Monday, September 26, 2016
Richard B. Keeton recently published an Article entitled, Balancing Testamentary Incapacity and Undue Influence: How to Handle Will Contests of Testators with Diminishing Capacity, 57 S. Tex. L. Rev. 53 (2015). Provided below is a summary of the Article:
Lack of mental capacity is “the second most commonly alleged ground for setting aside a will.” This Article will explore these ever-increasingly common, yet intricate and complex scenarios. First, Part II of this Article will give the reader a broad overview of the requisite mental capacity to execute a will. Additionally, because each state has its own unique-- but similar--common law tests, sample case studies are provided for the jurisdictions of Missouri, New York, and Texas. Next, Part III will discuss the generally recognized presumption of requisite testamentary capacity--presumed across all jurisdictions--unless evidence is presented to show otherwise. Part IV of this Article will delve into various case law and common law tests used to prove the existence of undue influence in the execution of testamentary documents. Following, Part V attempts to answer the circular question challenging attorneys and courts of whether a testator can actually be unduly influenced if he or she lacked testamentary capacity. Upon conclusion, this Article will provide practical recommendations to consider when assisting persons with Alzheimer's disease and other forms of dementia execute testamentary instruments.
Alex M. Johnson, Jr. recently published an Article entitled, Is It Time for Irrevocable Wills?, 53 U. Louisville L. Rev. 393 (2016). Provided below is a summary of the Article:
Almost everyone knows that inter vivos trusts can be made revocable or irrevocable. And the reference to “inter vivos” as opposed to “testamentary” trusts is intentional. Testamentary trusts become effective only upon the death of the settlor by establishing a valid trust in his or her will and, as a result, are by definition irrevocable upon creation (the testator cannot die again nor can he or she undo his or her death to somehow later repudiate the creation of the trust). Hence, it is more precise to say that inter vivos and testamentary trusts may be made irrevocable, but only inter vivos trusts may be made revocable.
Although at one time the default rule in most states was that an inter vivos trust was irrevocable unless the settlor expressly retained the right to later revoke the trust, the modern and current majority view is the opposite: That is, trusts are revocable unless explicitly made irrevocable. Whatever the default rule, it is important to emphasize that inter vivos trusts come in two flavors or varieties: revocable and irrevocable.
Compare, however, wills that become effective only upon the death ofthe testator. By definition and in every jurisdiction, wills are ambulatory documents and can always be revoked prior to death. Indeed, there is no way for a putative testator to make an irrevocable will, meaning that there is no legal method by which an individual can commit to execute a will that is going to be effective upon that individual's death. In a legal regime that has as one of its primary goals the validation of the will maker's freedom of testation or disposition, it is somewhat surprising that individuals have no option to commit their future selves to a will executed by their present self.
Sunday, September 25, 2016
With the potential of dissatisfied heirs and will contests, it is important to make your will bulletproof. One thing you can draft in your will is a no-contest clause, which discourages people from disputing your will, especially beneficiaries. Also, if you plan on doing something dramatic with your bequests, announce these wishes to your loved ones while you are still alive, giving clarity to those who might feel blindsided otherwise. Along those same lines, you should have a doctor verify your mental health at the time you plan to draft your will. Additionally, if you do not want your will to become public record in the probate process, you should consider a living trust, which can satisfy your asset transfer without inviting unwanted attention and further challenges.
See Alex Glenn, 5 Ways to Make a Bulletproof Will, USA Today, September 24, 2016.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Friday, September 23, 2016
David Horton recently published an Article entitled, The Limits of Testamentary Arbitration, 58 Fla. L. Rev. Forum (2016). Provided below is an abstract of the Article:
This is an invited reply to Professor E. Gary Spitko's provocative and creative article, The Will as an Implied Unilateral Arbitration Contract. Professor Spitko argues that arbitration clauses in wills are enforceable because there is a "donative freedom contract" between the state and property owners. As a result, Professor Spitko concludes that all parties -- including omitted heirs who allege that a will is invalid -- are compelled to arbitrate any claim relating to the estate.
Conversely, I explain why the Federal Arbitration Act and its state analogues are narrower. In my view, they exclude lawsuits filed by individuals who have not accepted money or property under the terms of the instrument. In addition, I contend that this carve out is necessary to prevent opportunists from using testamentary arbitration to insulate their conduct from judicial review.
Thursday, September 22, 2016
Lee Power, a wealthy widow, would eventually sign away more than $100 million in her will to a man she had known for two years, Alben Sagan or, as he was also known, The General. The two met in late 2008, and Sagan soon became her ever-present companion. Over the next few years, Sagan became the president of her real estate companies, negotiating multi-million-dollar sales. Upon Power’s death, her family was curious as to why 90% of her fortune was left to a man they barely knew. Shortly after, her sister wrote a scathing letter to the Manhattan Surrogate’s Court objecting to the will.
So who is Alben Sagan? Sagan was a ex-military officer who had given testimony on several organized crime figures, eventually forcing him into the witness protection program. Eventually, Sagan could not handle the lifestyle and reverted back to his old lifestyle in New York with longtime friends. Trying to keep his past a secret, he was unable to hide when he was set to inherit $100 million.
Currently, Sagan’s past life is at the forefront of a fierce legal battle over the validity of Power’s will. Lawyers for Power’s nieces allege that Sagan preyed on a wealthy woman suffering from dementia to gain control over her real estate portfolio, which is estimated to be worth around $80 to $120 million. Sagan claims that Power was of sound mind when she drafted her will.
