Monday, April 19, 2021
Ying Khai Liew and Matthew Harding recently published an article entitled, Introduction, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article.
We organised the inaugural meeting of the ‘Asia-Pacific Trusts Law’ project in December 2019 at the Melbourne Law School, University of Melbourne. The symposium brought together lawyers and academics from the 17 jurisdictions of the Asia-Pacific region with the highest nominal GDP according to the International Monetary Fund. The jurisdictions are (from highest GDP to lowest): China, Japan, India, South Korea, Australia, Indonesia, Taiwan, Thailand, Hong Kong, Malaysia, Singapore, the Philippines, Bangladesh, Pakistan, Vietnam, New Zealand, and Sri Lanka. The presenters were asked to focus on trusts law questions and issues in their respective jurisdictions. To these 17 presentations were added one presentation about ‘offshore’ jurisdictions in the South Pacific (the Cook Islands, Niue, Western Samoa), and another on private international law issues as they relate to trusts law in the region. This book builds on those presentations to provide the first in a series of edited collections discussing trusts law in the Asia-Pacific region.
Sunday, April 18, 2021
Masayuki Tamaruya recently published an article entitled, Fiduciary Law and Japanese Nonprofits: A Historical and Comparative Synthesis, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:
In 2006, the Japanese law of nonprofits underwent a major reform. Notably, the reform involved a shift in the governance mechanism from external governmental oversight to a structure that emphasizes internal fiduciary governance. As the Japanese law in this area has historically been marked by various strands of fiduciary rules derived from different sources, the event presents a valuable case study on how the shift to fiduciary governance approach can impact the operation of those entities that are subject to the reform. This chapter will begin with a historical account of the evolution of Japanese nonprofit law that involves complex interactions among the indigenous nonprofit tradition, the civil law influence, American fiduciary principles, and the English-style charity commission. After discussing the major components of the 2006 reform against the backdrop of major events that created the reform momentum, this chapter will use available empirical evidence to critically examine the reform’s achievements and consider any remaining issues that pose ongoing challenges.
Saturday, April 17, 2021
After Charles Manson died in 2017, Jason Freeman petitioned the court to be recognized as the sole adult next of kin of Mr. Manson. Michael Channels, the sole named beneficiary of one of Manson's wills objected.
Charles Manson and his wife Rosalie Handley had a son named Charles Manson, Jr. In 1986, an Ohio court determined that he was the natural father of Jason Freeman. Manson Jr. committed suicide in 1993.
"In a dispute regarding the disposition of the remains of Manson (Sr.), the trial court ruled that Freeman is the sole surviving adult next of kin." The trial court granted the genetic testing and further ruled that that the 1986 decision of the Ohio court was not binding.
The appellate court vacated the order requiring genetic testing and found that there was no reference to genetic testing in California Statute Section 6453.
The appellate court also rejected genetic testing under California's Family Code, because "the statute does not authorize testing to determine a grandparent–grandchild relationship. . ."
See DNA Testing Denied in Charles Manson Estate Litigation, Probate Stars, April 15, 2021.
Friday, April 16, 2021
Derek Whayman recently published an article entitled, Landmark Cases in Tracing: Re Tilley's Will Trusts (1967) and Turner v Jacob (2006), Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:
This is a sample chapter for a proposal, Landmark Cases in Tracing, made by Derek Whayman (Newcastle University) and Katy Barnett (Melbourne University).
The issue for the first instance judges in Re Tilley’s Will Trusts and Turner v Jacob was very simple: could a beneficial interest under a trust be traced into substitute property after being mixed with non-trust money where the trustee had not set out to use trust money and had not used it? The far more fundamental questions were not expressly considered in the judgments but are addressed in this paper. What is the basis of allowing access to substitute property? What is the basis of allowing access to any increase in value of that property? What is the basis of allowing priority in insolvency? Does the underlying cause of action matter to the process of identifying claimable value, i.e. to what extent is tracing, the process, divisible from tracing, the claim?
