Wills, Trusts & Estates Prof Blog

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

Thursday, August 25, 2016

Article on Harmless Error Rule's Clear and Convincing Evidence Standard

Harmless errorMark Glover recently published an Article entitled, In Defense of the Harmless Error Rule’s Clear and Convincing Evidence Standard: A Response to Professor Baron, 73 Wash. & Lee L. Rev. Online 289 (2016). Provided below is an abstract of the Article:

In Irresolute Testators, Clear and Convincing Wills Law, Professor Jane Baron draws attention to a conflict between the mechanics of the law of wills and the realities of testation. Baron observes that the law of wills is designed to be used as a tool by resolute and rationale testators to communicate their intent regarding the distribution of property upon death. However, the law’s archetypical testator does not represent the many real testators who are irresolute and irrational, those possessing incoherent and only partially formed thoughts regarding the disposition of their estates.

Based upon the disconnect between the law’s paradigm of resolute will-making and the irresoluteness of testation in the real world, Baron argues that reforms that have given probate courts discretion to correct mistakes in testation do not function appropriately. For instance, Baron argues that the harmless error rule, which allows courts to excuse defects in a testator’s compliance with will-execution formalities when the testator’s intent is established by clear and convincing evidence, does not meaningfully limit probate courts’ discretion to correct mistakes. Specifically, she argues that many courts are concerned with not only the technical mistakes of resolute testators but also the more troubling mistakes of irresolute testators, and consequently, these courts overreach the boundaries of the harmless error rule.

This essay acknowledges Baron’s insight regarding the tension between the law and reality but questions whether this tension renders the harmless error rule and its clear and convincing evidence standard ineffective. More particularly, this essay argues that, despite potential overreaching by some courts, the clear and convincing evidence standard likely operates in the way that reformers intended and that the harmless error rule represents an improvement upon the conventional law of will- execution.

August 25, 2016 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Wednesday, August 24, 2016

Article on Incomplete Dispositions

Will dispositionNaomi Cahn recently published an Article entitled, Incomplete Dispositions, 73 Wash. & Lee L. Rev. Online 259 (2016). Provided below is an abstract of the Article:

In Irresolute Testators, Professor Jane Baron provocatively suggests the existence of two distinct types of testators: the rational, autonomous testator who has made deliberate choices about the contents of her will and whose errors, if any, are minor; and the more vulnerable, less resolute testator who may not have actually made the final decisions enshrined in a formal will. To illustrate how these testators appear in wills law, she analyzes how courts apply the doctrines of harmless error and mistake reformation. While the two doctrines appear to be intended to help the resolute testator, courts instead, she suggests, also apply the doctrines to help the irresolute testator. In causing us to reflect on the distinctions between dispository intent and a formal writing recognizable as a final statement, on rational and boundedly rational testators, on final and almost-final declarations, her article focuses us on the art of line-drawing in wills law. In this commentary, I explore another context that similarly raises issues about testators whose final intent is not clearly expressed: when can a disappointed beneficiary sue the drafting attorney for malpractice? The doctrine of privity confronts the spectre of the irresolute or inconclusive testator, yet courts have developed some dividing lines that differ from those they have developed surrounding harmless error. Privity seems to offer another illustration of how bright-line rules do not necessarily achieve dispository intent, although the privity rules do achieve certainty on only allowing final dispository statements (that are incomplete or show a lack of resolution) to provide a basis for a malpractice action. This commentary applauds Professor Baron’s achievement in focusing us on the limits of the wills reform doctrines and the significance of accounting for different types of testators.

August 24, 2016 in Articles, Estate Planning - Generally, Malpractice, Wills | Permalink | Comments (0)

Tuesday, August 23, 2016

"Daughter" of Billionaire to Inherit $8.5 Million

KerkorianKirk Kerkorian, founder of MGM Resorts International, died last year, and now his daughter will receive $8.5 million under his will. His 18-year-old daughter was submerged into a messy paternity battle; her mother, who was married to Kerkorian for 28 days, claimed that Kerkorian was her biological father. However, it was later discovered that another man was actually the biological father. After having raised her for most of her childhood, Kerkorian decided to provide for her with a will bequest.

 See Harvey Day, Daughter of Casino Billionaire Kirk Kerkorian Whose Mother Faked a DNA Test Showing He Was Her Real Father in Messy Paternity Battle Will Get $8.5m from His Will, Daily Mail, August 23, 2016.

August 23, 2016 in Current Events, Estate Planning - Generally, Wills | Permalink | Comments (0)

Monday, August 22, 2016

Professor Dies After Man Believes He Is a Will Beneficiary

GreedyThe body of a Penn State Professor has been found in a quarry after he was lured there and pushed off a cliff by another man. On Friday, police charged the man with murder and conducted a subsequent interview. In the interview, the man told police that his motive resided with his belief that he was a designated beneficiary of a recent will that the Professor had executed.

 See Missing Professor Pushed to His Death at Quarry, Cops Say, Fox News, August 19, 2016.

August 22, 2016 in Current Events, Estate Planning - Generally, Wills | Permalink | Comments (0)

Sunday, August 21, 2016

Article on Reformation of the Anti-Lapse Doctrine

Will-makingRichard F. Storrow recently published an Article entitled, Wills and Survival, 34(3) Quinnipiac L. Rev. (2016). Provided below is an abstract of the Article:

This Article examines the rule of lapse in wills law, discusses how efforts to reform the damage it does has led to the doctrine of anti-lapse, and advocates an alternative approach. In contrast to the requirement of survivorship of beneficiaries in wills law, I argue that testators do not have in mind survival when their wills make no such indication. I propose that we allow the provisions of a beneficiary’s probated will to control the disposition of a bequest where the beneficiary has predeceased the testator by one year or less. This rule would carry out the probable intentions of the "wills-minded" testator and is preferable to the predominant anti-lapse approach that typically favors a narrow set of the testator’s heirs.

