Wills, Trusts & Estates Prof Blog

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

Monday, September 16, 2019

A Woman’s AncestryDNA Test Revealed a Medical Secret

CordbloodWhen Holly Becker was in her twenties, she was treated for non-Hodgkin’s lymphoma by undergoing an umbilical-cord-blood transplant. For ethical reasons, donations from infant umbilical-cord blood have been strictly anonymous for almost 30 years. But Becker, using the mail-in DNA test provided by AncestryDNA, discovered that the cells of the donor from two decades are still within her when her results exactly matched those of a young man in New York, and she was able to meet him.

After numerous rounds of chemo that ultimately failed, Becker was near death when her doctor suggested the then-novel procedure of transplanting cord blood from a stranger. Doctors would destroy Becker’s own cancerous cells before infusing her with hematopoietic stem cells - which are plentiful in cord blood - from a healthy matched donor. Those cells would eventually divide to replace all the blood in her, and Becker did not recover entirely from the grueling procedure for two years. But she stayed healthy, and she always wondered whose blood saved her life.

Becker was not trying to find the anonymous donor when she used the DNA kit. She was just curious about her family history. But she matched to her donor's mother, Dania Davey, as if she was indeed was Davey's daughter. They both thought it was mistake by the company. After some research and another patient of Becker's oncologist getting odd results from AncestryDNA, they discovered the truth. The DNA in saliva, it turns out, can come from white blood cells (which should have the donor’s DNA) that guard against bacteria in the mouth. In fact, many mail-in DNA test companies advice against patients that have undergone bone-marrow or cord-blood transplants against taking their tests, as the mix of genetic material can cause them to fail. Or, the test could pinpoint the donor's DNA.

To prove their hypothesis, Davey's 25-year-old son, Patrick, took a test. And he matched the original records for Becker’s anonymous donor, and Dania had in fact donated his cord blood when he was an infant. For more than two decades, Becker had carried Patrick's DNA inside of her.

See Sarah Zhang, A Woman’s AncestryDNA Test Revealed a Medical Secret, The Atlantic, September 13, 2019.

Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention.

September 16, 2019 in Current Events, Estate Planning - Generally, Science, Technology | Permalink | Comments (0)

Article on A "Mere Expectancy?" What Rights do Beneficiaries of a Revocable Trust have Prior to the Death of the Settlor?

RevocabletrustRichard C. Ausness recently published an Article entitled, A "Mere Expectancy?" What Rights do Beneficiaries of a Revocable Trust have Prior to the Death of the Settlor?, Quinnipiac Probate L.J., Vol. 32 Iss. 4 (2019). Provided below is the introduction to the Article.

Revocable trusts became a popular form of a will substitute in the 1960s and remain so to do this day. If the trust is funded, the settlor typically retains the right to receive income from the trust, the right to invade the trust principal, and the right to modify the terms of the trust. In addition, the settlor may serve as trustee or may appoint a third-party trustee. At the settlor's death, the trust assets, which may also include property transferred to the trust from the settlor's probate estate by means of a pour-over provision in the will, will be distributed to the trust's remainder beneficiaries in accordance with the terms of the trust.

Because the settlor usually retains an absolute right to revoke or modify the terms of a revocable trust at any time, courts generally refuse to afford remainder beneficiaries any rights in the trust while the settlor is alive. Instead, courts have ruled that remainder beneficiaries have no standing to seek information about the trust or challenge the trustee's actions, regardless of whether the trustee is the settlor or a third-party. However, the situation becomes somewhat murky once the settlor dies and the interests of the remainder beneficiaries are no longer "mere expectancies."

Part II briefly examines the nature and origin of the revocable trust. Part III considers how courts treats objections by remainder beneficiaries to actions taken by the settlor while serving as trustee. Part IV surveys attempts by remainder beneficiaries to question whether the settlor lacks sufficient mental capacity to revoke or modify the trust or whether such actions are the product of undue influence. Part V concerns the ability of remainder beneficiaries to contest the actions of a third-party trustee while the settlor is alive.

