Wills, Trusts & Estates Prof Blog

Will Formalties -- Should Noncompliance be Excused?

Matthew D. Owdom has recently published his casenote entitled Post-death Subscription: The Protective Function Reborn, 39 McGeorge L. Rev. 359 (2008).

Here is an excerpt from the introduction to his article:

Many beneficiaries have been unfortunate enough to discover that a testator's failure to comply with testamentary execution requirements carries a heavy price. In recent decades, many states have taken steps to mitigate the impact of formal attestation requirements on expressions of testamentary intent.  This modern response embodies a liberal attitude towards formalities in the law of wills, indicating that the once-solid foundation of execution requirements is crumbling. Indeed, commentators have opined that attestation formalities may be “withering away,” and some have called for their outright elimination.  Despite these developments, the recent decision by the California Supreme Court in Estate of Saueressig indicates that formalities are far from extinct.

In Saueressig, the court held that California Probate Code section 6110 prohibits the completion of attestation requirements after the death of the testator.  The court's narrow interpretation of section 6110 constitutes a significant deviation from modern trends in the law of wills. Given the viability of holographic wills and will substitutes in California, all of which undermine the functions of execution formalities, Saueressig appears, upon first glance, to embody a result inconsistent with the prevailing wisdom of the law of wills.

Nevertheless, this Casenote argues that the bright-line rule adopted in Saueressig is superior to the “reasonable time” rule adopted by other jurisdictions and promulgated in the 1990 Uniform Probate Code (UPC). Consistent with the normative conception of formal functions, its primary benefit lies in its protection of the testator from fraud or mistake.  In addition, the Saueressig approach promotes uniformity, predictability, and administrative efficiency.  While Saueressig's holding is laudable, the court's reasoning is less than clear, leaving several unresolved questions.

This Casenote contends that Saueressig illustrates three key points. First, from a policy standpoint, the Saueressig rule maximizes the utility of the protective function of attestation formalities following the 1983 reforms to the California Probate Code. Implicit in this point is an assertion that the once-discredited protective function has undergone a legitimizing “rebirth” in the limited context of post-death subscription. Second, although its result is sound, Saueressig embraces the deeply-rooted but erroneous legal proposition that post-death subscription is incompatible with the temporal nature of the will instrument. Finally, Saueressig demonstrates the judicial tendency to interpret modern, minimalist wills acts in a manner inconsistent with the prevailing liberal attitude towards formalities.

Part II begins by surveying the legal background of Saueressig, including the conflicts in the California appellate courts that generated the Saueressig case and the competing rule adopted in other jurisdictions. Part III provides an in-depth look at the Saueressig case. Finally, Part IV analyzes the implications of the rule adopted in Saueressig.

Have Non-Probate Transfers Gone Too Far?

Kent Schenkel (Associate Professor, New England School of Law) has recently posted on SSRN his article entitled Testamentary Fragmentation and the Diminishing Role of the Will: An Argument for Revival.  This article is scheduled for publication in 41 Creighton L. Rev. 155 (2008).

Here is the abstract of his article:

Popularized by a desire to avoid the complexities and inefficiencies of probate, the now ubiquitous nonprobate system of transferring property at death brings a wealth of complexities and inefficiencies of its own. Our patchwork system of will substitutes, while undeniably simplifying post-death administration, requires more documentation, techniques, and tasks than ever before. On the positive side, our experiences with nonprobate transfer techniques revealed flaws in testamentary transfer laws that are now being addressed. But exposure of ancillary problems with wills laws is only a byproduct of the nonprobate revolution. If we are to reign in fragmentation and its consequent ponderousness and inefficiency we must admit that our aversion to probate, not wills, is driving the proliferation of wills substitutes. Ironically, the will, the instrument whose undesirable post-death characteristics spawned the turn towards alternative techniques, offers a simple and efficient mechanism for channeling a person's testamentary desires. The only significant impediment to reviving the will as the instrument of choice for this purpose is that wills carry the burden of probate. But because probate is now seen as largely unnecessary in many estates, legislation should focus on relieving wills from that burden.

Breach of Gift Condition?

Louisa Lippitt died in 1912 leaving $4,000 in her will to the Rhode Island Hospital conditioned on the money being used to provide a permanent free bed for needy patients as selected by Children's Friend and Service (the successor charity to the one Louisa indicated in her will).

It now appears that the free bed no longer exists.  Accordingly, Children's Friend and Service has filed suit.

Here is some additional information from Eric Tucker, Charity sues R.I. hospital over free bed donated century ago, Townhall.com, April 19, 2008:

"It just seems illogical to me that a quote-unquote 'permanent free bed,' which by its very name suggests that it is to last forever, can somehow not last forever," said Mark Swirbalus, a lawyer for the organization.

