Thursday, July 20, 2017
Jeffrey A. Dorman recently published an Article entitled, Note: Stop Frustrating the Testator's Intent: Why the Connecticut Legislature Should Adopt the Harmless Error Rule, 30 Quinn. Prob. Law Jour. 36 (2016). Provided below is an abstract of the Article:
In Connecticut, for over two hundred years, wills, their formation, and their execution have been governed by the formalities of the Wills Act. These formalities, codified in Conn. Gen. Stat. section 45a-251 (2016), outline the strict guidelines that a will must comply with in order to be considered valid. The statute requires that the document be in writing, signed by the testator, and attested by two witnesses. Connecticut courts have strictly followed this bright-line rule in the past; more recently, however, these same courts have utilized the curative doctrine of substantial compliance and have considered applying the harmless error rule to determine whether a will is valid. With the growth of services, such as LegalZoom, and the establishment of highly accessible legal kiosks, more and more testators are drafting wills without an attorney. 6 Given this increasing trend, mistakes are bound to happen, especially with will drafting and execution, and it is highly unlikely that each drafted document will follow the strict statutory formalities that the Wills Act proscribes. As more testators draft their own wills utilizing the easy and efficient do-it-yourself legal services, Connecticut courts (as well as other jurisdictions) should be wary of putting form over substance by strictly adhering to the aforementioned statutory formalities. Instead, reviewing courts should focus their concerns on whether the testator intended the document to act as his or her will.
Wednesday, July 19, 2017
Health watchdogs approved a groundbreaking trial aimed at regenerating brain tissue in individuals who have been declared clinically dead. Scientists plan to inject comatose patients with stem cells and a combination of peptides, along with implementing some nerve stimulation techniques, in order to repair brain damage. These techniques have had some past success in reviving patients from comas.
The trial participants have been certified as being brain-dead and are kept alive through life-support. The team undertaking the experiment has officially received approval for their first twenty subjects. They are currently working with the hospital to identify any potential conflicts with patients' families who may oppose the endeavor due to religious or other medical concerns. Dr. Sergei Paylian sees the possible benefits of the study: “Through our study, we will gain unique insights into the state of human brain death, which will have important connections to future therapeutic development for other severe disorders of consciousness, such as coma, and the vegetative and minimally conscious states, as well as a range of degenerative CNS conditions, including Alzheimer's and Parkinson's disease.”
See Sarah Knapton, Dead Could Be Brought 'Back To Life' in Groundbreaking Project, The Telegraph, May 3, 2016.
Special thanks to Molly Neace for bringing this article to my attention.
Tuesday, July 18, 2017
Raymond C O'Brien recently published an Article entitled, Illegitimacy: Suggestion for Reform Following Mills v. Habluetzel, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:
In the recent decision of Mills v. Habluetzel, the Supreme Court implies that as technology advances and scientific tests make the determination of biological paternity more certain, the state or governmental interest in avoiding evidentiary problems of false claims, will cease to justify the use of any facile statutory denials of substantive rights claimed by illegitimates First, in the advent of scientific ability to prove the fact of paternity, unrealistic legal prerequisites or statutory limitations extinguishing the rights of illegitimates will not prevail under a constitutional analysis. Second, the use of science implies greater inquiry into all aspects of the rights of illegitimates. This paper will thus: (a) discuss the evolution of the constitutional guidelines concerning the rights of illegitimate children prior to Mills, (b) describe the Texas experience from Gomez to Mills and the recent Texas inheritance cases; and (c) determine the implications for the future of Texas law and that of other jurisdictions.
Special thanks to Robert H. Sitkoff (John L. Gray Professor of Law, Harvard Law School) for bringing this article to my attention.
Legal advisors to the government are proposing radical changes to inheritance laws. The Law Commission is encouraging the adoption of regulations that would allow individuals to use voicemail and text messages in lieu of traditional wills. Under current laws, which date back as far as 1839, wills must be written and signed by the testator as well as two witnesses. The commission has characterized this system as being outdated and in desperate need of modernization. Under these new proposals, judges would be able to balance the weight of digital evidence to determine if digital data offered should be allowed in court as evidence of a legally-binding representation of a decedent's last wishes.
See Olivia Rudgard, Could a Text Become Your Will? The Plans to Revolutionise 'Outdated' Legacy System, The Telegraph, July 13, 2017.
Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) & Margaret Ryznar for bringing this article to my attention.
A year after the death of her husband, Janice Gentile's daughter asked her to create a video legacy about their lives. Gentile was initially wary of the idea. She was still hurting from the loss of her husband, to whom she had been married for fifty years, and was not keen to reopen fresh wounds. After continued urging, Gentle hired a professional to produce a video about her life. She now considers the twenty-three minute film a central part of her legacy.
There are number of professional companies popping up that will perform videographer services. These can be somewhat costly with prices sometimes exceeding $7,000. Despite the costs, these services are becoming more popular as consumers recognize the potential to leave a documented piece of history for future generations.
See Bruce Horowitz, Leaving Behind a Digital Legacy for Loved Ones, CNN, July 13, 2017.
Special thanks to Naomi Cahn & Mohammad Zaheerudin for bringing this article to my attention.
Monday, July 17, 2017
Raymond C O'Brien recently published an Article entitled, The Momentum of Posthumous Conception: A Model Act, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:
This Article addresses the scenario of when, through advanced medical technology, a procedure is performed resulting in the birth of a child more than three hundred days-a time suggested by some statutes-after the death of the gamete provider. The embryo may result from in vitro fertilization or from a woman being artificially inseminated with the sperm of a deceased male gamete provider. And of course the woman could have predeceased too and left a viable ova, that was then fertilized with the sperm of a living or a deceased male to create an embryo, which was then placed into a surrogate, a gestational carrier. The essential element is that the act, which results in a future birth, occurs after the death of one or both of the gamete providers. This is the essence of posthumous conception. That is, once the egg and sperm are brought together through assisted reproductive technology to form an embryo, both or either of the persons who donated the sperm and egg or embryo are dead, perhaps for a long time. If this is the point of conception, then the issue arises as to whether the resulting posthumously conceived infant should qualify under the law for paternity, inheritance and benefits. How long should the law wait for conception before terminating status? The law strives for certainty and medical technology has made certainty an elusive prey.
Special thanks to Robert H. Sitkoff (John L. Gray Professor of Law, Harvard Law School) for bringing this article to my attention.
Friday, July 7, 2017
David Horton recently published an Article entitled, Tomorrow's Inheritance: The Frontiers of Estate Planning Formalism, 58 B.C. L. Rev. 539 (2017). Provided below is an abstract of the Article:
The rules that govern the creation of an estate plan are in flux. Courts once demanded strict adherence to the Wills Act. Yet, this legacy of hyper-vigilance is waning, as the Uniform Probate Code, the Restatement (Third) of Property, and ten states have adopted the harmless error rule. Meanwhile, trusts, which need not comply with the Wills Act, have eclipsed wills as the dominant method of posthumous wealth transmission. This Article explores three budding topics that threaten to further complicate this area. First, there are anecdotal accounts of decedents trying to make electronic wills. In both strict compliance and harmless error jurisdictions, e-wills raise thorny issues about the meaning of “signed” and “writing” in the Wills Act, and when, if ever, courts should be able to overlook violations of the statute. Second, despite the received wisdom that trusts are less formal than wills, a rising number of settlors are failing to observe the arcane principles that govern the transfer of property into a trust. Third, most state legislatures have adopted or are currently considering statutes that give fiduciaries access to the contents of a decedent’s email, text messaging, and social media accounts. But the precise steps necessary to convey these cutting-edge forms of property after death is unclear. This Article tries to help courts and policymakers regulate these matters by offering a fresh perspective on the purpose of mechanical, bright-line principles in the realm of estate planning. As conventionally framed, this debate revolves around what the Article calls the “intent paradigm”: the idea that execution doctrines should be gauged primarily by whether they facilitate or frustrate the wishes of individual decedents. Conversely, this Article explores a different virtue of formalism: its ability to prevent decedents from imposing spillover costs. This Article demonstrates how some unyielding principles limit the burden on courts, survivors, trustees, the trustee’s creditors, purchasers of trust property, and other third parties. It then explains how recognizing this anti-externality function can pay dividends in wills law, trust law, and emerging niches such as the inheritability of digital assets.
Wednesday, June 28, 2017
On Monday, June 26, 2017, Florida Governor Rick Scott vetoed House Bill 277. The bill would have created the "Florida Electronic Wills Act." Below is the text of the letter from Gov. Scott to Secretary Detzner. Special thanks to Tami F. Conetta, Senior Vice President, Northern Trust, for bringing this development to my attention.
