Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

A Member of the Law Professor Blogs Network

Monday, February 23, 2015

Article on Unequal Bequests

Marco FrancesconiMarco Francesconi (University of Essex), Robert A. Pollak (Washington University in Saint Louis - John M. Olin Business School), and Domenico Tabasso (University of Geneva) recently published an article entitled, Unequal Bequests, CEPR Discussion Paper No. DP10401 (2015). Provided below is the abstract from SSRN:

Using data from the Health and Retirement Study (HRS), we make two contributions to the literature on end-of-life transfers. First, we show that unequal bequests are much more common than generally recognized, with one-third of parents with wills planning to divide their estates unequally among their children. These plans for unequal division are particularly concentrated in complex families, that is, families with stepchildren and families with genetic children with whom the parent has had no contact (e.g., children from previous marriages). We find that in complex families past and current contact between parents and children reduces or eliminates unequal bequests. Second, although the literature focuses on the bequest intentions of parents who have made wills, we find that many elderly Americans have not made wills. Although the probability of having a will increases with age, 30 percent of HRS respondents aged 70 and over have no wills. Of HRS respondents who died between 1995 and 2010, 38 percent died intestate (i.e., without wills). Thus, focusing exclusively on the bequest intentions of parents who have made wills provides an incomplete and misleading picture of end-of-life transfers.

February 23, 2015 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0) | TrackBack (0)

Sunday, February 22, 2015

Article on Dementia, Decision-Making, and the Modern (Adult) Guardianship Paradigm

Margaret Isabel HallMargaret Isabel Hall (Thompson Rivers University - Faculty of Law) recently published an article entitled, Dementia, Decision-Making, and the Modern (Adult) Guardianship Paradigm: Bentley v Maplewood Seniors Care Society, Canadian Journal of Comparative and Contemporary Law, Vol. 1 (2015). Provided below is the abstract from SSRN:

This paper considers the meaning of decision making, including substitute decision making, for persons with dementia. The paper discusses the historical development of adult guardianship, from the King’s stewardship of the property of “fools” and “lunatics” to the modern mechanisms of substitute decision making, and the relationship between substitute decision making and a particular ideal of autonomy. The paper concludes with a discussion of Bentley v. Maplewood Seniors Care Society, a case concerning the present choices of a woman with dementia, the decisions set out in the “living will” she drafted many years earlier (prior to dementia), and the decisions made by the woman’s (purported) representatives on her behalf. The case invites us to consider whether the decisions of the former, mentally capable self can ever trump the choices of the current self with dementia.

February 22, 2015 in Articles, Disability Planning - Property Management, Estate Planning - Generally, Wills | Permalink | Comments (0) | TrackBack (0)

Thursday, February 19, 2015

Third Party Beneficiary Prevails In Case

Gavel2

A Richmond lawyer is responsible for $603,409.10 after preparing a will that failed to provide the fully intended bequest to the Richmond Society for the Prevention of Cruelty to Animals (RSPCA). 

In 2003, Alice L. Cralle Dumville asked James B. Thorsen to prepare a will for her that would keep her estranged husband from receiving any of her estate.  In an oral contract, Thorsen agreed to draft the will that would leave all of Dumville’s property to her mother and, if her mother predeceased her, to the RSPCA.  Dumville’s mother died in 2007 and Dumville died in 2008.  Thorsen subsequently sought to have the will interpreted to leave the entire estate to the RSPCA, but a Chesterfield County judge concluded the will left only tangible personal property to the society. 

Thorsen was sued for malpractice and agreed the will did not incorporate Dumville’s intentions regarding the disposition of her property.  However, he argued that the RSPCA was not an intended third-party beneficiary of his legal services contract, effectively barring the malpractice claim. 

The case was heard in November and the judge adopted the RSPCA’s reasoning that Dumville wanted everything to go to her mother and wanted everything to go to the SPCA in the event her mother predeceased her.  Furthermore, the RSPCA met Virginia’s stringent test for a third party to have standing.

Thorsen and his firm have filed a notice of appeal, indicating they will ask the Supreme Court of Virginia to review the lower court’s decision. 