Part VI deals with the problem of whether remainder beneficiaries should have the power after the settlor's death to challenge actions taken by the settlor while alive on the theory that the settlor was mentally incompetent or was subject to undue influence. Part VII looks at requests for information or an accounting from a third-party trustee made after the settlor's death. Part VIII focuses on the controversial and perplexing issue of whether a remainder beneficiary should be allowed to sue the third-party trustee of a revocable trust after the settlor's death for wrongdoing allegedly committed during the settlor's lifetime. Part IX evaluates both doctrinal and normative perspectives on the questions of remainder beneficiary rights after the death of the testator. Finally, Part X offers a solution to the conflict of authority on this issue.

September 16, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

As Aretha Franklin’s Heirs Dispute Control of Estate, Judge Orders Court Supervision

ArethaThe reigning queen of soul, Aretha Franklin, died in August of last year and the world believed that passed away without a will. But the discovery of three handwritten documents found in her home foreshadowed a rocky and emotional road for her family.

If Franklin had indeed died intestate, Michigan law dictated that because she did not have a spouse at the time of her death, her $80 million estate would have been divided equally among her four sons. But in each of the wills, provided specific provisions to be made for her oldest son, who reportedly has special needs, and that the balance of assets would then be distributed equally among her other three sons. But there remains a question of whether Franklin did create the wills herself, and the youngest son, Kecalf, convinced the judge to have a handwriting expert examine the wills to ensure his mother wrote the documents.

Aretha's niece, Sabrina Owens, was originally named the estate's personal representative, but Kecalf has also petitioned the court to replace her - with him, thus causing dissention among the family. Owens was Aretha's choice to handle her estate, and she is known to be a capable business person, but the largest asset to the estate is no surprise: the rights to the diva's music catalog and likeness. If properly managed, these can be a financial powerhouse to the heirs and preserve their mother's legacy for future generations.

See Cozen O'Connor, As Aretha Franklin’s Heirs Dispute Control of Estate, Judge Orders Court Supervision, Lexology, September 11, 2019.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

September 16, 2019 in Current Affairs, Estate Administration, Estate Planning - Generally, Intestate Succession, Music, New Cases, Wills | Permalink | Comments (0)

Sunday, September 15, 2019

Two of Pat Bowlen’s Daughters Take Legal Action to Challenge Ownership Trust

BroncosThe 2009 trust created by Pat Bowlen to ensure a succession plan for the ownership of his professional football franchise, the Denver Broncos, is now being attacked in court. Two of his daughters, Beth Bowlen Wallace and Amie Klemmer, are claiming the validity of the Patrick D. Bowlen Trust on the grounds that their father lacked the capacity to form the trust and that he was under undue influence at the time of its creation.

Essentially, the trustees choose one of Bowlen's 7 children to control and run the team. It is widely believed that 29-year-old Brittany Bowlen unofficially has been selected by the trustees, and that it’s just a matter of time before the selection occurs. Previously, the court had dismissed an action by Bowlen's brother brother - acting on behalf of Wallace and Klemmer - that questioned the authority of the three trustees who have managed the team since 2013.

Wallace and Klemmer claim that their father was first diagnosed with Alzheimer's in 2006, three years before the creation of the trust, and that he no longer had the capacity to do so. The stakes are high for the daughters, though; they could end up being completely disinherited by fighting the trust. So they are putting their portions of their father's estate on the line in order to challenge the current structure for determining control of the Broncos.

See Mike Florio, Two of Pat Bowlen’s Daughters Take Legal Action to Challenge Ownership Trust, Pro Football Talk-NBC Sports, September 13, 2019.

Special thanks to Jim Hartnett, Jr. (Dallas, Texas Probate Attorney) for bringing this article to my attention.

September 15, 2019 in Current Events, Estate Administration, Estate Planning - Generally, New Cases, Sports, Trusts, Wills | Permalink | Comments (0)

Saturday, September 14, 2019

CLE on Avoiding a Wealth of Trouble: Ethical Issues for Trust and Estate Lawyers

CLEThe American Law Institute is holding a webcast entitled, Avoiding a Wealth of Trouble: Ethical Issues for Trust and Estate Lawyers, on Thursday, October 24, at 12:00 - 1:30 PM Eastern. Provided below is a summary of the event.

Today’s trust and estate planning attorney must have a wide range of knowledge of substantive law, but also pay careful attention to professional responsibility and liability concerns that can be unique to this area of practice.

Register today for this important CLE program taught by Fellows of the American College of Trust and Estate Counsel (ACTEC) for a critical discussion of both common and sometimes unexpected dilemmas in practice. You’ll learn not only about recent ethics decisions and case law from around the country, but also what the disciplinary and malpractice implications are for lawyers.

