Wills, Trusts & Estates Prof Blog

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

Sunday, December 18, 2016

Corona Beer Tycoon Keeps Hometown Alive

Spanish townAfter the recent death of a Corona beer founder, his will went viral because it was believed that he left his fortune to a tiny Spanish village, Cerezales del Condado, where he was born. According to the rumors, each resident of the village would receive $2 million from Antonino Fernandez’s will. Upon interviewing some of the villagers, they stipulated that Fernandez did not leave a will detailing how is fortune was to be divided, but he did invest millions in the small town during his lifetime, which many locals say kept the town alive. For example, near the end of his life, Fernandez donated $8 million to his namesake foundation, which finds its roots in his hometown.  

See Lauren Frayer, A Spanish Village Stays Afloat, Thanks to Corona Beer Tycoon, npr, December 5, 2016.  

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

 

December 18, 2016 in Current Events, Estate Planning - Generally, Wills | Permalink | Comments (0)

Thursday, December 15, 2016

Case Summary on Gift Implications of Testamentary Scheme

Testamentary schemeINTERPRETATION: Testamentary scheme supports gift by implication. The decedent’s will made gifts of $2,000 to each of her eight children and two stepchildren, gave the largest amount that could pass free of federal estate tax to her nominated trustee in trust for her spouse for life, remainder to the 10 children and stepchildren and to the descendants of any who did not survive, and the residue to her spouse. The will made no provision if the spouse predeceased the decedent which happened. At the decedent’s death, the trust could not be funded because the decedent’s applicable exclusion amount had been consumed by lifetime gifts made by her agent, one of her eight children. Had the trust been funded, the remainders in the children, all of whom survived the decedent, would have accelerated. The failure of the residuary gift meant that the residue passed under the intestacy statute to the decedent’s eight children. One of the stepchildren began a proceeding to construe the will and prevailed in the Surrogate’s Court. On appeal, a New York intermediate appellate court affirmed, holding that the decedent’s general testamentary plan as evidenced in the will shows that the decedent intended to treat her children and stepchildren equally, does not show that the decedent intended a different result if her spouse predeceased, and therefore the general plan must be carried out by implying a will provision giving the residue of the estate equally to all ten children. In re Estate of Warren, 39 N.Y.S. 3d 282 (N.Y. App. Div. 2016).

Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.

 

December 15, 2016 in Current Events, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Saturday, December 10, 2016

Case Summary on Attestation of a Will

AttestationATTESTATION: Witnesses’ signatures on loose page did not prevent finding of due execution. The decedent’s will consisted of six loose pages, numbered consecutively with a running footer declaring the pages to be 1 of 6, 2 of 6 and so on. The font and typeface were consistent from one page to the next and the document consisted of 11 consecutively numbered paragraphs. The decedent signed at the foot of page 5 and the witnesses’ signatures appear on page 6. Page 5 ends with “an inarticulate sentence fragment” which does not connect grammatically with the first sentence of page 6. The rest of the text on page 6 is not a complete attestation clause because it omits to state that the witnesses signed in the presence of the testator. Nevertheless, the Maryland Court of Special Appeals held that in these circumstances the witnesses signatures were part of the will and the presumption of due execution applied. Castruccio v. Estate of Castruccio, No. 1665, 2016 WL 5462966 (Md. Ct. Spec. App. Sept. 29, 2016).

Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.

December 10, 2016 in Current Events, Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0)

Friday, December 9, 2016

Case Summary on Estate Property in Foreign Jurisdiction

English probateANCILLARY PROBATE: Local court has no jurisdiction over estate property remitted from foreign jurisdiction.  The decedent resided abroad for many decades but never relinquished U.S. citizenship. After her death in London, England, where she had resided for many years, administration was opened in an Alabama court, arguably the state of her domicile and where personal property belonging to the estate was located. Subsequently her will was offered for probate in London. The will made no provisions for the decedent’s sole heir, a sister. The administrator, decedent’s nephew, then retained an English firm to represent him in the English probate. The administrator and the executor settled all outstanding issues except for a dispute between the administrator and his English solicitors over their charges. As part of his efforts to secure indemnification from the estate for sums owed to the solicitors, the administrator secured an order from the Alabama court ordering beneficiaries of the will who reside in Alabama to deposit into escrow any distributions received from the English administration. One beneficiary sought a writ of mandamus from the Alabama Supreme Court vacating the escrow order.  The court granted the writ, holding that the local probate court has no jurisdiction over the property subject to the English administration. Ex parte Scott, No. 1140645, 2016 WL 6310771 (Ala. Oct. 28, 2016).

Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.

December 9, 2016 in Current Events, Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0)

Estate Planning After Divorce and Remarriage

ProtectionDuring the challenges of divorce and the excitement of remarriage, you must remember to keep track of some nonromantic realities. After your divorce, it will be important to write a new will, even if you intend to leave inheritances to your ex-husband or stepchildren. Further, after your divorce, you will want to update your beneficiaries for your retirement accounts and life insurance policies. Several states have laws that automatically delete your ex-spouse’s name from these accounts. Also, if you want your new spouse to have some legal authority over your children, you will need to take the steps necessary to make sure these rights are granted.

See Naomi Cahn, Protect Those You Love in Divorce, and Remarriage, Splitopia, October 5, 2016.

