Monday, November 28, 2016
Gary Spitko recently published an Article entitled, The Will as an Implied Unilateral Arbitration Contract, 68 Fla. L. Rev. 49 (2016). Provided below is an abstract of the Article:
A consensus has begun to develop in the case law, the academic commentary, and the statutory reform movement that a testator's provision in her will mandating arbitration of any challenge to the will should not be enforceable against a beneficiary who has not agreed to the arbitration provision, at least where the will contestant, by his contest, seeks to increase his inheritance outside the will. Grounding this consensus is the widespread understanding that a will is not a contract. This Article seeks to challenge both the understanding that a will is not a contract and the opposition to enforcement of testator-compelled arbitration provisions that arises from that understanding.
This Article argues that a will is part of an implied unilateral contract between the testator and the state in which the state offers to honor the testator's donative intent, and the testator accepts and provides consideration for the offer by creating and preserving wealth. Importantly, the greater contract respecting donative freedom of which the will is a part also includes a provision for the distribution of an individual's intestate property in line with that individual's imputed intent should the individual fail to execute an effective estate plan. Similar to a testator, a property owner who has failed to make an effective estate plan accepts this offer of intestate distribution through her industry and thrift. This Article's theory borrows from the law respecting implied unilateral contracts arising from employee handbooks in concluding that it should be of no moment that the property owner is unfamiliar with the specifics of the state probate code. Rather, the critical factor should be that the state has, through its offer to respect donative intent, created an atmosphere that is “instinct with an obligation” and that encourages diligence and the prudent management of wealth.
The conclusion that a will is a contract between the testator and the state grounds this Article's additional argument that the Federal Arbitration Act (FAA) and state arbitration statutes require enforcement of a testator-compelled arbitration provision contained in a will even against a beneficiary who has not agreed to the arbitration provision. Settled arbitration law in conjunction with third-party beneficiary theory or direct benefits estoppel theory supports binding the beneficiary to the will's arbitration contract. A virtue of this Article's theory-that the will and the intestacy statutes are both clauses in a greater donative freedom contract-is that the analysis escapes the limitations inherent in the dominant understanding that a will's arbitration clause, if enforceable at all, can be enforced only against a beneficiary who seeks, by his will contest, to increase his inheritance under the will as opposed to circumstances in which the donee seeks to increase his intestate inheritance. According to the conventional wisdom, even if arbitration clauses are enforceable in some testamentary instruments, they govern only a narrow range of claims. This Article's implied unilateral contract theory goes further and expands the universe of arbitrable contests. Specifically, this Article's theory is the first that encompasses even a will contest that seeks to render the will a complete nullity.
Saturday, November 26, 2016
New Mexico has updated its trust and estate legislation in 2016. The state has amended the Uniform Statutory Rule Against Perpetuities, abolishing the rule for personal property held in trust and extending the time period to 365 years for real property held in trust. § 45-2-904 (A)(8), (B), New Mexico Statutes Annotated (NMSA). Additionally, New Mexico has adopted the Uniform Trust Decanting Act (§§ 46-12-1 et seq., NMSA) and the Uniform Powers of Appointment Act (§§ 46-11-1 et seq., NMSA). Finally, in its revision, New Mexico has made the Uniform Probate Code more uniform (§§ 45-1-1 et seq., NMSA).
Special thanks to Jack Burton (Attorney, Rodey Law) for bringing this information to my attention.
Thursday, November 24, 2016
Walt Disney’s first draft of his last will and testament will be auctioned off for an estimated $60,000. Disney drafted the will in August 1941, which included an interesting breakdown: half of his Disney stock was split between his two children with the other half being put into an employee bonus pool. Disney ultimately drafted two more wills before he died in 1966.
See Walt Disney Where There’s a Will . . . There’s a Way to Spend $60K!, TMZ, November 24, 2016.
Wednesday, November 23, 2016
Gerald Lebovits recently published an Article entitled, Will of Fortune: New York Will Drafting – Part 1, 88 N.Y. St. B.J. 64 (2016). Provided below is an abstract of the Article:
This article explains how to write in New York will. The first of this two-part column outlines how intestacy laws affect an estate, what every will should include, how to avoid some common mistakes, and how to execute a will properly. Part 2 will outline some areas in a will that require special consideration and, therefore, special clarity.
