Wills, Trusts & Estates Prof Blog

Michael Jackson's Will Released -- Read it for yourself!

Follow this link to see a copy of Michael Jackson's will.
   
   
 

Michael Jackson's Will -- Update

Earlier on this blog, I discussed Michael Jackson's alleged will.

Here is an update based on Source says Jackson will gives mom custody, MSNBC.com, July 1, 2009:

• Michael Jackson's mother (Katherine Jackson) is named as the guardian of his three children.

• All of his assets are left in trust.

• Filing of the will is expected to occur today (July 1, 2009).

• Burial at the Neverland Ranch may not be possible due to state law.

Special thanks to Neda Jahansouz (J.D. 2009, Texas Tech University School of Law) for being the first reader to bring this article to my attention.

Court filings in the probate and guardianship matters are available at http://www.scribd.com/doc/16974369/Michael-Jackson-Probate-Filings.  Special thanks to Greg Broiles for providing this link.

Terms of Michael Jackson's Alleged Will Revealed

Here is some of the most currently reported information about Michael Jackson's alleged will:

• Prepared in 2002.

• Drafted by John Branca (an entertainment lawyer who Michael hired from 1980 to 2006 and rehired again earlier this month).

• Primary beneficiaries are his mother (Katherine) and his three children.

• A portion of his estate will also pass to various charities.

• His father, Joe Jackson, is not named as a beneficiary.

• The named executors are John Branca and John McClain.

• The will may be filed as early as July 2, 2009.

See Nick Allen, Michael Jackson's father Joe 'not named in will', Telegraph.co.uk, June 30, 2009 and Ethan Smith, Jackson Will From 2002 In Spotlight, Wall St. J., June 30, 2009.

Special thanks to the legion of faithful readers who are keeping me posted on the developments of this case which will provide us with months and perhaps years of "enjoyment."

Michael Jackson -- Will or No Will?

The debate rages whether Michael Jackson died intestate or testate.

In Michael Jackson's Estate in Court, myjoyonline.com, June 29, 2009, it is reported that Michael's parents, Joe and Katherine Jackson, claim in their probate filing that Michael died intestate.

However, in Michael Jackson's Will Surfaces, TMZ.com, June 29, 2009, it is reported that Michael Jackson's attorney, John Branca, is in possession of MJ's will and that he intends to file it with the court.

Implied requirement of good faith allows beneficiaries to recover

A prenuptial agreement provided that if the husband died first, wife would maintain a valid will giving not less than one-quarter of her entire estate to each of her husband’s three sons. The husband’s will left a substantial portion of his estate to his wife.

After the husband’s death, his wife made transfers to irrevocable trusts which greatly reduced her probate estate. Her will left her probate estate to husband’s sons.

After the wife died, his sons sued and the Supreme Court of Kansas upheld the imposition of a constructive trust in their favor. The confidential relationship between the husband and his wife gave rise to an implied duty in the wife not to make gifts inconsistent with her obligations under the agreement. The nonclaim statute does not bar what is in essence an action by the wife’s estate to marshal assets nor is the action barred by the statute of limitations because the right of action did not accrue until the wife’s death.

Estate of Draper v. Bank of America, N.A., 205 P.3d 698 (Kan. 2009).

Oral contract barred by statute

Alaska Statute 13.12.514 (identical to UPC § 2-514) requires that all contracts to make a will or devise be in writing.

In its opinion in Cragle v. Gray, 206 P.3d 446 (Alaska 2009), the Alaska Supreme Court held that an oral agreement between a grandmother and her granddaughter providing that the grandmother would give her house to her granddaughter if the granddaughter cared for her for until her death was a succession contract and there void because not in writing.

Class Gifts in the the New Restatement of Property

Frederic S. Schwartz (Professor of Law, Oklahoma City University School of Law) has recently published The New Restatement of Property and Class Gifts: Losing Sight of the Testator's Intention, 22 Quinnipiac Prob. L.J. 221(2009).

The following are excerpts from the introduction to the article:

Division V of the new Restatement (Third) of Property: Wills and Other Donative Transfers will soon be published in final form. In addressing a very common issue, this part of the Restatement violates the most fundamental principle in the law of wills: that the testator's intention is paramount.

