Sunday, March 7, 2021
Article: The New Section 100A Trustee Act 1925 (NSW): When a Beneficiary is Personally Liable to Indemnify a Trustee
Joseph Campbell recently published an article entitled, The New Section 100A Trustee Act 1925 (NSW): When a Beneficiary is Personally Liable to Indemnify a Trustee, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article.
Over the years since 1901 there has been a recognised principle in the law of trusts, derived from the Privy Council decision in Hardoon v Belilios , under which a beneficiary of a trust who was sui juris and absolutely entitled had, prima facie, a personal obligation to indemnify the trustee for liabilities that the trustee had incurred. In November 2019 a new section 100A of the Trustee Act 1925 (NSW) came into effect in New South Wales, which in terms abolished the “rule in Hardoon v Belilios”, with some minor exceptions, and made other alterations to the law concerning the liability of a trust beneficiary to indemnify a trustee. This paper considers how section 100A has affected the law in New South Wales, and the extent to which it will have effect outside New South Wales. It considers some of the circumstances in which, notwithstanding the enactment of section 100A, a beneficiary of a trust might still have an obligation to indemnify a trustee.
Saturday, March 6, 2021
Nina A. Kohn recently published an article entitled, Legislating Supported Decision-Making, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article.
Supported decision-making is a process by which individuals who might otherwise be unable to make their own decisions do so with help from others. It has the potential to transform the lives of individuals with cognitive and intellectual disabilities by enabling them to function as legal actors, and not merely legal subjects. Fueled by this promise, by mounting concerns about guardianship, and by rhetoric surrounding the Convention on the Rights of Persons with Disabilities, states are rapidly adopting statutes that purport to enable and promote supported decision-making and advance the rights of persons with disabilities. This article shows how these statutes typically do neither. Rather, the statutes limit the rights of individuals with disabilities and place them at increased risk of exploitation. The article further shows that the wide gap between the concept of supported decision-making and its actual implementation in state legislation is the result of a confluence of political agendas, but that an alternative, person-centered approach is essential if supported decision-making is actually to empower individuals with disabilities. Finally, it outlines five concrete legislative approaches states could adopt—separately or in combination—to encourage supported decision-making that will actually advance the rights of persons with disabilities and reduce restrictive guardianships.
Friday, March 5, 2021
Geoff McLay recently published an article entitled, How to read New Zealand's new Trust Act 2019 - (2020) 13 Journal of Equity 325, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article.
The Trusts Act 2019 (NZ), which come into effect at the end of January 2021, is the most significant private law reform in New Zealand since the Companies Act 1993 (NZ). This article gives essential background to the Act, to read the Act against, and points to the conceptual issues and debates that lie at the heart of successfully navigating the Act.
Ying Khai Liew recently published an article entitled, Constructive Trusts and Limitation Periods in Malaysia, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article.
Malaysia, as a former British colony, has inherited much of its trusts law from the English. One notoriously difficult area of law is constructive trusts. Precisely when and why constructive trusts arise are fundamental but imperfectly understood matters. This is unfortunate, because the lack of understanding might, in practice, be critically relevant for the determination of liability. To illustrate, consider the ongoing infamous ‘1MDB’ saga. 1MDB was a government-run strategic development company (allegedly) utilized by the former Prime Minister of Malaysia, Najib Razak, and many others (including his aide, Jho Low) to siphon money to their personal and company accounts. The key events of the highly complex fraudulent scheme took place over a six-year period, leaving behind a long money trail which crossed multiple jurisdictional borders and involved numerous shell companies, international banks, investment companies, and even Hollywood celebrities. While the Malaysian government has focused its efforts on the criminal liability of those allegedly involved, little attention has thus far been paid to the potential private law liabilities, either of those directly breaching trusts or fiduciary duties, or those receiving proceeds of those breaches. These claims would likely be pursued as a matter of course, for example by the liquidators or new directors of 1MDB. At that stage the law of constructive trusts would be crucial for the determination of liability.
