Wills, Trusts & Estates Prof Blog

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

Wednesday, July 27, 2016

Article on Sexual Advance Directives

Legal capacity to consentAlexander A. Boni-Saenz recently published an Article entitled, Sexual Advance Directives, 68 Ala. L. Rev. (2016 Forthcoming). Provided below is an abstract of the Article:

Can one consent to sex in advance? Scholars have neglected the temporal dimension of sexual consent, and this theoretical gap has significant practical implications. With the aging of the population, more and more people will be living for extended periods of time with cognitive impairments that deprive them of the legal capacity to consent to sex. However, they may still manifest sexual desire, so consenting prospectively to sex in this context serves several purposes. These include protecting long-term sexual partners from prosecution by the state, ensuring sexually fulfilled lives for their future disabled selves, or preserving important sexual identities or relationships. The law currently provides a device for prospective decision-making in the face of incapacity: the advance directive. The central claim of this article is that the law should recognize sexual advance directives. In other words, people facing both chronic conditions that threaten their legal capacity to make decisions and institutional care that threatens sexual self-determination should be able to consent prospectively to sex or empower an agent to make decisions about sex on their behalf. To justify this claim, the Article introduces a novel theory of sexual consent — the consensus of consents — that diffuses the longstanding philosophical debates over whether advance directives should be legally enforceable. With this normative foundation, the Article then draws on insights from criminal law, fiduciary law, and the law of wills to fashion a workable regime of sexual advance directives that adequately protects individuals from the risk of sexual abuse.

July 27, 2016 in Articles, Elder Law | Permalink | Comments (0)

Article on ERISA Fiduciary Provision Application

ERISAPeter M. Langdon recently published a Note entitled, For Whom the Plan Tolls: Tatum v. RJR Pension Investment Committee and the Emergence of Exacting Scrutiny Awaiting Fiduciaries in Breach in the ERISA Litigation Landscape Post Dudenhoeffer, 49 Creighton L. Rev. 437 (2016). Provided below is a summary of the Note:

The Employee Retirement Income Security Act, as amended (“ERISA”), was enacted in 1974. The primary purpose and special nature of ERISA is to secure the protection of private individual pension rights and retirement viability of participants. In the second quarter of fiscal year 2015, between April 1 and June 30, private and public pension net assets totaled $390.4 billion. Recently, ERISA litigation has burgeoned and the United States Supreme Court has acknowledged the importance of ERISA. The Supreme Court's decision in Fifth Third Bancorp v. Dudenhoeffer began to shed light on the shifting burden of proof in ERISA litigation. However, the Supreme Court has refrained from entering into the litigation landscape post-Dudenhoeffer, rendering the landscape unclear as to who bears the burden of proof in ERISA fiduciary breach litigation proceedings.

This Note will first review Tatum's facts and holding. This Note will then discuss the legislative and judicial history of the ERISA fiduciary provisions. This Note will argue the Fourth Circuit correctly interpreted and appropriately applied the burden-shifting framework under existing ERISA breach of fiduciary duty case law. This Note will show Congress intended to apply specific trust law principles to ERISA fiduciaries, and this intent has been solidified by the United States Supreme Court. This Note will also demonstrate that the Eighth and Second Circuits correctly interpreted the law regarding ERISA fiduciary breach, which originated from Congress and was solidified by the Court. Finally, this Note will conclude that Tatum correctly interpreted ERISA fiduciary breach law from Congress, the Court, and sister circuits, and appropriately applied the burden-shifting framework as to loss causation under ERISA breach of fiduciary duty cases.

July 27, 2016 in Articles, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Tuesday, July 26, 2016

Article on Antemortem Probate

AntemortemKatherine M. Arango recently published a Note entitled, Trial and Heirs: Antemortem Probate for the Changing American Family, 81 Brook. L. Rev. 779 (2016). Provided below is a summary of the Note:

The Pritchett-Dunphy-Tucker family has brought the diversity of today's modern American family center stage and has replaced the Bradys of the 1970s and the Cleavers of the 1950s. The notion of the traditional American family has changed dramatically due to the rise in divorce rates and remarriages, the growing popularity of cohabitating, and the increased acceptance of same-sex couples. Andrew J. Cherlin, a professor of public policy at Johns Hopkins University, acknowledged that “[the] turnover in our intimate partnerships is creating complex families on a scale we've not seen before,” and although families have undergone an enormous change, our society is very much still in the midst of a transformation. But the law of succession has failed to keep pace with the emergent population of nontraditional families.