The issue is this: When a devise is made to a plurality of beneficiaries, some of whom predecease the testator, who is entitled to the subject matter of the devise? Does it pass entirely to the beneficiaries who survive the testator? Or do the shares that the predeceased beneficiaries would have taken had they survived pass to the residuary beneficiaries? The correct approach to this allocational issue (as I will call it) seems obvious enough: The court should determine which outcome the testator likely intended.

Yet, most of the courts (and now the Restatement) have endorsed a different approach, in which a gratuitous conceptualism interferes with the inquiry into the testator's intention. * * *

In Part I of this article, the correct (and non-conceptualist) resolution of the allocational issue will be described. Part II will show briefly how the courts have substantially endorsed the conceptualist method. Part III will describe and criticize the Restatement's treatment of the allocational issue and the afterborn issue.

South Carolina: No Attorney Duty to Prospective Will Beneficiaries

The South Carolina Supreme Court recently held that an attorney does not owe a duty to a prospective beneficiary under a non-existent will and therefore, the prospective beneficiaries cannot sue the attorney for negligently failing to draft the will.  The plaintiffs in the case were prospective beneficiaries under a will that an attorney was supposed to draft, but failed to, before the testator became incapacitated and died intestate. The court distinguished the case from cases in other states where an attorney owes a duty to beneficiaries under an executed will and ruled that imposing a duty to prospective beneficiaries would "wreak havoc" on the attorney's ethical duty of undivided loyalty to the client.  Rydde v. Morris, No.  26619 (S.C. Mar. 23, 2009).

Special thanks to Michael Hatfield (Professor of Law, Texas Tech University) and Robert C. Peithman (attorney, South Carolina) for bringing this case to my attention.

 

Initials of witness on each page of the will deemed insufficient as an attestation

In its opinion in In re Estate of Leavey, 202 P.3d 99 (Kan. Ct. App. 2009), the Kansas intermediate appellate court affirmed denial of probate for lack of due execution.

 While the testator and one witness signed the will at the end and also signed the self-proving affidavit, the intended second witness, the scrivener, did not sign the line provided for his signature. The initials of the scrivener, the testator, and the witness did appear on the bottom right-hand corner of each page.

The court held that the initials did not substantially comply with the statutory requirement that the witnesses attest and subscribe the will in the presence of the testator.

Stories From an Estate Planner's Experience

Barry M. Fish and Les Kotzer have authored a book entitled Where's there's an Inheritance: Stories from Inside the World of Two Wills Lawyers (Continental Atlantic Publications 2009). 

The authors share humorous, moving, and wrenching tales to provide some insight and instruction for those planning the disposition of their estate, including the story below:

He was a widower with no children, but he was blessed with money, many nieces and nephews — and a unique plan for deciding who should benefit from his generosity.

By the time he was in his mid-80s, his nieces and nephews believed the impression he gave that he had trouble hearing. They gathered often for holidays and family events, and they talked about how much they liked — or disliked — their uncle.

At his 90th birthday party, he stood to say a few words of thanks. "I've been waiting to say these words for the last few years: I can hear perfectly. I have always had perfect hearing, and I have heard everything you have ever said to me and about me."

As a stunned silence swept the room, he proceeded to tell them what he had heard — and later used that information as he prepared his will.

Greg Katz, Touching, angry tales from world of wills, Deseret News, June 9, 2009. 

Special thanks to Larry D. Stratton (Law Offices of Larry D. Stratton, Arcadia, CA and author of the Planner's Thoughts blog) for bringing the this book to my attention.

Parents: Consider a Trust as Part of Your Estate Plan

Parents should consider creating a trust that would take care of their children if something happens to the parents.  Reasons for creating a trust include: 

• Parents have substantial assets or money that children would inherit.
• Ability to delay the age at which children get the money outright.
• Conditions can be placed on inheriting, such as going to college.
• Avoiding the hassle of needing court permission to spend money, which may arise with other arrangements.

• Parents can control how the money is spent and pick the trustee.

