Wills, Trusts & Estates Prof Blog

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

Thursday, August 25, 2016

Article on Harmless Error Rule's Clear and Convincing Evidence Standard

Harmless errorMark Glover recently published an Article entitled, In Defense of the Harmless Error Rule’s Clear and Convincing Evidence Standard: A Response to Professor Baron, 73 Wash. & Lee L. Rev. Online 289 (2016). Provided below is an abstract of the Article:

In Irresolute Testators, Clear and Convincing Wills Law, Professor Jane Baron draws attention to a conflict between the mechanics of the law of wills and the realities of testation. Baron observes that the law of wills is designed to be used as a tool by resolute and rationale testators to communicate their intent regarding the distribution of property upon death. However, the law’s archetypical testator does not represent the many real testators who are irresolute and irrational, those possessing incoherent and only partially formed thoughts regarding the disposition of their estates.

Based upon the disconnect between the law’s paradigm of resolute will-making and the irresoluteness of testation in the real world, Baron argues that reforms that have given probate courts discretion to correct mistakes in testation do not function appropriately. For instance, Baron argues that the harmless error rule, which allows courts to excuse defects in a testator’s compliance with will-execution formalities when the testator’s intent is established by clear and convincing evidence, does not meaningfully limit probate courts’ discretion to correct mistakes. Specifically, she argues that many courts are concerned with not only the technical mistakes of resolute testators but also the more troubling mistakes of irresolute testators, and consequently, these courts overreach the boundaries of the harmless error rule.

This essay acknowledges Baron’s insight regarding the tension between the law and reality but questions whether this tension renders the harmless error rule and its clear and convincing evidence standard ineffective. More particularly, this essay argues that, despite potential overreaching by some courts, the clear and convincing evidence standard likely operates in the way that reformers intended and that the harmless error rule represents an improvement upon the conventional law of will- execution.

August 25, 2016 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Wednesday, August 24, 2016

Article on Incomplete Dispositions

Will dispositionNaomi Cahn recently published an Article entitled, Incomplete Dispositions, 73 Wash. & Lee L. Rev. Online 259 (2016). Provided below is an abstract of the Article:

In Irresolute Testators, Professor Jane Baron provocatively suggests the existence of two distinct types of testators: the rational, autonomous testator who has made deliberate choices about the contents of her will and whose errors, if any, are minor; and the more vulnerable, less resolute testator who may not have actually made the final decisions enshrined in a formal will. To illustrate how these testators appear in wills law, she analyzes how courts apply the doctrines of harmless error and mistake reformation. While the two doctrines appear to be intended to help the resolute testator, courts instead, she suggests, also apply the doctrines to help the irresolute testator. In causing us to reflect on the distinctions between dispository intent and a formal writing recognizable as a final statement, on rational and boundedly rational testators, on final and almost-final declarations, her article focuses us on the art of line-drawing in wills law. In this commentary, I explore another context that similarly raises issues about testators whose final intent is not clearly expressed: when can a disappointed beneficiary sue the drafting attorney for malpractice? The doctrine of privity confronts the spectre of the irresolute or inconclusive testator, yet courts have developed some dividing lines that differ from those they have developed surrounding harmless error. Privity seems to offer another illustration of how bright-line rules do not necessarily achieve dispository intent, although the privity rules do achieve certainty on only allowing final dispository statements (that are incomplete or show a lack of resolution) to provide a basis for a malpractice action. This commentary applauds Professor Baron’s achievement in focusing us on the limits of the wills reform doctrines and the significance of accounting for different types of testators.

August 24, 2016 in Articles, Estate Planning - Generally, Malpractice, Wills | Permalink | Comments (0)

Monday, August 22, 2016

Article on Advance Directives in Arizona

Advance directiveWendy Metcalf Anderson recently published an Article entitled, A Good Death: Increasing the Adoption and Effectiveness of Advance Directives in Arizona, 8 Ariz. Summit L. Rev. 447 (2016). Provided below is a summary of the Article:

Advance planning for an end-of-life situation can be an effective way to ensure that we live our final days on our own terms. Advance directives, in various formats, outline the patient's desired treatment options, expressed when he is competent to make such decisions, and would be effective in the event that he loses the capacity to adequately communicate or participate in decisions regarding his own care. Dying patients who have discussed their end-of-life wishes with their physician are more likely to choose fewer life-sustaining treatments and more likely to spend their final days in hospice, rather than a hospital, than those who have not engaged in this type of conversation.