If it had been modestly invested, Swirbalus said, Lippitt's donation could be worth about $1.5 million today. * * *

Hospital spokeswoman Gail Carvelli said the money donated for free beds was put into a restricted account that pays for charity care, but she could not say how much was in that account or how much of its funds are spent annually.

Swirbalus said Children's Friend does not expect the hospital to set aside a bed that would be available only to the charity's clients. Rather, the charity wants to ensure its clients receive free care in whatever bed they're treated.

Prior will admitted to probate through application of dependent relative revocation

The testator’s will gave his estate to his spouse if she survived and, if she did not survive, to two of his three children by a prior marriage.

The testator executed a new will making all three children contingent beneficiaries.

On returning home from his lawyer’s office where he executed the second will, he destroyed the prior will stating that he did not want the third child to know he had been omitted from the prior will.

After the testator’s death, the three children challenged the second will alleging it had not been property executed.

In In re Estate of Oliva, 880 N.E.2d 1223 (Ind. Ct. App. 2008), the court affirmed the dismissal of the children’s action, holding that if the second will were invalid, the prior will would be admitted to probate under the doctrine of dependent relative revocation because the destruction of the prior will was “clearly conditional” on the validity of the new will and intestacy would be contrary to the testator’s intent as shown in both wills.

Nuncupative will invalid because not made in extremis

The decedent allegedly made an oral will while hospitalized for treatment of complications arising from a chronic condition.  Death came eighteen days after release from the hospital.

The court affirmed a summary judgment for the intestate heirs, holding that the statutory requirement that a nuncupative will be made “in the time of the last sickness of the decedent” had been construed to require the testator be “in extremis.”

The court explained that a testator suffering from a chronic condition is in extremis only in the final stages of the illness.  In re Estate of Alexander, No. 10-06-00360-CV, 2008 WL 256837 (Tex. App. 2008 Jan. 30, 2008).

(Note:  The 2007 Texas Legislature abolished the right of Texans to make oral wills.)

Ademption & Equitable Conversion

The testator executed a will devising a home to Beneficiary.  Later, the testator entered into a contract to sell the home to Purchasers.  The testator died before the closing.  The trial court held that the devise adeemed and that Purchasers were entitled to specific performance of the contract.  The appellate court affirmed.

The court explained that once the testator executed the contract to sell the home, equitable conversion occurred.  In other words, in equity, the testator no longer owned real property (the home) but instead owned personal property (the contract right to the proceeds of the sale because the sale contract was specifically enforceable).  At the time of the testator’s death, he no longer owned the home and consequently the devise adeemed.

Moral:  Each testator who makes a specific gift of real property must be warned that the gift is likely to fail if he or she enters into a contract to sell the land even if the sale is not completed at the time of death.

Note:  Many states have anti-ademption statutes which would give the beneficiaries in this type of case the sale proceeds.

Should state law update "old" wills on the basis of presumed intent?

Adam Hirsch (William and Catherine VanDercreek Professor of Law, Florida State University) has recently posted on SSRN his article entitled Text and Time: A Theory of Testamentary Obsolescence (forthcoming in the Washington University Law Review).

Here is the abstract of his article:

Events may occur after a will is executed that ordinarily give rise to changes of intent regarding the estate plan - yet the testator may take no action to revoke or amend the original will. Should such a will be given literal effect? When, if ever, should lawmakers intervene to update a will on the testator's behalf?

This is the problem of testamentary obsolescence. It reflects a fundamental, structural problem in law that can also crop up with regard to statutes, contracts, and other performative texts, any one of which may become timeworn. This article develops a theoretical framework for determining when lawmakers should - and should not - step in to revise wills that testators have left unaltered, and to locate this framework in the context of other forms of textual obsolescence. The article focuses on a variable I call friction - i.e., the extent of difficulty text makers face in revising texts on their own. Some changed circumstances display the interesting quality of altering testamentary intent while simultaneously disabling the testator from executing a new estate plan. In such instances, legal intervention to effectuate intent is warranted. Where the testator remains in a position to amend a will following a change of circumstance, the case for legal intervention becomes uneasy. Nevertheless, lesser forms of friction may continue to operate, affording testators less practical opportunity to redo their wills, and hence again giving cause for interpreting wills dynamically.

When lawmakers do act to update a will, they should ordinarily do so on the basis of the testator's probable intent. Yet, I also argue that in some instances lawmakers do better to follow the testator's probable assumptions about what rule governs will interpretation, even if that rule fails to match most testators' preferences. I call this an error-minimizing default. In the Appendix, I show that under some conditions an error-minimizing default is more efficient than a majoritarian default, a contribution to default rule theory.

