Wills, Trusts & Estates Prof Blog

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

Tuesday, October 13, 2015

Florida Supreme Court Clarifies Rules On Notice To Creditors Of Estate

FloridaWhen Harry Jones died, his estate published the required notice to creditors in a local paper but never served his ex-wife who was a creditor of the estate. Within two years of the publication, she learned of his death and filed a claim but was denied on the basis that the statute of limitations started to run on publication of notice to creditors and had expired. However, the ex-wife countered that she was a creditor that was reasonably ascertainable and since service had not been given, a different statute of limitations applied.

In Jones v. Golden, the Florida Supreme Court clarified a circuit split and ruled that the relevant statute created two obligations on the estate, one to publish notice for unknown creditors and another to provide direct service to every creditor whose claim should reasonably have been known. The limitation period of 3 months to bring a claim under 773.702 applies only to unknown creditors reliant on publication or known creditors that have been provided service. Since no service had been provided than the two year limitation period under 733.710 applies and the ex-wife's claim was valid.

See Anya Van Veen, Florida Known Creditors Denied Notice Have Two Years To File Claims, Clark Skatoff, October 2, 2015.

October 13, 2015 in Estate Administration, New Cases | Permalink | Comments (0)

Monday, October 12, 2015

Article On Proposed Taxonomy for The Absurdity Doctrine

ArticleHillel Y. Levin (University of Georgia Law School), Joshua M. Segal (Jenner & Block LLP), &  Keisha N. Stanford  (Jenner & Block LLP) recently published an article entitled, Beyond Absurd: Jim Thorpe and a Proposed Taxonomy for The Absurdity Doctrine, 68 Administrative Law Review, Forthcoming; UGA Legal Studies Research Paper No. 2015-28. Provided below is an abstract of the article:

In light of the Third Circuit's recent decision interpreting the Native American Graves Repatriation Act, this Article argues that the Supreme Court must clarify the Absurdity Doctrine of statutory interpretation. The Article offers a framework for doing so.

October 12, 2015 in Articles, New Cases | Permalink | Comments (0)

DNA Evidence To Be Considered In Dispute Over British Title

ArticleA battle over an ancient British title is heading to the the Supreme Court for the justices to decide if DNA can be used to resolve a controversy over the true heir. The dispute revolved around the Pringle of Stichill baronetcy, a hereditary title beneath that of a peer, with the son of the last holder being challenged by a Utah man who claims that DNA evidence shows that the current line is not actually related to the family. As a result,the Utah man wants the title to pass to himself instead of the son of the 10th baronet the since he has undisputed genetic decent from the family. However, there is doubt as to whether the court will allow DNA evidence to be used due to the problems it could create with all other hereditary titles that could be challenged on the basis of non blood decent. As of now, no date has been set for the court to decide the issue.

See Martin Beckford, Who's the real aristocrat? Queen demands DNA to be tested in court to settle dispute over 330-year-old baronet title (...but could ruling mean a Utah Mormon is our king?), The Daily Mail, October 10, 2015.

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

October 12, 2015 in Current Affairs, Current Events, New Cases | Permalink | Comments (0)

Thursday, October 8, 2015

Judge Makes Texas First In Nation To Recognize Same Sex Common Law Marriage

TexasA Texas probate judge has ruled that a common law marriage existed between two women as part of a battle over an estate. Stella Powell died intestate in 2014 which resulted in her estate passing to her family under Texas intestacy laws but this was challenged by her long term partner who argued they qualified as married under common law. Although same sex marriage was banned during the entire course of their relationship, it was argued that Obergefell v. Hodges should be applied retroactively to allow a common law marriage to exist. This ruling is likely to face multiple challenges on appeal with embattled Attorney General Ken Paxton already participating in the case arguing that the couple should not be granted the status. This case will be closely watched going forward due to the wide ranging implications of the ruling on many estates that were barred from passing to a same sex partner in intestacy.

See Lane Moore, Texas Just Did Something Huge for Lesbians That No Other State Has Done, Cosmopolitan, October 7, 2015.

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

October 8, 2015 in Current Affairs, Current Events, Intestate Succession, New Cases | Permalink | Comments (0)

Tuesday, October 6, 2015

Kentucky Supreme Court Rules Against Nursing Home Arbitration Agreement

GavelMandatory arbitration agreements are a hot topic in all areas of contract law but few areas excite as much vitriol as agreements signed as part of admittance to a nursing home. In three Kentucky cases, nursing homes were seeking to compel arbitration over tort actions by family members of residents. However, the families fought back ultimately asking the Kentucky Supreme Court to invalidate the agreements.

In Extendicare Homes, Inc. v. Whisman, the court held that a constitutional right to a jury trial cannot be waived by a holder of a general power of attorney. The court recognized that there was language in the power of attorney forms which could have authorized the agents to agree to arbitration but that express and unambiguous language must be used to grant the power. Going forward, this could be a big win for nursing home residents who will have somewhat easier access to juries in order to recover from negligence.

See Liz Kramer, Kentucky Supreme Court compares giving up jury trial to giving up parental rights; refuses to enforce arbitration, Lexology, September 28, 2015.

