information between a trustee and a trust director. The third innovation is a reconciliation of directed trusts with the traditional law of co-trusteeship. The UDTA permits a settlor to allocate fiduciary duties between co-trustees in a manner similar to the allocation between a trust director and directed trustee in a directed trust. A final innovation is a careful system of exclusions that preserves existing law and settlor autonomy with respect to tax planning, revocable trusts, powers of appointment, and other issues. All told, if appropriately modified to fit local policy preferences, the UDTA could improve on the directed trust law of every state. The UDTA can also be used by practitioners in any state to identify the key issues in a directed trust and find sensible, well-drafted solutions that can be absorbed into the terms of a directed trust.

October 19, 2018 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, New Legislation, Non-Probate Assets, Trusts | Permalink | Comments (0)

Thursday, October 18, 2018

Article on The New Uniform Directed Trust Act Paves the Way for Creative and Thoughtful Divided Trusteeship

TrusteesJohn Morley & Robert H. Sitkoff recently published an Article entitled, The New Uniform Directed Trust Act Paves the Way for Creative and Thoughtful Divided Trusteeship, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article.

This chapter summarizes the four areas of practical innovation of the Uniform Directed Trust Act (UDTA). The first is a careful allocation of fiduciary duties. The UDTA’s basic approach is to take the law of trusteeship and attach it to whichever person holds the powers of trusteeship, even if that person is not formally a trustee. Thus, under the UDTA the fiduciary responsibility for a power of direction attaches primarily to the trust director (or trust protector or trust adviser) who holds the power, with only a diminished duty to avoid “willful misconduct” applying to a directed trustee (or administrative trustee). The second innovation is a comprehensive treatment of non-fiduciary issues, such as appointment, vacancy, and limitations. Here again, the UDTA largely absorbs the law of trusteeship for a trust director. The UDTA also deals with new and distinctive subsidiary problems that do not arise in ordinary trusts, such as the sharing of information between a trustee and a trust director. The third innovation is a reconciliation of directed trusts with the traditional law of co-trusteeship. The UDTA permits a settlor to allocate fiduciary duties between co-trustees in a manner similar to the allocation between a trust director and directed trustee in a directed trust. The fourth innovation is a careful system of exclusions that preserves existing law and settlor autonomy with respect to tax planning, revocable trusts, powers of appointment, and other issues.

Prepared for the 2018 Heckerling Institute on Estate Planning at the University of Miami, this chapter is an abridgment of John D. Morley & Robert H. Sitkoff, Making Directed Trusts Work: The Uniform Directed Trust Act, 44 ACTEC L.J. 1 (2018, Forthcoming), available at:

https://ssrn.com/abstract=3256987.

October 18, 2018 in Articles, Current Affairs, Current Events, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Wednesday, October 17, 2018

Article on Digitalisation and the Future of National Tax Systems: Taxing Robots?

RoboJoachim Englisch recently published an Article entitled, Digitalisation and the Future of National Tax Systems: Taxing Robots?, Tax Law: Tax Law & Policy eJournal (2018). Provided below is an abstract of the Article.

It is generally assumed that already in the next decade, the use of labour-saving robots with implemented artificial intelligence will lead to a dramatic transition of the workforce in almost all sectors of production and services. The ensuing loss of jobs that have traditionally been performed by a human employees is likely to result at least temporarily in reduced wage tax and payroll tax revenues, increasing income inequality and a disruption of the labour market. Against this backdrop, the idea of taxing the use of robots that replace human workforce, or even taxing the robots themselves, has emerged in politics and scholarly writings. Several justifications have been brought forward by its proponents: the robot tax has been regarded, respectively, as a corollary to a soon-to-be-expected concession of civil law personhood to robots, as a tax on imputed income earned by means of the robot, as an equalisation levy to restore the level playing field regarding the taxation of robots and of human workers, as an instrument for economically efficient wage compression between winners and losers of automation among the human workforce, or as a corrective tax to slow down the disruption of the labour market.