Americans, however, generally do not die in a way they would like. Overall, patients and their families have expressed the desire for quality of life and to avoid artificially prolonging their dying process. While the majority of Americans would prefer to die at home or at hospice with less aggressive care, studies have shown that seventy-five percent die in a hospital or nursing home, with nearly twenty percent of them in the intensive care unit. As a result, chronically ill and dying Americans are receiving medical care far in excess of what they and their families want. Yet fewer than twenty-five percent of Americans have executed advance directive documents that clearly specify their wishes.

This paper will discuss various advance directives currently in use and the landmark legal cases that created national awareness and debate over the last 40 years. Additionally, this paper will consider the current state of legislation regarding advance directives nationally and in Arizona and will explore the reasons that the laws inadequately serve to better encourage the use and effectiveness of these documents. As its primary purpose, this paper will propose several statutory changes designed to increase the rate of adoption of advance directives in Arizona and improve the availability of such documents when they are needed most - when a patient is physically or mentally incapable of communicating their end-of-life wishes.

August 22, 2016 in Articles, Death Event Planning, Estate Planning - Generally | Permalink | Comments (0)

Sunday, August 21, 2016

Article on Reformation of the Anti-Lapse Doctrine

Will-makingRichard F. Storrow recently published an Article entitled, Wills and Survival, 34(3) Quinnipiac L. Rev. (2016). Provided below is an abstract of the Article:

This Article examines the rule of lapse in wills law, discusses how efforts to reform the damage it does has led to the doctrine of anti-lapse, and advocates an alternative approach. In contrast to the requirement of survivorship of beneficiaries in wills law, I argue that testators do not have in mind survival when their wills make no such indication. I propose that we allow the provisions of a beneficiary’s probated will to control the disposition of a bequest where the beneficiary has predeceased the testator by one year or less. This rule would carry out the probable intentions of the "wills-minded" testator and is preferable to the predominant anti-lapse approach that typically favors a narrow set of the testator’s heirs.

August 21, 2016 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Saturday, August 20, 2016

Article on Prudent Investor Rule for Financial Advisers

Prudent investor ruleMax M. Schanzenbach & Robert H. Sitkoff recently published an Article entitled, Financial Advisers Can’t Overlook the Prudent Investor Rule, J. Financial Planning (2016). Provided below is an abstract of the Article:

This article calls attention to the Department of Labor’s imposition of the “prudent investor rule” on financial advisers to retirement savers. This article also canvasses the customary role of an investment policy statement in promoting compliance with the prudent investor rule by professional fiduciaries.

In April 2016, the Department of Labor promulgated a rule that imposes on financial advisers to retirement savers “fiduciary” status under the Employee Retirement Income Security Act. The Department reasoned that the fiduciary duty of loyalty was necessary to protect retirement savers from conflicted investment advice. But in addition to a duty of loyalty, ERISA fiduciary status also imposes a duty of care or prudence. And with respect to investment management, the fiduciary standard of care is governed by the “prudent investor rule.” The basic tenets of the prudent investor rule are grounded in modern portfolio theory. In short, the prudent investor rule requires diversification and an overall investment strategy having risk and return objectives reasonably suited to the purpose of the investment account.

August 20, 2016 in Articles, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)

Thursday, August 18, 2016

Article on Arkansas's Approach to the Elective Share

Elective share1Maria Korzendorfer recently published a Case Note entitled, In re Estate of Thompson: The Shortcomings of the Arkansas Elective Share Statute, 68 Ark. L. Rev. 1089 (2016). Provided below is a summary of the Case Note:

The majority opinion in Thompson illustrates the extent to which the Arkansas Supreme Court will go to protect the inheritance rights of a surviving spouse. While an equitable result was achieved in Thompson, the use of extensive and costly litigation to show an intentional circumvention of spousal rights is both infeasible for many surviving spouses and judicially inefficient. In light of Thompson, and because of the potential misapplication of the intent-to-defraud test -- combined with the apparent disconnect between the state's elective share statute, equitable distribution statute, and Premarital Agreement Act -- the time is ripe for Arkansas to adopt the Uniform Probate Code's (UPC) augmented estate approach for calculating the elective share. Such reform would reduce litigation and increase predictability, two of the most important goals of estate planning. Further, it would better comport with existing law, promote Arkansas's public policy favoring spousal protection, and ensure against windfalls for surviving spouses.

