Wills, Trusts & Estates Prof Blog

Quinnipiac Probate Law Journal Seeks Articles

The Quinnipiac Probate Law Journal features articles related to probate topics, as well as complete full-text opinions from important probate court cases.

The Journal is actively seeking articles for upcoming issues. In addition, the Journal particularly encourages the submission of important court opinions.

All potential authors are requested to follow the latest versions of A Uniform System of Citation, most commonly called the Bluebook, published by the Harvard Law Review Association. Any articles submitted by e-mail are requested to be in Microsoft Word format.

For questions regarding submission of articles or opinions, please contact the Editor-in-Chief Lisa C. Dumond at the Probate Journal Office at (203) 582-3223, or by e-mail at projournal@quinnipiac.edu.

Please address all article/opinion submissions to: Articles/Opinions Editor, Quinnipiac Probate Law Journal, Quinnipiac University School of Law, 275 Mount Carmel Avenue, Hamden, CT 06518-1952. In addition, articles and opinions may be submitted by e-mail to projournal@quinnipiac.edu.

The Creighton University Law Review announces the third annual multidisciplinary symposium on Friday, April 16, 2010, at Creighton University School of Law in Omaha, Nebraska. The Law Review is soliciting papers to be presented at the symposium, which will explore the theme of moral, religious, and ethical perspectives in estate planning, including issues affecting wills, trusts, estates, and taxation. Authors from legal or social science perspectives are invited to submit papers for discussion at the symposium.

Interested authors must submit their papers to the Law Review by December 15, 2009. All papers should be accompanied by an abstract of 250 words or less. Authors of selected papers will be notified by January 15, 2010, and they will be invited to present their work at the symposium on Friday, April 16, 2010. Travel expenses up to $500 and all lodging expenses for presenters will be reimbursed by the Law Review.

Qualifying papers will be published in the third issue of the Creighton Law Review, which is devoted to the symposium.

Papers should be submitted, preferably in electronic form, to:
Patrice Ott
Senior Lead Articles Editor
Creighton University Law Review
Creighton University School of Law
2500 California Plaza
Omaha, NE 68178
patriceott@creighton.edu

Papers may also be submitted through the Express-O service.

Call for Articles -- Estate Planning and Community Property Law Journal

On the heels of a well-received collection of professional articles for its inaugural volume, the editors of the Estate Planning and Community Property Law Journal are currently seeking a law review style article (at least 30 double-spaced pages, including footnotes) to comprise Book 2, Volume II of what will prove to be a successful and compelling publication. The Journal just completed a Continuing Legal Education seminar held in Lubbock, Texas that has attracted many subscribers and generated great interest in its articles and student comments. It is permissible that the prospective author has previously published the article on SSRN or pursuant to a state bar seminar. Although the journal operates out of Texas Tech University School of Law, the article need not be confined to Texas law if it has a broad national appeal.

The article can be either academic or practical in nature, the subject matter of which can include: intestate succession, wills, trusts, testamentary substitutes, powers of attorney, inter vivos gifts, powers of appointment, joint tenancies, multi-party accounts, retirement accounts, annuities, life insurance, probate courts, probate proceedings and alternatives to formal proceedings, personal representatives, administrators, executors, trustees, trust and estate creditors, trust and estate beneficiaries, heirship proceedings, fiduciary litigation, income taxation of trusts and estates, federal and state transfer taxes (gift tax, estate tax, and generation-skipping transfer tax), alternative reproductive technologies, guardianships, medical powers of attorney, directives to physicians, anatomical gifts, long-term care insurance, disability income insurance, Medicare, Medicaid, elder abuse, marital property in community property jurisdictions, homestead and similar statutory asset protections, and historical, social, economic, international, ethical, professional responsibility and professional malpractice analyses related issues.

Do not miss the opportunity to be published with the only student-led estate planning journal in the nation. The deadline for Book 2, Volume II is November 30, 2009. Please send all submissions or questions to james.tawney@ttu.edu.  

Examining Legal-Moral Problems

Beard Books has reprinted Norman St. John-Stevas' book entitled Life, Death and the Law: Law and Christian Morals in England and the United States (Beard Books 2001/12) (1961).  A description of the book is below:

After formulating some general principles governing the relationship between Christian morality and the law in England and the United States, particular controversial legal-moral problems are examined. These important subjects, still at the forefront today, include the control of conception, artificial insemination, human sterilization, homosexuality, suicide and euthanasia. The role that the state and the church should play in the formulation of legal policy is suggested.

