Wills, Trusts & Estates Prof Blog

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

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Tuesday, June 30, 2015

In Florida, A Lawyer For A Guardian Vicariously Liable To Ward

GavelKarim Saadeh was an elderly immigrant who had accumulated a sizable fortune when, in his old age, he lost control of his estate after making a series of gifts to a younger women.  The court appointed a guardian for Mr. Saadeh and the guardian in turn hired an attorney of their own who assisted in advising Mr. Saadeh to sign a trust instrument that had negative implications for the estate. As a result, the guardians attorney was sued, among others, for malpractice but the case was initially thrown out for a lack of privity between Saadeh and the attorney.

In Saadeh v. Connors, the Florida District Appeals Court held that the attorney was liable to the ward of a guardian that was a client. The duty of care owed by an attorney, in these situations, extends to a third party that was intended to benefit from any advise offered. The third party may sue for malpractice and the claim will not be barred due to a lack of privity.

See Brian Spiro, Florida Attorney for Emergency Temporary Guardian Owes Duty of Care to Temporary Ward, Clark Skatoff, June 26, 2015.

- See more at: http://www.clarkskatoff.com/news-resources/blog/florida-attorney-for-emergency-temporary-guardian-owes-duty-of-care-to-temporary-ward/#sthash.LV6NvW00.dpuf

June 30, 2015 in Guardianship, Malpractice, New Cases | Permalink | Comments (0)

Monday, June 29, 2015

A Long Shot Way Around Estate Taxes?

Supreme Court BuildingNow that the Supreme Court has granted the right to marry regardless of sex, some are speculating that this could be used as an end around to estate taxes. For example, a dying individual of the same sex of an heir may marry the heir to pass on to the "spouse" a large estate, tax free. However, rules and regulations will likely be promulgated in order to combat abuse of the new marriage laws but it remains to be seen if they will come in time to prevent someone from trying avoid tax this way.

See Vel Nirtist, Has SCOTUS Created a Way to Get Around the Estate Tax?, American Thinker, June 28, 2015.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

June 29, 2015 in Current Affairs, Estate Tax, New Cases | Permalink | Comments (0)

Sunday, June 28, 2015

Broadway Production Sued Over Alleged Copyright Violation

Article PictureThe estates of comedy duo Abbot and Costello are suing a Broadway production for alleged copyright infringement. The play is accused of using material from the famed "Who's On First" baseball routine that eventually got the pair into the MLB Hall of Fame. No court date has yet been set.

SeeNana Sidibe, Abbott & Costello's heirs sue play for use of 'Who's on First?', CNBC, June 5, 2015.

Special thanks to Jim Hartnett for bringing this article to my attention.

June 28, 2015 in Current Affairs, Current Events, New Cases | Permalink | Comments (0)

Supreme Court's Holding On Same Sex Marriage

Supreme CourtFollowing a split between multiple circuit court concerning the prohibition against same sex marriage, the United States Supreme Court took up the issue to unify policy. In Obergefell v. Hodges, the court held that the 14th Amendment required that same sex couples be allowed to marry in the same manner as heterosexual couples. The ruling clearly represents a massive change in policy and will have a huge impact on the estate planning community as many new families will require legal assistance.


June 28, 2015 in Current Affairs, Current Events, New Cases | Permalink | Comments (0)

Friday, June 26, 2015

CLE On Supreme Court's Decision On Same Sex Marriage

CLEThe American Bar Association is presenting a CLE entitled, News From the Hill: Supreme Court's decision on Same Sex Marriage, Tuesday, July 7, 2015, 12:00-1:30pm Central, online.  Here is why you should attend:

If the Court rules against marriage equality, then the current patchwork of laws will continue and marriages entered into under earlier constitutional rulings may be called into question. In that case, interesting conflicts of laws issues will continue. The ruling is not expected to affect the status of Registered Domestic Partners and Civil Union Partners who are recognized as married under their various state laws but not under federal law, except perhaps for social security. But conflicts questions will continue to abound for these couples because some marriage equality states recognize registered partners as married spouses and it is still unclear whether federal agencies, like the IRS, recognize such couples as married or not. The panelists will be prepared to address whatever questions arise from the Supreme Court's opinion no matter which way the ruling goes.