Hong Kong Pop Diva’s Estate Disputed

The following is from Mum disputes will, straitstimes.com, April 17, 2008:

Cantopop diva Anita Mui left behind assets worth HK$30 million (S$5.2 million) to HK$35 million when she died in 2003.

Her estate is now valued at HK$100 million.

Details of Mui's assets were revealed on Tuesday in a Hong Kong court hearing in which her mother Tam Mei Kam, 84, is battling to gain control of her estate.***

The will left two properties in Hong Kong and London to her close friend, fashion designer Eddie Lau, and up to HK$1.7 million for her four nephews and nieces' education.***

But Madam Tam wants the will to be declared invalid, which would entitle her to the entire estate.

She claims her daughter did not have the mental capacity to sign the will when she was under the influence of tranquillisers to treat her illness.***

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

The Will Contest--Injunction Interface

In Goldthorn v. Goldthorn, 242 S.W.3d 797 (Tex. App.—San Antonio 2007, no pet. h.), the trial court issued a temporary injunction freezing the testatrix’s assets until a suit to aside the testatrix’s will on the basis of lack of capacity was concluded.

The appellate court reversed holding that there was no evidence that (1) an irreparable injury would occur if the injunction were not granted or (2) that the will contest action had a probable chance of succeeding.

Moral:  To obtain a temporary injunction freezing estate assets, it is essential for the will contestant to show that (1) an irreparable injury would occur if the injunction is not granted, and (2) that the will contest has a probable chance of succeeding.

Valuation discounts related to FLP may apply for elective share purposes

In In re Estate of Hjersted, 175 P.3d 810 (Kan. 2008), the court held that in valuing partnership interests owned by a deceased spouse for purposes of calculating the surviving spouse’s elective share entitlement, discounts for lack of marketability and lack of control are “not precluded.”

The majority of the court suggested “general contours of guidance” for consideration on remand, including consideration of the balance to be struck between the policy behind the elective share and the legitimate aim of reducing valuation for estate tax purposes.

Three justices concurred, taking strong exception to the detailed nature of the “guidance.”

Spousal Abandonment and the Elective Share

In Purce v. Patterson, 654 S.E.2d 885 (Va. 2008), the court analyzed a state law which disqualifies a surviving spouse from taking the elective share or by intestacy if he or she “willfully deserts or abandons” the other spouse and such desertion or abandonment continues until death.

The court stated that the relevant period for determining abandonment extends to the time of the deceased spouse’s death and that even though the couple agrees to separate, conduct after the separation can amount to abandonment within the meaning of the disqualification statute.

Estate Planning for Non-Married Couples

Kathleen Ford Bay (Attorney at Law, Blazier, Christensen, Bigelow, and Virr, P.C.) has recently published her article entitled Untying the Knot– Until Death and Taxes Do Us Part, RPPT eREPORT (Feb. 2008).

Here is an excerpt of the summary of her article:

To be cautious and practical, always discuss with same-sex and unmarried couples the following:

1. Wills (avoid testamentary libel);
2. Financial powers of attorney;
3. Health or medical powers of attorney;
4. Advanced Directives (Living Wills);
5. Revocable trusts and transfer of assets to such trusts (consider the mortgage company; insurance on assets; title insurance on home);
6. Declaration or nomination of guardian or conservator and stating who can never be a guardian;
7. Beneficiary designations (insurable interest) and non-probate property;
8. Providing for children (adoption and other issues); and
9. Funeral Directive.***

Proving a Lost Will Under Texas Probate Code – Change Needed

Charles M. Davis (J.D. Candidate 2008, Texas Tech University School of Law) has recently published his Comment entitled A Lost Will, a Photocopy of the Original, and Two “Snakes in the Grass”: Is It Time to Update Section 85 of the Texas Probate Code?, 40 Tex. Tech L. Rev. 89 (2007).

Here is an excerpt of the conclusion to his Comment:

The Garton decision sheds light on the shortcomings of the witness testimony requirement of section 85 of the Texas Probate Code. Statutes that require the proponent of a lost will to satisfy highly technical requirements can prevent the probate of an otherwise valid will. The requirements under the current version of the Texas statute are not realistic. When a witness is required to testify to the contents of the original document, the witness cannot be expected to recall the details satisfactorily to prove the contents of the decedent's estate. This mandate is exactly what transpired in the Garton case when the witnesses to Cullen's will were expected to recall the contents of the document almost thirty years later. The revision to section 85 of the Texas Probate Code suggested in this Comment addresses the shortcomings of the current statute by eliminating the technical requirement of testimony from a credible witness who either read the original will, or heard the original will read.***

Attorney set to inherit £950,000 after killing his wife

According to Lawyer Who Killed His Wife Is Released after Just Two Years - And Inherits £950,000 From Her Estate, thisislondon.co.uk, April 9, 2008:

A wealthy lawyer who killed his wife after she had an affair is set to inherit nearly £1million from her will after being freed from jail.

