Friday, June 24, 2005
On Friday, June 17, 2005, Retired Col. Mary M. Diggs was murdered at age 74 by another woman who was jealous of Mary's romantic relationship. The woman shot Mary in the head during a pool party.
President George Washington was Mary's fifth great uncle on her mother's side of the family.
Mary was an animal lover and her will left $2,000 for the care of each of her thirteen cats.
In Phillips v. Ivy, 160 S.W.3d 91 (Tex. App.—Waco 2004, pet. denied), Testator’s will left a life estate in his real property to Wife with remainder to Daughter. The life estate included all mineral interests such as rents, profits, royalties, and bonuses. Wife executed a disclaimer of all interests under this provision other than the life estate. Although the disclaimer seemed unnecessary because Wife was only granted a life estate, her tax attorney explained that the disclaimer was to make doubly sure the remainder interest would not be included in Wife’s estate.
Daughter claimed that Wife’s disclaimer caused her to retain only a conventional life estate in the property and that she waived her rights to the enhancements granted in the will such as the mineral rents, profits, royalties, and bonuses. Both the trial and appellate courts rejected Daughter’s claims.
The court explained that Testator specifically granted Wife more than a conventional life estate. Instead, he granted a life estate enhanced by the mineral interests. The court then stated that there was no reason to disagree with the trial judge’s conclusion that the disclaimer did not waive Wife’s interests in the enhanced life estate features.
Note: The dissenting opinion argued that the disclaimer’s reference that only a “life estate” was retained should be interpreted as the retention of only a conventional life estate. Thus, the dissent believed that Wife waived her right to the mineral enhancements.
Moral: To avoid this type of litigation, a disclaimer should precisely state the interests being disclaimed and retained by tracking the language of the will.
Thursday, June 23, 2005
Effective May 23, 2005, the Illinois Supreme Court added Rule 1.17 to the Illinois Rules of Professional Conduct to permit the transfer of a legal practice joining the other 38 jurisdictions with similar provisions.
The Rule provides that a "lawyer, the estate of a deceased lawyer, or the guardian or authorized representative of a disabled lawyer may transfer or sell, and a lawyer or a law firm may accept or purchase, a law practice, including goodwill," if the conditions listed in the Rule are satisfied.
The Illinois Rule is more sophisticated than ABA Model Rule 1.17, and unlike the ABA Rule, the seller must part with the entire law practice, not just the practice dealing with a specific area of the law.
In New Court Rule Permits Practice Sale, Transfer Due to Disability, Death, ISBA Bar News, June 1005, at 1, Stephen Anderson explains that the "ISBA has advocated for almost two decades that such a rule would benefit clients by ensuring continuity of legal service, and would reduce the burden on families of sole practitioners who die unexpectedly or become disabled."
The July 2005 issue of Consumer Reports contains an informative article entitled Assisted Living -- How Much Assistance Can You Really Count On?
Here are the key findings:
- Most facilities are operated by small private companies that don't provide information--including data on their financial strength--needed to make a decision.
- Neither size, décor, nor amenities necessarily determines the quality of care or assistance available at a facility.
- There is no standard for care that should be provided and no clear guideline to indicate who belongs in assisted living and who doesn't.
- The nearly 1 million people who now live in assisted-living residences have become frailer, raising concerns about their safety and care.
- States regulate assisted living but provide little oversight or protection for residents.
The article also contains a list of the 12 steps a person should follow to locate a suitable assisted living facility:
- Create a list of possibilities.
- Call your state's long-term-care ombudsman.
- Meet with a geriatric-care manager.
- Tour the top four or five choices.
- Request the documents you need to help you make a decision.
- Talk to the residents
- Observe what people are doing.
- Ask to meet with the administrator.
- Study the staff.
- Visit unannounced.
- If you are shopping for a relative, bring him or her on your visits.
- Monitor the care.
Wednesday, June 22, 2005
Here is a short excerpt from the article, Even in Death, Acrimony Over Schiavo: Husband Buries Remains Before Notifying Her Parents, Associated Press, June 21, 2005:
Michael Schiavo angered his late wife’s family Monday by not notifying them about the burial beforehand and by inscribing on her bronze grave marker the words “I kept my promise.”
Michael Schiavo — who said he promised his wife he would not keep her alive artificially — also listed Feb. 25, 1990, as the date his wife “Departed this Earth.”
Click here to see the actual grave marker.
Prof. Featherston's award winning article is entitled What a Spouse Can Do to Unilaterally Protect that Spouse's 'Estate' From the Other Spouse and the Other Spouse's Creditors and Heirs, State Bar of Texas, Advanced Estate Planning and Probate Course, ch. 9 (2004).
The Executive Director of the College, Pat Nester, explains that the article "is informative and insightful and sheds new light on an area of law that many practitioners might have thought were settled." Annual Awards Program at "Spring Training," The College Bulletin, Summer 2005, at 4.
Tuesday, June 21, 2005
In Trust Transparency, 93 Ill. B.J. 278 (2005), Helen W. Gunnarsson, a Highland Park, Illinois attorney, reveals the results of an e-mail discussion among members of the Illinois bar which revealed that most participants believed that a beneficiary is entitled to see the trust instrument.
The article includes a discussion of the possible grounds for having different rules for current and contingent beneficiaries, especially if the trust is revocable.
Monday, June 20, 2005
After Mother died, a dispute arose over the settlement of her estate. Sister and Brother entered into mediation.
During a mediation meeting, Brother told Attorney that he would "have to kill" Sister if Attorney could not resolve the dispute.
Attorney did not resolve the dispute fast enough so Brother carried out his threat and also killed himself in the process.
Later, the estate of the now-deceased Sister brought suit against Attorney for failure to warn Sister of the threat.
In Hodgson Russ, LLP v. Trube, 867 So. 2d 1246 (Fla. Ct. App. 2004), the court held that Attorney's statement was not protected by the attorney-client privilege.
In Protect Public Benefits for Your Special-Needs Client, Trial, June 2005, at 44, Jason D. Lazarus, a member of The Cochran Firm, dispels a dozen common myths about special-needs trusts.
Here a few examples of the debunked myths:
- "Clients who receive Medicare and Social Security Disability Insurance require special-needs trusts."
- "My client's special-needs trust can pay for anything."
- "A structured settlement alone will preserve my client's Medicaid eligibility."
- "At the client's death, funds left in the special-needs trust will go to his or her beneficiary."