This paper argues that upon a closer look, the case for taxing robots or their use is relatively weak, though, except when specific conditions are met. There is currently no compelling argument to make robots themselves taxable persons, neither for the purposes of income taxation nor for the purposes of indirect taxes on consumption expenditure. Moreover, significant objections can also be raised regarding suggestions to tax the use of robots. Some of the concepts advanced in literature rely on presumptions that are either conceptually flawed or lack credible empirical support. Other proposals have their merits, but when weighing in on their potential benefits, policymakers will also have to take into account that any tax on robots is liable to result in distortions, complexities, and reduced growth. Besides, proponents of a robot tax tend to underestimate how capital mobility and international tax competition could easily undermine the respective objective of such a tax. As a Pigouvian tax, a robot tax will therefore likely have a very limited field of reasonable application. Regarding income redistribution and revenue raising objectives, the taxation of robots should only be considered as a measure of last resort, and in any event a provisional one. Where politically feasible, priority should instead be given to intensified efforts to tax the return on capital investments and on profits in general, including an adequate taxation of ultimate shareholders. In any event, increasing automation should have implications for the international allocation of taxing rights.

October 17, 2018 in Articles, Estate Planning - Generally, Science, Technology | Permalink | Comments (0)

Monday, October 15, 2018

Article on Unconscionability, Constructive Trusts and Proprietary Estoppel Culliford v Thorpe

EstoppelSukhninder Panesar recently published an Article entitled, Unconscionability, Constructive Trusts and Proprietary Estoppel Culliford v Thorpe, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:

Recently, there has been much academic and judicial discourse on the relationship between the doctrines of proprietary estoppel and the common intention constructive trust. In particular, the debate has centred on the question whether there is any real difference between the two doctrines when applied in the context of establishing proprietary interests in land, particularly where the land is shared between two or more individuals but the legal title is only taken in the name of one of them. In the recent High Court decision in Culliford v Thorpe the court had to consider, inter alia, whether the doctrines of proprietary estoppel and the common intention constructive trust were mutually exclusive or whether they could be applied contemporaneously to the same set of facts to reach the same remedial response. This case note examines the decision in Culliford v Thorpe and explains that the two doctrines demonstrate the wider notion of unconscionability which lies at the heart of equitable intervention.

October 15, 2018 in Articles, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Sunday, October 14, 2018

Article on Farewell Downton Abbey, Adieu Primogeniture and Entail: Britain's Brief Encounter with Forced Heirship

UnionLloyd Bonfield recently published an Article entitled, Farewell Downton Abbey, Adieu Primogeniture and Entail: Britain's Brief Encounter with Forced Heirship, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:

This article observes a little-noted proposal (the Landed Property of Intestates Bill) introduced into the British Parliament in 1836. It considers the debate upon it that ensued, and the accompanying pamphlet literature. The Bill proposed to alter the inheritance custom of primogeniture that directed the pattern of descent of freehold land in the absence of directions by settlement or will, and the dialogue is used as a lens to view the nexus between inheritance customs and broader political, economic and social concerns. The intensity of the dispute over primogeniture suggests that more was at stake than simply the devolution of land. The controversy in the Commons over the proposed legislation encompassed a discussion on the variety of purposes that succession law should serve. Lurking in the background in the debate over the proposed bill was a more abstract conundrum: should succession laws primarily be crafted to serve political ends, the constitution; or was it more appropriate to calibrate them to foster desirable social, economic or familial goals? In short, the debate put into sharp focus the question of what interests drive inheritance law, and how attempts can be made to modify it, if and when such concerns alter over time. The bill failed, and it would be for another century for Parliament to abolish primogeniture.

 

October 14, 2018 in Articles, Estate Planning - Generally, Intestate Succession | Permalink | Comments (0)

Saturday, October 13, 2018

Article on Doing More for Children with Less: Multidisciplinary Representation of Poor Children in Family Court and Probate Court

ProbateRobert Noel Jacobs & Christina Riehl published an Article entitled, Doing More for Children with Less: Multidisciplinary Representation of Poor Children in Family Court and Probate Court, Social & Political Philosophy eJournal (2016). Provided below is an abstract of the Article.

Family court and probate court are Barmecide feasts for too many children, especially poor children with special needs. "Multidisciplinary representation" of children enables the courts to address needs and risks that cannot be resolved by fine-tuning a custody schedule, frequently at little or no additional cost to the taxpayers. Since most children cannot identify the salient issues in their cases, and do not have standing in family court or probate court much less lawyers to represent them, it becomes the court's responsibility in every case to identify the issues most relevant to children's interests and decide whether multidisciplinary representation is indispensable to justice.