Christopher Lumsden, 54, was said to have "snapped" after his wife Alison, 53, announced she was leaving him for a family friend.***

The jury heard that the father-of-two was suffering from a "depressive condition" at the time of the attack after being diagnosed with muscular dystrophy.

He was released on licence last September after serving around 18 months of his sentence and is now in line to receive £1million from her will, made five years before her death.

By law, a person convicted of manslaughter cannot inherit money from his victim.

But the courts can make an exception if the killer suffered from a mental disorder at the time of the crime.***

Wills -- Korean Style

While visiting the National Museum in Seoul, South Korea a few days ago, I had the opportunity to view King Taejo's will in which he disposed of his property to his daughter, Princess Suksin.  The will is dated 1401 and is from the Joseon Period.  Because of the significance of this will, it has been designated as the 515th most important National Treasure of South Korea.

Here is a picture of the dispositive provisions of the will.  Note that the will itself is in the middle of a long scroll.  Also note the use of Chinese characters as the will was written before the adoption of the Korean hangeul alphabet in 1446.  (The two bright spots are reflections of overhead lights.)

         

 

 

 

 

 

 

   

Killer should not do indirectly what he or she cannot do directly

Karen J. Sneddon (Assistant Professor, Mercer University Walter F. George School of Law) has recently published her article entitled Should Cain's Children Inherit Abel's Property?: Wading into the Extended Slayer Rule Quagmire, 76 UMKC L. Rev. 101 (2007).

Here is the introduction to her article:

A killer should not benefit from the death of his or her victim. Confusion exists as to whether this notion precludes not only direct benefits, like inheriting the victim's property, but also precludes indirect benefits. Indirect benefits include instances where the individual who inherits the victim's property subsequently gives the victim's property to the killer. The individual may give the killer the property to pay for the killer's legal expenses or to support the killer upon completion of the killer's prison sentence. Generally, the law prohibits an individual from doing indirectly what he or she cannot do directly. And even though “[t]he law generally will not permit by indirection or circuity what it will not allow directly,” attempts by courts, including the U.S. Court of Appeals for the Seventh Circuit, to address the problem of indirect benefits to the killers have been trapped in a quagmire of conflicting goals and fact-specific decisions. Such decisions provide little guidance or direction to future decision makers. This Article argues that a killer should not be able to indirectly benefit from the death of his or her victim. More specifically, this Article examines case law grappling with the ability of the killer's relatives to receive the victim's property. This Article then examines the challenges, feasibility, and necessity of crafting a rule that prevents killers from indirectly benefiting from the death of their victims. Finally, this Article proposes a clearly articulated rule that furthers both the relevant policies and acknowledges the significance of certain facts.

Keeping your will terms to yourself – A prudent decision

According to Martha Neil, Attorney’s Advice About Estate Plans: Don’t Tell the Family, abajournal.com, March 27, 2008:

Tempted to tell an ungrateful relative that he or she has been cut out of your will? Don't do it, an attorney advises.

The unnamed legal counsel, writing in response to an earlier column on open estate planning, says it's generally a bad idea to tell relatives too much about what they can expect to inherit under a will, reports the Prairie Star.***

Special thanks to Paul L. Caron (Associate Dean of Faculty, Charles Hartsock Professor of Law, University of Cincinnati College of Law) for bringing this article to my attention.

Testators’ Right to Compensate Caregiving Children Should Be Preserved

Joshua C. Tate (Assistant Professor, Southern Methodist University Dedman School of Law, Visiting Assistant Professor, University of Pennsylvania Law School) has recently posted on SSRN his article entitled Caregiving and the Case for Testamentary Freedom. 

Here is an abstract of his article:

Almost all U.S. states allow individuals to disinherit their descendants for any reason or no reason, but most of the world's legal systems currently do not. This Article contends that broad freedom of testation is defensible because it allows elderly people to reward family members who are caregivers. The Article explores the common-law origins of freedom of testation, which developed in the shadow of the medieval rule of primogeniture, a doctrine of no contemporary relevance. The growing problem of eldercare, however, offers a justification for the twenty-first century. Increases in life expectancy have led to a sharp rise in the number of older individuals who require long-term care, and some children and grandchildren are bearing more of the caregiving burden than others. Recent econometric studies, not yet taken into account in legal scholarship, suggest a tendency among the American elderly to bequeath more property to caregiving children. A competent testator, rather than a court or legislature, is in the best position to decide how much care each person has provided and to reward caregivers accordingly. Law reform, therefore, should focus on strengthening testamentary freedom while ensuring that caregivers are adequately compensated in cases of intestacy.