Article Addresses Dilemma of Fiduciary Conflicts

Steven L. Schwarcz (professor of law, Duke) has posted on SSRN his article entitled Fiduciary Conflicts.  The abstract of the article is below:

This article examines the dilemma of a fiduciary acting for parties who, as among themselves, have conflicting commercial interests — an inquiry fundamentally different from that of the traditional study of conflicts between fiduciaries and their beneficiaries. Existing legal principles do not fully capture this dilemma because agency law focuses primarily on an agent’s duty to a given principal, not on conflicts among principals; trust law focuses primarily on gratuitous transfers; and commercial law generally addresses arm’s length, not fiduciary, relationships. The dilemma has become critically important, however, as defaults increase in the multitude of conflicting securities (e.g., classes of securities of the same issuer having different priorities or sources of payment) that are typical of modern finance. A fiduciary, such as a trustee, acting for investors in these securities faces the difficult task of trying to understand and balance the respective obligations owed to conflicting classes and the risk of being sued no matter how the balancing is performed.

State Constitutions: An Argument Against the Abolition of Perpetuities Law

John V. Orth (professor of law, University of North Carolina) has recently published his article entitled Allowing Perpetuities in North Carolina, 31 Campbell L. Rev. 399 (2009). 

The first two paragraphs of the article are below:

As one state after another acts to make perpetual trusts possible, a little-noticed provision in some state constitutions forbidding “perpetuities” is receiving new attention. The first such provision--originally in North Carolina's 1776 Constitution and later copied by other states--is now the subject of litigation that will determine the constitutionality of the state's recent repeal of the Rule Against Perpetuities as applied to beneficial interests in trust. The case, Brown Brothers Harriman Trust Co. v. Benson, seems set to become a landmark that could be influential as other states with similar constitutional provisions respond to the demand for allowing perpetual trusts.

Perpetuities and monopolies are contrary to the genius of a free state and shall not be allowed.

Article Proposes A Framework for Determining Parentage

Lee-ford Tritt (associate professor of law, University of Florida) has recently published his article entitled Sperms and Estates: An Unadulterated Functionally Based Approach to Parent-Child Property Succession, 62 SMU L. Rev. 367 (2009).

The following is an excerpt from the introduction to the article:

Therefore, this Article proposes a new model of analyzing legal issues arising from the evolving notions of parentage in America and uses it to develop rules to govern the definition of parentage for succession law purposes while preserving testamentary freedom. To bring estates law back into step with modern family realities, this Article posits that an unadulterated functionally based approach should replace both the sanguinary nexus analytical framework and the recently adopted 2008 UPC Amendments approach. This unadulterated functionally based approach would be the only framework to determine a parent-child relationship--there would be no need for multiple frameworks--one for children born from sexual conception, one for children born of technological conception, and one for adopted children. Because succession laws look to familial relations only as an approximation of testamentary intent, the proposed framework in this Article focuses on the rights and best interests of the decedent only; in so doing, it often departs from analysis in other parent-child influenced case law where the focus--appropriately enough for other areas of family law, but not for estates law's approximation of testamentary intent-- has primarily been on the rights and best interests of the child.

To accomplish this goal, this Article uses parental support cases as a springboard for criticism of the current approach. As mentioned earlier, in cases where a family court deems a parent to have support obligations, the relationship between the obligated parent and child will also be deemed to qualify the child under the sanguinary nexus test for inheritance rights if the obligated parent died intestate. Surveying a variety of parental support cases involving novel family situations, this Article deploys a normative and pragmatic critique of estates law's reliance upon family law principles to determine relevant family relationships. From a normative standpoint, a close examination of parental support cases reveals how reliance upon family law principles undermines the integrity of testamentary freedom. Paradoxically, that potential attack on testamentary freedom has rather serious deleterious implications for effective family planning in modern society. From a pragmatic standpoint, the work demonstrates the growing impracticability of attending adequately to inheritance rights that arise from continued reliance on family law principles. This Article then articulates and defends an unadulterated functional approach to defining a parent-child relationship that would completely break genetic links (and legal parental determinations) for inheritance purposes. This Article concludes that paying greater fidelity to a wholly functionally based framework, rather than reliance upon blood relationships or family law jurisprudence, would help rehabilitate the core value of testamentary freedom in estates law.

