Wills, Trusts & Estates Prof Blog

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

Sunday, June 26, 2022

Article: The ‘Pallant v Morgan Equity’ in Australia: Substantive or Superfluous?

Ying Khai Liew and Cristina Poon recently published an article entitled, The ‘Gallant v Morgan Equity’ in Australia: Substantive or Superfluous, Australian Property Law Journal, 2002. Provided below is an abstract of the Article:

The ‘Pallant v Morgan equity’ is a relatively new but well-entrenched constructive trust doctrine in English law. However, its precise status in Australia is uncertain. This paper asks whether the Pallant v Morgan equity is a superfluous or substantive doctrine in Australia. It explores four different equitable doctrines which judges have at one point or other suggested can account for that doctrine, and comes to the conclusion that it is not simply a manifestation of those established doctrines and therefore superfluous in Australian law, but a substantive doctrine with a distinct sphere of application. The paper then discusses the justificatory rationale of the Pallant v Morgan equity, and observes how that justification provides normative ground for understanding the equity as a distinct doctrine.

June 26, 2022 in Trusts | Permalink | Comments (0)

Saturday, June 25, 2022

Article: Freedom of Testamentary Disposition

Paul B. Miller recently published an article entitled, Freedom of Testamentary Disposition, Oxford University Press, Philosophical Foundations of the Law of Trusts, Forthcoming. Provided below is an abstract of the Article:

American law is notoriously solicitous of property owners’ testamentary freedom. Interpretive theorists cannot but acknowledge its centrality to enabling law. Yet freedom of testamentary disposition has attracted criticism on normative grounds for centuries. Indeed, it is widely viewed as one of the most tenuous of incidents of private ownership.

This chapter examines leading arguments offered in defense of wide testamentary freedom of the sort found in American trust law. Viewed, as it has been, within conventional frames of the morality of property – its central preoccupations with autonomy, need, scarcity, and equality – testamentary freedom is widely considered morally suspect. And, indeed, as I explain, arguments from property conventions, autonomy, social utility, and obligations of provision each fail to show that laws enabling wide testamentary freedom are morally defensible.

In the chapter I suggest that testamentary freedom can be defended more robustly on the footing of the morality of gift relationships, with particular attention to the value of testamentary benefaction in enabling the expression of moral motivation, the practice of virtue, and realization of goods essential to the flourishing of a testator’s intended beneficiaries. An advantage of this approach is that it recognizes moral complexity, allowing one to appreciate the value of dispositions that track the focal moral and legal sense of benefactions as gifts, while at the same time pinpointing ways in which some dispositions prove morally defective as gifts despite their legal validity (e.g., spiteful or malicious disinheritance, wasteful or harmful inheritance) and accommodating side constraints responsive to concerns surfaced within the morality of property (e.g., regarding the interests of future generations, and the impact of inheritance on distributive justice). 

June 25, 2022 in Articles, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Friday, June 24, 2022

Survey: 25% of Americans are delaying retirement due to inflation

Estate planningThe market is currently experiencing one of the largest downturns in recent history, which is not only impacting how people spend money now, but is impacting future plans for retirement.

A quarterly survey conducted by BMO Real Financial Progress Index reports that 25% of Americans reporting plans to delay retirement due to inflation, and 60% of those between 18-34 have pulled back on savings contributions due to rising costs.

Overall, 21% of Americans are putting away less for retirement and 36% have reported reducing their savings as well.

For more information: 

See Dan Grossman, “Survey: 25% of Americans are delaying retirement due to inflation,” KGUN 9 Tucson June 22, 2022.

June 24, 2022 in Estate Planning - Generally | Permalink | Comments (0)

Prof. Elaine Gagliardi named Interim Dean of University of Montana School of Law

GagliardiProf. Elaine Gagliardi was named Interim Dean of the University of Montana School of Law effective July 1, 2022.  She is an accomplished trusts and estate practitioner and Academic Fellow of the American College of Trust and Estate Council. She also serves ACTEC's Montana State Chair.

See , University of Montana law school names interim dean after search comes up short, Missoulian (June 17, 2022).

June 24, 2022 in Appointments and Honors | Permalink | Comments (0)

Thursday, June 23, 2022

Article: Would the Securing a Strong Retirement Act Secure More Retirement Equity?