Joshua is interested in readers’ comments on his article. You can submit your comments by contacting Joshua by e-mail at jtate@law.upenn.edu.

French woman bequests all to her native village but with conditions attached

Helene Louart, who lived most of her life in Paris, retired in her native village in France’s Loire valley. She left all of her possessions amounting to 1,250,000 million euros to the village, but with controversial conditions attached.

For instance, Ms. Louart's house is to be sold only to a Parisian, all of her money must be used to build social housing, and the main street is to be renamed after her.

This interesting news video entitled Woman gives French village tricky choice from beyond the… is available online at cosmos.bcst.yahoo.com.

Holographic Wills - A Beneficial Tool in Estate Planning

Stephen Clowney (Visiting Assistant Professor of Law, Oklahoma City University School of Law) has recently posted on SSRN his article entitled In Their Own Hand: An Analysis of Holographic Wills and Homemade Willmaking.

Here is an abstract of his article:

Holographic wills - wills that are handwritten and unwitnessed - are traditionally thought of as a risky, do it yourself brand of estate planning. In the author's view, this is wrong. Using two years' of probate records from Pittsburgh, Pennsylvania, this Article demonstrates that holographs are an indispensable tool for testators who are either unwilling or unable to commission a traditional will. Homemade testaments provide a low-cost alternative to intestacy, improve the overall quantity of will-making, function as a safety-net for testators who fall suddenly ill, and rarely result in litigation. The triumph of holographic wills also suggests, strongly, that state legislatures should consider reducing the number of requirements necessary to create a formal, attorney-authored will.

Heath Ledger’s Uncles Say Deceased Actor’s Father is a Poor Manager of the Estate’s Assets

The following is from Ledger Family Feuding Over Heath's Estate, omg.yahoo.com, March 19, 2008:

Heath Ledger's family is embroiled in the midst of a battle for control of the late actor's estate.

The actor's uncles are speaking out against Heath's father, Kim Ledger's, management of Heath's assets, according to People.***

Heath's uncles claim Kim's past estate management has been less than stellar, telling the magazine Kim was removed as the executor of their grandfather's estate 15 years ago.***

Heath's will, which was drafted before he met Michelle Williams and the birth of his daughter, Matilda, left his belongings to his parents and siblings.***

"When you are talking about large sums of money like this, it should be an independent executor, but Kim hasn't chosen that way," Mike Ledger added.***

Special thanks to Eric Pace (J.D. Candidate, Texas Tech University School of Law) for bringing this article to my attention.

Did a Hong Kong Tycoon Lack Capacity When She Executed Her Will?

According to Robin Kwong and Justine Lau, Hong Kong battle begins for tycoon’s billions, FT.com, Feb. 23, 2008:

The charitable foundation established by Nina Wang, the Hong Kong tycoon, fired its first shot in the battle for her $3.9bn (€2.6bn, £2bn) estate on Friday, taking aim at a reclusive businessman who also claims to be her heir.

The Chinachem Charitable Foundation filed court papers in Hong Kong arguing that Ms Wang, who died last April, might have been too ill in late 2006 to approve a will that bequeathed her estate to Tony Chan. Ms Wang was diagnosed with cancer in 2004.

The foundation is controlled by Ms Wang’s siblings and two executives at Chinachem, the property company once headed by the larger-than-life tycoon. It is the main beneficiary of an earlier 2002 will that mandates that the foundation use part of Ms Wang’s estate to fund a Chinese version of the Nobel prize.***

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

Possible Beneficiary of Jell-O Fortune Goes Home Empty-Handed

Elizabeth McNabb's biological great-grandfather started the Jell-O company.  However, Elizabeth was unaware of this fact until well into her adult years as she was adopted as child after having been born out of wedlock.

She learned that she could potentially take under two trusts.  The first, dated 1926 dividing Francis Woodward fortune among her mother's "descendants" and the second, providing for the property to pass to her mother's "living children."

According to Mark Fass, N.Y. High Court Finds Adopted-Out Child Has No Claim to Jell-O Fortune, NY L.J., March 14, 2008:

In December 2005, Monroe County Surrogate Judge Edmund A. Cavalruso decreed that McNabb did not constitute a "descendant" or "child" of her birth mother and therefore was not an intended beneficiary.

Last March, the 4th Department reversed, effectively granting McNabb an approximately $3.5 million share of the two trusts.