December 9, 2016 in Estate Planning - Generally, Wills | Permalink | Comments (0)

Monday, November 28, 2016

Article on Wills as Implied Unilateral Arbitration Contract

Will dispositionGary Spitko recently published an Article entitled, The Will as an Implied Unilateral Arbitration Contract, 68 Fla. L. Rev. 49 (2016). Provided below is an abstract of the Article:

A consensus has begun to develop in the case law, the academic commentary, and the statutory reform movement that a testator's provision in her will mandating arbitration of any challenge to the will should not be enforceable against a beneficiary who has not agreed to the arbitration provision, at least where the will contestant, by his contest, seeks to increase his inheritance outside the will. Grounding this consensus is the widespread understanding that a will is not a contract. This Article seeks to challenge both the understanding that a will is not a contract and the opposition to enforcement of testator-compelled arbitration provisions that arises from that understanding.

This Article argues that a will is part of an implied unilateral contract between the testator and the state in which the state offers to honor the testator's donative intent, and the testator accepts and provides consideration for the offer by creating and preserving wealth. Importantly, the greater contract respecting donative freedom of which the will is a part also includes a provision for the distribution of an individual's intestate property in line with that individual's imputed intent should the individual fail to execute an effective estate plan. Similar to a testator, a property owner who has failed to make an effective estate plan accepts this offer of intestate distribution through her industry and thrift. This Article's theory borrows from the law respecting implied unilateral contracts arising from employee handbooks in concluding that it should be of no moment that the property owner is unfamiliar with the specifics of the state probate code. Rather, the critical factor should be that the state has, through its offer to respect donative intent, created an atmosphere that is “instinct with an obligation” and that encourages diligence and the prudent management of wealth.

The conclusion that a will is a contract between the testator and the state grounds this Article's additional argument that the Federal Arbitration Act (FAA) and state arbitration statutes require enforcement of a testator-compelled arbitration provision contained in a will even against a beneficiary who has not agreed to the arbitration provision. Settled arbitration law in conjunction with third-party beneficiary theory or direct benefits estoppel theory supports binding the beneficiary to the will's arbitration contract. A virtue of this Article's theory-that the will and the intestacy statutes are both clauses in a greater donative freedom contract-is that the analysis escapes the limitations inherent in the dominant understanding that a will's arbitration clause, if enforceable at all, can be enforced only against a beneficiary who seeks, by his will contest, to increase his inheritance under the will as opposed to circumstances in which the donee seeks to increase his intestate inheritance. According to the conventional wisdom, even if arbitration clauses are enforceable in some testamentary instruments, they govern only a narrow range of claims. This Article's implied unilateral contract theory goes further and expands the universe of arbitrable contests. Specifically, this Article's theory is the first that encompasses even a will contest that seeks to render the will a complete nullity.

November 28, 2016 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Saturday, November 26, 2016

New Mexico Updates Trust & Estate Legislation

New mexicoNew Mexico has updated its trust and estate legislation in 2016. The state has amended the Uniform Statutory Rule Against Perpetuities, abolishing the rule for personal property held in trust and extending the time period to 365 years for real property held in trust. § 45-2-904 (A)(8), (B), New Mexico Statutes Annotated (NMSA). Additionally, New Mexico has adopted the Uniform Trust Decanting Act (§§ 46-12-1 et seq., NMSA) and the Uniform Powers of Appointment Act (§§ 46-11-1 et seq., NMSA). Finally, in its revision, New Mexico has made the Uniform Probate Code more uniform (§§ 45-1-1 et seq., NMSA).

Special thanks to Jack Burton (Attorney, Rodey Law) for bringing this information to my attention.  

November 26, 2016 in Current Events, Estate Planning - Generally, New Legislation, Trusts, Wills | Permalink | Comments (0)

Thursday, November 24, 2016

Walt Disney's Drafted Will Goes Up for Auction

Walt disneyWalt Disney’s first draft of his last will and testament will be auctioned off for an estimated $60,000. Disney drafted the will in August 1941, which included an interesting breakdown: half of his Disney stock was split between his two children with the other half being put into an employee bonus pool. Disney ultimately drafted two more wills before he died in 1966. 

See Walt Disney Where There’s a Will . . . There’s a Way to Spend $60K!, TMZ, November 24, 2016.

November 24, 2016 in Current Events, Estate Planning - Generally, Film, Wills | Permalink | Comments (0)

Wednesday, November 23, 2016

Article on How to Write a New York Will

Will draftingGerald Lebovits recently published an Article entitled, Will of Fortune: New York Will Drafting ­– Part 1, 88 N.Y. St. B.J. 64 (2016). Provided below is an abstract of the Article:

This article explains how to write in New York will. The first of this two-part column outlines how intestacy laws affect an estate, what every will should include, how to avoid some common mistakes, and how to execute a will properly. Part 2 will outline some areas in a will that require special consideration and, therefore, special clarity.

November 23, 2016 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Monday, November 21, 2016

Article on Islamic Estate Planning

Islamic estate planningImani Jaafar recently published an Article entitled, Practical Islamic Estate Planning: A Short Primer, 42 Mitchell Hamline L. Rev. 925 (2016). Provided below is a summary of the Article:

Islamic estate planning can be challenging for both lawyers and their clients. To attorneys unfamiliar with Islamic estate distribution, the fraction system for dividing an estate can be daunting. The problem can be compounded if Muslim clients do not fully understand the system that applies to their estate documents. Nonetheless, the Qur'an requires Muslims to have a will. The Qur'an, the holy book of Muslims, mandates of believers “when death approaches any of you and he is leaving behind much wealth, to make bequests in [favor] of his parents and [others] near of kin in accordance with what is fair.” The Prophet Muhammad, the most revered and final prophet in Islam, is reported to have said, “It is the duty of a Muslim who has something which is to be given as a bequest not to have it for two nights without having his will written down regarding it.” This article focuses on Islamic wills and provides an overview of the origins of Islamic estate planning, an explanation of the predetermined inheritor system, and a discussion of common issues practitioners will face when assisting Muslim-American clients in drafting Islamic estate documents.

November 21, 2016 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)