To describe fully the unadulterated functionally based approach to defining the parent-child relationship for inheritance purposes, this Article will address the philosophical foundations of estates law and family law, as well as the doctrinal developments in each that have given rise to the current conflict. Accordingly, Part II, “Foundation Underpinnings of Pertinent Legal Disciplines,” introduces the doctrine of testamentary freedom for estates law purposes and explores the jurisprudence of family law in general. Part III, “Current State of Relevant Property Succession Law,” examines the various succession laws impacted by the debate concerning the definition of a parent-child relationship. Part IV, “Parent Making: The Processes and Problems,” describes the various technological advances in child creation and genetic testing that are influencing the notion of family structures, while highlighting the inadequacies of the sanguinary nexus test. Part V, “Case Analyses,” uses parental support cases for evaluating the desirability of family law's potential influence on inheritance law. Part VI, “Defining the Parent-Child Status,” reviews various frameworks for defining the parent-child relationship, including the 2008 UPC Amendments, and proposes and explores the unadulterated functionally based approach as the sole framework to solve the various issues arising for the changing structures of the American family. Part VII, “Potential Criticisms of Unadulterated Functionally Based Approach,” evaluates the potential shortfalls of the unadulterated functionally based approach to defining the parent-child relationship for inheritance purposes. Finally, Part VIII reiterates the need to amend succession law to encapsulate more fully the evolving notion of parent-child relationships and advocates the adoption of the unadulterated functionally based approach to alleviate the concerns raised by the current reliance of the sanguinary nexus test.

Reforming Estates and Future Interests Law

D. Benjamin Barros (associate professor of law, Widener University) has recently published his article entitled Toward a Model Law of Estates and Future Interests, 66 Wash. & Lee L. Rev. 3 (2009). 

The following is an excerpt from the introduction to the article:

The recent release of a preliminary draft of Division VII of the Restatement (Third) of Property: Wills and Other Donative Transfers, represents a radical departure from this tradition of much complaint but little progress in the effort to modernize and rationalize the basic system of property ownership. The Restatement (Third) is unabashedly reformist and represents the first major institutional effort to clear the unnecessary vestiges of feudalism from this fundamental area of property law. Although subject to criticism in certain respects, the Restatement (Third) presents a cogent and elegant simplification of the system of estates and future interests.

The emergence of the Restatement (Third)suggests that the time is right for NCCUSL and/or the ALI to begin an institutional effort to develop a model law of estates and future interests. Though it is an impressive intellectual achievement, it is doubtful that the Restatement (Third) will achieve substantive reform of estates and future interests law on its own. Courts historically have been hesitant to make major changes in property law, in part because making broad, systemic changes like those proposed in the Restatement (Third) are better suited to the institutional competence of the legislatures. State legislatures, in turn, are unlikely to make systemic changes to the basic law of ownership unless and until those changes have been approved by a major law reform institution.

This Article seeks to kick-start this process by developing a proposed model law of estates and future interests. With a few notable exceptions, the proposed model law is substantively consistent with the Restatement (Third). The approach taken in the proposed model law is informed by problems that have beset prior proposals for legislative property law reform. It intentionally avoids controversial issues, such as substantive reform of the Rule Against Perpetuities, that could derail legislative approval. It is also relatively modest in its scope. It does not attempt to create a uniform and comprehensive code of estates and future interests. Rather, it is designed to act as a patch that updates, but fits within, the existing common law system of ownership.

Part II makes the case for reform of the estates and future interests system. It begins with a basic primer on the characteristics of the current system. It then analyzes the system's unnecessary complexity and explains why simplification is needed to make the system work properly. Part III discusses the advantages and disadvantages of Restatements and model laws as mechanisms to achieve legal reform, and argues that while Restatements may have a role to play in reforming property law, change to the estates and future interests system is best done legislatively. Part III also considers the difficulties that have led to the relative failure of previous model laws of property. These issues, which have been neglected in prior academic work on estates and future interest reform, inform many of the substantive decisions reflected in the proposed model law. Part III also considers the relevance of uniformity to property reform efforts and notes the differences in institutional focus between NCCUSL and the ALI, without expressing an opinion about which of the two would be better suited to formally develop a model law of estates and future interests.

