Wills, Trusts & Estates Prof Blog

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

Saturday, December 17, 2016

Case Summary on Succession of Fiduciary

Succession fiduciaryPOWER OF ATTORNEY: A successor agent is not a fiduciary until succession is effective. An Illinois intermediate appellate court in In re Estate of Shelton, 60 N.E.3d 121 (Ill. App. Ct. 2016), affirmed the trial court’s dismissal of an action alleging that the successor agent under a power of attorney breached the agent’s fiduciary duties owed the principal because until the successor becomes the agent, no duties arise and the certification of the incompetency of the original agent which would trigger the succession was not made until after the alleged breach.

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

 

December 17, 2016 in Current Events, Estate Planning - Generally, New Cases, Professional Responsibility | Permalink | Comments (0)

Wednesday, December 14, 2016

Trustee Citizenship Regulates Federal Diversity Jurisdiction

Trustee citizenship2For the purposes of the federal diversity requirement, trusts’ citizenship is determined by the citizenship of the trust’s trustees. In Yueh-Lan Wang v. New Mighty U.S. Trust, the surviving spouse of a Taiwanese billionaire was trying to reclaim billions from a trust in Washington D.C. set up by her husband in his late years. The court concluded that the trust was a “traditional trust,” which lacks juridical person status, disallowing it from suing or being sued. Accordingly, complete diversity existed in this case because the surviving spouse was a Taiwan citizen and the trustees were citizens of the District of Columbia, Delaware, and Virginia. In conclusion, the court held that the outcome-determinative of the trust’s citizenship was based on the citizenship of its trustees.  

See Brian Spiro, Citizenship of Trustees Controls for Federal Diversity Jurisdiction, Florida Probate Lawyers, December 13, 2016. 

 

December 14, 2016 in Estate Planning - Generally, New Cases, Trusts | Permalink | Comments (0)

Tuesday, December 13, 2016

Sofia Vergara Embryo Case Takes a New Turn

SofiaA legal battle between Sofia Vergara and her ex-fiancé Nick Loeb over their frozen embryos has perpetuated for quite some time and has now taken on another twist. A new lawsuit has been filed on behalf of the embryos, giving the embryos the rights of people. This new lawsuit comes at the heels of Loeb dropping his 2015 case, which sought to bring the embryos to term. However, Loeb seems to have nothing to do with this new lawsuit as the documents reference a trust suing on behalf of the embryos. The lawsuit finds its grounds under Louisiana law, which designates two types of persons: natural and juridical—natural are obviously human beings, and juridical are entities which the law attributes personality. This law grants embryos the right to sue, prohibits their ownership or destruction, and requires disputes to be resolved in their “best interest.” In Louisiana, these juridical persons have the right to life itself. This new lawsuit has the potential to open the floodgates for future cases, but as of right now, the lawsuit is just seeking to gain Louisiana jurisdiction.   

See Brandy Zadrozny, Sofia Vergara Embryo Case Could Open Floodgates, Daily Beast, December 8, 2016. 

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.

 

December 13, 2016 in Current Events, Estate Planning - Generally, Film, New Cases, Trusts | Permalink | Comments (0)

Sunday, December 11, 2016

Case Summary on Determining Citizenship for a Trust

Trustee citizenshipKAREN LECRAFT HENDERSON, Circuit Judge: This case presents the question of how to determine the citizenship of a trust for diversity subject-matter jurisdiction pursuant to 28 U.S.C. § 1332(a). In light of the United States Supreme Court’s recent decision in Americold Realty Trust v. ConAgra Foods, Inc., 577 U.S.__, 136 S. Ct. 1012 (2016), we conclude that a so-called “traditional trust” carries the citizenship of its trustees. We accordingly reverse the district court’s Rule 12(b)(1) dismissal and remand for further proceedings. Fed. R. Civ. P. 12(b)(1).

See Wang v. New Mighty U.S. Trust, No. 12–7038 (December 9, 2016).

December 11, 2016 in Current Events, Estate Administration, Estate Planning - Generally, New Cases, Trusts | Permalink | Comments (0)

Saturday, December 10, 2016

Case Summary on Attestation of a Will

AttestationATTESTATION: Witnesses’ signatures on loose page did not prevent finding of due execution. The decedent’s will consisted of six loose pages, numbered consecutively with a running footer declaring the pages to be 1 of 6, 2 of 6 and so on. The font and typeface were consistent from one page to the next and the document consisted of 11 consecutively numbered paragraphs. The decedent signed at the foot of page 5 and the witnesses’ signatures appear on page 6. Page 5 ends with “an inarticulate sentence fragment” which does not connect grammatically with the first sentence of page 6. The rest of the text on page 6 is not a complete attestation clause because it omits to state that the witnesses signed in the presence of the testator. Nevertheless, the Maryland Court of Special Appeals held that in these circumstances the witnesses signatures were part of the will and the presumption of due execution applied. Castruccio v. Estate of Castruccio, No. 1665, 2016 WL 5462966 (Md. Ct. Spec. App. Sept. 29, 2016).

