Wills, Trusts & Estates Prof Blog

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

Tuesday, July 7, 2015

Article On Victims of Substantiated Child Abuse As Ascertainable Creditors

Mizzou LawAlice Haseltine (University of Missouri School of Law, J.D. Candidate 2015) recently published an article entitled, Victims of substantiated child abuse: Missouri's new reasonably ascertainable creditors, 79 Mo. L. Rev. 1121-1137 (2014)  Provided below is the article’s abstract:

This Note begins with an exploration of the unique factual circumstances that gave rise to the court’s determination that victims of child abuse are reasonably ascertainable creditors.  The Note goes on to discuss the constitutionality of creditor claim bars and the evolution of the reasonably ascertainable creditor in Missouri.  Next, this Note provides an analysis of the Supreme Court of Missouri’s reasoning in Austin and – finally – explores possible ex-tensions of Austin while weighing the policy considerations associated with a broad extension of the court’s holding to future claims of child abuse against decedents’ estates.

July 7, 2015 in Articles, Current Affairs, New Cases | Permalink | Comments (0)

Monday, July 6, 2015

Trust Reformation By Massachusetts' Lower Courts Restrained

Trust AltIn recent years, courts in Massachusetts have been rather liberal in reforming trust to meet the expectations of the settlor even if proper creation procedure was not followed. But this trend might be on the wane following a case that had a will pouring into an existing trust that was later revoked then reestablished, with different terms, in the same year. However, state law at the time required the trust to be in existence before the will was executed and the termination of the first trust ultimately caused a lapse for the pour over provision.
At probate, the court ruled the failure to properly identify the new trust in the will a drafting error and allowed the pour over to proceed. However, the appeals court overturned the decision stating that reformation cannot take the place of actually executing the legal formalities, executing a new will or valid codicil in this instance, no matter what the intent of the testator might have been. Essentially, the court said that no matter how fair it might be to "reform" a document to meet the creator's intent, if there is nothing valid to fix then the court is powerless to act.
See Luke Lantta, Trust Reformation Was Not A Remedy For Failing To Complete An Estate Plan, Bryan Cave Fiduciary Litigation, June 24, 2015.
Special thanks to Jim Hillhouse for bringing this article to my attention.

July 6, 2015 in New Cases, Trusts, Wills | Permalink | Comments (0)

Brother Of Deceased Liquor Magnate Denied Right To See Trust Documents

New ZealandA New Zealand judge has denied a request to examine trust records by the brother of late liquor king Michael Erceg. The dispute centers on a lack of distributions made to the brother from two trust that were set up after the tragic death of Erceg in a aviation accident. Family members have been battling over the massive estate for ten years with a recent case involving Erceg's mother recently concluding. The judge cited confidentiality for the reason the documents will remain sealed.


See Hamish Fletcher, Judge denies look at Erceg documents, New Zealand Herald, May 25, 2015.


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


July 6, 2015 in Current Events, New Cases, Trusts | Permalink | Comments (0)

Clever Tactics No Get Around Florida Laws Concerning Post Divorce Wills

Florida_sign When Thomas Carroll died, the will left the estate to his wife and, if she were dead, the residuary to a trust created for the benefit of the wife's niece and nephew. However, he died a month after the couple divorced which, under Florida law, voided any provisions in favor of the spouse and treats the former spouse as having predeceased on the date of the dissolution. His mother sought to take Carroll's estate under intestacy but two lower courts ruled the wife legally predeceased the husband and the niece and nephew would inherit.

     In Carroll v. Israelson, the Court of Appeals reversed the trial court ruling that state law clearly voids any provisions in favor of the former spouse. A court will not be allowed to use the legal fiction created in the statute, which treats the former spouse as predeceasing, as a get around to a voided will provision. As a result, the niece and nephew would not be the beneficiaries of a trust and the estate would pass under other provisions of the will or intestacy.

See Brian Spiro, "Legal Gymnastics" Not Allowed to Re-Write Will After Divorce and Death, Clark Skatoff, July 2, 2015.

July 6, 2015 in Intestate Succession, New Cases, Trusts, Wills | Permalink | Comments (0)

Wednesday, July 1, 2015

9th Circuit Rules On Bob Marley False Endorsement Case

9th CircuitThe estate of legendary singer Bob Marley formed a company, after his death, with the intent to license his image for apparel and other merchandise. The estate issued a license for a company to have the exclusive right to use Marley's image. However, another company began producing merchandize with the image as well which triggered a lawsuit from the Marley estate. After a jury trial, damages were awarded to the estate as well as extensive attorney fees with the case being immediately appealed.

In Fifty-Six Hope Road Music, Ltd. v. A.V.E.L.A., Inc., the 9th Circuit Court of Appeals upheld the jury decision finding that the award was supported by the evidence and could not be overturned. However, it was noted by several justices that there were many meritorious defenses raised but, as they were raised for the first time on appeal, were barred from consideration. As a result, this decision does not appear to fully settle the future of using the image of deceased celebrity after death.

See Jennifer Insley-Pruitt, United States: Ninth Circuit Court Of Appeals: Use Of Deceased Celebrity's Image On T-Shirts Constitutes False Endorsement Under Lanham Act, Mondaq, June 10, 2015.

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

July 1, 2015 in Current Affairs, Estate Administration, New Cases | Permalink | Comments (0)

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)

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)