Monday, October 24, 2016
Bill 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.
Saturday, October 22, 2016
Recently, the University of New Hampshire inherited nearly $4 million from a quiet librarian, and the university decided to spend $1 million of the inheritance on a new football scoreboard. Most saw this use of the money as unfit because the librarian’s passion was literature. The university defended its choice by saying that the funds were given to it without restriction. Indeed, most wills make bequests with no restrictions; in fact, most courts do not favor conditions because some of the time they are unenforceable. The danger of not having restrictions is that there is no guarantee the funds will be used in the way the testator intended. On the other hand, a trust will ensure that inheritances are distributed in a way the creator intended.
See Ettinger Law Firm, The Danger of Unrestricted Bequests and Gifts, New York Estate Planning Attorney Blog, October 11, 2016.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Thursday, October 20, 2016
Stephen R. Alton recently published an Article entitled, The Strange Case of Dr. Jekyll’s Will: A Tale of Testamentary Capacity, Tulsa L. Rev. (forthcoming). Provided below is an abstract of the Article:
Robert Louis Stevenson’s classic novella, The Strange Case of Dr. Jekyll and Mr. Hyde, published in 1886, is the well-known tale of a respected scientist (Dr. Henry Jekyll) who transforms himself into an evil-doer (Mr. Edward Hyde). While the work raises issues of tort and criminal liability, this article analyzes the legal issues presented by one particular and crucial plot device that Stevenson employs — the last will of Dr. Jekyll. It is this will that so obsesses Jekyll’s friend and solicitor, Gabriel John Utterson (through whose eyes the story unfolds), that Utterson is impelled to seek the truth behind his friend’s relationship to Hyde. At the end of Utterson’s search, the solicitor learns about Jekyll’s dangerous scientific experiment, which leads to the respected doctor’s moral downfall and his physical death.
This article is presented as an imagined dialogue between the article’s author and Jekyll’s lawyer, Utterson, about the issues surrounding Jekyll’s mental capacity to make the will that left the doctor’s estate to Hyde. Jekyll’s will is an excellent case study for the application of various legal rules and doctrines regarding a testator’s mental capacity to make a valid will. These rules include those relating to the general soundness of the testator’s state of mind, the issues of undue influence and duress, and the doctrine of insane delusion. Stevenson’s novella is a wonderful vehicle for examining important legal problems that remain as relevant in America today as they were in England during Queen Victoria’s reign.
Wednesday, October 19, 2016
Putting your home and other assets in a living trust can make things financially and emotionally easier on your loved ones. A living trust is a legal document that holds your assets in trust while alive and transfers those assets to your beneficiaries at death. This type of trust can either be revocable or irrevocable, depending on the amount of control the creator of the trust desires. On the other hand, a will goes into probate, requiring court supervision of your property over a longer period of time. Diligently exploring your estate planning options can help make the process more manageable.
See Why Should I Put My Home in a Living Trust?, Fox News, October 5, 2016.
Recently, during discovery in a will contest, a New York Surrogate court forced the drafting attorney of a will to fork over his computer. In In re Nunz, the court found that there was a “proper basis” for the attorney to turn over of his computer, helping to resolve uncertain issues regarding the execution of the will. The decedent had drafted a will leaving out five of his six children from a previous marriage; accordingly, they contested the will when documentation for the will’s preparation went allegedly missing from the drafting attorney’s computer. At a hearing, the court held that the electronically stored information was “clearly discoverable” for the children to obtain the material and necessary information. This case represents another example of how electronically stored information finds its way into a proceeding.
See Brian Spiro, Drafting Attorney’s Computer Inspected for Evidence in Will Contest, Florida Probate Lawyers, October 18, 2016.
Monday, October 17, 2016
Mark Glover recently published an Article entitled, A Taxonomy of Testamentary Intent, 23 Geo. Mason L. Rev. 569 (2016). Provided below is a summary of the Article:
Recognizing the importance of testamentary intent and the persistent uncertainty surrounding it, this Article seeks to cultivate a deeper understanding of the doctrine by untangling the various strands of testamentary intent. It does so by developing a taxonomy of testamentary intent that can provide guidance to courts charged with evaluating the validity and meaning of wills as well as clarity to the theoretical discussion of the law in this area. With a better understanding of the various strands of testamentary intent and the relationship among them, a more coherent and consistent body of law can develop.