Albert Feuer recently published an article entitled, Would the Securing a Strong Retirement Act Secure More Retirement Equity?, Tax Management Comp Plan Journal, 2022. Provided below is an abstract of the Article:

On March 29, 2022 the House approved H.R. 2954 that is titled the Securing a Strong Retirement Act of 2022 (the SECURE Act 2.0) by a vote of 414-5.

On May 26, 2022, a discussion draft of the Retirement Improvement and Savings Enhancement to Supplement Healthy Investments for the Nest Egg (RISE & SHINE) Act of 2022 was released by the Senate Health, Education, Labor, and Pensions Committee Chair Senator Patty Murray (D-WA), and Ranking Member Senator Richard Burr (R-NC).

The article argues that despite providing tax incentives in excess of more than $70 billion, the bills in concert would intensify rather than diminish retirement benefit disparities, while leaving tens of millions of American families and workers with insufficient savings to retire comfortably. The article analyzes those bills’ provisions and describes:

• those bills’ provisions that would secure more retirement equity and how to improve those provisions,

• those bills’ provisions that would secure less retirement equity, and

• provisions that would secure more retirement equity, if added to the bills would secure more retirement equity.

June 23, 2022 in Articles, Estate Planning - Generally, Estate Tax | Permalink | Comments (0)

Wednesday, June 22, 2022

Article: Tax incentives for Green Burial

Victoria J. Haneman recently published an article entitled, Tax Incentives for Green Burial, Nevada Law Journal, 2021. Provided below is an abstract of the Article:

Every living being is doomed to decay and die and decay some more. Death is inevitable, and the disposal of our dead is a fundamental global activity with the potential to have significant environmental impact. In the United States, the environmental toxicity of “traditional” modern burial is stark. A cosmeticized body is pumped with three gallons of embalming fluid (containing chemicals such as formaldehyde) that eventually leaches through metal and wood and into the ground. An estimated 5.3 million gallons of embalming chemicals are buried annually in what are essentially luxury landfill-slash-golf-courses, with landscaping and grass to maintain and mow, in coffins that are typically constructed of nonbiodegradable chipboard. And while cremation is a more environmentally friendly alternative, incineration cremation falls short of being labeled “green.” Fire-based cremation utilizes significant resources and energy, attributable to the substantial quantity of fossil fuel required to burn human remains at 1,562° F (850° C) to reduce a corpse to ash. Pollutants are generated in doing so, including an average of 250,000 tons per year of carbon emissions and an estimated 320 to 6,000 pounds of mercury (from incineration of dental fillings) per year.

This tradition-steeped industry has projected domestic annual revenues of $68 billion (by 2023) and, interestingly, the industry has slowly started to “go green.” Changing the way in which one is buried will not solve the problem of climate change, but it does respect the notion that one’s last act on earth should not be to harm it. Industry norms are on the brink of disruption: the alt-death or death positive movement seeks to infuse the human experience back into death; there is capital investment into new innovative death service technologies, e.g. Funeralocity, WeCroak; and green death care tech startups are dramatically broadening available options for reintegrating human remains back into the environment in an eco-friendly manner. Unfortunately, a myriad of market failures and obstacles are impeding that disruption. This Article explores our modern disconnection from death, the transitioning of human remains in an environmentally friendly manner, the importance of pre-need or pre-death planning and prepayment to protect the grieving consumer, and the way in which tax incentives may be utilized to weave these ideas together in a cohesive plan for a green tax credit. A Pigouvian subsidy is proposed in the form of a refundable tax credit for qualified expenditures related to the nonrefundable prepayment of expenses arising from “sustainable disposition or transition of human remains.”