What You Will Learn

Ethical challenges to be discussed by an expert panel include:

    • client-driven aggressive estate planning
    • common mistakes that can defeat a client’s objectives
    • problematic conflicts of interest
    • client selection and the importance of engagement letters
    • having adequate insurance coverage and complying with the policy requirements when claims are made or threatened
    • other ethical pitfalls that can ensnare trust and estate lawyers

September 14, 2019 in Conferences & CLE, Current Affairs, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)

Friday, September 13, 2019

Article on Red States, Blue States: Lessons from the State Death Tax Credit and the 'SALT' Deduction.

SaltJeffrey A. Cooper recently published an Article entitled, Red States, Blue States: Lessons from the State Death Tax Credit and the 'SALT' Deduction, Tax Law: Tax Law & Policy eJournal (2019). Provided below is an abstract of the Article. 

Since 1861, every version of the federal income tax has included a deduction for state and local taxes (often referred to by its popular acronym “SALT”). Since this provision, the “SALT deduction,” minimizes the effect of state and local taxes on taxpayers, it offers greater benefits to those living in states that impose the highest tax burden — the high-tax “blue” states. In 2017, the Tax Cuts and Jobs Act marked a major shift in this long-established federal policy toward state taxes. Among its many provisions, the Act capped the SALT deduction at $10,000 per married couple, providing no Federal tax offset for amounts paid in excess of that amount.

In this article, I attempt to address two questions raised by this turn of events. First, how will states respond to this change in federal law? Second, does the capping of the SALT deduction represent a major shift in federal-state relations, an unprecedented attack on blue states, or is it simply politics as usual?

My novel approach to the subject is to consider these questions by exploring the similarities and contrasts between the income tax SALT deduction and the estate tax state death tax credit, which was established in 1924 and repealed in 2001. Viewing the 2017 legislation within this broader historical context more reveals trends and patterns, providing greater insight than would a study of the SALT deduction in isolation.

This approach yields two results. First, analyzing state legislative responses to the 2001 estate tax changes helps to predict how state governments may respond to the 2017 income tax change and thus offers insight into the future evolution of state income tax regimes. Second, placing the 2017 Tax Act in a broader historical context reveals a pattern of federal interference with state tax regimes, yielding lessons about the interdependence of federal and state tax law as well as how a changing political climate can shape tax policy.

September 13, 2019 in Articles, Current Events, Estate Planning - Generally, Income Tax, New Legislation | Permalink | Comments (0)

Rubens and Hirst Artworks go to British Museums in Tax Deals

3808In 1910, United Kingdom chancellor David Lloyd George introduced a way for citizens to offset inheritance tax bills by donating works of art to the government. In 2013, the government added cultural gift schemes to allow people to donate art during their lives. Judging from the eclectic pieces collected this year, the bundled system is beneficial for both the government and the taxpayers.

Arts Council England (ACE) on Thursday published details of 46 objects and collections worth £58.6 million that will go to UK museums and galleries in lieu of tax. The total value of the objects more than doubled the previous financial year and the highest since the two schemes were bundled together in 2013. Sir Nicholas Serota, the chair of ACE, said that “It is also heartening to see that, in line with last year, around 86% of the total tax settled has been for items allocated outside London.”

One piece, Rubens portrait of Charles V in his full imperial armor, is a painting that the artist kept until his death in 1640. A sculpture of a decapitated, flayed pregnant woman, entitled Wretched War, has been given by the artist’s former business manager Frank Dunphy, settling £90,000 of tax.

Organizations and museums are then allocated the items, either on loan or permanently. A first-time recipient was the Royal College of Physicians, which was permanently given one of the oddest collections in the list: 450 antique medical and self-care objects which include nipple shields made from ivory, silver, glass, wood, leather and lead. The most valuable item on the list is a Bernardo Bellotto painting of Venice on Ascension Day, which settles £7m of tax and was allocated to Audley End house in Essex.