One of the first practical hurdles would be the question of limitation: are the constructive trust claims time-barred? As with the law of constructive trusts, the law of limitation in Malaysia is closely modelled on English law. Here, again, the interactions between Malaysian and English law throw up interest but difficult issues of law. This article considers those interactions in the particular context of the applicable limitation periods to constructive trusts claims in Malaysia, to evaluate and assess how English jurisprudence and local developments have shaped the law.
Thursday, March 4, 2021
These special accounts are called Achieving a Better Life Experience (ABLE) accounts. These types of special savings accounts were introduced in 2016 as a vehicle for people with disabilities to achieve "greater financial security and more independence."
By using ABLE accounts, disabled people "can save money in the tax-favored accounts without risking the loss of need-based government benefits, like health insurance or supplemental income."
As of now, 43 states and Washington D.C. offer ABLE. Although these special accounts have been around for a few years, interest in the accounts as grown exponentially due to federal pandemic relief putting more cash in people's hands. ABLE advocates have begun to "spread the word" about the usefulness of saving some or all of stimulus check funds in these special accounts.
Here are a few incentives, or benefits, of taking advantage of ABLE accounts by placing stimulus aid funds in them.
- People with disabilities often struggle financially and rely on federal aid, and cannot qualify for Medicaid or Supplemental Security Income if they have more than $2,000 in savings or other assets. These accounts help low-income disable people avoid this detriment.
- Stimulus payments are not considered income, meaning you can spend the money how you please. However, if the money isn't spent within 12 months, it will be counted against asset limits and could disqualify disabled people from benefits. If this money is deposited in an ABLE account, it will not be considered when counting toward the $2,000 cap.
- Disabled people can also used the ABLE accounts to save towards an apartment or a wheelchair-accessible car, not to mention many other necessities.
In general, despite the low popularity of ABLE accounts in the last few years, they are becoming more and more useful, especially during the pandemic.
See Ann Carns, Disabled Recipients of Stimulus Aid Are Urged to Save Some in Special Accounts, N.Y. Times, February 26, 2021.
Special thanks to Matthew Bogin, (Esq., Bogin Law) for bringing this article to my attention.
Gerry W. Beyer, recently published an article entitled, Texas Estate Planning Judicial Update: End of 2020 Edition, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article.
This article discusses recent judicial developments (last half of 2020) relating to the Texas law of intestacy, wills, estate administration, trusts, and other estate planning matters. The discussion of each case concludes with a moral, i.e., the important lesson to be learned from the case. By recognizing situations that have led to time consuming and costly litigation in the past, estate planners can reduce the likelihood of the same situations arising with their clients.
Wednesday, March 3, 2021
Mary Trump, Donald Trump's estranged niece, has accused the former president of "trying to dodge accountability for defrauding her out of a multimillion dollar inheritance by claiming she took too long to sue."
Mary Trump's lawyers brought the allegation in a New York State court. Mary Trump is suing the former president along with his sister Maryanne Trump Barry and his late brother Robert's estate.
Mary Trump's lawyers wrote, The offensiveness of defendants' past conduct — stealing tens of millions of dollars from their own niece — is perhaps surpassed only by the chutzpah of their current arguments for dismissal."
Mary's father, Fred Trump Jr., Donald Trump's older brother, died in 1981 and left Mary, who was 16 at the time a profitable real estate portfolio.
Mary alleges that her aunt and uncles "siphoned" money away and "squeezed" her out of the family fortune. Mary Trump brought suit in September, close to two years after she says she learned of her families' actions, which she claims to have learned through an investigation into Donald Trump's finances.
Mary Trump's lawyers claim that "[r]easonable diligence would not have uncovered the fraud [more than a decade earlier as the defendants contended]."
Mary Trump has also written a tell-all entitled, "Too Much and Never Enough: How My Family Created the World's Most Dangerous Man" in which she delves further into her allegations against Donald Trump and other family members.
Donald Trump's lawyers claim that Mary Trump is simply attempting to "cash in on the family name, and consume [Donald Trump] with lawsuits."
See Jonathan Stempel, Donald Trump's niece blasts his 'chutzpah' toward her fraud lawsuit, Yahoo News, February 26, 2021.