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

December 10, 2016 in Current Events, Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0)

Friday, December 9, 2016

Case Summary on Estate Property in Foreign Jurisdiction

English probateANCILLARY PROBATE: Local court has no jurisdiction over estate property remitted from foreign jurisdiction.  The decedent resided abroad for many decades but never relinquished U.S. citizenship. After her death in London, England, where she had resided for many years, administration was opened in an Alabama court, arguably the state of her domicile and where personal property belonging to the estate was located. Subsequently her will was offered for probate in London. The will made no provisions for the decedent’s sole heir, a sister. The administrator, decedent’s nephew, then retained an English firm to represent him in the English probate. The administrator and the executor settled all outstanding issues except for a dispute between the administrator and his English solicitors over their charges. As part of his efforts to secure indemnification from the estate for sums owed to the solicitors, the administrator secured an order from the Alabama court ordering beneficiaries of the will who reside in Alabama to deposit into escrow any distributions received from the English administration. One beneficiary sought a writ of mandamus from the Alabama Supreme Court vacating the escrow order.  The court granted the writ, holding that the local probate court has no jurisdiction over the property subject to the English administration. Ex parte Scott, No. 1140645, 2016 WL 6310771 (Ala. Oct. 28, 2016).

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

December 9, 2016 in Current Events, Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0)

Wednesday, December 7, 2016

Widow Sues Over Husband's Death Due to Emotional Distress

WalgreensA widow is suing an Orlando Walgreens, alleging that the store held her husband captive and made him clean the store’s bathroom. She claims that the humiliation caused emotional distress that led to death of her husband. The lawsuit does not detail how much time passed between the incident and the husband’s death. The amount the widow is suing for is undetermined, but there is a standing offer to settle the suit for $500,000.

See Man Dies of Emotional Distress After Being Forced to Clean Walgreens Bathroom, Widow Says, WFTV 9, December 6, 2016.

December 7, 2016 in Current Events, Estate Planning - Generally, New Cases | Permalink | Comments (0)

Friday, December 2, 2016

What Happens When Your Husband Hides His $400 Million Fortune?

Hiding moneySarah Pursglove decided to take a deeper look into her husband’s finances when the Finnish entrepreneur left her. Robert Oesterlund swore in court that his fortune only totaled a few million dollars, but Pursglove could think of several family purchases that cost above and beyond that amount. She flew to the Bahamas to figure out what her husband was really worth. There she found an accounting statement that claimed Oesterlund was worth at least $300 million. As she packed her bags for the flight back home, her family’s fortune immediately began disappearing into various shell companies, bank accounts, and trusts under a worldwide financial system catering to the ultra rich. The system effectively offshores wealth and makes the richest people appear to own very little.

Over the next two years, Pursglove would rely on her wealth squad to untangle the defenses of the offshore financial world. It all started when Oesterlund created his businesses and was subsequently looking to avoid costly taxes. Eventually, he set up a Cook trust, suggested by his corporate counsel, who assured him he would be “untouchable.” As Pursglove’s lawyers began to figure out the scheme her husband was surmounting, they filed court documents for a divorce and to impose a sweeping asset injunction, which would prohibit Oesterlund from selling, merging, or borrowing against any of his assets and additional offshoring. The corporate fraud lawsuit proceeded in Florida, where the family’s companies were being run. It was eventually discovered that Oesterlund was using a Bahamas-based company to transfer all his assets and avoid all United States tax liability—a tactic referred to as “transfer pricing.” Pursglove’s attorneys claimed that Oesterlund began to shield assets from his wife as the divorce loomed near. Shortly after a judge ruled that Pursglove could see thousands of her husband’s documents, both sides’ lawyers met and discussed the possibility of Oesterlund going on the run if he had to fork the documents over. Consequently, this brought things to a head. Oesterlund would have to expose himself or threaten his fortune. Oesterlund’s one-time allies were now becoming his enemies to avoid fighting the greater good—the system. The wall of secrecy around Oesterlund’s accounts began to crumble. The case still remains open and the outcome is unknown, but it begs the question: is there justice in wealth battling wealth?

See Nicholas Confessore, How to Hide $400 Million, N.Y. Times, November 30, 2016.

December 2, 2016 in Current Events, Estate Administration, Estate Planning - Generally, Income Tax, New Cases, Professional Responsibility, Trusts | Permalink | Comments (0)

Monday, November 21, 2016

Summary Judgment Overturned in Lack of Testamentary Capacity Contest

Overturn summary judgmentAt the trial court level, in Estate of Koontz, the court granted summary judgment against a will contestant’s claims of undue influence and lack of testamentary capacity. The court of appeals reversed the summary judgment and reviewed the contestant’s affidavit, which noted the decedent’s bi-polar depression, prolonged episodes of paranoid and delusional behavior, and his behaviors over an affair and piece of property he owned. Subsequently, the court found that the affidavit contained “more than a scintilla” of evidence to prove the decedent’s lack of testamentary capacity. The court ultimately concluded that the contestant had provided enough evidence for the lack of testamentary capacity claim to withstand summary judgment.

See J. Michael Young, Estate of Koontz: Another Summary Judgment Overturned, Texas Probate Litigation, November 17, 2016.

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

November 21, 2016 in Current Events, Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0)

Thursday, November 17, 2016

Treasure-Hunter's Trust Documents Might Be in Deep Water

Attorney client privilege2An Ohio federal judge has recognized that he might make a lawyer hand over trust documents that he created for an ex-fugitive, who avoided paying expedition’s financiers after retrieving gold from a ship. The judge notes that the crime-fraud exception to the attorney-client privilege may force the trust documents to be turned over. The ex-fugitive originally had his lawyer set up an offshore trust where he has stashed some of the bounty. Whether the documents are privileged as a threshold matters seems to be an issue of first impression.

 See Samson Habte, Treasure-Hunter’s Lawyer May Have to Reveal Trust Docs, 32 Law. Man. Prof. Conduct 662, November 3, 2016.

Special thanks to Karen E. Boxx (Professor of Law, University of Washington School of Law) for bringing this article to my attention.  

Download Trust atty client privilege

November 17, 2016 in Estate Planning - Generally, New Cases, Trusts | Permalink | Comments (0)