Thursday, the Court of Appeals again reversed, holding that McNabb is in fact not entitled to any part of the trusts intended to benefit her birth mother's children.

In Matter of the Accounting by Fleet Bank, the court reversed

finding that the law in effect at the time of the execution of the trusts, in 1926 and 1963, does not imply the right for an adopted-out child to share in a class gift.

The unanimous court also found that public policy precludes * * * McNabb from receiving shares of two trusts created to benefit her birth mother's "descendants" and "living children."

In the words of Chief Judge Judith S. Kaye:

[T]he finality of judicial decrees would be compromised if adopted-out children were included in such class gifts 'because there would always lurk the possibility, no matter how remote, that a secret out-of-wedlock child had been adopted out of the family by a biological parent or ancestor of a class of beneficiaries.'

Special thanks to Jeffrey A. Cooper (Associate Professor of Law, Quinnipiac University School of Law) for bringing this case to my attention.

Need for Elective Share Statute Reform in Oregon

Susan N. Gary (Professor of Law, Associate Dean for Academic Affairs, University of Oregon School of Law) has recently published her article entitled The Oregon Elective Share Statute: Is Reform an Impossible Dream?, 44 Willamette L. Rev. 337 (2007).

Here is the conclusion to her article:

Competing policies make elective share reform difficult. Legislatures considering a change to a state's elective share will consider many goals: ease of administration of assets after a person dies, protection of each spouse when one spouse controls all the marital assets, fair treatment of spouses whether a marriage ends in divorce or death, protection against the loss of Medicaid benefits, and protection of the state's need for reimbursement when assets become available to a person who has received government assistance in paying for long-term medical care. No elective share statute can meet all of these competing policies equally, but a carefully constructed elective share statute can come closer than many existing statutes. An elective share statute could base the elective share on marital assets, defined in the statute by reference to certain types of assets held by the spouses and adjusted in some cases by the use of a rebuttable presumption. The use of an elective share trust to defer Medicaid reimbursement until the second death could benefit the qualified spouse without cheating the state.

Oregon's elective share statute applies only to those persons who either want it to apply or who do not have access to good legal counsel. An optional elective share statute has no place in the law. Reform could substantially improve the law applicable to marital assets and result in more fair treatment to spouses and to the state. It is hoped that this article will serve as a useful resource for law reform in Oregon and in other states considering changes to their elective share statutes.

Famous Wills on Display in Washington

The following is from Eun Yang, Wills Of Famous Washingtonians On Display, nbc4.com, Feb. 28, 2008:

A special exhibit at the D.C. Superior Court showcases the wills of 13 famous Washingtonians.

The wills of Frederick Douglass, Alexander Graham Bell, Oliver Wendell Holmes and several presidents and first ladies are on display in the exhibit put together by Anne Meister, the register of wills at D.C. Superior Court.***

Douglass' will indicates things that mattered to him, such as taking care of his wife and the disposition of his writings and papers.

Douglass died with a large sum of money, which he earned himself. He left 15 acres of land and $20,000 to his wife. He also left $15,000 to each of his children, male and female, even though daughters rarely received money in wills during Douglass' era.***

The wills exhibit is on display at D.C. Superior Court's Building A, next to the law enforcement memorial. It is free and open to the public.***

Special thanks to Neil E. Hendershot, Esq. (Attorney at law, Goldberg Katzman, P.C., Adjunct Professor, Widener University School of Law) for bringing this article to my attention. You can read more on Neil's blog at PA Elder, Estate & Fiduciary Law Blog.

Becoming a "Pet Friendly" Estate Planner

For a brief article which offers some background and guidance on how to be a pet-friendly estate planner, see Gerry W. Beyer, Your Trust-worthy Pet, Legal Times, March 10, 2008.

Follow this link for detailed information about estate planning for clients who own pets.

NCCUSL Approves UPC Amendments

On January 12, 2008, the Executive Committee of the National Conference of Commissioners on Uniform State Laws approved amendments to the Uniform Probate Code.

The amendments make significant changes to the computation of the forced (elective) share which is the amount of property a surviving spouse may take away from other beneficiaries of the deceased spouse's will if the deceased spouse did not leave a statutorily specified amount of property to the surviving spouse.  In other words, the way in which the law restricts a spouse's testamentary freedom have been altered.

The purpose of forced share statutes is to "imitate" the tremendous benefits of a community property system and its partnership theory of marriage by applying an elaborate and complex statutory scheme designed to achieve similar results in common law property jurisdictions.

