Friday, April 6, 2018
Gus G. Tamborello published an Article entitled, In Terrorem Clauses: Are They Still Terrifying?, 10 Est. Plan. & Comm. Prop. L.J. 63 (2017). Provided below is an abstract of the Article:
American law generally grants a high degree of freedom to testators. Central to the law of gratuitous transfers is a freedom of disposition. Freedom of disposition has been called the “cornerstone of the Anglo-American law of succession.” Thus, American law acknowledges a right to give rather than a right to receive. A potential beneficiary, even the testator's child, has a mere expectancy and nothing more.
As part of exercising their freedom of disposition, many testators and settlors insert “no-contest,” “forfeiture,” or “in terrorem” clause language in their wills or trusts in an attempt to deter a beneficiary from challenging the validity of the instrument or taking other action which may thwart the testator's testamentary plan. In terrorem is Latin for “so as to produce terror by way of threat or intimidation,” or “serving or intended to threaten or intimidate.” The thought is that such a clause would instill terror in the contestant and would persuade the contestant not to challenge the will or trust due to the risk of ending up with nothing. Under a standard scenario, the testator makes a bequest to the beneficiary (although not always) and then inserts a clause which forces the beneficiary to either accept the gift under the will or trust or to contest the instrument with the hope of setting aside the testator's intended disposition. A typical in terrorem clause is as follows:
“If any devisee or beneficiary under my will or under any trust established under my will shall in any way, directly or indirectly, initiate or participate in any contest, challenge, or attack to the validity of my will or any of its provisions, or object to or contest its admission to probate, or conspire with or give aid to any person doing or attempting any of the foregoing, then in each case all provisions for such beneficiary and his or her descendants herein shall be void and my estate shall be disposed of in the same manner provided herein as if such person had predeceased me leaving no descendants surviving me.”
If the contest is successful, the will is thrown out (and the clause with it), and the beneficiary receives a greater share of property through intestacy or under a prior will under which the contestant may receive a more favorable bequest. If the contest is unsuccessful, the will or trust stands, and the beneficiary forfeits what the beneficiary would have otherwise received under the instrument.
Wednesday, April 4, 2018
Mark Glover published an Article entitled, The Timing of Testation, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:
An adult can execute her last will whenever she wants. She can do so on her eighteenth birthday, or she can wait until she is on her deathbed. She can also execute her last will at any point between these two extremes. While the timing of testation is up to the individual testator, her choice has important implications for the law. These implications have been recognized primarily in the realm of will-interpretation, as when testation occurs can affect how courts attribute meaning to a will’s words. By contrast, the implications of testation’s timing for the law of will-authentication have been overlooked.
Will-authentication is the process by which the law separates purported wills that testators intended to serve as evidence of their estate plans from those that decedents did not want to be given legal effect upon their deaths. This Article argues that the extent to which the testator’s intent will be fulfilled if a correct will-authentication decision is made should be an important consideration for policymakers when crafting the law of will-authentication. Additionally, the Article argues that the timing of testation can provide policymakers evidence of the likelihood that the testator’s intent will be carried out if a will is correctly authenticated. By explaining how the timing of testation should inform how the law authenticates wills, this Article provides policymakers a fresh perspective through which to evaluate potential reforms of the law.
In addition to highlighting the theoretical implications of testation’s timing, this Article provides an empirical analysis of testation’s timing, which considers an original data set of over eighteen hundred wills that were probated in Hamilton County, Ohio in 2014. By comparing the date of execution of these wills with the date on which the testator died, this analysis provides a glimpse of when testation in fact occurs. Ultimately, when considered alongside the theoretical implications of testation’s timing, this original empirical analysis can assist policymakers in crafting the law of will-authentication.
Tuesday, April 3, 2018
The debt collection process for creditors is a confusing and difficult aspect of probate practice. Part of the problem stems from the manner in which the Estates Code is organized and written. Though there exists a very detailed claims process for dependent administrations, many of the applicable statutes are not relevant for an executor of an independent administration. Given this difference, creditors dealing with an independent executor need to follow an alternate process when dealing with an independent administration.
See Keith Branyon, Claims Process: Options for Creditors in Independent Administrations, Texas Bar Journal: Planning and Probate Law, Vol. 81, No. 3, March 2018.
