Thursday, March 5, 2015
Oonagh B. Breen (University of California, Davis) recently published an article entitled, National Perspectives: The Institution of the Trust in Ireland, UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 03/2015. Provided below is the abstract from SSRN:
This chapter explores the main characteristics of the institution of the trust in the Republic of Ireland, outlining modes of creation and the respective positions of the settlor, trustee and beneficiary in the governance of the trust fund. The trustee’s fiduciary duties and powers are discussed as are the potential remedies open to beneficiaries upon breach of those trust duties. The chapter examines the liabilities of third parties to the trust and the ways in which a trust may be terminated. The chapter draws upon Irish jurisprudence, while acknowledging the strong persuasive precedential role played by the English judicial authorities.
Elise N. McQuain (Associate Attorney, Goodwin & Goodwin, LLP, Charleston, West Virginia) recently published an article entitled, Inheritance of Frozen Reproductive Material, 40 Ohio N.U.L. Rev. 301. Provided below is an excerpt from the introduction of the article:
No obvious similarities exist between a soldier leaving for war, a woman seeking a graduate degree, a same sex couple, and a man diagnosed with cancer. Closer examination, however, reveals that these people may all have reasons to take advantage of cryopreservation. Cryopreservation can make conception a technological possibility when it is no longer possible naturally. 1 Many people cherish the idea of having children; however, a considerable number face situations that jeopardize that idea. 2
Cryopreservation is the freezing of reproductive material and is used concurrently with artificial insemination to produce children. 3 Questions regarding disposition of the frozen reproductive cells arise when a depositor of reproductive material dies and leaves behind the frozen cells. 4 Courts have struggled to address this challenge, which technological advances have created. 5 Traditional estate solutions relating to property and money seem inadequate when addressing cells with the potential for human life.
This article argues that depositors have the fundamental right to control whether they procreate after death. The best method of protecting that right is to ensure that fertility clinics, sperm banks, loved ones, executors, and courts know and honor a depositor's wishes concerning the disposition of his or her reproductive material after death. 6 The best way to effectuate that protection is to require all depositors to execute a "death clause document" at the fertility clinic or storage bank used for storage. 7 A “death clause document” is an instrument that clearly states the wishes of the depositor in case the depositor dies while his or her reproductive material is still in storage.8 This article lays out the appropriate format and execution procedure for the death clause document in order to ensure that it will be recognized as a will substitute. Using a uniform document that addresses all of the concerns and contingencies of depositor death permits the fertility clinic or storage bank to easily ascertain and follow the individual’s wishes regarding disposition of his or her reproductive cells.
Wednesday, March 4, 2015
Deborah S. Gordon (Drexel University Thomas R. Kline School of Law) recently published an article entitled, Trusting Trust, Kansas Law Review, Vol. 63 (2015); Drexel University Thomas R. Kline School of Law Research Paper No. 2015-A-01. Provided below is the abstract from SSRN:
What is a trustee and how should we understand her duties? The existing literature typically identifies the trustee in the role of agent, partner or contracting party. This Article re-envisions the trustee in the role of the legal system’s most trusted type of decision-maker: the common law judge. Rather than argue for a top-down recreation of the trustee’s role, this Article contends that valuable lessons can be learned by reconceptualizing how trustees, settlors, and beneficiaries view themselves and each other. Using traditional literature about great judging as a touchstone, the Article argues that those qualities essential to principled adjudication — including candor, competence, integrity, and impartiality — offer fresh insights for trust creation and administration and shed light on certain internal trust governance dilemmas. The Article’s normative claim is that analogizing trustees to judicial surrogates — arbiters, interpreters, problem-solvers, mediators, and communicators — will provide a way to build greater confidence in what might be called a trust community that originates with the settlor but is perpetuated by the trustee and beneficiaries as they function in the lived world.
J. William Gray, Jr. and Katherine E. Ramsey recently published an article entitled, Wills, Trusts, and Estates, 49 U. Rich. L. Rev. 211. Provided below is the introduction from the article:
After an unusually busy year in 2013, Virginia's General Assembly and state courts were relatively quiet in 2014 in the area of wills, trusts, and estates. Legislation was generally limited to clarifications and technical corrections to existing law, with the most extensive bills devoted to adjusting various statutory amounts to reflect cost-of-living adjustments and consolidating the rules governing the disposition of dead bodies. Four cases dealt with questions of charitable immunity, presumption of undue influence, inheritance rights of half-blood collateral heirs, and contracts to make a will.