Part IV discusses the substance of the proposed model law, the text of which is included as an appendix to this Article. Part IV first discusses a number of preliminary issues, including the alienability of present and future interests in property and the abolition of feudal distinctions between types of estates. It then comprehensively discusses the simplified systems of present and future interests reflected in the proposed model law. It also discusses a number of important collateral issues, including rules of construction and the abolition of the Doctrine of Worthier Title, the Rule in Shelley's Case, and the Rule of Destructibility of Contingent Remainders. Part IV additionally highlights the differences between the proposals presented in this Article and proposals made in prior academic work and in the Restatement (Third). Part V then briefly discusses issues concerning the retroactive application of many of the reforms included in the proposed model law.

The Article concludes by highlighting some of the major differences between the proposals made here and those that have been made before, and by arguing that the time is right for NCCUSL and/or the ALI to begin the formal institutional process to promulgate a model law of estates and future interests.

Pet Trusts & the Charitable Remainder Exception

Jonathan Wilkerson (J.D. candidate 2009, Texas Tech) has recently published his article entitled A "Purr"fect Amendment: Why Congress Should Amend the Internal Revenue Code to Apply the Charitable Remainder Exception to Pet Trusts, 41 Tex. Tech. L. Rev. 587 (2009).

The following is an excerpt from the introduction of the article:

While most states have done their part through recent state law changes for pet trusts, a real need for change at the federal level exists, particularly to the Internal Revenue Code (IRC), to help American pet owners and to bring about real progress for pet trusts. But Congress has not responded in a meaningful way, and the pet-owner constituency has not enjoyed the federal statutory success it needs.

The pet-owner constituency is too large for Congress to ignore-Americans own approximately eighty-nine million cats and seventy-five million dogs.  Stated another way, more Americans are pet owners than parents. Parents can provide a trust for their children and allow the remainder to pass on to recognized charities with the trust enjoying many tax benefits, but pet owners do not enjoy the same testamentary rights and tax benefits as parents. Congress must recognize the importance of pet trusts and amend the IRC to allow the charitable remainder of a pet trust to enjoy the same tax-free benefits as a non-pet trust. House Resolution 2491 (the Morgan Bill), a proposed statutory amendment for pet trusts, would amend the IRC in two ways: (1) the remainder of pet trusts given to non-profit organizations and charities would not incur estate or gift taxes, and (2) the income earned by the pet trust would be deductible from the trust's income tax. Throughout this Comment, Lindsay's situation illustrates the application of the current law and how average pet owners, like her, would benefit from the Morgan Bill.

This Comment examines how Congress should amend the charitable remainder exception to pet trusts by passing the Morgan Bill. Part II gives a brief summary of the various types of pet trusts. Parts III and IV explore the current federal tax laws. Part V then explains the current law regarding the charitable remainder exception, and Part VI considers the Morgan Bill and strategies for pet owners until the IRC is amended. Ultimately, this Comment proposes that Congress provide a limited exception for pet trusts by enacting the Morgan Bill.

Succession Agreements in Spain

Susanna Navas has recently posted on SSRN her article entitled Particular Succession Agreements in the Catalan Civil Code, 2 InDret. (2009).

The abstract of the article is below:

Law 10/2008, of July 10, of the fourth Book of the Civil Code of Catalonia, regarding inheritance law, provides a new regulatory framework for succession agreements admitting those appointing heirs and those of particular succession. This article analyzes the latter kind of succession agreements and for that purpose, a distinction is made between the different legal positions of the parties to the succession agreement and third parties (beneficiaries) affected by it. The following essay further stresses the difference between the succession agreement as a contract and each of its particular provisions, one of them could concern a specific particular succession. Assessing the legal framework of this particular succession (parties, transfer and performance), we take into account the rules concerning legacies because of the application of article 431-30.5 of the Civil Code. Finally, this work criticizes the position of the Catalan legislator, who has distinguished these two kinds of succession agreements (those appointing heirs and those of particular succession). The author advocates for the introduction of a different approach in the regulation of succession agreements, an approach without these distinctions.

Those interested in international law or comparative law should find this particularly interesting.

Wealth Strategies Journal Posts New Articles

The following articles have now been posted on the Wealth Strategies Journal and are available for download:

Drafting a Flexible Life Insurance Trust, by Julius H. Giamarco, Esq.

The Practical Planner: Brooke Astor Estate: Questions and Lessons, by Martin M. Shenkman, CPA, MBA, JD.

Successful Retirement Depends on Asset LOCATION, by Herbert K. Daroff, JD, CFP.