For more information, see Stacy L. Bradford, Deciding If Your Kid is Trust-Worthy, Wall St. J., June 3, 2009.

Special thanks to Jim Hillhouse (Wealth Counsel), Joel Dobris (Professor of Law, UC Davis School of Law), and James S. Galco (Trust Officer, Park National Bank) for bringing this article to my attention.

'Why You Need A Will'

Forbes has published an article on the disadvantages of intestacy, including a link to an intestacy calculator. 

The article points out that only a few states - California, Maine, New Jersey, Washington, and the District of Columbia - offer registries where unmarried couples can register, allowing the couple to be treated as spouses for intestacy purposes. 

See Ashlea Ebeling, Why You Need A Will, Forbes, January 19, 2009.

Special thanks to Patrick S. Sylvester (Attorney & Counselor at Law, Sylvester Law Firm, PC) for bringing this article to my attention.

Class gift, or not?

In the case of In re Estate of Womack, 280 S.W.3d 317 (Tex. App.—Amarillo 2008, pet. denied), Testator’s holographic will provided for his entire estate to be divided among his nieces and nephews, his predeceased wife’s nieces and nephews, and one named beneficiary.  A later holographic codicil removed this named beneficiary as well as two nephews.

The trial court determined that these documents taken together resulted in a class gift with the class containing thirteen individuals.  Nephew appealed claiming that only twelve individuals were entitled to Testator’s estate.

The appellate court affirmed.  Nephew asserted that Testator’s will did not make a class gift.  The court did not find it significant that Testator’s original will stated a total number of beneficiaries.  Because Testator did not name the nieces and nephews, other than to exclude two of them, the gift was a class gift and not a gift to specific individuals.

Moral:  A class gift must be drafted with care to avoid an allegation that the gift is actually one to specific individuals.  Perhaps a direct statement such as, “This is a class gift,” would be helpful.

Insurance Companies Increasingly Offer End-of-Life Benefits

More and more group life insurance companies are offering bereavement counseling, estate resolution services, and professional help for funeral planning in addition to the traditional lump-sum payment.  These add-on services cost little to nothing for employers offering group life insurance plans.

See Shelly Banjo, Some Insurers Offer Funeral-Related Services, Wall St. J., May 19, 2009.

Special thanks to Patrick S. Sylvester (Attorney & Counselor at Law, Sylvester Law Firm, PC) for bringing this article to my attention.

California's Care Custodian Statute

David Horton (Lecturer in Residence, Berkeley Law) has recently published an article entitled The Uneasy Case for California's "Care Custodian" Statute, 12 Chap. L. Rev. 47 (2008).

Here are some excerpts from the introduction:

Probate Code section 21350 presumptively voids testamentary gifts to “a care custodian of a dependent adult.” No other state bars devises to caregivers. Yet Section 21350 defines “care custodian” and “dependent adult” broadly. A “care custodian” includes any non-relative “providing health services or social services to an elder or dependent adult.” A “dependent adult” is anyone over sixty-four “whose physical or mental abilities have diminished because of age.”

I highlight four points that I believe have not received their due in the debate over how to reform Section 21350. The first is that California courts uniquely respect testamentary autonomy. In other states, scholars complain that “courts are as committed to ensuring that testators devise their estates in accordance with prevailing normative views as they are to effectuating testamentary intent.” This is not so in California. The “care custodian” provision--which substitutes a categorical legislative determination for a testator's express wishes--deviates from this tradition. Second, the legislature enacted Section 21350 to create a presumption of wrongdoing when lawyers receive devises in estate plans they had authored. However, California common law already recognized that exact presumption. Thus, the statute changed little about a lawyer's right to inherit from a client. Yet when with little fanfare the legislature extended the statute to caregivers, it fundamentally altered a caregiver's ability to accept a legacy from a patient. At the same time, the good reasons to preclude lawyers from profiting from their own draftsmanship do not apply to caregivers.