June 26, 2015 in Conferences & CLE, Estate Planning - Generally, New Cases | Permalink | Comments (0)

Wednesday, June 24, 2015

Zimbabwean High Court Grants Inheritance Rights To Out Of Wedlock Children

ZimbabweThe High Court of Zimbabwe has ruled that children born out of wedlock have equal inheritance rights as children born in a marriage. Citing the country's 1979 constitution, the court held that all children have the right to inherit from a parent equally. The case was brought by a widow who wished to exclude her deceased husband's children from his estate. Traditionally, children born outside of marriage were stigmatized and denied a number of rights besides inheritance however, in recent years, the prejudice has declined as the children become better accepted in society. I applaud the High Court for its decision to expand inheritance rights to a group that was once totally denied the rights of a surviving child.

See Daniel Nemukuyu, Landmark Ruling On Inheritance, Nehanda Radio, June 24, 2015.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

June 24, 2015 in Current Affairs, Current Events, Intestate Succession, New Cases | Permalink | Comments (0)

Sunday, June 21, 2015

New York Court Of Appeals Overturns Award For Family Of Deceased Teen

Gavel 2When Jesse Shipley died, his body was taken to the local medical examiner and, as part of the examination, had his brain removed and preserved. When his classmates came to the morgue and saw the brain, his parents were informed and sued for damages and to recover the organ. After a trial and the first round of appeals, the parents held a $600,000 judgment for which the state sought certiorari.

In Shipley v New York, the New York Court of Appeals overturned the award of damages holding that state sepulcher law only requires that the body, not all internal organs, is returned to the family. The law only contemplates the return of the body so that a family may follow any religious or spiritual ceremonies their belief requires. However, a dissent pointed out that a complete body might be needed under some belief systems and urged action to change the current law.

Special thanks to Rick McGary for bringing this case to my attention.

June 21, 2015 in Current Events, Death Event Planning, New Cases | Permalink | Comments (0)

Saturday, June 20, 2015

Texas Supreme Court Allows Same Sex Divorce To Stand

GavelIn 2004 Angelique Naylor and Sabina Daly were married in a same sex ceremony that was valid under Massachusetts law. They later moved to Texas and, years later, divorced under a oral order issued by a district court. However, the state Attorney General office intervened arguing that a court had no jurisdiction to issue the order since same sex marriage was banned in Texas.

In Texas v. Angelique Naylor and Sabina Daly, the Texas Supreme Court stated that the Attorney General did not have standing to challenge the court order and allowed the divorce to stand. Initial reaction to this case indicates that divorce decrees may be issued for out of state same sex marriages by Texas courts and that the state cannot act to stop the courts from acting. In any case, the full effects of this ruling will be better understood in coming weeks.

See Jon Herskovitz, Texas Supreme Court allows a same-sex couple to divorce, Reuters, June 19,2015.


June 20, 2015 in Current Affairs, Current Events, New Cases | Permalink | Comments (0)

Friday, June 19, 2015

Tom Benson Wins Competency Battle In Court

Tom BensonNew Orleans Saints owner Tom Benson emerged victorious in a battle between him and his one child over his competency to change estate plans for his business empire. Federal District Judge Kern Reese ruled in Mr. Benson's favor after a week long trial finding no evidence present that Mr. Benson lacked capacity to transfer control of his pro sports teams and other business assets to his current wife. However, other cases involving Benson and his child continue, including one over control of a trust that controls the shares of the Saints and Pelicans.

See David Hendricks, Tom Benson Wins New Orleans Case, My San Antonio, June 18, 2015.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

June 19, 2015 in Current Affairs, Current Events, New Cases | Permalink | Comments (0)

Direction To Pay From The Probate Estate Overrides Statutory Scheme

Gavel 2The decedent’s will divided the probate estate between two beneficiaries. The probate estate was one-fifth the value of the non-probate assets which also passed to the two will beneficiaries. The Nebraska inheritance tax on the beneficiary who was also named as the personal representative was nine times that on the gift to the other beneficiary. The personal representative’s accounting treated the inheritance taxes as an expense of estate administration based on language in the will directing the personal representative “to pay from my probate estate” all inheritance, legacy, or estate taxes payable by reason of the testator’s death on all property whether passing under the will or otherwise. The accounting was approved and the other beneficiary appealed.

In In re Estate of Shell, the Nebraska Supreme Court affirmed, holding that the will language directing the payment of taxes from the probate estate was sufficient to override the statutory scheme assessing the tax against each beneficiary.

Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.

June 19, 2015 in New Cases, Wills | Permalink | Comments (0)