See Mark Brown, Rubens and Hirst Artworks go to British Museums in Tax Deals, Guardian, September 11, 2019.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

September 13, 2019 in Current Events, Estate Administration, Estate Planning - Generally, Non-Probate Assets | Permalink | Comments (0)

Thursday, September 12, 2019

Article on Janus as a Client: Ethical Obligations When Your Client Plays Two Roles in One Fiduciary Estates

TrustsKaren E. Foxx & Philip N. Jones recently published an entitled, Article on Janus as a Client: Ethical Obligations When Your Client Plays Two Roles in One Fiduciary Estates, ACTEC L.J., Vol. 44 No. 3 (2019). Provided below is an abstract of the Article.

Is it possible for an attorney to have a conflict of interest when the attorney represents a trustee who is also a beneficiary of the trust? Is that situation similar to having two clients? What if the trustee is not only a beneficiary, but also a claimant against the trust? Since the trustee has three roles to play, is that situation similar to the attorney having three clients? The issue presented by these potential conflicts was one of the most vexing for the drafters of the Fifth Edition of the ACTEC Commentaries. The range of possible approaches goes from a requirement that a separate lawyer is needed for each role to a view that a client with multiple roles can rely on one lawyer. This article examines the various court and ethics opinions, considers the arguments for the different approaches, and recommends best practices for attorneys when their clients have such conflicts.

September 12, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Clinic Ordered To Reveal Sperm Donor List After Baby Mix Up

IVFKristina Koedderich and Drew Wasilewski underwent IVF in hopes of having a child, and in 2013 after spending nearly $500,000 for the procedure, they gave birth to a baby girl. But after two years, they started to notice that the daughter's feature did not exactly match the Caucasian features of her parents. She appeared Asian. A DNA test confirmed that Wasilewski was not her biological father, though he was intended to be.

The now-divorced couple claim that there was a severe mistake by the Institute for Reproductive Medicine and Science in Livingston, New Jersey, in which they impregnated Koedderich with the sperm of another man. Koedderich and Wasilewski claim the clinic's negligence caused "the breakdown of the marriage." They are suing the clinic for unspecified damages, and their attorney, David Mazie, said that, "It's been devastating for them."

There is also a question of what exactly happened to Wasilewski's sperm? Does he now have a biological child or children somewhere? Superior Court Judge Keith Lynott ordered the institute to hand over a list of all the men and women that were using or had used the facility around the same time as the couple. They also want to know the identity of the their daughter's biological parent. The girl, now six, has been diagnosed with a blood disorder associated with Southeast Asian heritage.

See Clinic Ordered To Reveal Sperm Donor List After Baby Mix Up, NPR.org, September 11, 2019.

Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention.

September 12, 2019 in Current Events, Estate Planning - Generally, New Cases, Science | Permalink | Comments (0)

Wednesday, September 11, 2019

T. Boone Pickens, Oilman and Renewables Advocate, Dies at 91

Oil tycoon and billionaire T. Boone Pickens passed away Wednesday at the age of 91 at his Dallas home under hospice care, surrounded by his family and friends. "He was successful, and more importantly, he generously shared his success with institutions and communities across Texas and Oklahoma," Former President George W. Bush commented, adding that "Laura and I send our condolences." 

He was born in 1928 in Holdenville, Oklahoma and was raised during the Depression. Though only 5'8," he was a star on the high school basketball team when his family lived in Amarillo, Texas. He lost his scholarship to Texas A&M when he broke his elbow, so he transferred to Oklahoma A&M, now Oklahoma State, where he graduated with a degree in geology.

Known in his younger years as a maverick that would take on oil-industry giants, Pickens later would attain more riches through Wall Street. Pickens also would later endorse alternative fuels, especially wind energy, but he could not duplicate his oil riches. In 2009, he scrapped plans for a huge Texas wind farm after running into difficulty getting transmission lines approved. "It doesn't mean that wind is dead," Pickens said at the time. 

In 2007, Forbes magazine estimated Pickens' net worth at $3 billion. He eventually slid below $1 billion and off the magazine's list of wealthiest Americans. In 2016, the magazine put his worth at $500 million. Pickens made huge donations to his alma mater, Oklahoma State University — the football stadium bears his name, and he gave $100 million for endowed faculty positions. "It is impossible to calculate his full impact on Oklahoma State. His historic gifts to academics and athletics not only transformed the university, they inspired thousands of others to join in the transformation," President Burns Hargis said in a statement.

See T. Boone Pickens, Oilman and Renewables Advocate, Dies at 91, New York Times, September 11, 2019.

September 11, 2019 in Current Events, Estate Planning - Generally | Permalink | Comments (0)