See James Fanelli, How a Mob Informant Who Left Witness Protection Got $100M from a Widow, dna info, September 20, 2016.
Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.
Wednesday, September 21, 2016
Susan N. Gary, Jerome Borison, Naomi R. Cahn, & Paula A. Monopoli’s newest edition of Contemporary Trusts and Estates, Third Edition will be available for Spring 2017 classes. Provided below is a summary of the book:
This third edition casebook captures the rapid evolution of doctrine in trusts and estates law that has occurred over the past half-century in response to profound societal and demographic changes. Influenced by recent developments in legal education, this casebook integrates legal analysis, judgment and perspective, ethics, and practice skills. It focuses simultaneously on the theoretical foundations and practical applications of the material, teaching students by using traditional case analysis, and innovative exercises.
Professors and students will benefit from:
- Reorganized coverage of Wills before Trusts, beginning with an overview of the familial relationships at the core of all trusts and estates.
- Extensive textual explanations that present the law and its many nuances.
- The inclusion of practice skills and exercises in response to recent ABA requirements.
- Fact-based problems that required students to explore cases, the UPC, UTC, and other statutes, as well as the MRPC, in depth.
- Document drafting, role-playing, and letter-writing-to-clients exercises.
- Numerous updates including: Post-Obergefell v. Hodges developments for same-sex families, additional material on decanting and the new Uniform Trust Decanting Act, inclusion of the Uniform Powers of Appointment Act, discussion of planning for digital assets, and the Incorporation of 2016 ACTEC Commentary on the Model Rules.
Lucy L. Holifield recently published an Article entitled, Property Law—Upending the Familiar Tools of Estate Planning: Equity Renders Revocable Trusts Subject to the Arkansas Spousal Election. In re Estate of Thompson, 2014 Ark. 237, 434 S.W.3d 877, 38 U. Ark. Little Rock L. Rev. 75 (2015). Provided below is a summary of the Article:
Thompson has launched Arkansas probate law into a gray zone of uncertainty. Before, nonprobate transfers were simply not subject to the elective share. Now, nonprobate transfers may be subject to the elective share if the court thinks it reasonable to do so under the totality of the circumstances. Although the Thompson court articulates an intent-based test and applies the holding narrowly to revocable trusts, the decision was actually made on the equities of the case. In these cases, “fraudulent intent” is simply a post-hoc label assigned to an equitable outcome. The factors used are primarily objective, and a synthesis of case law from the jurisdictions cited in Thompson sheds significant light on what sorts of circumstances may lead the court to a finding of fraudulent intent.
Part II of this note will begin by discussing nonprobate transfers, the history of the spousal elective share, and efforts to protect against spousal disinheritance that occurs as a result of nonprobate transfers; it will end with a discussion of Arkansas's approach to the problem debuted in Thompson. Part III will provide an in-depth analysis of factors used in other jurisdictions to determine whether a nonprobate transfer is subject to the spousal elective share. Although this section will provide some guidance, it will also demonstrate just how malleable the Thompson court's intent-based analysis is and how unpredictable Arkansas's estate planning realm is left as a result. Part III will end by offering a practical solution in the form of nuptial agreements, and Part IV will conclude the note.
Monday, September 19, 2016
The University of Minnesota Law Library recently received a donation of rare law books from the collection of Raymond A. and Ruth A. Reister. The donation includes nearly 100 titles on inheritance, wills, and estates in Anglo-American law. Specifically, library patrons will now be able to benefit from works by William Blackstone and Francis Bacon along with a 16th-century treatise and humorous works on eccentric wills.
See Law Library Announces Gift of Important Historical Works on Wills and Estates, University of Minnesota Law School, June 17, 2016.
Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.
Saturday, September 17, 2016
S.I. Strong recently published an Article entitled, International Implications of the Will as an Implied Unilateral Arbitration Contract, 68 Fla. L. Rev. Forum (2016). Provided below is an abstract of the Article:
Professor E. Gary Spitko has advanced a novel argument for enforcing arbitration provisions found in wills, claiming that the will can be construed as an implied unilateral arbitration contract. This article considers the international implications of Professor Spitko's theory, particularly in light of the European Succession Regulation, which came into effect in August 2015. As discussed in this article, the Regulation allows U.S. nationals residing in the European Union to choose U.S. law to govern their estate plans and may thereby allow U.S. principles regarding the arbitrability of will disputes to be imported into European proceedings. This issue is of increasing importance and interest, particularly to the rising numbers of Americans, including retirees, who are now residing in the European Union and to the lawyers who are drafting their wills.
Linda Schoeman-Malan recently published an Article entitled, The Requirements and Test to Assess Testamentary Capacity (2), 79 J. Contemporary Roman-Dutch L. 69–84 (2016). Provided below is an abstract of the Article:
In almost all common law jurisdictions the delineation of testamentary capacity has become a controversial topic in recent times. One of the reasons is that as people live longer their cognitive abilities are questioned. Furthermore, the expectation to inherit amongst potential heirs builds up and the disappointment of not being instituted as a beneficiary prompts disgruntled disinherited beneficiaries to contest the will of sick, vulnerable and older testators. In recent times such law suits have come to count among the most frequent types of litigation.