This note addresses the problems inherent in Arkansas's approach to the elective share and recommends statutory intervention in the wake of Thompson. Part II details pertinent Arkansas caselaw, the facts of Thompson, and explains why the court reached its holding and how this is consistent with Arkansas law. Part III analyzes both Arkansas's method of calculating the elective share and the UPC's augmented estate approach. Part IV compares the two elective share methods, illustrates the disconnect between Arkansas's elective share and other areas of state law, and shows the timeliness of Arkansas adopting the augmented estate approach to provide predictability in estate planning while remaining consistent with long-standing Arkansas public policy.

August 18, 2016 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, August 17, 2016

Article on Posthumous Privacy Right

Digital-assetsMelissa Gaied recently published a Note entitled, Data After Death: An Examination into Heirs’ Access to a Decedent’s Private Online Account, 49 Suffolk U. L. Rev. 281 (2016). Provided below is a summary of the Note:

In the Internet age, protecting the privacy interests of individuals who predecease their digital accounts has resulted in ongoing legal uncertainty. Much of the ambiguity stems from inconsistent regulation of digital privacy by federal and state governments, as well as private entities. On one hand, federal law prohibits Internet service providers from disclosing content without owner consent or government order. On the other hand, state judges grant court orders to grieving families, demanding that service providers, such as Facebook and Yahoo!, allow access to the decedent's account. Providers then argue that such disclosure orders constitute a breach of contract because of preexisting privacy terms between the user and the provider.

Further complicating the matter, some states have adopted legislation allowing a decedent's digital content to pass to his or her heir upon death -- similar to the treatment of personal property. Delaware recently enacted the most sweeping legislation, granting family members, executors, and heirs total control over the decedent's digital accounts -- including email, social media, and cloud storage -- the same way it grants rights over physical documents. Despite such legislation, web-providers continue to remain reluctant to disclose user content to grieving families.

In light of conflicting regulations, the right to privacy may, in fact, evolve as a posthumous right, similar to the evolution of the right to publicity and copyright. Although the event of death deprives a person of his or her privacy right, such deprivation becomes exceedingly difficult to defend in the context of personal online data because such data is immortal by nature. The Supreme Court acknowledged that digital content triggers greater privacy concerns due to the qualitative and quantitative nature of digital data. Nonetheless, American law, in comparison to other developed countries, does not traditionally value the dignity of the dead.

To understand the state of the controversy, this Note will begin with a historical discussion of the constitutional right to privacy and its evolution as it relates to digital privacy. Further, this Note will discuss how federal, state, and private actors regulate digital privacy and this Note will posit that a discrepancy exists among such regulations. This Note will then discuss how diverging regulations might trigger a debate in favor of a posthumous right to privacy, especially due to the lack of uniform regulation by federal, state, and private actors. The Analysis section will examine the evolution of copyright and the right of publicity into posthumous rights and the strategic use of such doctrines to preserve privacy after death. Finally, this Note will conclude with considerations of the future of a posthumous privacy right.

August 17, 2016 in Articles, Estate Planning - Generally, Technology | Permalink | Comments (0)

Article on Adoption of a Fiduciary Access to Digital Assets Law

Digital assets actJared Walker recently published an Article entitled, Return of the UFADAA: How Texas and Other States’ Adoption of the RUFADAA Can Change the Internet, 8 Est. Plan. & Community Prop. L.J., 577 (2016). Provided below is a summary of the Article:

With the creation of the first public internet network in 1991, the world has never been the same. With people tweeting, swiping, snapping, and posting constantly, the fact that Facebook users post on average more than 350 million new photos each day should not impress anyone. Digital assets have three characteristics that make proscribing personal property law to their inheritance difficult: (1) they are a recently new invention; (2) they are intangible; and (3) they have differing contractual rights based on state and federal law. Recently, state legislatures have been trying to propose legislation modeled after the Uniform Fiduciary Access to Digital Assets Act (UFADAA), the Privacy Expectations Afterlife and Choices Act (PEAC), and Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), which regulate the rights of the company and a beneficiary to a deceased's digital assets. Currently, a minority of states have adopted a strategy but most are actively debating the adoption of a fiduciary access to digital assets law.