Friday, February 27, 2015
Melanie B. Leslie (Professor of Law and Vice Dean, Benjamin N. Cardozo School of Law) and Stewart E. Sterk (Mack Professor of Law, Benjamin N. Cardozo School of Law) recently published an article entitled, Revisiting the Revolution: Reintegrating the Wealth Transmission System, 56 B.C.L. Rev. 61 (2015). Provided below is the abstract from the article:
Thirty years ago, John Langbein published “The Nonprobate Revolution and the Future of Succession.” The article celebrated testators’ newfound ability to avoid the expense and delay of the probate court system by holding assets in a variety of non-probate devices, such as retirement and bank accounts with beneficiary designations and revocable trusts. Langbein highlighted problems the revolution might generate and predicted how they might be resolved. Since then, significant problems have indeed developed. First, wills law doctrines designed to effectuate intent of testators have not been universally extended to non-probate transfers. Second, the fragmentation of the wealth transmission process has created coordination problems that did not exist when almost all of a decedent’s assets passed through the decedent’s probate estate. This has increased opportunities for attorney error. Even when attorneys get it right, rogue clients can easily undermine a carefully constructed estate plan, and the law does not always allow courts to correct these errors. Third, the non-probate system increases the potential for wrongful takers to dissipate assets before rightful beneficiaries have an opportunity to make claims to those assets. As we explain, neither lawyers, financial institutions nor the legal system have successfully resolved these issues. We advance several proposals that might ameliorate the costs of the non-probate system, such as conferring broader power on estate executors to coordinate non-probate assets, and a voluntary registration system that would reduce the risk of inadvertent conflicts among wealth transmission documents.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Monday, February 23, 2015
Natalie M. Banta (Stetson University College of Law) recently published an article entitled, Inherit the Cloud: The Role of Private Contracts in Distributing or Deleting Digital Assets at Death, 83 Fordham L. Rev. 799-854 (2014). Provided below is the article’s abstract:
We live in a world permeated with technology. Through our online accounts we write emails, we store pictures, videos, and documents, we pay bills and conduct financial transactions, we buy digital books and music, and we manage loyalty programs. Digital assets have quickly replaced physical letters, pictures, books, compact discs, and documents stored in filing cabinets and shoeboxes. The emergence of digital assets raises pressing questions regarding the treatment of digital assets at an account holder’s death. Unlike digital assets’ physical counterparts, an account holder does not control the ultimate fate of digital assets. Instead, digital assets are controlled by a private contract entered into by an account holder and a company that provides services or digital products. This Article explores the growing conflict between traditional succession practices and digital asset succession, which is controlled by digital asset contracts. It begins by tracing the development of private contracts as a method of transferring assets at death and shows that although contracts are regularly used to transfer assets at death, digital asset contracts have taken an unprecedented step of prohibiting or severely limiting the transfer of assets at death. This Article next explores the prevalence of digital assets and explains how service providers address digital asset inheritance in private contracts. It argues that digital asset contracts that deny inheritance may be validly formed but should be void as a matter of public policy because they transfer decision-making power about assets from an individual account holder to corporations. As our control over the ultimate fate of our digital assets diminishes, the nature of our property interests in digital assets also shifts away from our traditional understanding of ownership of personal property. It argues that we should take a conscious approach to reforming succession law based on time-honored principles of American succession law that benefit society as a whole and not allow private contracts controlling digital assets to hijack our system of inheritance. This Article concludes by offering suggestions for reform and action before the ability to transfer and preserve digital assets falls beyond our reach.