Here is an excerpt from the commentary explaining the changes:

When first promulgated in the early 1990s, the statute provided that the “elective-share percentage” increased annually according to a graduated schedule. The “elective-share percentage” ranged from a low of 0 percent for a marriage of less than one year to a high of 50 percent for a marriage of fifteen years or more. The “elective-share percentage” did double duty. The system equated the “elective-share percentage” of the couple’s combined assets with 50 percent of the marital-property portion of the couple’s assets—the assets that are subject to equalization under the partnership theory of marriage. Consequently, the elective share effected the partnership theory rather indirectly. Although the schedule was designed to represent by approximation a constant fifty percent of the marital-property portion of the couple’s assets (the augmented estate), it did not say so explicitly.

The 2008 revisions are designed to present the system in a more direct form, one that makes the system more transparent and therefore more understandable. The 2008 revisions disentangle the elective-share percentage from the system that approximates the marital-property portion of the augmented estate. As revised, the statute provides that the “elective-share percentage” is always 50 percent, but it is not 50 percent of the augmented estate but 50 percent of the “marital-property portion” of the augmented estate. The marital-property portion of the augmented estate is computed by approximation—by applying the percentages set forth in a graduated schedule that increases annually with the length of the marriage (each “marital-portion percentage” being double the percentage previously set forth in the “elective-share percentage” schedule). Thus, for example, under the former system, the elective-share amount in a marriage of ten years was 30 percent of the augmented estate. Under the revised system, the elective-share amount is 50 percent of the marital-property portion of the augmented estate, the marital-property portion of the augmented estate being 60 percent of the augmented estate.

The primary benefit of these changes is that the statute, as revised, presents the elective-share’s implementation of the partnership theory of marriage in a direct rather than indirect form, adding clarity and transparency to the system. An important byproduct of the revision is that it facilitates the inclusion of an alternative provision for enacting states that want to implement the partnership theory of marriage but prefer not to define the marital-property portion by approximation but by classification. Under the deferred marital-property approach, the marital-property portion consists of the value of the couple’s property that was acquired during the marriage other than by gift or inheritance. * * *

The 2008 revisions are based on a proposal presented in Waggoner, “The Uniform Probate Code’s Elective Share: Time for a Reassessment,” 37 U. Mich. J. L. Reform 1 (2003), an article that gives a more extensive explanation of the rationale of the 2008 revisions.

Technical amendments were also made to a variety of other sections, especially those dealing with anti-lapse and related issues.

Special thanks to Robert Sitkoff (John L. Gray Professor of Law, Harvard Law School) for bringing this development to my attention.

Heath Ledger's Will -- Interesting Issues May Arise

Australian actor Heath Ledger died on January 22, 2008 in New York City from an accidental drug overdose.  Heath was well-known for his role in the movie Brokeback Mountain and plays the role of "The Joker" in the upcoming Batman movie, The Dark Knight.

According to Jose Martinez, Heath Ledger assets go to parents, siblings, [New York] Daily News, March 8, 2008, Heath prepared a three page will in Australia in 2003 before becoming successful.  This will leaves his entire estate to his parents and siblings.  After executing this will, however, Heath's former partner gave birth to a child, Matilda Rose Ledger.

I wonder if Matilda will be entitled to a pretermitted child's share as computed under New York law or Australian law.

The Daily New also reported the following about Heath's estate:

[He] had less than $145,000 in New York assets at the time of his death, including $100,000 spread across various bank accounts, a $25,000 Toyota Prius and $20,000 in furniture and fixtures. * * *

There's also no hint of the real size of his wealth, including the fancy Brooklyn townhouse he and [Michelle] Williams shared, any property in Australia or cash stuffed in trust funds. * * *

The bulk of Ledger's estate will be handled in Australia.

Ledger's lawyer, Harvey Corn, has asked the judge to seal the file to protect the family's privacy.

Special thanks to Sara Hudman and Neda Jahansouz (both J.D. Candidates, Texas Tech University School of Law) for being the first individuals to bring this development to my attention.

Restrictive language creates life estate

The testatrix’s will gave a farm to her two daughters with the restriction that it not be sold during their lives and for 21 years thereafter and on their deaths, title is to vest in “the heirs of their bodies per stirpes.”

The court reversed the trial court judgment that the daughters owned the land in fee simple, holding that the language giving the land to the daughters’ heirs indicated that the testatrix did not intend to give a fee simple but rather a life estate with a remainder in the heirs.  The court remanded the case for consideration of what effect, if any, the restriction on sale has on the remainder interest.  Barnett v. Estate of Anderson, 966 So. 2d 915 (Ala. 2007).

Estate Planning Dilemma

The following was posted on the Dear Prudence: Advice on manners and morals page of the online Slate magazine. See I'm Not Saying She's a Gravedigger … slate.com, Feb. 28, 2008.