Monday, November 21, 2016
Imani Jaafar recently published an Article entitled, Practical Islamic Estate Planning: A Short Primer, 42 Mitchell Hamline L. Rev. 925 (2016). Provided below is a summary of the Article:
Islamic estate planning can be challenging for both lawyers and their clients. To attorneys unfamiliar with Islamic estate distribution, the fraction system for dividing an estate can be daunting. The problem can be compounded if Muslim clients do not fully understand the system that applies to their estate documents. Nonetheless, the Qur'an requires Muslims to have a will. The Qur'an, the holy book of Muslims, mandates of believers “when death approaches any of you and he is leaving behind much wealth, to make bequests in [favor] of his parents and [others] near of kin in accordance with what is fair.” The Prophet Muhammad, the most revered and final prophet in Islam, is reported to have said, “It is the duty of a Muslim who has something which is to be given as a bequest not to have it for two nights without having his will written down regarding it.” This article focuses on Islamic wills and provides an overview of the origins of Islamic estate planning, an explanation of the predetermined inheritor system, and a discussion of common issues practitioners will face when assisting Muslim-American clients in drafting Islamic estate documents.
At the trial court level, in Estate of Koontz, the court granted summary judgment against a will contestant’s claims of undue influence and lack of testamentary capacity. The court of appeals reversed the summary judgment and reviewed the contestant’s affidavit, which noted the decedent’s bi-polar depression, prolonged episodes of paranoid and delusional behavior, and his behaviors over an affair and piece of property he owned. Subsequently, the court found that the affidavit contained “more than a scintilla” of evidence to prove the decedent’s lack of testamentary capacity. The court ultimately concluded that the contestant had provided enough evidence for the lack of testamentary capacity claim to withstand summary judgment.
See J. Michael Young, Estate of Koontz: Another Summary Judgment Overturned, Texas Probate Litigation, November 17, 2016.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Monday, November 14, 2016
“8 Mile” director Curtis Hanson passed away in September, and his will not only took care of his longtime partner and son, it also took care of his extended family and movie business. The Oscar winner left most of his estate to his partner and son, setting up a trust for them and several other family members. The estate planning documents do not give exact monetary numbers for the trust, but Hanson had nearly $5 million outside of the trust. His partner is asking to be named the executor of the will with no involvement in his production companies, which will be left up to his producing partner.
See ‘8 Mile’ Director Generous Will Covers His Kid and Many, Many More, TMZ, November 13, 2016.
Sunday, November 13, 2016
Adam J. Hirsch recently published an Article entitled, Gulliver and Tilson, ‘The Classification of Gratuitous Transfers’ — A Belated Review, 35 U. Queensland L.J. 127 (2016). Provided below is an abstract of the Article:
This contribution to a special issue of the University of Queensland Law Review devoted to "My Favorite Law Article" reviews a classic article by Ashbel Gulliver & Catherine Tilson, "The Classification of Gratuitous Transfers," published in volume 51 of the Yale Law Journal in 1941. Although the article by Gulliver and Tilson is frequently cited as the wellspring of rationales for will formalities, this portion of the work was in truth derivative. It usefully synthesized ideas developed by earlier generations of thinkers. Even Gulliver and Tilson's oblique suggestion that wills might be given effect despite being improperly formalized was hardly an original idea in 1941. Gulliver and Tilson's real contribution lay in applying traditional rationales for will formalities to the emerging problem of formalizing will substitutes. Yet this contribution has been largely forgotten and is disregarded by the model lawmakers in their proposals of formalizing rules for will substitutes. I conclude by speculating about why this part of the Gulliver and Tilson article — intended by its authors as its "major thesis" — has received so little attention.
Monday, November 7, 2016
Have you ever heard of a singing will? Most people choose the music they want played at their funerals, but what about the moment just before your funeral when you want to experience music but cannot manage to choose it yourself? Music has expressive qualities that are unique and precious to us, so it is important when we near the end of life that we find the comfort that music brings. A singing will allows you to detail the music you would like to hear near the end of your life, a “life soundtrack,” if you will, helping to distract from the experience and deepen it. Like an actual will, you must find the time to update your singing will as each memory passes.
See Mark Vanhoenacker, My Deathbed Playlist (and Yours), N.Y. Times, November 5, 2016.
Sunday, November 6, 2016
Maurice Sendak’s estate has emerged mostly victorious in its legal battle with Philadelphia’s Rosenbach Museum and Library, which held many of his original drawings and part of his book collection before he died in 2012. In probate court, the judge awarded a bulk of the book collection to the Sendak estate. Sendak’s will specifically stated that the drawings and most of the loaned items to the museum would remain the property of the Maurice Sendak Foundation, which would set up a facility to honor Sendak in his hometown. Ultimately, the probate court awarded 88 items to the Rosenbach and 252 to the Sendak estate.
See Randy Kennedy, Maurice Sendak’s Estate Is Awarded Most of a Book Collection, N.Y. Times, November 1, 2016.
Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.