Wills, Trusts & Estates Prof Blog

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

Thursday, May 26, 2016

Deciding Sumner Redstone's Mental Acuity

SumnerWith Sumner Redstone’s declining health, the case to decide his mental acuity is becoming more difficult and more pertinent with so many third parties involved. To determine his competency for deciding to oust two Viacom trustees, psychiatrists will look for evidence that Mr. Redstone understands relevant facts and appreciates the impact of his decisions. To determine any undue influence on the behalf of his daughter, the court will look at the facts placed before it to see if she threatened him or preyed on his emotions. Mr. Redstone will need to indicate a clear and consistent rationale for the change.

See Erik Eckholm, A Complicated Legal Battle Over Sumner Redstone’s Mental Acuity, NY Times, May 25, 2016.

May 26, 2016 in Current Events, Estate Planning - Generally, New Cases, Trusts | Permalink | Comments (0)

Thursday, April 28, 2016

German Court Grants Access To Digital Accounts For Heirs

ComputerLately, the subject of access to digital accounts after the death of the owner has been in the news due, in no small part, to the fact that a number of states have adopted legislation addressing the matter. However, Germany just got it's first bit of law on the subject after a Berlin regional court ruled that the parents of the deceased minor had the right to access their child's Facebook account including all private messages. The court reasoned that the digital messages were the same as inheriting letters and other documents under normal estate law. In addition, the court addressed the privacy issue, an important aspect under German law, along the same lines saying a third party sender had no special right to privacy online than they would have with physical messages that were inherited. This ruling was vigorously fought by Facebook which severely limits the ability of non account holders to access the account of a deceased user. Currently an appeal is pending although no trial date has yet been set.

See Jabeen Bhatti, German Parents Can Inherit Child's Online Profiles, BNA, April 20, 2016.

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

April 28, 2016 in Estate Planning - Generally, New Cases, Technology | Permalink | Comments (0)

Tuesday, April 26, 2016

New Case Concerning Inclusion of Estranged Spouse's Assets

GavelWhen Howard Johnson entered a nursing a home, he applied for Medicaid in order to help pay for the cost of his stay. However, his application was rejected due to be financially above his state's $2000 asset limit. He challenged the rejection administratively and in the courts arguing that it was the assets of his long estranged wife being included with his own that pushed him over the threshold of ineligibility. The administrative judge ruled that it was proper to include the wife's assets which prompted a suit in federal court. In Evangelical Good Samaritan Society v. Valenti, the district court punted on the issue concerning the inclusion of the assets of the estranged wife with Johnson's when determining his Medicaid eligibility. Instead, the court said the the issue was moot since his assets, even when considered alone, would make him unable to receive assistance from the program.

See, Medicaid Applicant Can't Protest Treatment of Separated Spouse's Assets When He Is Individually Over the Asset Limit, Elder Law Answers. April 24, 2016.

April 26, 2016 in Disability Planning - Health Care, Elder Law, New Cases | Permalink | Comments (0)

Friday, March 25, 2016

No Duty To Supervise Sex Offender In Nursing Home Says Iowa Court

GavelIn 2010 William Cubbage, a registered sex offender with a criminal history reaching back to the 80's, was assigned to a nursing home from state custody due to advancing dementia. When he was placed in the home, no special measures were taken to protect other residents from the predator which ultimately resulted in a 2011 sexual assault of a 95 year old female resident. Cubbage, who was never charged with a crime, was placed back into state custody at a mental health facility and the state was faced with a lawsuit from the victims family for the personal injuries suffered by their loved one. The basis of the suit was that the state had a legal duty to supervise Cubbage due to his sex offended status and their failure to do so lead the injuries. However, an appeals court has upheld a lower court's dismissal of the suit reasoning the state had no obligation to provide plans to protect the safety of other residents after the transfer was judicially approved. Currently the family is considering an appeal to the Iowa Supreme Court while another suit against the nursing home for the incident remains in court.

See, Court: Iowa had no duty to monitor predator at nursing home, Houston Chronicle, March 23, 2016.

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

March 25, 2016 in Current Affairs, Current Events, New Cases | Permalink | Comments (0)

Friday, February 26, 2016

Florida Appeals Court Says Estate Not Indispensable Party To Suit

GavelShortly before Joe Parker died, he transferred, in conjunction with his wife, multiple properties to his son personally as well as a business entity set up by the son. But there was a problem, there were multiple children from a previous marriage who felt cheated by their sibling so they filed suit to overturn the inter vivos transfer. While doing so, the estate of their father was never named as a party which was focused solely on their stepbrother and the court threw out the suit with prejudice. On appeal in Parker v. Parkerthe court held that the estate was not an indispensable party to this suit since the property had been conveyed away before the estate came into existence. As a result, the estate has no interest in the dispute even though it may be a beneficiary if the suit is successful and the property is returned. This case is a good example of how property ownership at the time of death dictates who must be part of a suit when disputing a transfer. 

See Brian Spiro, Decedent’s Estate Held Not To Be An Indispensable Party, Clark Skatoff, February 24, 2016.