I recently proposed marriage to my significant other of two years. She accepted my proposal[.] Earlier in our relationship, I told her that if we got married I would want a prenuptial agreement, and she agreed. However, now that the time has come for us to sign, she is refusing. I have offered to write a will that protects her in the event of my death. But she says that if I die first, she would have limited rights to contest my will and is worried my family would attempt to claim my investments. She also stated that in the event of both of our deaths, her two adult children from a previous marriage would not have rights to my investments.***

Here is what was posted in response:

Since you are well-off, a potential spouse has a right to expect that you would provide for her in your estate planning, as you have said you will.*** Since she's been showing such an ugly side of herself during these discussions, her threat must seem more and more like a reprieve.

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this posting to my attention.

Court declares Dannielynn as Anna Nicole Smith's sole heir

Earlier on this blog, I provided an analysis of Anna Nicole Smith's will.

On Tuesday (March 4, 2008) a Los Angeles judge declared that Dannielynn is the sole heir to Anna's estate and set up a trust in the girl's name.  Her father, Larry Birkhead, and Anna's executor, Howard K. Stern, will serve as the co-trustees.

It is debatable whether this result is in accordance with the terms of her will.  It is reported that Stern's lawyer, Bruce S. Ross, said "We and Mr. Stern always believed that Anna Nicole never intended to disinherit her daughter. * * * I'm pleased to say this chapter in the saga is closed."

See AP, Judge: Baby is Anna Nicole Smith's sole heir, CNN.com, March 4, 2008.

Special thanks to Sara Hudman and Neda Jahansouz (both J.D. Candidates, Texas Tech University School of Law) for being the first individuals to bring this development to my attention.

Dutch Legal Science and Its Influence on Mutual Wills

Alexandra Braun (Junior Research Fellow at St John's, University of Oxford School of Law) has recently posted on SSRN her article entitled Revocability of Mutual Wills.

Here is the abstract of her article:

Mutual wills are wills made in substantially the same terms by two or more persons in pursuance of a previous agreement to testate in a specific way. This agreement is usually intended to remain unchanged over time. Mutual wills thus involve a conflict with a cardinal principle of the law of wills, ie. that a will can be revoked at any time before the death of the testator. Over centuries jurists and judges have engaged with this question in an attempt to find a satisfying compromise, but this was not an easy task and the difficulties eventually contributed to the abolition of mutual wills in many jurisdictions.

This chapter is occupied with an assessment of the contribution of seventeenth-century Dutch legal science in this field, and its influence on the Legal Science of Europe. It outlines the development of the ius commune up to the eighteenth century, and then compares the evolution of the law from the eighteenth century onwards in some jurisdictions where mutual wills are still in use, such as Germany, England, Scotland and South Africa.

Re-examining standing of heirs and beneficiaries to challenge decedent’s marriage after death

Terry L. Turnipseed (Assistant Professor of Law, Syracuse University College of Law) has recently posted on SSRN his article entitled How Do I Love Thee, Let Me Count the Days: Deathbed Marriages in America. 

Here are excerpts from the introduction to his article:

Should you be able to marry someone who has only days to live? If so, should the government award the surviving spouse the many property rights that ordinarily flow from marriage?

In almost every state, the only person allowed to challenge the validity of a marriage (or, by extension, the property consequences thereof) after the death of one of the spouses is the surviving spouse! Seems incredible, does it not? The expectant heirs of a dying man (or woman) who marries on his (or her) deathbed cannot challenge the marriage post-death. Ironically, the one person allowed to challenge is the only person who has absolutely no motivation to do so.***

This article explores these and other related questions, including a proposed theoretical framework for a model act giving heirs and beneficiaries standing to sue in order to negate the property consequences that flow from marriage, depending on the level of mental capacity at the time of the marriage.***

Ex-Microsoft Developer Leaves $65 Million to Benefit Same-Sex and AIDS Organizations

Ric Weiland, who was a high school classmate of Microsoft founder Bill Gates, committed suicide in 2006 at age 53.

Details have recently been released regarding his estate.  According to AP, Ex-Microsoft worker leaves $65 mil to gay rights, AIDS groups, CNN.com, Feb. 24, 2008:

[T]he Pride Foundation said Weiland's estate had established a fund at the foundation that would give $46 million over the next eight years to 10 national gay rights and HIV/AIDS groups, including Lambda Legal; the National Gay and Lesbian Task Force; Parents, Families and Friends of Lesbians and Gays; the Gay & Lesbian Alliance Against Defamation; and amfAR, the Foundation for AIDS Research.

His estate also bequeathed $19 million directly to the Pride Foundation for scholarships and grants supporting the gay, lesbian, bisexual and transgender community in the Pacific Northwest.