Special thanks to David S. Luber (Florida Probate Attorney) for bringing this article to my attention.
Marie Holmes, a 26-year-old single mother of four was working two jobs when she won the lottery, which was worth hundreds of millions of dollars. Although Holmes had one of three winning tickets, she would still receive a third of the $564 million pot, which is a lot of money.
Marie Holmes had the choice of either receiving the money as a lump sum ($127 million) or a total installment amount of $188 million. Understandably, Holmes decided to go with the lump sum.
With the winnings, Marie Holmes began making plans to make donations to her church, buy a house, and set up college funds for her kids. Unfortunately, included in the expenses would be tax payments which prove to be substantial with your winnings are as great as Marie Holmes'.
Then came the media attention. Soon after Marie Holmes' windfall, the media began portraying her as a "frivolous and foolish person" based on how she spent her prize money. On top of that, it became difficult for Marie Holmes to keep a low profile.
Marie Holmes, like many of us would in the same situation, began spending lavishly and even began spending money on her boyfriend and his bail, which totaled up to $21 million.
Since winning the lottery, Holmes had been arrested for possession of marijuana following a search of her house pursuant an arrest of her boyfriend McDow. On top of that, Marie Holmes and her family fell victim to racism from their mostly white neighbors.
Next came the Pastor of Marie Holmes home church who eventually asked her for $1.5 million to build a retreat. According to the suspicious Pastor Matthews, Marie verbally agreed to give him that $1.5 million. Matthews eventually brought a lawsuit against Holmes for $10 million which is 10% of her winnings, which she originally promised to give to the church. Matthews brought the suit despite Holmes' previous gift of $700,000.
Eventually, Holmes' had to start paying of McDow's mistresses to leave him alone.
Holmes eventually turned to a show on Oprah Network to obtain some advice, but that avenue failed as well.
Despite all the bad, Holmes persevered and created the Marie Holmes Foundation which helps poverty stricken families.
For more stories of lucky (and unlucky) lottery winners visit the link below.
See Gur Tirosh, The Disaster of the Big Fat Lottery Win, Living Magazine, last visited March 3, 2021.
Special thanks to David S. Luber (Florida Probate Attorney) for bringing this article to my attention.
Tuesday, March 2, 2021
Preparing for an Estate Planning Consultation: 10 Items to Consider Before Meeting with Your Attorney
If you are considering putting together an estate plan, or updating an existing one, there are a few things you should consider. Below are 10 items that you should consider in preparation of an estate planning consultations:
- Guardians and Conservators for Minor Children
- Trustees, Personal Representatives and Agents Under Durable Power of Attorney
- Patient Advocate Designation and Living Will
- Personal Property
- All Other Property
- Charitable Bequests
- Distributions to Beneficiaries
- When and How Should Beneficiaries Receive
- Equalizing Portions
- Other Considerations
- "Ultimate Takers
- Information to Gather
- Information regarding your assets
- Contact information for Beneficiaries and Fiduciaries
- Prior Estate Planning Documents
- Other Documentation
See Rebecca K. Wrock, Preparing for an Estate Planning Consultation: 10 Items to Consider Before Meeting with Your Attorney, Varnum LLP, February 18, 2021.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
The Camogli cemetery, which is over 100 years old, sits along an area of seaside cliffs. A landslide on the coast in which these cliffs are situated caused the collapse of the cemetery which resulted in an estimated 200 coffins falling off the cliffside. Of the 200 coffins, only 10 have been recovered.
Francesco Olivari, the mayor of Camogli, stated that the collapse of the cemetery was an "unimaginable catastrophe."
Last week some maintenance was being done "along the area of fragile coastline" when workers noticed some cracks in the rock and had to stop working. Olivari mentioned that the "signs of fissures" were near the area that collapsed. "This type of collapse that happened today is very hard to detect or to predict," Olivari said. "This area is subject to this type of collapse -- it's very fragile."
Officials are continuing to survey the site in attempts to recover coffins and corpses.
See Valentina Di Donato & Amanda Jackson, Hundreds of coffins fall into the sea following collapse of an Italian cemetery, CNN, February 23, 2021.