See Peter Vieth, Botched Will Cost Lawyer $600,000, Virginia Lawyers Weekly, Feb. 9, 2015.

Special thanks to Ada-Marie Aman (Law Office of Ada-Marie Aman) for bringing this article to my attention.

February 19, 2015 in Estate Administration, Estate Planning - Generally, Malpractice, New Cases, Wills | Permalink | Comments (1) | TrackBack (0)

Wednesday, February 18, 2015

New Book: Examples & Explanations Wills, Trusts, and Estates

Examples and explanations

I recently published the sixth edition of Examples & Explanations: Wills, Trusts, and Estates.  This book is a favorite among successful students and often recommended by professors.  By giving an extremely clear introduction to concepts, followed by realistic examples, any student can deepen their understanding of wills, trusts and estates.  Designed to complement the casebook, this Examples & Explanations gets right to the point in a conversational, often humorous style designed to help each student prepare for the exam at the end of the course. 

This unique, time-tested series is an invaluable tool to have.  This guide:

  • helps you learn new material by working through chapters that explain each topic in simple language
  • challenges your understanding with hypotheticals similar to those presented in class
  • provides valuable opportunity to study for the final by reviewing the hypotheticals as well as the structure and reasoning behind the corresponding analysis
  • quickly gets to the point in conversational style laced with humor
  • remains a favorite among law school students
  • is often recommended by professors who encourage the use of study guides
  • works with ALL the major casebooks, suits any class on a given topic
  • provides an alternative perspective to help you understand your casebook and in-class lectures

February 18, 2015 in Books, Books - For the Classroom, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

Article on Mandatory Arbitration Clauses in Donative Instruments

Jessica Beess und ChrostinJessica Beess und Chrostin (Associate, King & Spalding, New York City) recently published an article entitled, Mandatory Arbitration Clauses in Donative Instruments: A Taxonomy of Disputes and Type Differentiated Analysis, 49 Real Property, Trust and Estate Law Journal, no. 2, 397 (Fall 2014). Provided below is the Author's synopsis:

Arbitration clauses have become increasingly more common in wills and trusts as a means to avoid the court system, and as a way to benefit from the alleged advantages of alternative dispute resolution. The majority of current literature on this topic focuses on whether the beneficiary has consented to arbitration.  However, this article poses a different question--even if mandatory arbitration clauses in testamentary instruments are enforceable, should they be enforceable as a matter of public policy? The author asserts that analyzing testamentary disputes by type--validity disputes and administrative disputes--reveals that the benefits of arbitration do not translate to either type of dispute.

February 18, 2015 in Articles, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 17, 2015

The Disposition of Remains Act and Ernie Banks

Ernie Banks

I have previously discussed the court battle that erupted over the final disposition of the remains of legendary Chicago Cubs baseball player Ernie Banks.

In 2006 Illinois enacted the Disposition of Remains Act (DORA).  This law provides that “a person may provide written directions for the disposition or designate an agent to direct the disposition, including cremation, of the person’s remains.”  Written directions or designation of agent can be made in a:

  • Cremation authorization form that complies with the Crematory Regulation Act;
  • Prepaid funeral or burial contract;
  • Statutory Power of Attorney for Health Care that contains the power to direct the disposition of remains;
  • Written instrument that satisfies the provisions of DORA; or
  • A will.

In the absence of a written instruction or designation of agent, under DORA, priority to direct the disposition of remains is first given to “the individual who was the spouse of the decedent at the time of the decedent’s death.” 

Thus, unless Ernie Banks employed one of the recognized written methods of instruction or designation of agent, his estranged wife would have legal priority to direct the disposition of his remains.

See Jeffrey R. Gottlieb, Ernie Banks and the Illinois Disposition of Remains Act, Plan for the Road Ahead, Feb. 16, 2015.

February 17, 2015 in Current Affairs, Death Event Planning, Estate Administration, Estate Planning - Generally, Non-Probate Assets, Wills | Permalink | Comments (0) | TrackBack (0)

Will Dispute Halts Research of Gurlitt Collection

Swiss Museum

The Swiss museum that accepted the bequest of a massive trove of hidden art from the late German collector Cornelius Gurlitt says efforts to research the works and process restitution cases are being delayed by a dispute over Gurlitt’s will. 