Marco Francesconi (University of Essex), Robert A. Pollak (Washington University in Saint Louis - John M. Olin Business School), and Domenico Tabasso (University of Geneva) recently published an article entitled, Unequal Bequests, CEPR Discussion Paper No. DP10401 (2015). Provided below is the abstract from SSRN:
Using data from the Health and Retirement Study (HRS), we make two contributions to the literature on end-of-life transfers. First, we show that unequal bequests are much more common than generally recognized, with one-third of parents with wills planning to divide their estates unequally among their children. These plans for unequal division are particularly concentrated in complex families, that is, families with stepchildren and families with genetic children with whom the parent has had no contact (e.g., children from previous marriages). We find that in complex families past and current contact between parents and children reduces or eliminates unequal bequests. Second, although the literature focuses on the bequest intentions of parents who have made wills, we find that many elderly Americans have not made wills. Although the probability of having a will increases with age, 30 percent of HRS respondents aged 70 and over have no wills. Of HRS respondents who died between 1995 and 2010, 38 percent died intestate (i.e., without wills). Thus, focusing exclusively on the bequest intentions of parents who have made wills provides an incomplete and misleading picture of end-of-life transfers.
Sunday, February 22, 2015
Matthew D. Glennon (Quinnipiac University School of Law) recently published an article entitled, A Call to Action: Why the Connecticut Legislature Should Solve the Digital Asset Dilemma, 28 Quinnipiac Prob. L.J. 48-72 (2014). Provided below is an excerpt from the article:
With the advancement of the Internet and its capabilities, traditional scrapbooks and photo albums are being digitalized, letters are being replaced with electronic mail ("e-mail"), and life-changing announcements are being broadcast across social-media. As the digitalization of an individual's life becomes more complex, society must address the question of what occurs in the event of that individual's death or incapacity. In the past, tangible property such as a scrapbook or letter could undoubtedly be devised. However, the law pertaining to digital assets remains murky at best.
This "digital asset question" is well illustrated by the harrowing saga of a Michigan family, the Ellsworths. Lance Corporal Justin Ellsworth was a Marine who was killed in action in 2004 while serving in Fallujah, Iraq. The Ellsworth family sought to create a memorial by using the e-mails Justin had sent and received while deployed, but were denied access to those e-mails by Yahoo!, per its terms-of-service. It was only after a lengthy and public court battle that Yahoo! gave the family access to Justin's e-mails. Although the e-mails were ultimately released, the Ellsworths' battle illustrates a need for legislative clarification for both internet service providers and families who will seek to obtain the digital assets of their loved ones in the future.
Margaret Isabel Hall (Thompson Rivers University - Faculty of Law) recently published an article entitled, Dementia, Decision-Making, and the Modern (Adult) Guardianship Paradigm: Bentley v Maplewood Seniors Care Society, Canadian Journal of Comparative and Contemporary Law, Vol. 1 (2015). Provided below is the abstract from SSRN:
This paper considers the meaning of decision making, including substitute decision making, for persons with dementia. The paper discusses the historical development of adult guardianship, from the King’s stewardship of the property of “fools” and “lunatics” to the modern mechanisms of substitute decision making, and the relationship between substitute decision making and a particular ideal of autonomy. The paper concludes with a discussion of Bentley v. Maplewood Seniors Care Society, a case concerning the present choices of a woman with dementia, the decisions set out in the “living will” she drafted many years earlier (prior to dementia), and the decisions made by the woman’s (purported) representatives on her behalf. The case invites us to consider whether the decisions of the former, mentally capable self can ever trump the choices of the current self with dementia.
Saturday, February 21, 2015
Jason N. Summerfield (New York Attorney) recently published an article entitled, Comments on the Potter’s Field: The Future of Mass Graves, 28 Quinnipiac Prob. L.J. 23-47 (2014). Provided below is the abstract from SSRN:
The paper addresses burial policy with respect to city cemeteries and, in particular, New York City’s Hart Island, the so-called 'potter’s field,' which is currently operated under the Department of Corrections. The institution is the target of a significant amount of recent scrutiny, including litigation, New York City Council oversight committees, and public criticism. These converging debates culminated in an overhaul of DOC policies regarding access to Hart Island, formation of an online database of burial records in April, 2013 and proposed legislation that would transfer jurisdiction over the island to New York City's Parks and Recreation. The paper outlines the pressing need for an understanding of the city cemetery as a global institution, noting how burial processes can change over time. It looks at New York City's own mass grave in addition to other variations throughout the world and history. The essay reviews the city cemetery in the context of three ‘criticisms’ raised by Hon. Elizabeth S. Crowley’s ‘Briefing Paper’ on the subject and recently proposed legislation that affects the institution.