It is argued that the difficult fact patterns presented in these cases demands the following answers. The basis of allowing increases in value is a breach of fiduciary duty. To allow priority in insolvency what is required is a breach of trust. Consequently it therefore impossible to separate process and claim. Conversely, if one accepts the obiter dicta in the leading case of Foskett v McKeown, that tracing, the process, is separate to these matters of fault and tracing, the claim, is a right of property, injustices result. These apparently minor cases therefore have major ramifications for the law of tracing both in terms of its conceptualisation and practical application.
Wednesday, April 14, 2021
It is normal for us to fear things—like death. These fears can help us respond more quickly to dangerous situations, or avoid them entirely. The worry and fear associated with these dangerous situations allow us to assess risk.
However, it is important that we do not overestimate, or underestimate these risks. Quite frankly, there are a lot of ways to die, so accurately assessing the risks of danger and the possibility of death could prove to be difficult.
One way to start is to know the odds, which will help you identify the ways—and your chances—to beat them.
One interesting fact is that your odds of dying from an accidental opioid overdose is greater than your odds of dying in a motor-vehicle crash.
The National Safety Council recently published a brief that contains helpful statistics, and even an informational video that provide information on the lifetime odds of death for selected causes.
See Odds of Dying, The National Safety Council: Injury Facts, last visited April, 14, 2021.
Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.
Under the current administration and "composition of Congress," changes to estate and gift taxes are likely. Senator Bernie Sanders recently proposed tax reform legislation that would "make major changes to the current estate and gift tax rules."
If the legislation were adopted, there would be a reduction to the estate tax lifetime exemption. Under the proposed legislation, the current exemption ($11.7 million per taxpayer) would drop to $3.5 million, which would not be adjusted for inflation. Further, the gift tax lifetime exemption would be reduced to $1 million.
Also, "gifts to irrevocable trusts and certain family entities, and gifts of assets subject to prohibitions on sale and those that cannot immediately be liquidated will be subject to a limit of $30,000 per donor annually."
The rate of the estate tax which would change to a progressive rate and increase from 40 percent to 45 percent for taxable estates between $3.5 million and $10 million, "50 percent for estates between $10 million and $50 million, 55 percent for estates between $50 million and $1 billion, and 65 percent for estates over $1 billion."
If adopted, the new legislation would affect the usefulness of grantor trusts, GRATs, and family entity discounts.
The proposed legislation would also greatly affect trusts that are considered to be owned by a grantor for income tax purposes, which would be subject to federal estate tax upon the death of the grantor. Further, distributions from grantor trusts would be considered gifts from the grantor.
Assuming that the proposed legislation, which would take effect in January 2022, would not be retroactive, taxpayers should consider taking advantage of the current laws so that they do not miss out on them if the proposal passes.
See Carol A. Sobczak, Client Alert: Are Changes Afoot for Estate and Gift Taxes?, Shumaker, April 9, 2021.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Tuesday, April 13, 2021
Pennsylvania Supreme Court: Trust Beneficiaries Can Examine Trustee’s Attorney’s Billing Records If Trust Is Paying Fees
In In Re Estate of McAleer, the Pennsylvania Supreme Court granted review to determine "whether the attorney–client privilege and the work product doctrine may be invoked by a trustee to prevent disclosure to a beneficiary of communications between the trustee and counsel pertaining to attorney fees expended from the trust corpus."
The Court says no, if the trust is paying for the trustee's attorney's fees.
William McAleer ("Trustee") is the sole trustee of a revocable trust that was created by his father, who is now deceased. The Trust was created for the benefit of the Trustee and his two stepbrothers.
In 2014, the Trustee filed a first and partial accounting of the Trust. The Trustee retained two separate law firms to respond to his stepbrother's objections to the accounting. The probate court dismissed the objections following an evidentiary hearing.