August 21, 2016 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Friday, August 19, 2016

Proceeds Go to Named Beneficiaries Not Later Will Bequests

Life insurance1In Collister v. Feller, a Washington court of appeal concluded that a man who was named as his ex-wife’s beneficiary on her life insurance policy is not required to distribute proceeds to later beneficiaries named in her will. A testator can only direct the distribution of life insurance proceeds to be payable to the testator, estate, or personal representative. The ex-husband in this case was named as the personal representative, and the will was not eligible to direct proceeds.

See Julianne Tobin Wojay, Named Beneficiary Trumps Testator’s Later Bequest, Bloomberg, August 11, 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.

August 19, 2016 in Estate Planning - Generally, Non-Probate Assets, Wills | Permalink | Comments (0)

Thursday, August 18, 2016

New Jersey Allows Disinheritance Based on Religion

Religion confli tA New Jersey appeals court in In re Estate of Kenneth E. Jameson recently held that the law does not bar an individual from disinheriting their child for religiously discriminatory reasons. The case centered on a will contest by a woman who was disinherited from her Catholic father’s will after dating and later marrying a Jewish man.

See Howard Friedman, New Jersey Appeals Court OKs Religiously Discriminatory Disinheritance, Religion Clause, August 15, 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.

August 18, 2016 in Current Events, Estate Planning - Generally, New Cases, Religion, Wills | Permalink | Comments (0)

Tuesday, August 16, 2016

Article on Allowing Extrinsic Evidence to Protect Testator's Intentions

Testator intentionsBrent Debnam recently published an Article entitled, Deadly Intentions: Posthumously Modifying Unambiguous Wills to Protect the Actual Intentions of Texas’s Testators, 8 Est. Plan. & Community Prop. L.J., 461 (2016). Provided below is a summary of the Article:

Unfortunately, situations like the Johnsons' are all too common. The problem stems from the dated manner that traditional statutes use to protect testators' intentions. In the Johnsons' situation, plenty of external evidence exists to show that the Johnsons' current wills did not accurately reflect their intentions. However, the traditional approach would not allow a court to consider the widely available external evidence demonstrating the Johnsons' intentions. In 2015, the Eighty-Fourth Texas Legislature passed a new law, Texas Estates Code § 255.451. Section 255.451 allows courts to consider extrinsic evidence in particular situations. However, Texas's new law does not protect testators' intentions in situations like the Johnsons.

August 16, 2016 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Monday, August 15, 2016

Article on the Role of Marital Presumption in Inheritance Law After Obergefell

Same sex inheritancePaula A. Monopoli recently published an Article entitled, Inheritance Law and the Marital Presumption After Obergefell, 8 Est. Plan. & Community Prop. L.J., 437 (2016). Provided below is a summary of the Article:

In the summer of 2015, the country saw a sea change in the rights of same-sex couples to marry. With Obergefell v. Hodges, the United States Supreme Court made clear that states could not prohibit same-sex marriage. Obergefell created ripple effects in a number of doctrinal areas, including inheritance law.

From an inheritance law perspective, Obergefell raises questions about the current nature of the marital presumption. That doctrine--that a child born during an intact marriage is presumed to be the child of the husband--does significant work in inheritance law. The marital presumption provides an efficient resolution of the central question for probate courts in estate administration--is there a parent-child relationship between the decedent and a person claiming a share of the decedent's estate? Every state has a version of the marital presumption and, although it is no longer irrebuttable in the vast majority of states, it is still a powerful presumption that resolves the question in the majority of cases.

With the advent of same sex-marriage as a right in every state, there are a number of interesting questions about the future of the marital presumption. Does Obergefell reify marriage and thus the presumption? And is that bad policy? For those who argue that the presumption privileges marital children, should they redouble their efforts to eliminate the marital presumption altogether? Should states revise statutes to reflect the fact that a woman may now be the nonbirth spouse trying to establish a parent-child relationship using a presumption built specifically for men? Should those in inheritance law separate the definition of the parent-child relationship for their purposes from its definition for family law purposes?

This article focuses on the last question--the role of the marital presumption in inheritance law after Obergefell. It describes several illustrative cases that have arisen in the family law context, reviews the courts' analysis, and suggests that a conclusive marital presumption be extended to all nonbirth/nongenetic spouses for purposes of inheritance law. Since our system of inheritance law is status-based, establishing the parent-child relationship is the key to determining whether someone inherits through intestacy or when there is a class gift in a governing instrument like a will or trust. This article takes the position that Obergefell mandates extension of the current presumption to same-sex, nonbirth/nongenetic spouses in both family law and inheritance law.

August 15, 2016 in Articles, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Sunday, August 14, 2016

Estate Planning for Blended Families

Blended familiesBlended families are becoming increasingly common, and it is important to plan both your finances and estate accordingly. The most common mistakes are divorcees not updating their wills and changing beneficiaries on accounts upon entering into a new marriage; this can be detrimental to an estate plan. Blended families should choose appropriate executors for their estate that will work together to carry out each individuals’ wishes. They must also find a way to effectively distribute their assets; trusts are great vehicles to solidify the particular outcome of every individual. Furthermore, it is a good idea to consider life insurance as an inheritance for beneficiaries, so that the estate is available for a potential surviving spouse. And, if we are learning from past mistakes, marriage contracts may not be a bad idea for your estate plan either. 

See Tony Maiorino, Five Ways to Navigate Blended-Family Finances, Advisor.ca, August 3, 2016.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

August 14, 2016 in Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)