Shortly before the Kunstmuseum Bern accepted the collection last November, Gurlitt’s cousin Uta Werner applied for a certificate of inheritance to the Munich court overseeing Gurlitt’s estate.  The museum said that a court decision “could take some time” and for now it has no right of disposal over the legacy.  Thus, any research body meant to speed up investigation of the collection cannot begin work.

See The Associated Press, Swiss Museum: Research of Gurlitt Collection, Restitution Held Up By Dispute Over Will, Brandon Sun, Feb. 17, 2015.

February 17, 2015 in Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0) | TrackBack (0)

Ernie Banks Estate Battle Intensifies

Ernie_Banks_cardAs I have previously discussed, a dispute over the treatment of the remains of the late Baseball Hall-of-Famer Ernie Banks has arisen between his family and his caretaker Regina Rice. The battle over whether to have Banks' remains cremated has turned into a full will dispute, with Banks' twin sons alleging that Rice manipulated Banks' into changing his will to cut out his wife and children and give Rice power of attorney and all of his possessions. Banks' remains have not been cremated, but the location of his remains is currently uncertain.

See Associated Press, Suitability of Banks' Caretaker Faulted, ESPN Chicago, Feb. 16, 2015.

Special thanks to Jason Smith (Texas Tech University School of Law) for bringing this article to my attention.

February 17, 2015 in Current Affairs, Death Event Planning, Estate Administration, Wills | Permalink | Comments (0) | TrackBack (0)

Monday, February 16, 2015

Article on Critical Research Agenda for Wills, Trusts, and Estates

Bridget CrawfordBridget J. Crawford (Professor of Law, Pace University School of Law) & Anthony C. Infanti (Professor of Law, University of Pittsburgh School of Law) recently published an article entitled, A Critical Research Agenda for Wills, Trusts, and Estates, 49 Real Property, Trust and Estate Law Journal, no. 2, 317 (Fall 2014). Provided below is the Authors' synopsis:

The law of wills, trusts, and estates could benefit from consideration of its developments and impact on people of color; women of all colors; lesbian, gay, bisexual, and transgender individuals; low income and poor individuals; the disabled; and non-traditional families. One can measure the law's commitment to justice and equality by understanding the impact on these historically disempowered groups of the laws of intestacy, spousal rights, child protection, will formalities, will contests, and will construction; the creation, operation and construction of trusts; fiduciary administration; creditors' rights; asset protection; nonprobate transfers; planning for incapacity and death; and wealth transfer taxation. This Article reviews examples of what the authors call "critical trusts and estates scholarship" and identifies additional avenues of inquiry that might be fruitfully pursued by other scholars who are interested in bringing an "outsider" perspective to their work in this area.

February 16, 2015 in Articles, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

Sunday, February 15, 2015

Dispute Over Ernie Banks' Remains

Ernie Banks

The cherished Chicago Cubs great, Ernie Banks, who once said he wanted to have his ashes scattered at Wrigley Field, is at the center of a battle over his remains as his estranged wife has gone to court to prevent a longtime friend from having his remains cremated. 

According to court records, Elizabeth Banks filed a petition to prevent a woman who describes herself as a longtime friend of Ernie Banks, his caretaker and the executor of Banks’ estate from having him cremated.  The woman, Regina Rice, asserted her right to dispose of Banks’ remains after his death last month. 

A document titled “Last Will and Testament” and signed by Ernie Banks on October 17 of last year says he was in “the process of finalizing divorce” from his wife and that he had appointed Rice as the executor of his will.  Nowhere does Banks discuss what he wants done with his remains.

See Don Babwin and Andrew Seligman, Court Fight Arises Over What to Do With Remains of ‘Mr. Cub’ Ernie Banks, Daily Reporter, Feb. 13, 2015.

February 15, 2015 in Current Affairs, Death Event Planning, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0) | TrackBack (0)