The Trustee's filings in Pennsylvania court indicated that about $124,000 had been expended from the trust for attorney's fees and costs through December 2015. Trustee's stepbrothers filed a petition for special relief to "determine the reasonableness of those expenses."
In April 2016, Trustee filed a second and final accounting, which were also objected to by his stepbrothers. Trustee argued that he was never under any obligation to provide his stepbrothers with copies of legal invoices because they were protected by attorney–client privilege.
The Pennsylvania court ordered the Trustee to forward unreacted attorney's fee billing invoices to his stepbrothers within 30 days. Trustee disclosed the trustee invoices but filed an interlocutory appeal in regard to the attorney invoices.
The court explained that a party seeking to assert privilege must first set forth facts to establish that the privilege has been properly invoked.
The court concluded that the Trustee failed to present facts establishing the privilege.
The Pennsylvania Supreme Court stated in its decision that the attorney–client privilege is not absolute. Further, when the interests protected by the privilege "conflict with weightier obligations, the former must yield to the latter." The Court asserted that this case was one in which this conflicting duty was present.
Ultimately, the Court held that the fiduciary duty to furnish trust-related information to beneficiaries outweighed the asserted attorney–client privilege.
See Pennsylvania Supreme Court: Trust Beneficiaries Can Examine Trustee’s Attorney’s Billing Records If Trust Is Paying Fees, Probate Stars, April 13, 2021.
John Picton recently published an article entitled, Regulating Egoism in Perpetuity, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:
While ordinary trusts are time-limited, the charitable foundation lasts forever. It is, in consequence, a perpetual legal vehicle through which a donor might seek to egoistically project her character and values into the future after her death. Unfortunately, that self-serving drive leads to bad charity, causing waste, as it crowds out higher social utility – or altruistic – uses of capital. Through attention to the concept of egoism, as it has developed in contemporary donative economics (‘egoistic theory’),this chapter explores the nature of the motivation to create perpetual foundations, and, flowing from that theorisation, it then critically develops a policy justification for the protection of the donor’s plans (plan-protection), alongside development of a legal-conceptual method for the utility-orientated reform of foundations.
Monday, April 12, 2021
According to Buckingham Palace, Prince Philip's casket will be carried through the grounds of Windsor Castle to his funeral in a custom Land Rover Defender 130.
The Land Rover was built by Foley Specialist Vehicles for the Duke of Edinburgh in 2016 and is referred to as the Land Rover 'gun bus.' The Duke of Edinburgh helped design the vehicle that belonged to Prince Philip.
The rover was built to "carry hunting parties around the grounds of one of the royal family's Sandringham House Estate."
The Land Rover has been "further modified" for funeral use, which Prince Philip assisted with himself.
Although caskets bearing members of the royal family have traditionally been transported by horse-drawn gun carriages, Prince Philip seemly wished to take a different route, which makes since as he and Queen Elizabeth were often seen taking their strolls in Land Rovers.
See Gary Gastelu, Land Rover 'gun bus' to carry Prince Philip's casket to funeral, Fox News, April 12, 2021.
Article: To Good Purpose: Non-Charitable Purpose Trusts for the Specific Purpose of Holding Shares in Perpetuity in Singapore
Terence Yeo and Victoria Liu recently published an article entitled, To Good Purpose: Non-Charitable Purpose Trusts for the Specific Purpose of Holding Shares in Perpetuity in Singapore, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:
This article considers the issue of whether Singapore should amend its trust laws to allow for non-charitable purpose trusts (NCPTs) for the specific purpose of holding company shares in perpetuity. The authors argue that such trusts should be allowed for two reasons. First, NCPTs in general should not be regarded as repugnant to the trust concept. Secondly, the practical advantages of allowing non-charitable trusts in a limited fashion outweigh the disadvantages. The article concludes by proposing possible reforms to the Singapore trust legislation.