October 6, 2015 in Elder Law, New Cases | Permalink | Comments (0)

Friday, October 2, 2015

Florida Court Rules Argentine Will Not Valid Under Florida Law

GavelElena Isleno, an Argentine citizen, created a valid will in New York which stated it only covered her property located in the US and named specific beneficiaries. Later, she would create a new will which revoked all prior testaments but the will itself was been dictated to an Argentine notary, in the presence of witnesses, but was never signed by anyone. As a result, a Florida court was faced with the question of whether the New York or Argentine will should be probated but was faced with the threshold question of if the Argentine will was valid since it appeared to be an invalid oral will under state law.

In Malliero v. Mori, Mori & Corallo, the Florida Court of Appeals ruled that the second will was not valid under Florida law since it was noncupative and thus did not fall into the exception that allows certain foreign wills to be valid even if not following Florida's formalities. The court also rejected the contention that the Argentine will was valid as a notarial will because the transcribed will was never signed by the testator or witnesses. The court did note the difficulty in this case since keys terms such as "noncupative" and "notarial will" were not defined in the statute and called on the legislature to create definitions.

See Charles Rubin, Florida Court Provides a Lesson in Nuncupative and Notarial Wills, Rubin on Tax, September 30, 2015.


October 2, 2015 in New Cases, Wills | Permalink | Comments (0)

Thursday, September 24, 2015

Suit By Marilyn Monroe Estate Seeks To Push Limits Of Trademark Law

ArticlePictureThe estate of legendary actress Marilyn Monroe has brought suit against a memorabilia manufacturer claiming trademark infringement for the use of Monroe's image on products. The estate argues that the manufacturer's use of Monroe's created a false endorsement of the product which violates the trademark the estate owns. However, the manufacturer countered with the argument that the rights to publicity have entered the public domain which gives them the right to use Monroe's image and a trademark claim is pretext to attempt to exert ownership over a right the estate no longer controls. The US District Judge refused the defense's motion for summary judgment and will allow the case to move forward although no trial date has yet been set.

See Eriq Gardener, Marilyn Monroe Estate Allowed to Bring Trademark Claims Against Merchandiser, The Hollywood Reporter, September 22, 2015.


September 24, 2015 in Current Affairs, Current Events, New Cases | Permalink | Comments (0)

Saturday, September 5, 2015

The Wilmington Trust Fraud Dispute Has Been Made Into A Class Action Suit

JudgmentA Federal Judge in Delaware has ruled that the former shareholders of the Wilmington Trust Co. may now pursue their securities fraud lawsuit as a class action.  As a consequence of mounting losses the company ended up having to sell itself at a discounted rate to M&T Bank Corp.  The suit alleges that the companies officers concealed “several hundred million dollars worth of troubled construction loans and commercial mortgages in 2009 and 2010.”  There are currently several different pension funds leading the lawsuit.  U.S. District Judge Sue Robinson agreed that the plaintiffs in the case could find a common means of calculating the damages caused by Wilmington’s actions. 

See Jonathan Stempel, Wilmington Trust fraud lawsuit is now a class action, Reuters, September 3, 2015.

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

September 5, 2015 in Current Affairs, Estate Planning - Generally, New Cases | Permalink | Comments (0)

Monday, August 31, 2015

In Canada, Bequests In A Will May Be Voided If Against Public Policy

CanadaWhen Harry Robert McCorkill died, he left a bequest in his will to an organization that was devoted to the cause of white supremacy. As a result, his sister challenged the gift by invoking the Canadian rule that gifts in a will that are against public policy may be voided. In McCorkill v. Streed, the court held that the gift was against public policy and voided the gift. The court stated that "against public policy" was to be construed as embodying the morals of the time and may be read as prohibiting gifts against the interest of society. Based on the prevailing anti-discrimination attitude, embodied in Canadian law and constitution, the gift was void because it provided funds to an organization whose sole aim was discriminatory.

See Stan Rule, Gifts Void Against Public Policy: McCorkill Estate, Rule of Law Blog, August 23, 2015.

Special thanks to Jim Hillhouse for bringing this article to me attention.

August 31, 2015 in New Cases, Weblogs, Wills | Permalink | Comments (0)

Thursday, August 27, 2015

Historical Society Denied Standing To Bring Suit Over Historic Island Charitable Trust

Article PictureGardiner’s Island is something of a throwback to a time past due to the preservation of the island's historical character by generations of the Gardiner family. However, a trust set up by a family member to ensure the island remained pristine is now embroiled in controversy after accusation of mismanagement by the local historical society. The society claimed the trustees were misusing the assets and sought a court order forcing the trust to return to it's purpose of historical preservation. But a New York appellate court has denied the society standing stating the group was not a named beneficiary and did not have a "special interest" to give them standing. As a result, only the Attorney General of New York may bring the suit against the trust to enforce its purpose and, as of now, has shown no inclination to take action.

See John T. Brooks & Jena L Levin, No Standing to Enforce a Charitable Trust, Wealth Management, August 25, 2015.

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

August 27, 2015 in Current Affairs, New Cases, Trusts | Permalink | Comments (0)