August 17, 2016 in Articles, Estate Administration, Estate Planning - Generally, Technology | Permalink | Comments (0)

Article on Estate Planning for Social Entrepreneurs

Social entrepreneurKeven J. Stratton, Jr. recently published an Article entitled, Making Millennial Money Matter: Benefit Corporations and Their Role in Estate Planning for Social Entrepreneurs, 8 Est. Plan. & Community Prop. L.J., 553 (2016). Provided below is a summary of the Article:

According to a recent study published by Deloitte, millennials have much different expectations of business than did previous generations. When asked to choose words and phrases that most closely resembled their ideals of what business should accomplish, millennial respondents chose “job creation,” “profit generation,” and “improving society.” Additionally, in perhaps the most telling metric, 75% of millennials believe “businesses are too fixated on their own agendas and not focused enough on helping to improve society.”

These sentiments show that the next generation of clients for estate planners are increasingly concerned about the role of business in society. For small business owners, the largest part of their estate tends to be their business holdings. If the millennial generation's trend toward businesses that do good for society continues, estate planners will see an increasing number of social entrepreneurs seeking estate plans. These social entrepreneurs and small business owners, will be looking to their advisors to recommend ways to align their investments with their worldview. Increasingly, estate planners will be called upon to design plans that pass on not only value to future generations, but preserve clients' values for generations to come.

This comment discusses how a social entrepreneur's social mission can be protected after the entrepreneur dies. To realize a social entrepreneur's estate planning goals, estate planners need to understand what motivates these clients. Estate planners also need a basic understanding of a new type of business entity made available in the last five years that allows an entrepreneur to legally protect his or her social mission. To that end, this comment first defines who a social entrepreneur is and his or her special needs in estate planning. It will consider why traditional business structures are insufficient to address the protection of an entrepreneur's social mission. Then, this comment will introduce the benefit corporation and how this entity can be used to protect an entrepreneur's mission in an estate plan. Next, it will consider three different states' requirements for benefit corporations and the advantages of each in estate planning. Finally, this comment will suggest specific strategies estate planners can employ to ensure their social entrepreneur clients' missions continue after the entrepreneur dies.

August 17, 2016 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Tuesday, August 16, 2016

Article on Pre-Embryos as Community Property & Gestational Surrogacy Agreements

Pre embryoDerek Mergele-Rust recently published an Article entitled, Splitting the Baby: The Implications of Classifying Pre-Embryos as Community Property in Divorce Proceedings and Its Impacts on Gestational Surrogacy Agreements, 8 Est. Plan. & Community Prop. L.J., 505 (2016). Provided below is a summary of the Article:

Forty-three years ago, in 1978, the first baby was born using in vitro fertilization (IVF). Since that time, scientists and doctors have gained access to significantly more sophisticated techniques to assist adults in having biological children. IVF has resulted in the birth of 45,000 American babies. However, when adults turn to doctors and hospitals for reproductive assistance, constitutional, property, and contractual issues arise. When potential parents contemplate IVF procedures, a complex IVF agreement is usually signed that informs the hospital and the progenitors, or intended parents, of what will happen to the pre-embryos in certain circumstances. But, what happens when the progenitors separate or divorce and one or both parties change their mind about having the hospital discard any remaining pre-embryos as per the previously-signed IVF agreement? What happens if the court finds that the agreement is not legally binding? What happens when a party is awarded the pre-embryos and is biologically unable to use the pre-embryos to produce a biological child?

First, this comment will explore two cases in California where one party is seeking control over the pre-embryos in order to use the pre-embryos to procreate. One of the cases highlights a woman desiring to use the pre-embryos, and the other case discusses a man that wants custody over the pre-embryos. Second, this comment will examine the seminal case, Davis v. Davis, and its progeny of cases, and summarize the jurisprudence of IVF agreements to glean possible connections and insight into potential outcomes for the two California cases. Third, assuming that one of the progenitors from one of the California cases is awarded the pre-embryos, this comment will examine what kind of interest a person might have in a pre-embryo and how a court might value that interest. Fourth, this comment will address what happens when a party gains possession of the pre-embryos, is biologically unable to have a child, and seeks to use the pre-embryo through a gestational surrogate, utilizing a gestational agreement in a community property state. Finally, this comment will discuss the transitory nature of the United States population, and propose three statutes that create the necessary continuity and consistency linking the disposition of pre-embryos from IVF agreements and gestational surrogacy agreements. The statutes will also provide clear guidelines for the minimum requirements that IVF agreements and gestational surrogacy agreements need to be valid, binding contracts.

August 16, 2016 in Articles, Estate Planning - Generally | Permalink | Comments (0)