Rules for Tax Return Preparers

Brian C. Bernhardt (partner, McGuireWoods LLP) has recently published his article entitled Tax Return Preparer Penalties: The New Rules of Code Sec. 6694, Part I, Prob. & Prop., July/Aug. 2009, at 63.

Below is the introduction to the article:

Until May 2007, Internal Revenue Code Sec. 6694, which imposes monetary penalties on certain tax advisors, was largely ignored. On May 25, 2007, however, Congress substantially revised Code sec. 6694, and the changes caused a great gnashing of teeth and wringing of hands amount tax advisors for more than a year. Under the new rules, even if a tax advisor never signs a clients tax return, never looks at a client's tax return, and never answers a specific tax return question, the IRS may subject the tax advisor to these rules.

The IRS quickly provided interim guidance and Proposed Regulations, at first, to delay implementation of the new rules and then to provide initial rules for compliance.

On October 31, 2008, Congress further revised Code Sec. 6694 to mitigate the most objectionable aspect of the 2007 revisions. On December 15, 2008, the IRS issued Final Regulations, a revenue procedure, and administrative guidance explaining the application and operation of revised Code Sec. 6694.

This article provides a summary and overview of the new rules, their application, and some practical concerns that remain.

Who Bears Estate Tax on Gift Tax?

Bridget J. Crawford (professor of law, Pace University) and Jonathan G. Blattmachr (attorney, Milbank, Tweed, Hadley & McCloy LLP) have posted on SSRN their article entitled Estate Tax on Gift Tax: The Liability Conundrum, Tax Notes, June 28, 2009.

The abstract of the article is below:

This article addresses the specific question of who -- as between the beneficiaries of the estateand the lifetime donees -- will bear responsibility for estate tax generated with respect to gift tax included in the decedent’s gross estate, absent a specific provision to the contrary. Although some case law suggests that the donee of the lifetime transfer should pay the taxes, this result is at odds with the Uniform Estate TaxApportionment Act (UETAA). The UETAA’s approach to this issue is more administratively convenient and thus represents a more sensible approach. Because the UETAA has not been adopted widely, we offer a simple form of agreement that can be adapted for use by any donor who wishes to change the statutory default rules about the payment of additional estate tax liabilities.

CLE: 'Estate Planning for the Family Business Owner'

The ABA Section of Taxation and the ABA Section of Real Property, Trust & Estate Law are co-sponsoring a live course andcorresponding live video webcast CLE entitled Estate Planning for the Family Business Owner on July 22-24 in Santa Fe, NM.

A description of the program is below:

This annual advanced course of study, comprising more than 18 hours of instruction, provides a comprehensive overview of estate planning techniques for the family business owner. The course covers the life cycle of the closely held business, from choice of entity to estate administration, including the dynamics of dealing with the family, valuations, getting the business ready to sell, with concentration on tax and estate planning issues, but keeping in mind that there are significant non-tax questions that also require attention.

Intestate Succession under the Catalan Code

Maurici Perez Simeon has recently posted on SSRN his article entitled Legal Rights v. Will When Testator's Beneficiary Predeceases the Testator, InDret, Volume 3, 2008.

Here is the abstract of his article:

Section 144.2 of the Catalan Code of Succession provided that whenever a testator's beneficiary predeceased the testator, his issue should take his share. Since the Catalan Code of Succession entered into force, there has been an important debate among academics regarding whether the issue of a predeceased beneficiary should take before the other testator's beneficiaries in proportion to their shares and/or before the "vulgar substitution." The underlying debate is the role that legal presumptions should have for the interpretation of testamentary provisions.

Section 423-8 of the Catalan Civil Code's Book Four, recently approved, sets forth a similar provision, even though presenting new challenges regarding the scope of the above-mentioned rule and its judicial interpretation.

Farms and the Federal Estate Tax

Don Hurst (USDA, Economic Research Service) has recently posted on SSRN his article entitled Federal Tax Policies and Farm Households, Economic Information Bulletin 54.

Here is the abstract of his article:

Significant changes in Federal individual income and estate tax policies have occurred over the last 10 years. Analysis suggests that changes in Federal tax provisions affecting both individual and business income taxes have reduced average tax rates for all farm households, resulting in the lowest tax burden on farm income and investment in a decade. Similarly, an analysis of the changes to Federal estate tax policies suggests that increases in the value of property that can be transferred to the next generation free of the estate tax, combined with special provisions for farmers and other small businesses, have greatly reduced the number of farm estates subject to the tax and the amount owed. While nearly 10 percent of commercial farm estates could owe tax in 2009, only 1 to 2 percent of all farm estates are estimated to be subject to the Federal estate tax this year.

