Monday, August 19, 2019
Elizabeth Ruth Carter recently published an Article entitled, Fiduciary Litigation in Louisiana: Mandataries, Succession Representatives, and Trustees, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.
This article provides an overview of common types of fiduciary litigation in the estate planning setting in Louisiana. The article briefly considers the history of fiduciary litigation in the civil law setting. It then considers actions against mandatories, succession representatives, and trustees. The article points out some of the challenges that are unique to Louisiana.
The New York Post claims that it has obtained an amazing document: Jeffrey Epstein's will, signed a mere two days before he was found dead inside of his jail cell awaiting trial for federal sex trafficking charges. The New York City Office of the Chief Medical Examiner ruled Friday the Epstein's death was suicide by hanging.
Documents filed in court in preparation of the criminal trial assess Epstein's worth at $577 million. The will lists his brother, Mark Epstein, as the sole heir of his estate.
See Report: Jeffrey Epstein Signs Will 2 Days Before Death, CNN, August 19, 2019.
Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention.
Sunday, August 18, 2019
The a person's death can often happen so suddenly, family and friends from different places cannot manage to be at their loved one's funeral. Natalie Levy's mother died tragically from suicide earlier this year, and following Jewish tradition, they had the funeral as soon as possible. But that made it nearly impossible for many to join in on mourning for her mother.
Fortunately, the chapel featured a new amenity: livestreaming the service so others could watch, and they even uploaded a recording of the funeral onto the online obituary. Levy some extended family members her mother had reconnected with late in life were extremely grateful they could participate remotely, as were the half-dozen or so other friends and family members she recalls tuning in live. But it was not only a saving grace for those that could not attend; the recording could be watched by her and her sister to remember all the sweet stories the well-wishers told them about their mother.
Bryant Hightower, president-elect of the National Funeral Directors Association, says that livestreaming funeral services has been around for more than a decade but has just now become more mainstream. The funeral industry is often hesitant to any change, but Hightower says that now approximately 20% of funeral homes now offer the service, much to the delight of clients that are becoming more integrated in the technological lifestyles. Gary Richards, founder of OneRoom, a company that offers livestreaming services to funeral directors in several countries, says that many clients are recent immigrants from countries such as India, Philippines, and Vietnam who want to have long distance family members feel connected to the service.
See Paris Martineau, Now Even Funerals are Being Livestreamed - and Families are Grateful, Wired, July 30, 2019.
Special thanks to Jim Gust (Senior Editor, Merrill Anderson Company) for bringing this article to my attention.
Saturday, August 17, 2019
Elizabeth Ruth Carter recently published an Article entitled, Are Premarital Agreements Really Unfair: An Empirical Study of Premarital Agreements, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.
Are premarital agreements categorically unfair? Critics of premarital agreements cling to the (unfounded) belief that premarital agreements are categorically one-sided, coercive, and designed to benefit the wealthier spouse — usually the man. Courts, legislators, and scholars have too often relied on assumptions about premarital agreements without delving in to the facts. They have looked almost everywhere to support their views, except for the one place that really matters: the actual agreements. The result, predictably, is a paternalistic system predicated on a near religious belief that women who sign premarital agreements are uneducated, unsophisticated, economically dependent actors who need the state to protect them from the overreaching of their husbands and their own stupidity. For the few women this paternalistic system might protect, it harms a great many more by reinforcing negative stereotypes and eroding individual autonomy.
This paper builds on my previous work and offers something that has been sorely lacking in the field — empirical data. This paper presents my initial findings of a study involving all of the premarital agreements between opposite-sex couples recorded in Jefferson Parish, Louisiana between January 1, 2013 and December 31, 2016 — a total of 474 premarital agreements. My findings cast considerable doubt upon many of the stereotypes about the parties that enter into premarital agreements. The quintessential stereotype of a couple with a premarital agreement is the rich businessman and his (much) younger “trophy” bride. For the couples in this study, however, large age discrepancies are the exception rather than the rule. We have long assumed that premarital agreements are most common in second marriages. Although that is generally true for the couples in this study, the reality is a good deal more nuanced. Nearly a quarter of the agreements in this study were entered into by two spouses with no prior marriages. Longstanding assumptions about substance and procedure are also challenged by my study. We have been suspicious of premarital agreements that are signed shortly before the wedding out of fear that they result from duress or coercion. Yet, the vast majority of the couples in this study signed their agreements shortly before their weddings. Isn’t it more likely that these couples procrastinated rather than coerced? We have long assumed that premarital agreements involve the waiver of property rights and spousal support by the poorer spouse for the benefit of the richer spouse. Again, the data paint a more complex and interesting picture.
Friday, August 16, 2019
New Zealand joins the ranks of other trust-friendly jurisdictions by adopting trust arbitration clauses within their new Trusts Act of 2019. The country recently revised its Arbitration Act of 1996 in May of this year, and followed it up with extending it to trusts.
There are two provisions of the Act that bring about the most positive changes: Section 144 and Section 145. Section 144 deals with unborn or unascertained beneficiaries of a trust that is subject to ADR, and Section 145 allows a court to enforce an arbitration provision in a trust.
See here for more information.
Special thanks to Stacie I. Strong (Manley O. Hudson Professor of Law, University of Missouri) for bringing this article to my attention.
A visiting attorney who requested that his name not be mentioned said that he saw Jeffrey Epstein with a young, pretty woman in one of the prison's attorney rooms. The attorney said that he went to the prison on July 30th to visit with his own client, just one day after Epstein was taken off of suicide watch and transferred to the Special Housing Unit, or SHU, when he witnessed the two together.