February 26, 2016 in Estate Planning - Generally, New Cases | Permalink | Comments (0)

Monday, February 8, 2016

New Case On Nursing Home Arbitration Agreements In California

GavelIn 2012, Marjorie Fitzpatrick entered an assisted living center due to her advancing dementia and was sign in by her daughter Valerie acting as her mothers representative. However, in 2013, Marjorie suffered a fall outside the facility while unsupervised and was left on the ground for over half an hour and suffered numerous injuries which contributed to her death. Valerie, acting as a representative of Marjorie's estate, filed suit for wrongful death but the facility argued that Valerie and the estate was bound to the arbitration agreement that Valerie signed when she placed her mother in the facility. In Monschke v. Timber Ridge Assisted Living LLC, the appellate court affirmed the trial court and held that the estate was not bound by the agreement since the suit was brought on behalf of the children of Marjorie, rather than the decedent herself, and that they were not bound by the agreement.

Special thanks to Stacie Strong (Manley O. Hudson Professor of Law, University of Missouri School of Law) for bringing this article to my attention.

February 8, 2016 in Elder Law, New Cases | Permalink | Comments (0)

Wednesday, February 3, 2016

Recent Court Case Makes Illinois Slayer Statute Application Unclear

GavelSlayer statutes exist in various incarnations throughout the nation and usually make it where the killer cannot inherit from their victim. In Illinois, the statute prohibits the killer from receiving property or any benefit from the death of the killer and to to treat the guilty party as predeceasing the victim. Until recently, an older court case had allowed trial courts to look into the future and decide if a relative of the killer could also be disinherited if the killer would still receive benefits from the murder. But the recent ruling In re Estate of Irene Opalinska has changed the dynamic. The court held that the daughter of a murder victim could inherit even if she lied to police about her husbands involvement with the killing though she had no part in arranging the murder. Any benefit arising for the killer would come indirectly from his wife which the statute does not specifically disallow. The court distinguished this case from the old rule where a mother was going to be the actual guardian of the estate for a minor child which the court still felt would have given her enough of a direct benefit to trigger the statute. Going forward it is unknown what affect this change in the application of the slayer statute will have in Illinois since the old rule has only been narrowed in scope rather than overturned.

See John T. Books & Jena L. Levin, Public Policy and the Boomerang Inheritance, Wealth Management, February 2, 2016.

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

February 3, 2016 in Estate Planning - Generally, New Cases | Permalink | Comments (0)

Tuesday, February 2, 2016

Arizona Court Overturns Home Arbitration Agreement

GavelOne of the biggest changes when it comes to nursing homes in recent years has not been related to the care received but the agreement that gets someone into the facility. Arbitration agreements are now boiler plate language in nursing home contracts and severely constrict the ability of aggrieved residents or family from pursuing relief in court where the potential remedies are often more robust. But a recent Arizona case showed that the agreements are not ironclad. A man entered his mother into the home and signed the agreement on her behalf but had no power of attorney or other authority which the court held made the contract unenforceable. In addition, the court noted that agreements might be attacked using the doctrine of "contract of adhesion" which essentially means the term is void since a party to the contract has no choice but to sign with the offending term. However, the only surefire way to protect yourself from the arbitration agreement is to cross out the provision before signing which many agreements allow and an increasing number of states permit by law. But always make sure that the arbitration agreement can be waived before signing in order to avoid any unpleasant revelations down the line.

See Robert Fleming, Nursing Home Arbitration Provision Voided in Arizona Case, Fleming & Curti, February 1, 2016.


February 2, 2016 in Disability Planning - Health Care, Elder Law, New Cases | Permalink | Comments (0)

Friday, December 18, 2015

Statute Does Not Apply To Non-Slayer Nor Does Lack Of Clean Hands Prevent Inheritance

GavelDaughter’s husband was convicted of first-degree murder of the daughter’s mother and the daughter was convicted of perjury and obstruction of justice in connection with the investigation. The public administrator was appointed to administer the victim’s estate and moved to disqualify the daughter from taking under the victim’s will under the Illinois slayer statute because (1) the murderer would “indirectly” benefit from the inheritance and (2) under the equitable doctrine of unclean hands, daughter had attempted to frustrate the investigation of the murder. The trial court denied the requested relief and the intermediate Illinois appellate court, in In re Estate of Opalinska, No. 1–14–3407, 2015 WL 6940100 (Ill. App. Ct. Nov. 5, 2015) affirmed, holding that the statute did not apply. Daughter was not the slayer, and if the murderer did receive any of the inheritance it would be because the daughter gave it to him and not by “reason of the death.” The equitable doctrine could not change the operation of the law of wills nor is daughter receiving her mother’s estate because of her acts of perjury and obstruction of justice. In re Estate of Opalinska, No. 1–14–3407, 2015 WL 6940100 (Ill. App. Ct. Nov. 5, 2015).

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

December 18, 2015 in New Cases, Wills | Permalink | Comments (0)

Tuesday, December 15, 2015

SCOTUS Puts Hold On Alabama Court's Ruling In Same-Sex Adoption Case

GavelYesterday, the United States Supreme Court put a hold on the enforcement of an Alabama Supreme Court decision which stripped the parental rights of a women that had adopted the biological children of her same-sex partner. The couple had set up a temporary residence in Georgia in order to proceed with the adoption since that state was viewed as being more likely to approve the adoption. However, the couple split which resulted in the adoptive mother losing her rights when the Alabama court refused to grant full faith and credit to the Georgia ruling. As of now, no visitation rights have been restored and the hold only applies to the complete removal of parental rights that was order by the state court.

See Lyle Denniston, Temporary win for lesbian parent; Court to rule on Indian rights, SCOTUS Blog, December 14, 2015.

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


December 15, 2015 in Current Affairs, Current Events, New Cases | Permalink | Comments (0)