Wednesday, March 28, 2018
Article on Presumptions of Survivorship or Simultaneous Death in Cases of 'Common Calamity': Scots Law Against the Background of European Legal Developments
Reinhard Zimmermann & Jakob Gleimrecently published an Article entitled, Presumptions of Survivorship or Simultaneous Death in Cases of 'Common Calamity': Scots Law Against the Background of European Legal Developments, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:
The property of a deceased person can pass only to someone who has survived him or her. It can, however, turn out to be impossible to establish the order of death, particularly if both persons have died in a common peril or "calamity". In the sources of Roman law we find two survivorship-presumptions relating to the simultaneous death of parent and child as well as a number of decisions concerning other, individual case scenarios. On that basis, the French Code civil of 1804 established a complex set of presumptions based on age and sex. The rules in the codifications of the German-speaking countries were much more straightforward, for they established a presumption of simultaneous death. The present article traces the interpretation and reform of the various presumptions. And it traces the development of Scots and English law against the background of continental European law of which the Scots and English courts had a somewhat skewed perspective. Since the position at common law was regarded as unsatisfactory, in both legal systems the legislator has intervened.
Tuesday, March 27, 2018
Adam J. Hirsch recently published an Article entitled, Defective Catastrophe Clauses in Wills: Paths to Reform, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:
This Article explores the problem of construing what I term “defective catastrophe clauses” in wills. Defective catastrophe clauses provide for the contingency that a beneficiary will die simultaneously, or in a common calamity, with the testator but neglect to allow for the possibility that the beneficiary will predecease the testator. The Article explores the extensive case law addressing this problem, spotlighting the most recent and ballyhooed case on point, Estate of Duke. The Article observes that this body of decisions reflects a tension between applying existing law, which fails to respond adequately to the problem, and employing one or another legal fiction to circumvent existing law. The Article argues that lawmakers should confront the problem head on by establishing a new default rule, ideally in the form of a statute, construing catastrophe clauses by implication to cover the possibility that the beneficiary will predecease the testator.
In 2015, Tom Benson, previous owner of the Saints and the Pelicans, was found by a New Orleans judge to have the mental capacity to handle his personal affairs. Among his first official legal acts was to completely disinherit his daughter and grandchildren in his final will: “I specifically provide that Renee Benson, Rita LeBlanc, Ryan LeBlanc, and all of their descendants shall have no interest in my succession whatsoever, and no legacy or other inheritance or benefit of any kind shall be paid to any of them under this will or otherwise.” Benson’s desire to remove the trio from his will stemmed, at least in part, from a heated argument between his wife, Gayle Benson, and Rita LeBlanc during a 2014 Saints game. Though Benson cut the three out of his will, he said that they would “be very well taken care of after I die.”
See Ramon Antonio Vargas, Tom Benson’s Last Will Makes Clear Who Was in, out of His Inner Circle Late in His Life, The New Orleans Advocate, March 16, 2018.
Special thanks to Jim Hartnett for bringing this article to my attention.
Monday, March 26, 2018
Article on Transfer of Property on Death and Creditor Protection: The Meaning and Role of "Universal Succession"
Jan Peter Schmidt recently published an Article entitled, Transfer of Property on Death and Creditor Protection: The Meaning and Role of "Universal Succession", Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:
Although “universal succession” is generally regarded as a key concept of succession law, in comparative legal writing it is used in at least two different meanings and thus a frequent source for misunderstandings. According to the first meaning, “universal succession” is a hallmark of legal regimes which follow the Roman tradition and characterises the transfer of the deceased’s assets and liabilities to the “heir(s)” without any process to wind up the estate. Systems of “universal succession” are thus thought to contrast fundamentally with the English legal tradition, under which the estate passes to a “personal representative”, who discharges the outstanding obligations of the deceased before distributing any residue among the beneficiaries. According to the second understanding, “universal succession” refers to the transfer of a “patrimony”, i.e. of a totality of assets and liabilities, regardless of the question of beneficial entitlement. If understood in this sense, “universal succession” characterises not only the position of the Civilian heir, but equally that of the personal representative under English law, because it is upon him that the deceased’s estate devolves. The present article shows why this second understanding of “universal succession” allows for much more fruitful comparisons than the first. In particular, it helps to understand how creditors’ interests are protected in different succession laws, an aspect that is often neglected legal writing, but that has distinctly shaped the modern regimes.