Article argues for Repeal of Estate Tax on Gifts Made with Strings Attached

Richard L. Dees (partner, McDermott, Will & Emery) has recently posted on SSRN his article entitled Time Traveling to Strangle Strangi (and Kill the Monster Again): Part 2. 

Here is the abstract of his article:

In Part 2 of this article, the author argues that the solution to the problems of the Strangi cases detailed in Part 1 (see Tax Notes, Aug. 13, 2007, p. 563) is repeal of section 2036 and the other estate tax sections that include in the estate gifts made with retained 'strings'. The author proposes that repeal of these estate tax provisions will end for all time the problematic application of section 2036 to partnership and corporate interests. The author proposes coupling repeal with a change treating most irrevocable transfers with 'strings' attached as complete for gift tax purposes. The author believes that the opportunity to establish flexible succession plans without running afoul of section 2036 will encourage business owners, particularly small business owners, to make gifts implementing those plans. Thus the author's change is likely to produce gift tax revenue to help offset other reductions in the estate tax. The author also considers some of the technical issues in implementing his proposed tax changes.

AALS Section on Trusts and Estates Call For Papers for 2010 AALS Annual Meeting

Trusts and Estates law was for centuries a fairly stable, if dusty, body of doctrine. Over the past few decades, however, striking changes in the economic, legal and social landscape have prompted an explosion of new doctrinal developments. Major trends in banking and tax law – including the gradual elimination of Glass-Steagall, which resulted in mergers of investment and commercial banking institutions and increased competition for trust business, and the Economic Growth and Tax Relief Reconciliation Act of 2001, which is set to expire next year -- spurred the development of dynasty and domestic asset protection trusts and significant changes in fiduciary duty law governing trustees’ management and investment duties. Banks’ demand for more predictability in law helped jump start a trend away from common law and toward codification, which produced the Uniform Trust Code and increasingly detailed revisions to the Uniform Probate Code. Cultural changes and scientific and medical advances caused states to grapple with their conception of family relationships, and with treatment of end-of-life issues.

The AALS section on Trusts and Estates issues a call for papers that evaluate and critique these and other trends and developments in Trusts and Estates Law. Those chosen will present papers at the 2010 AALS Annual Meeting in New Orleans during a program entitled Changing Times, Changing Law: Evaluating Legal Trends in Trusts and Estates Law. To encourage greater participation and attendance, some preference will be given to academics who have not previously presented at the AALS Annual Meeting. Please submit papers by August 24, 2009 to Melanie Leslie at Leslie@yu.edu.

Book Review: Estate Taxation

Ronald H. Jensen (Professor of Law, Pace University) has recently posted on SSRN a Review of Federal Income Taxation of Estates and Beneficiaries, 20 Buff. L. Rev. (forthcoming).

Here is the abstract of the review:

Review of Federal Income Taxation of Estates and Beneficiaries by M. Carr Ferguson, James L. Freeland, and Richard B. Stephens. This comprehensive volume should help fill a void which tax practitioners have long endured. As the authors properly point out, though many volumes have been written on estate taxation and estate planning, relatively little attention has been given to the income tax consequences resulting from death. The present volume is a welcome and needed addition to the sparse body of literature on this subject.

Fiduciary Duties in Canada

Robert Flannigan (Professor, University of Saskatchewan College of Law) has recently posted on SSRN his article entitled Fiduciary Accountability Transferred, 35 Advocs. Quarterly 334 (2009).

Here is the abstract of his article:

The Supreme Court of Canada has toyed with the boundaries of fiduciary accountability for three decades. Some of the criteria it has advanced to identify when fact-based accountability will arise (e.g. vulnerability, power differential, reasonable expectation) are vague notions that potentially derail the conventional function of the jurisdiction. Specifically, the criteria may be taken to support the view that fiduciary accountabilityregulates the merits or fairness of the actions of fiduciaries. In BCE Inc. v. 1976 Debentureholders, the court now appears to have explicitly adopted that view, albeit without recourse to any of the criteria it had previously identified. It also appears to have compromised the strict operation of the conventional regulation. The decision represents yet another novel turn, and a radical one, in the court's mercurial intercourse with fiduciary accountability.