This Article proceeds in three parts. Part I lays the foundation for the taxonomy by describing the general testamentary intent requirement and prior attempts to decipher the meaning of the term. Part II develops the taxonomy by identifying the three primary strands of testamentary intent, including donative testamentary intent, operative testamentary intent, and substantive testamentary intent. Finally, Part III examines the implications of the taxonomy. Specifically, it explains how the taxonomy can bring clarity and consistency to various components of the law of wills and therefore how the taxonomy can foster jurisprudential coherence within the testamentary intent doctrine.
Friday, October 14, 2016
According to a recent report, 23% of retirees would rather spend all their money during their lifetime than leave it to their children. Dave Ramsey weighed in on the matter, stating that “if your children are misbehaving, then you’d be funding their misbehavior . . . and so you wouldn’t want to do that.” However, under this same idea, if you do not leave a well-behaved child money, you are planting the idea that money is evil and that you did the wrong thing when leaving an inheritance.
See Julia Limitone, Should You Leave Your Kids an Inheritance?, Fox Business, October 12, 2016.
In a recent column, the author addressed leaving inheritances and how it is not always equitable to divide your assets equally amongst your children. One reader, however, disagreed with the fact that a child was feeling a sense of entitlement when being disinherited. The reader mentioned their opposition through points like, "Inheritance to your children isn't about money; it's about love. To leave a child out of the will is the ultimate rejection, a total denial of love for them in a situation that can never be revisited, readdressed or repaired." The author answers back saying that it is a beneficiariy’s choice to fight or resent their siblings over being disinherited, ultimately showing their true character. Indeed, the inheritance a child receives is not a marker for the physical or emotional support they received throughout life.
See Michelle Singletary, Michelle Singletary: Will Does Not Equal Parental Love, Ventura County Star, October 12, 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.
Monday, October 10, 2016
Taylor Whitlow recently published an Article entitled, Navigating the Legal Quagmire of Offering a Will for Probate After the Statutory Four-Year Period: Texas’s View on the Issue of Default, 68 Baylor L. Rev. 219 (2016). Provided below is a summary of the Article:
Although a will applicant is typically an executor of a will, there are three other common circumstances under which an applicant seeks to probate a will: (1) the will applicant is a devisee under the will; (2) the will applicant is a successor in interest, meaning either an heir or a devisee of a devisee under the will; or (3) the will applicant is a purchaser from a devisee under a will that has not yet been probated. The purpose of this Comment is to determine what effect, if any, a devisee's default has on his or her successors in interest or a purchaser, and if there is an effect, under what circumstances a devisee's default will be attributable to each type of applicant. Part II of this Comment sets forth the rule applied when the will applicant is a devisee under the will sought to be probated. Part III of this Comment discusses the situation in which the will applicant is a successor in interest, meaning either an heir or a devisee, of a devisee under the will sought to be probated and compares and contrasts differing courts of appeals' conclusions regarding default in this type of case. Part IV of this Comment addresses the situation in which the will applicant is a purchaser from a devisee under a will that has not yet been admitted to probate and seeks to question the reasoning underlying the long-standing rule applied in this specific circumstance. Part V of this Comment concludes the Comment with practical information for attorneys regarding applications for probate of a will where default is likely to be an issue.
Friday, October 7, 2016
Today, about 55% of Americans have no estate-planning documents in place. Accordingly, default rules will come into play in the absence of these documents, which may provide primary benefits to the surviving spouse. Unfortunately, the relationship between the surviving spouse and the stepchildren can be fraught with conflict. Fortunately, proper estate planning in these scenarios can help to avoid confusion and hurt. Emotional ties do not always sever during a divorce, so it is important to name who is family in your estate-planning documents. Similarly, it will be beneficial to name those who are no longer considered family in order to avoid inheritances passing to unintended beneficiaries. So, keep your intended goals in mind when preparing your estate-planning documents.
See Amy Ziettlow & Naomi Cahn, Step-Families and Estate Planning, Family Studies, October 6, 2016.