October 13, 2018 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Friday, October 12, 2018

Article on Reforming the Law of Will Execution: The Real Property Commissioners’ Reports

Will and testamentLloyd Bonfield recently published an Article entitled, Reforming the Law of Will Execution: The Real Property Commissioners’ Reports, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article.

The paper is an introductory chapter of a book length study on the Wills Act of 1837. It focuses on the discussion of wills in the First Report made to by the Commissioners appointed to inquire into the Law of England respecting Real Property (1829) and the Fourth Report made to His Majesty by the Commissioners appointed to inquire into the Law of England respecting Real Property (1833). The Report demonstrates wide-spread disquiet over the substantive law of wills and significant dissatisfaction with the process of probate. But the enquiry also looks to other issues on inheritance, the exercise of ‘illusory appointments’ and the problem of proof of death, areas which have hither to been ignored by historians

October 12, 2018 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Wednesday, October 10, 2018

Article on The Use and Abuse of Governing-Law Clauses in Trusts: What Should the New Restatement Say?

RestatementThomas P. Gallanis recently published an Article entitled, The Use and Abuse of Governing-Law Clauses in Trusts: What Should the New Restatement Say?, Wlls, Trusts, & Estates Law eJournal (2018).

This Essay offers a novel solution to a thorny problem at the intersection of trust law and the conflict of laws: When should the settlor be able to choose a governing law other than the law of the jurisdiction with the most significant relationship to the trust? The law of the conflict of laws gives effect to a governing-law clause in a trust instrument except when contrary to the “strong public policy” of the jurisdiction with the most significant relationship to the matter at issue. But what is “strong public policy”? The answer should not depend on the size of the Chancellor’s foot. This Essay proposes, instead, that the answer should incorporate the well-established distinction between the default rules of trust law, which aim to effectuate the intention of the typical settlor but yield to a particular settlor’s contrary intention, and the mandatory rules of trust law, which apply without regard to intention for reasons of overriding public policy. This Essay proposes that a governing-law clause in a trust instrument should be effective unless contrary to the mandatory law of the jurisdiction with the most significant relationship to the matter at issue. The Essay urges the adoption of this approach by the Restatement (Third) of the Conflict of Laws, which is currently in the process of being drafted.

October 10, 2018 in Articles, Estate Planning - Generally, New Legislation, Trusts | Permalink | Comments (0)

Monday, October 8, 2018

Article on Policy Forum: Vancouver's Property Taxes in Perspective

CanadaThomas Davidoff recently published an Article entitled, Policy Forum: Vancouver's Property Taxes in Perspective, Tax Law: Tax Law & Policy eJournal (2018). Provided below is an abstract of the Article.

Vancouver has unusually inelastic housing supply, therefore, one might expect property taxes to be higher there than elsewhere in Canada. A natural comparative measure of the property tax burden across markets is the ratio of property tax to rent. By this measure, the total property tax burden for a typical owner-occupied home (inclusive of annualized property transfer tax) in Vancouver (10 percent) is significantly lower than the mean among other Canadian cities (16 percent) where data allow ready comparison. More expensive homes in Vancouver face higher rates that are closer to but still lower than those typical in other large Canadian cities.

October 8, 2018 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Saturday, October 6, 2018

Article on Enforcement of Women’ Property Rights by Rwandan Courts: Battle of Equality Before the Law

RwandaDidace Nshimiyimana recently published an Article entitled, Enforcement of Women’ Property Rights by Rwandan Courts: Battle of Equality Before the Law, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article.

Gender equality is essential for the achievement of human rights for all. Women are entitled to live with dignity and must enjoy the rights to equal protection by the law. The Judiciary remain the guardian of human rights and freedoms. The paper analyses the enforcement, by the judiciary, the women’ property rights on the proof of gender equality and written law in Rwanda where the customary system treated a woman like second class citizen; it evaluates the implication of these judgments in fight against women in Rwanda. The recently decisions of Supreme Court have declared the customary laws and practices which deny women inheritance rights as unconstitutional, have also developed some protection of women involved in customary marriage. This is particularly important, because these decisions have provided further interpretation and clarification for the actual enforcement and execution of women’ property rights. This contribution commends socio-policing, legislative enactment and court based advocacy in these cases for the protection of women’s rights in Rwanda. It therefore calls for judicial activism in the protection of women’s rights.

October 6, 2018 in Articles, Estate Planning - Generally | Permalink | Comments (0)