Wills, Trusts & Estates Prof Blog

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

Friday, June 10, 2016

Update from Forbes Library on Its Continuance as a Non-government Entity

Forbes LibraryForbes Library trustees are seeking to preserve the relationship between it and the city of Northampton as expressed in Charles E. Forbes will. City Solicitor Seewald is asserting that the library is an arm of the city government or a municipal department, following the Commonwealth’s conclusion that it is not. The probate court is set to interpret the provisions of the will. If the library becomes a part of the city government, then there would be no guarantee that the Northampton would continue to support the library as accepted under the will.

See Forbes Seeks Status Quo, Forbes Library, June 1, 2016.

June 10, 2016 in Current Events, Estate Administration, New Cases, Wills | Permalink | Comments (0)

Wednesday, June 8, 2016

Spousal Election Must Not Be "Willfully Absent"

Elective shareIn Lovett v. Peterson, the Michigan Court of Appeals upheld the probate court’s judgment that a wife was physically separated from her husband for several years while he lived with his mistress but was not “willfully absent” according to the testate spousal election statute. After his death, his wife elected against the will, which would afford her half of the estate. Soon after, the husband’s daughter petitioned the probate court for a declaration that his wife was not the surviving spouse, being willfully absent from him for more than a year before he died. His wife, however, never acted with specific intent to no longer be a part of the marriage, making her not willfully absent under the statute.

See Jason Byrne, COA Holds that a Spouse Must Be Willfully and Physical Absent from Her Decedent Spouse for at Least a Year Before Death To Be Disqualified from Electing Against the Decedent’s Will, Warner Norcross & Judd LLP, May 27, 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.

June 8, 2016 in Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0)

Saturday, June 4, 2016

Forbes Library Cutting Ties with City of Northampton

Forbes LibraryThe Forbes Library board of trustees filed a complaint to cut ties with the city of Northampton, alleging that officials have treated the library as a government entity when it is not. The trustees are pursuing a declaration of the trustees’ rights and status according to founder Charles E. Forbes’ will, which allowed the founding of the library and required it be controlled by a board of trustees. The trustees feel that Northampton officials are gunning to make them a governmental body and further part of the city government. This would undermine their reputation as a charity and discontinue proportional bequests with such city oversight. 

See Laura Newberry, Forbes Library Sues Northampton, Asserting City Cannot Control It, Mass Live, May 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.

June 4, 2016 in Current Events, Estate Administration, Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0)

Friday, June 3, 2016

Sumner Redstone's Controversy in Estate Plans Everywhere

Sumner redstoneAs the battle continues over Sumner Redstone’s billion-dollar estate, with the current mess of lawsuits, many are questioning his estate planning. Experts are saying that Redstone’s controversy is happening in epidemic proportions with people and charities moving in on the estates of wealthy elders. As the elder population continues to live longer, this problem increases and only becomes worse.

Redstone’s pattern creates the need for settlor’s to make clear provisions in trust. It would be important to define incapacity and appoint who would determine incapacity when the time comes. Redstone’s trust does not define incapacity and gives little control to others while he remains alive. With a well-drafted trust, Redstone could have included a provision (or built it to go into effect after a certain age) allowing a majority of trustees to conclude he did not have the capacity to remove a trustee. Ultimately, it seems Redstone has brought on his own problem.

See James B. Stewart, In Sumner Redstone Affair, His Decline Upends Estate Planning, NY Times, June 2, 2016.

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

June 3, 2016 in Current Events, Elder Law, Estate Planning - Generally, New Cases, Trusts | Permalink | Comments (0)

Wednesday, June 1, 2016

San Bernardino Shooter's Life Insurance To Be Seized

Civil asset forfeitureA civil asset forfeiture lawsuit was filed Tuesday to seize life insurance payments taken out by the San Bernardino shooter; the policies are worth $275,000. Federal prosecutors state that under federal law, assets accumulated from terrorism against the U.S. are subject to forfeiture. Terrorist’s beneficiaries should not be enriched from such crimes.

See Associated Press, US Seeks to Seize San Bernardino Shooter’s Life Insurance, Fox News, June 1, 2016.

June 1, 2016 in Current Events, New Cases | Permalink | Comments (0)

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)