The woman may have been, as NBC News has reported that Epstein paid members of his team to sit with him in a room for eight hours a day for attorney-client meetings, allowing him to avoid his cell. The prison has 12 attorney rooms, but only 2 for inmates housed in the SHU, meaning Epstein was monopolizing a scarce resource. The Manhattan Correctional Center has not returned calls about Epstein’s apparent access to the interview room.
Whoever the woman was, it was not Epstein’s main lawyer, Reid Weingarten, nor any other named attorneys who had visited him in the past. The visiting attorney also claims that the mysterious guest did not have any files with her, nor was her attire formal, but rather like she was attending "Sunday brunch." He summed up that the situation made it appear that Epstein was receiving special treatment from the prison staff, saying “I think she was there just to babysit him, and keep him out of his cell, and just keep him company for eight hours a day. Which is not supposed to be the way it works."
See Richard Behar, Jeffrey Epstein Spent Time Alone with Young Woman in Prison's Attorney Room, Forbes, August 15, 2019.
Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.
Thursday, August 15, 2019
Democratic New Jersey Governor Phil Murphy signed an act that allow physician assisted suicide back in April, but a judge has put the law on hold in response to a lawsuit filed by a doctor practicing in the state. Dr. Yosef Glassman’s lawsuit argues “that immediate and irreparable damage will probably result in view of the fact that if its enforcement," and says that the law is an affront to religious doctors. Dr. Glassman is an Orthodox Jew.
The law went into effect earlier this month, but Judge Paul Innes of Superior Court in Mercer County signed the temporary order Wednesday with a hearing set for October. The law requires two doctors to sign off on the request and for the terminally ill patient to be deemed an adult resident of New Jersey who has the mental capacity to make such a decision and voluntarily expresses a wish to die. They must request the medication twice, with one at least in writing and signed by two witnesses, and have a chance to rescind the request. One of the witnesses cannot be a relative nor a beneficiary of the patient's estate.
With the governor's signature, New Jersey joined Maine, Oregon, California, Colorado, Hawaii, Vermont, Washington and the District of Columbia that all have similar legislation.
See Mike Catalini, New Jersey’s Medically Assisted Suicide Law Put on Hold, Lubbock Online, August 15, 2019.
Sisters Joslin Roth and Darci Bernard realized years ago that there was a need in Seattle for pet death care. Ms. Roth says that "you could do stand-up paddleboard yoga with your dog but couldn’t visit a death care provider." So in December 2016 the pair opened Resting Waters in West Seattle where they offer their clients aquamation, a water-based alternative to flame-based cremation.
Jerry Shevick, a former television executive, knew that the pet industry as a whole increases every year. Understanding this fact as well as the knowledge that owners want to care for their furry loved ones as they would a child or family member, he started Peaceful Pets Aquamation in Newbury Park, California, in 2013. He offers the service because of the decreased carbon footprint, stating that aquamation “really uses the same components that natural decomposition uses. With people paying attention to climate change, it’s becoming more interesting to people as well.”
The pet death industry is not yet as regulated as human funeral services. Occasionally, though, someone seeking to open an aquamation facility will have difficulty convincing wastewater-treatment officials that the process is sufficiently pure. Nearly 20 states that have recently legalized aquamation as a means of dealing with human corpses including Washington and California.
See Mike Seely, What Should I Do With My Dead Dog?, New York Times, August 12, 2019.
Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.
Tal Morse & Michael Birnhack recently published an Article entitled, Digital Remains: The Users’ Perspectives, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.
As our lives go digital, so will, inevitably, our death. Emails we send, photographs we post, and thoughts we share are all stored digitally. These are users’ digital remains that reflect their digital personalities and at the same time, make up the memories for friends and family. After death, the social norms and legal rules regarding access to digital remains are no longer clear. A conflict might arise between the privacy expectations of the user, and his or her family and friends’ wish to utilise the digital remains for mourning and commemoration. Some service providers and platforms have recently addressed the quandaries of digital remains, and legal systems slowly begin to follow. As these technological and legal responses emerge, we should not neglect the users themselves. What do users want? How do users wish to manage access to their digital remains? Based on a national survey of Israeli population, this chapter reveals the multiplicity of users’ perspectives, perceptions and practices regarding access to digital remains – their own and others. The chapter points to the emergence of new social perspectives on posthumous privacy and commemoration in the contemporary digital age, and comments on their relevance to policymaking.
The death of Jeffrey Epstein eliminates the possibility of closure through a criminal trial for many of his alleged victims, though prosecutors are still looking at charging others. Civil forfeiture could be an option, but the process to attain the money from those assets is lengthy. The next angle for victims would be tort lawsuits for money damages against Epstein's estate. In fact, the first one has been filed in New York.
Professor Reid Kress Weisbord, the Judge Norma L. Shapiro Scholar at Rutgers Law School, says that there is an preliminary issue of how long victims have to file claims. If the estate is probated in New York there is a window of seven months. Another issue is how much money did Epstein truly possess? Court documents presented for the criminal trial state that he was worth $550 million, but others claim that this does take into account several different aspects of his extensive empire of assets. Even so, if the number of victim claims against the estate are excessive, it may not leave much for any heirs, including his younger brother, Mark Epstein.
Also, following a principle of British law, successful claimants cannot be awarded punitive damages against a person's estate, only compensatory damages. Meaning that if Jeffrey Epstein was still alive, not only would the victims have the satisfaction of justice through a trial, but they also could receive more money damages for the trauma they suffered.
See Naomi Cahn, Why the Question of What's Going to Happen to Jeffrey Epstein's Money is so Complicated, Forbes, August 15, 2019.