Wills, Trusts & Estates Prof Blog

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

Wednesday, July 27, 2016

Increasing Awareness of Thieves Targeting Elders

Elder abusePolice were called to investigate a case of elder abuse by a woman who befriended an 81-year-old man with dementia and depression. The man, who had once been a missile systems analyzer for the Air Force, now sat broken in his home with a woman accused of stealing his money. This 56-year-old woman befriended him, banked with him, and married him all within seven days of meeting him. At the time of investigation, she had already embezzled more than $65,000 from the man. Following her arrest, a judge sentenced her to two years in prison for the exploitation of a vulnerable adult and ordered her to repay the victim the total stolen amount. This story represents the increasingly targeted practice of thieves against elders who are trusting and living alone. 

See Dan Morse, Elderly, Lonely and Suffering from Dementia – To Thieves, the Perfect Mark, Washington Post, July 25, 2016.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.  

July 27, 2016 in Current Events, Elder Law, Estate Planning - Generally | 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

Do Doctors Make the Same Dying Mistakes that We Do?

Doctors dyingIt is often thought that physicians avoid that end of life mistake that most of us make—they do not die in the hospital rather in the comfort of their own home with hospice or palliative care. We cannot believe that they would make the same mistakes we do by spending depressed energy levels on futile high tech medicine. However, they often do. Really the only difference is that they might use hospice care for longer than regular folks. Generally, though, their experience is much like ours at the end of our lifetimes.

See Howard Gleckman, Doctors Die Like the Rest of Us, Forbes, July 20, 2016.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

July 26, 2016 in Death Event Planning, Estate Planning - Generally | Permalink | Comments (0)

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)

Reverse Mortgages Helping Fund Retirement

Reverse mortgagesReverse mortgages let homeowners who are 62 and older access their accumulated home equity without facing monthly payments. So, seniors are using these reverse mortgages to finance their future retirement income. They can provide cash or “longevity insurance” when other retirement income sources fail to adequately finance their needs. This home equity can be a large part of an owner’s net worth, which makes it valuable in the long run. However, when providing a bequest to heirs by allowing them to sell your home, a reverse mortgage can eliminate a majority of the equity in your home. So, it is important to understand exactly how reverse mortgages can fit into your financial future and estate plan.

See John F. Wasik, The Quiet Comeback of Reverse Mortgages, NY Times, July 22, 2016.

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

July 25, 2016 in Current Events, Estate Planning - Generally | Permalink | Comments (0)

How Senior Move Managers Can Help the Elderly Downsize

Senior move managersWhen elders are considering downsizing, an emotional task on its own, they should hire a senior move manager. Aging Americans often find moving stressful because they have grown accustom to their home over several years and accumulated large quantities of assets. Divesting themselves from their belongings becomes a very sentimental undertaking.

Senior move managers can help with these issues facing elders, including donations and sales and hiring movers. The movement of senior move managers is new and growing as baby boomers continue to enter this late life stage. They provide a level of trust that is needed when seniors begin to uproot their comfort level. Also, they bring organizational skills and a discerning eye for the management of certain assets. 

See Kaya Laterman, Helping the Elderly Downsize, NY Times, July 22, 2016.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.  

July 25, 2016 in Current Events, Elder Law, Estate Planning - Generally | 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)