June 26, 2017
Secretary Ken Detzner Secretary of State
Florida Department of State
R.A. Gray Building
500 South Bronough Street
Tallahassee, Florida 32399
Dear Secretary Detzner:
By the authority vested in me as Governor of the State of Florida, under the provisions of Article III, Section 8, of the Constitution of Florida, I do hereby veto and transmit my objections to Committee Substitute for Committee Substitute for House Bill 277, enacted during the 119th Session of the Legislature of Florida, during the Regular Session of 2017 and entitled:
An act relating to wills and trusts...
The bill creates the "Florida Electronic Wills Act" which authorizes the creation of electronic wills, and provides that the execution of electronic wills may be witnessed and notarized through the use of remote technology. The bill also specifies that electronic wills of residents and nonresidents may be probated in Florida.
This bill has generated much debate among stakeholders who seek to find the right balance between providing safeguards to protect the will-making process from exploitation and fraud while also incorporating technological options that make wills financially accessible to a greater number of Florida's citizens. While the idea of electronic wills is innovative and may transform estate planning for Floridians, I believe this bill fails to strike the proper balance between competing concerns.
As Governor, I oversee the appointment of notaries public in the State of Florida and have a responsibility to ensure that notaries safeguard the most vulnerable Floridians against fraud and exploitation. While the concept of remote notarization is meant to provide increased access to legal services like estate planning, the remote notarization provisions in the bill do not adequately ensure authentication of the identity of the parties to the transaction and are not cohesive with the notary provisions set forth in Chapter 117, Florida Statutes.
Furthermore, providing an additional Florida venue for the probate of nonresident wills based only upon the qualified custodian's location in this state could burden Florida's court system with the probate of estates that may have no Florida nexus other than that the wills were created and stored here. Additionally, if the state where the decedent is domiciled does not recognize electronic wills as a valid declaration of intent, the individual could be left intestate.
Furthermore, I have concerns with the delayed implementation of the remote witnessing, remote notarization, and nonresident venue provisions of this bill. The Legislature delayed these provisions to April 1, 2018, in order to address "substantive changes and outstanding questions" during the next legislative session. Rather than sign an imperfect bill into law, I encourage the Legislature to continue to work on answering these outstanding questions and address the issues comprehensively during the next legislative session.
For the reasons stated above, I withhold my approval of Committee Substitute for Committee Substitute for House Bill 277 and do hereby veto the same.
Monday, June 19, 2017
US Navy Seaman First Class Robert Monroe “Bobby” Temple, age 19, of Wathena, Kansas, died December 7, 1941 in Pearl Harbor. Temple was a casualty of the World War II bombing of the USS Oklahoma. Temple joined the Navy when he was 18 and was stationed on the USS Oklahoma in Pearl Harbor when it was attacked by Japan. It was only recently that the Navy was able to identify Temple’s remains through modern DNA testing. After 75 years of waiting, Temple’s family will finally have the opportunity to conduct a memorial service that truly honors Temple’s life and the sacrifice he made for his country.
See Robert Monroe “Bobby” Temple (1922-1941), O’Fallon Weekly, June 13, 2017.
Monday, June 12, 2017
Crypto-assets like bitcoin and ether tend to fall to the bottom of the to-do list when it comes to estate and death planning. Even those with the technical savvy and acumen to understand the mechanics of passing on these assets fail to so do given the complex and daunting nature of the task. Third Key Solutions helps people build crypto-focused estate plans from both the tech side and the legal side. Looking to the technical side, Third Key Solutions can help with decisions involving which wallets to use and where and how to back up keys. Legally, they can make sure desired beneficiaries are sure to inherit their legacies.
Complex assets and various family situations many times require the aid of experts. As an aide, Third Key Solutions provides a generic template that can be used and specifically tailored for individuals with crypto-assets. Some words of caution, be careful using local currency and avoid stating exact numbers as these values will likely change by the time the form is needed. Also, note that filling out the template will probably not be enough to guarantee the legal passage of assets to designated beneficiaries. Grantors must adhere to the laws of their jurisdiction. Generally, it is prudent practice to seek legal advice when dealing with passage of property.
See Pamela Morgan, Letter To Loved Ones: A Template for Your Cryptocurrency Estate Planning, Brave New Coin, June 9, 2017.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.