Third, the Law Revision Commission offers three rationales for retaining the “care custodian” clause: (1) caregivers have the opportunity to exert undue influence; (2) elders depend on caregivers; and (3) gifts to caregivers seem inherently “undue.” To be sure, caregivers enjoy dominion over impaired elders. Yet caregivers provide services that, even if remunerated, are selfless and socially beneficial. As a normative matter, it is unclear why gifts to caregivers should be suspect. Fourth, an inflexible rule is not a good fit for the deeply personal question of a testator's intent. The undue influence doctrine covers the same terrain at less risk of disregarding autonomy or penalizing kindness.

Twenty-Three-Year-Old Inherits Millions

When Paul Raymond, a porn and property millionaire from London, died a year ago, he left his entire personal estate worth £75 million to his 23 year-old grand-daughter and her teenage sister. 

For more information about the older heiress, dubbed "Soho's biggest landlord," see David Cohen, The new queen of Soho, Evening Standard, Jan. 4, 2009.

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

Communication Challenges

Gerry W. Beyer (Governor Preston E. Smith Regents Professor of Law, Texas Tech University School of Law) has recently posted on SSRN his article entitled The Communicationally Challenged Testator, Estate Planning Developments for Texas Professionals, April 2009.

Here is the abstract of his article:

Your client may have difficulty with communication, that is, the client may be unable to see, hear, write, or understand English. To effectively prepare a will for these clients, the estate planner must initially ascertain whether the client has a communication challenge and then take affirmative steps to make certain the challenge does not negatively impact the validity of the will. Extra attention must be given to make certain the requirements of a valid will are satisfied and that individuals displeased with the will do not use the communication challenge as a foundation for claims of undue influence or fraud. Even without other evidence, courts may subject the will of a communicationally challenged client to higher scrutiny. This article reviews a variety of communication challenges (visually impaired, hearing or speaking impaired, physically unable to sign, illiterate, non-English speaking) and recommends techniques to reduce the likelihood of these challenges playing a part in setting aside the testator's will.

Details on Natasha Richardson's Will

Details on the will left by Natasha Richardson, the London actress who died after a skiing accident, are available.  Although she left the bulk of her estate to her husband, she also included her sister, an aunt, an employee, and a costumer designer.

See Kathianne Boniello, Natasha's Notable Last Will, New York Post, May 31, 2009. 

Special thanks to Raymond Sheffield (attorney, Sheffield Law Office, San Jose, CA) for bringing this article to my attention.

Digital Estate Planning

Another article is available on the importance of including internet passwords, which are inevitable in an increasingly on-line world, in an estate plan. 

More information on this subject can be found in previous posts here and here, and in the recent article by Deborah L. Jacobs, When Others Need The Keys to Your Online Kingdom, NY Times, May 20, 2009.

Probate and Divorce in Tennessee

In a student note, Hailey H. David discusses why Tennessee should adopt a broader statute for revoking provisions in favor of an ex-spouse or the ex-spouse's relatives in wills and will substitutes.  Hailey H. David, Note, The-Revocation-Upon-Divorce-Doctrine: Tennessee's Need to Adopt the Broader Uniform Probate Code Approach, 39 U. Mem. L. Rev. 383 (2009).  

Here are excerpts from the introduction of his note:

Couples frequently fail to appreciate the impact a divorce has on their individual estate plans until after one of the partners dies. Questions then arise, often from other family members, about whether the deceased partner would have intended for his or her former spouse to take certain assets, such as those apportioned by will, life insurance policy, retirement plan, trust, or other estate planning devices.

Part I of this Note discusses the history of the revocation-upon-divorce doctrine with respect to probate assets, specifically as applied to probate assets in Tennessee. Part I also compares the Tennessee provisions with those of the UPC and argues in favor of adding language to the Tennessee Code to revoke provisions in a testator's will in favor of a former spouse's relatives. Part II of this Note considers the application of the revocation-upon-divorce doctrine to will substitutes such as life insurance policies, retirement plans, annuities, and trusts under both Tennessee law and the UPC. This section also sets forth an argument to add language to the Tennessee Code which changes beneficiary designations from a former spouse or a former spouse's relatives to an alternate beneficiary or the decedent's estate when a decedent dies without having changed the beneficiary designation after his divorce. In sum, this Note explains why and how Tennessee should expand its revocation-upon-divorce statutes to more accurately reflect modern family life.