June 22, 2022 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Tuesday, June 21, 2022

Article: When Beneficiaries Predecease: An Empirical Analysis

Adam J. Hirsch recently published an article entitled, When Beneficiaries Predecease: An Empirical Analysis, Emory Law Journal, 2022. Provided below is an abstract of the Article:

Under current law, bequests to beneficiaries who predecease the testator “lapse” to the beneficiary of the residuary, unless they are preserved for the descendants of predeceased beneficiaries under an “antilapse” statute. The beneficiaries covered by antilapse statutes vary from state to state, but in most states today the statutes apply only to blood relatives of the testator as distant as first cousins. This Article examines the public policy of antilapse statutes, assessing them by undertaking the first-ever survey of popular preferences concerning the matter. Harvesting evidence for five types of beneficiaries, the study finds that the prevailing structure of antilapse statutes is both over- and under-inclusive. On one hand, among beneficiaries who comprise blood relatives, most respondents prefer to create substitute bequests only for descendants of predeceased children. Lawmakers should strike other relatives from the statutes’ coverage. On the other hand, most respondents would create substitute bequests for their descendants if their spouse predeceased them. Lawmakers should extend the range of the statutes accordingly. Finally, the Article advocates enhancing courts’ power to deviate from mechanical rules of lapse in situations where testamentary intent is less predictable.

 

June 21, 2022 in Articles, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Monday, June 20, 2022

Iowa Supreme Court: Surviving Settlor Cannot Modify Irrevocable Trust Without Court Approval

Estate planningLast month the Iowa Supreme Court concluded that a surviving settlor of an irrevocable trust cannot modify the dispositive terms without court approval.

In Iowa, a trust agreement executed after July 1, 2000 is presumed revocable and can be modified or revoked by the settlor unless the terms state that it is to be irrevocable. Iowa Code provides that an irrevocable trust can be modified with the consent of the settlor and all beneficiaries, which must include all of the settlors, not just the surviving settlor.

Another option is for a surviving settlor to modify the irrevocable trust with court approval, even if all beneficiaries consent to the change.

For more Information:

See Iowa Supreme Court: Surviving Settlor Cannot Modify Irrevocable Trust Without Court Approval”, Probate Stars, May 2022.

June 20, 2022 in Estate Planning - Generally, Trusts | Permalink | Comments (0)

Sunday, June 19, 2022

Oligarch Roman Abramovich transferred the ownership of his $400 million luxury jets to his children the same month Russia invaded Ukraine, FBI alleges

Estate planningAn FBI agent has alleged in court documents that Russian Billionaire, Roman Abramovich, made his children beneficiaries of two trusts, and by shifting legal ownership, the Oligarch has avoided Russian Sanctions by the United States.

The documents were filed in support of an application for a seizure of warrant to illuminate the complicated financial structures utilized in various tax havens. Abramovich has been sanctioned by the UK and EU but has evaded U.S. sanctions at this time.

For more Information:

See Hannah Towey, “Oligarch Roman Abramovich transferred the ownership of his $400 million luxury jets to his children the same month Russia invaded Ukraine, FBI alleges,” Yahoo! News, June 15, 2022.

Special thanks to David S. Luber (Florida Probate Attorney) for bringing this article to my attention.

June 19, 2022 in Current Events, Estate Planning - Generally | Permalink | Comments (0)

SECURE Act 2.0 Analyzed

Albert Feuer recently posted on SSRN his article entitled Would the Securing a Strong Retirement Act Secure More Retirement Equity? (June 3, 2022) which appears in 50 Tax Mgmt.Comp. Plan. J. No. 6 (2022). Here is the abstract of his article:

On March 29, 2022 the House approved H.R. 2954 that is titled the Securing a Strong Retirement Act of 2022 (the SECURE Act 2.0) by a vote of 414-5.

On May 26, 2022, a discussion draft of the Retirement Improvement and Savings Enhancement to Supplement Healthy Investments for the Nest Egg (RISE & SHINE) Act of 2022 was released by the Senate Health, Education, Labor, and Pensions Committee Chair Senator Patty Murray (D-WA), and Ranking Member Senator Richard Burr (R-NC).

The article argues that despite providing tax incentives in excess of more than $70 billion, the bills in concert would intensify rather than diminish retirement benefit disparities, while leaving tens of millions of American families and workers with insufficient savings to retire comfortably. The article analyzes those bills’ provisions and describes:

• those bills’ provisions that would secure more retirement equity and how to improve those provisions,
• those bills’ provisions that would secure less retirement equity, and
• provisions that would secure more retirement equity, if added to the bills would secure more retirement equity.

June 19, 2022 in Articles, Non-Probate Assets | Permalink | Comments (0)