Wills, Trusts & Estates Prof Blog

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

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)

Saturday, November 5, 2016

Redstone Sues Former Ex-Girlfriends

Sumner and gfSumner Redstone is now suing two of his former girlfriends to retrieve the millions of dollars he spent on them, claiming the women committed elder abuse. Redstone is seeking more than $150 million in damages from the two women. His lawyers claim that the women emotionally abused Redstone to get lavish gifts from him. The lawsuit is contradictory stating that Redstone’s physical and mental capacity were impaired to the point he could be easily manipulated by the women, but his mental competency was the exact reason Philippe Dauman lost his job. The Redstone legal saga continues.

 See Edvard Pettersson, Sumner Redstone Sues Two Ex-Girlfriends on Elder Abuse Claims, Bloomberg, October 25, 2016.

Special thanks to Jim Hartnett (Attorney, Dallas, Texas) for bringing this article to my attention.  

November 5, 2016 in Current Events, Elder Law, Estate Planning - Generally, New Cases | Permalink | Comments (0)

Tuesday, October 25, 2016

Denver Veterans' Hospital Switches Bodies for Cremation

Veteran mix upThe Sandoval family was horrified when they learned their loved one’s body was missing. The family sent his remains to the mortuary, but another man’s remains were sent back to them for cremation. In fact, his remains were misplaced for five days, leaving his family with unanswered questions. Eventually, the family learned that the remains were mixed up after the hospital alerted the mortuary. The family has been in touch with an attorney who is helping them file a claim.  

See Family Upset After Bodies Switched at Denver Veterans’ Hospital, AOL News, October 21, 2016. 

 

October 25, 2016 in Current Events, Estate Planning - Generally, New Cases | Permalink | Comments (0)

Monday, October 24, 2016

A Brownstone's Bitter Inheritance Battle

BrownstoneBill Cornwell and Tom Doyle lived together as committed partners in a brownstone for over five decades. For most of their relationship, gay marriage was illegal, not allowing them to affirm their relationship. Two years ago, Mr. Cornwell died, bequeathing the valuable brownstone to Mr. Doyle, which is now in dispute. Mr. Cornwell’s nieces and nephews have ignored the bequest and claimed it as their inheritance, putting the brownstone up for sale at $7 million. 

Mr. Cornwell’s will was only witnessed by one person, which makes the will legally invalid because of the need for two witnesses. Without a valid will, the law requires that Mr. Cornwell’s assets pass to his next of kin—his nieces and nephews. Mr. Doyle’s argument is that the two of them were involved in a common law marriage, even though New York does not recognize this arrangement. This legal battle has left Mr. Doyle confused over those he once considered extended family.  

See Sarah Maslin Nir, A Brownstone and the Bitter Fight to Inherit It, NY Times, October 23, 2016. 

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

 

October 24, 2016 in Current Events, Estate Planning - Generally, Intestate Succession, New Cases, Wills | Permalink | Comments (0)