In light of the American family's changing dynamics, this note first explores how inheritance law could benefit from an antemortem probate statute that would protect a growing population of Americans. It then encourages the drafters of the Uniform Probate Code (UPC) to adopt antemortem probate procedures. Part I of this note considers the American family's changing structure and explains how current inheritance laws do not protect the changing American family. Part II discusses the background of antemortem probate, including its history and the proposed models for an antemortem statute. This part also describes the antemortem statutes currently in effect in five states and the arguments for and against the antemortem measure. Part III proposes implementing an antemortem probate statute that incorporates aspects of current state statutes and the Administrative Model (which proposes that a state implement an ex parte proceeding in which a decisionmaker considers the testator and the testator's particular factual circumstances in *782 order to determine a will's validity). Lastly, Part IV proposes a statute that the drafters of the UPC could adopt.

July 26, 2016 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Article on Family Provision Will Contests

Family will contestBen White, Cheryl Tilse, Jill Wilson, Linda S. Rosenman, Kelly Purser, & Sandra Coe recently published an Article entitled, Estate Contestation in Australia: An Empirical Study of a Year of Case Law, 38 U. New S. Wales L.J. (No. 3) (2015). Provided below is an abstract of the Article:

This article reports on a study which reviewed all publicly available succession law judgments in Australia during a 12-month period. The article begins with a brief overview of the relevant Australian law and the method adopted for the case review to provide some context for the analysis that follows. It then shifts to its primary objective: to provide an overview of Australian estate litigation during this period with a particular focus on analysing the family provision contests, which comprised over half the cases in the sample. The article examines how many estates were subject to family provision claims, who were contesting them, and to what extent those challenges were successful. The article also considers variation in estate litigation across Australian states and the impact of estate size on contests. It concludes by identifying the themes that emerged from these judicial cases and outlines their significance for law and practice reform.

July 26, 2016 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Monday, July 25, 2016

Article on Principles Underpinning the Intended Distribution of Estates in Australia

Wealth transferCheryl Tilse, Jill Wilson, Ben White, Linda S. Rosenman, & Rachel Feeney recently published an Article entitled, Will-Making Prevalence and Patterns in Australia: Keeping It in the Family, 50(3) Australian J. Social Issues, 319–38 (2015). Provided below is an abstract of the Article:

This article provides evidence of the prevalence of wills and the principles underpinning the intended distribution of estates in Australia. Intentions around wealth transfers and the social norms that underpin them occur in the context of predicted extensive intergenerational transfers from the ageing baby boomer generation, policies of self provision and user pays for care in old age, broader views on what constitutes ‘family’, the increased importance of the not-for-profit sector in the delivery of services, and the related need for philanthropy. A national telephone survey conducted in 2012 with 2,405 respondents aged 18 and over shows that wills are predominantly used to distribute assets to partners and/or equally to immediate descendants. There is little evidence that will makers are recognising a wider group of relationships, obligations and entitlements outside the traditional nuclear family, or that wills are being replaced by other mechanisms of wealth transfer. Only a minority consider bequests to charities as important. These findings reflect current social norms about entitlements to ‘family’ money, a narrow view of what and who constitutes ‘family’, limited obligation for testators to recompense individuals or organisations for care and support provided, and limited commitment to charitable organisations and civil society.

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

Article on How Will Contestation Affects Will Making

Will contestCheryl Tilse, Jill Wilson, Ben White, Linda S. Rosenman, & Rachel Feeney recently published an Article entitled, Having the Last Word? Will Making and Contestation in Australia (2015). Provided below is an abstract of the Article:

Increased longevity and the need to fund living and care expenses across late old age, greater proportions of blended and culturally diverse families and concerns about the increasing possibility of contestation of wills highlight the importance of understanding current will making practices and intentions. Yet, there is no current national data on the prevalence of wills, intended beneficiaries, the principles and practices surrounding will making and the patterns and outcomes of contestation. This project sought to address this gap.

This report summarises the results of a four year program of research examining will making and will contestation in Australia. The project was funded by the Australian Research Council (LP10200891) in conjunction with seven Public Trustee Organisations across Australia. The interdisciplinary research team with expertise in social science, social work, law and social policy are from The University of Queensland, Queensland University of Technology and Victoria University. The project comprised five research studies: a national prevalence survey, a judicial case review, a review of Public Trustee files, an online survey of will drafters and in-depth interviews with key groups of interest.

The report outlines key findings. On the basis of the evidence provided recommendations are presented to support the achievement of these policy goals: increasing will making in the Australian population, ensuring that the wills of those Australians who have taken this step reflect their current situation and intentions, and reducing will contestation.