Tuesday, March 20, 2018
Article on [Recursos Governatius. Doctrina De La Direcció General De Dret I D’Entitats Jurídiques (Maig 2017)] [Comments on the Decisions of the Catalan Directorate General of Law and Legal Entities (May 2017).]
Miriam Anderson recently published an Article entitled, [Recursos Governatius. Doctrina De La Direcció General De Dret I D’Entitats Jurídiques (Maig 2017)] [Comments on the Decisions of the Catalan Directorate General of Law and Legal Entities (May 2017).], Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:
Catalan Abstract: Comentaris a les Resolucions de la Direcció General de Dret i d’Entitats Jurídiques de 15 de maig de 2017 (JUS/1210/2017), tracte successiu i ineficàcia de disposició testamentària a favor del cònjuge divorciat ex article 422-13 CCCat, i 17 de maig de 2017 (JUS/1203/2017), negativa a cancel·lar una substitució fideïcomissària condicional.
English Abstract: Comments on the Decisions of the Catalan Directorate General of Law and Legal Entities dated 15 May 2017 (JUS/1210/2017), land registry principles and the ineffectiveness of a testamentary gift to an ex-spouse as per article 422-13 of the Catalan Civil Code, and 17 May 2017 (JUS/1203/2017), impossibility to cancel a conditional testamentary settlement.
Note: Downloadable document is in Catalan.
Prior to exiting the workforce, sagacious seniors will seek the advice of their trusted advisors to ensure their carefully laid out retirement plan comes to fruition. But careful planning does not end at retirement. Prudent seniors should have a solid framework for their post-retirement plans as well. Such a plan includes creating and keeping a list of financial accounts, compiling a list of investments and digital assets, a durable and medical power of attorney, and keeping these documents in a safe location known to at least one trusted friend or family member.
See Post-Retirement Planning: A Checklist for Seniors, Elder Law: Cranfill Sumner & Hartzog, February 20, 2018.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.) for bringing this article to my attention.
Thursday, March 15, 2018
Iris J. Goodwin published an Article entitled, Access to Justice: What to Do About the Law of Wills, 2016 Wis. L. Rev. 947 (2016). Provided below is an abstract of the Article:
Part I of this Article places the online, do-it-yourself will in the context of the push to enlarge access to justice for people of poor or moderate means in civil law matters. Part I has three subsections. The first of these subsections examines the recent movement to expand pro se representation where sundry civil law rights are concerned. The second subsection explores the significance of pro se opportunities in non-litigious circumstances such as estate planning. The third subsection considers what might be at stake for the poor and middle class in the right to dispose of property at death. Part II treats the online, do-it-yourself will and its tenuous position in the current law of wills. Part III makes the case that the online, do-it-yourself will is not so clearly an attested will but is a hybrid, with attributes of a holographic instrument also. This insight sets the stage for the later argument that an exception in the law with respect to the rigorous treatment of legal language--a kind of interpretive generosity--previously extended to the holographic will is appropriately applied to this newer vehicle created via self-help. Part IV sets out the rigorous standards for execution that any will--lay-drawn or otherwise--must surmount. This Part examines both the historic requirements for execution (many of which are still in play in some states) and recent reforms, building to the observation that the attested will and the holographic one, even though each is predicated upon a distinct legal ethos, are starting to merge. This observation invites use of standards heretofore applicable to the holographic will (standards like interpretive generosity) to the attested (or hybrid). Part V leaves behind the rigors for executing a will and turns to the other legal challenge for the person who would create a will without assistance of counsel--the canons of construction for testamentary language. If the rigors of execution have begun to ameliorate, the standards for interpreting legal language are still robust. Part VI examines interpretive largess as it has been applied to holographic wills and suggests that it be extended to the online, do-it-yourself will. Part VII acknowledges the potential that an expanded use of interpretive largess could have on the law of future interests and suggests ways to cabin it by embedding its application in a rigorous methodology and then limiting its application.