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

Sunday, July 24, 2016

Article on the Requirements of Testamentary Capacity

Testamentary capacityLinda Schoeman-Malan recently published an Article entitled, The Requirements and Test to Assess Testamentary Capacity (1), 78 J. Contemporary Roman-Dutch L., 605–21 (2015). Provided below is an abstract of the Article:

In almost all common law jurisdictions the delineation of testamentary capacity has become a controversial topic in recent times. One of the reasons is that as people live longer their cognitive abilities are questioned. Furthermore, the expectation to inherit amongst potential heirs builds up and the disappointment of not being instituted as a beneficiary prompts disgruntled disinherited beneficiaries to contest the will of sick, vulnerable and older testators. In recent times such law suits have come to count among the most frequent types of litigation.

July 24, 2016 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Saturday, July 23, 2016

Article on Determinants of Nonprofit Corporate Compliance with Law

Corporate complianceBrian D. Galle recently published an Article entitled, Corporate Compliance Without Enforcement?: Private Foundations and the Uniform Prudent Management of Institutional Funds Act (2016). Provided below is an abstract of the Article:

I examine the determinants of nonprofit corporate compliance with law using a large panel of over one million firm-years. Despite the almost total absence of any credible enforcement threat, I find widespread compliance. I exploit rolling state adoption of the Uniform Prudent Management of Institutional Funds Acts, which lifted some existing limits on firm spending, but which applied to some but not all firms within each state. This allows the use of triple-difference estimates that control for changes in local norms and economic conditions. Interacting the triple-difference factors with other predictors of compliance, I find no correlation between compliance and enforcement intensity, but some evidence that compliance is correlated with firm culture and reliance on accountants. I argue that my findings are among the first to discover compliance in the absence of a meaningful formal deterrence mechanism. Further, my findings have important implications for the governance of charitable organizations.

July 23, 2016 in Articles | Permalink | Comments (0)

Friday, July 22, 2016

Article on the Effect of Obergefell v. Hodges in Estate Planning

ObergefellGerry W. Beyer recently published an Article entitled, Estate Planning Ramifications of Obergefell v. Hodges, Estate Planning Developments for Texas Professionals (Forthcoming 2016). Provided below is an abstract of the Article:

One year ago, the Supreme Court of the United States handed down its landmark ruling in Obergefell v. Hodges holding that “same-sex couples may exercise the fundamental right to marry.” Since then, an estimated 123,000 same-sex marriages have occurred bringing the total number of same-sex marriages in the United States to almost one-half million. The number of Texas same-sex marriages will be difficult to track because the government does not plan on keeping a separate count of same-sex marriage licenses. Nonetheless, with over three percent of Texans identifying themselves as gay or lesbian, it is of vital importance for estate planners to understand the current and potential future impact of same-sex marriage on estate planning in Texas.

July 22, 2016 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Tuesday, July 19, 2016

Article on a Collaborative Approach Toward Premarital Agreements

Premarital agreementElizabeth R. Carter recently published an Article entitled, Rethinking Premarital Agreements: A Collaborative Approach, 46 N.M. L. Rev. (No. 2) (2016). Provided below is an abstract of the Article:

The legal profession—in viewing entry into a premarital agreement as an antagonistic process—has erected additional ethical barriers to hiring an attorney to prepare a premarital agreement. For those couples that do decide to pursue a marriage contract, the barriers put in place by the common law and by the legal profession inject unnecessary expense and adversarial decision-making to what could—and should—be a relatively inexpensive and collaborative process. Common law and the legal profession have, in a sense, created a self-fulfilling prophecy. By adopting a dual-representation, dissolution-focused model for entering into premarital agreements, we increase the chances that agreements will be coercive, stressful, and will fail to reflect the expectations of the spouses.

I argue that these barriers are premised on sexist and outdated notions—notions that typically do more harm than good. Removing these barriers and empowering couples to decide how to arrange their financial affairs would have an overall positive effect on relationship stability and equality of money management within the relationship. Part II examines the traditional arguments against premarital agreements and asserts that many of these arguments are outdated and unsupported by current data. Part II also considers some of the benefits afforded by premarital agreements. Part III examines the doctrine of unconscionability—one of the most significant barriers to entry into and enforcement of premarital agreements. As Part III explains, common law has created two proxies for assessing conscionability: financial disclosure and independent legal representation. I argue that both proxies are founded on misguided, paternalistic, and gendered notions. Part IV describes an additional unnecessary barrier erected by the legal profession—Rule 1.7 of the Model Rules of Professional Conduct. Part V describes a proposed collaborative approach towards premarital agreements and concludes.

July 19, 2016 in Articles, Estate Planning - Generally | Permalink | Comments (0)