Wills, Trusts & Estates Prof Blog

"I See [Parts of] Dead People"

The family of an organ donor may sometimes visit with the donees who received the donor's organs.  In the words of the LifeGift Organ Donation Center:

LifeGift supports and coordinates communication between donor families and recipients. While some donor families never feel comfortable writing to or meeting their recipients, many others find this interaction extremely rewarding. Recipients also appreciate the opportunity to express their gratitude to their donor families and to learn about their donors.

A recent article relates one of these reunions and impact on the lives of the donor's family members and the donees.  See John Davis, Reunion for Organ Recipients Stirs Emotions for Couple Who Lost Son, Lubbock Avalanche-Journal, Aug. 20, 2005, at A10.

Implementation of Hawaiian Trust Deemed Discriminatory

The Ninth Circuit has recently released its opinion in Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate, 416 F.3d 1025 (9th Cir. 2005), holding that the way in which a charitable trust was administered was discriminatory because it barred individuals from a non-preferred race from receiving benefits.

Here are a few excerpts from the case:

Since 1887, the Kamehameha Schools have operated as the charitable legacy of Princess Bernice Pauahi Bishop, the last direct descendant of King Kamehameha I. Private and non-sectarian, the Kamehameha Schools give preference to students who are of native Hawaiian ancestry. As a result of this policy, attendance at the Kamehameha Schools is effectively limited to those descended from the Hawaiian race. The issue considered here is a significant one in our statutory civil rights law: May a private, nonsectarian, commercially operated school, which receives no federal funds, purposefully exclude a student qualified for admission solely because he is not of pure or part aboriginal blood? * * *

The facts are not in dispute. The Kamehameha Schools comprises a system of private, nonsectarian schools which are dispersed among the Hawaiian Islands. * * * The school system was founded in 1887 under a “charitable testamentary trust established by the last direct descendent of [Hawaii's] King Kamehameha I, Princess Bernice Pauahi Bishop.” * * * At the time of her death in 1884, Princess Pauahi Bishop was the largest landowner in Hawai‘i, owning approximately one-tenth of the aggregate lands. Her will provided that the bulk of her estate should be placed in a charitable trust “to erect and maintain in the Hawaiian Islands two schools, each for boarding and day scholars, one for boys and one for girls, to be known as, and called the Kamehameha Schools.” * * *

The Schools forthrightly admit that as long as there are qualified students who possess at least some native Hawaiian ancestry, they will be admitted before even the most qualified of those who lack aboriginal blood. It is this “Hawaiians first” admissions policy that motivates the instant controversy. * * *

We cannot agree with the district court's conclusion that the challenged program constitutes a valid affirmative action plan supplying a legitimate nondiscriminatory reason for the Schools' racially exclusionary admissions policy. Under the principles we find controlling, the Schools' absolute bar to admission on the basis of race is invalid. * * *

We emphasize that our ruling today is a narrow one. We conclude only that the plaintiff-appellant has met his burden of establishing the invalidity of the racially exclusionary affirmative action plan in place at the Kamehameha Schools, as that plan currently operates as an absolute bar to admission for those of the non-preferred race. Nothing in our decision, however, implicates the validity of the Pauahi Bishop Will, as we do not read that document to require the use of race as an admissions prerequisite.

Family Law Blog Added to Law Professors Blog Network

The Law Professors Blog Network has just added the Family Law Prof Blog.

This new blog is edited by Ruby M. Hulen Professor Barbara Glesner Fines (Missouri-Kansas City), Professor Robert E. Oliphant (William Mitchell), and Associate Professor Nancy Ver Steegh (William Mitchell).

Some of the topics covered on this blog may also be of interested to those of us teaching in the Wills, Trusts, and Estates field.

Touring Corpses

Just a few steps removed from the Rolling Stones upcoming road trip is the BODIES, the Exhibition.

According to the Exhibition's website, this exhibition has "educational relevance for all ages."  The exhibition uses real human specimens to "immerse[] visitors in the complexities of the human body, telling us the amazing story of ourselves with reverence and understanding."

The promoters have used a special process to replace soft tissue with rubber.  The skin is then removed to expose all of the person's innards such as organs, bones, veins & arteries, and brain.

Although this sounds macabre, the exhibition has been enormously popular with more than 12,000 people visiting the exhibit at Tampa's Museum of Science and Industry in just four days, breaking the record previous held by the Titanic exhibit.  See Human cadaver exhibit breaks museum records,  Sarasota Harold-Tribune, Aug. 23, 2005.

The exhibit has also caused considerable controversy because it appears that consent of the body donors was not obtained.  Reports claim that the bodies are those of citizens of China who, after dying, were either unidentified or unclaimed by their families.  The Florida Anatomical Board opposed the exhibition because the donors had not consented in writing.  See Would you have allowed 'BODIES, the Exhibition' to open?, Sarasota Harold-Tribune, Aug. 21, 2005.

Note that other groups of decedents are also on tour.  For example, the Body Worlds 2 exhibit is at the Great Lakes Science Center in Cleveland until September 18, 2005.  If by any chance you attend, I would be pleased to post your review.

Estate Tax Battle Lines Drawn

An article in USA Today provides a detailed coverage of the looming battle over whether to make the estate tax repeal permanent.  See Richard Wolf, Opposing Groups Ready for Estate Tax Fight, USA Today, Aug. 29, 2005, at 6A.

Organizations in favor of repeal are advertising and lobbying intensively in an attempt to influence an upcoming vote in the Senate in early September (the House has already approved the repeal).

Organizations agreeing with the "no taxation without respiration" approach include NoDeathTax.org, Club for Growth, and the Free Enterprise Fund.

Organizations in favor of retaining the death tax include United for a Fair Economy and Americans for a Fair Estate Tax.

Deadline for 2005 Estate Planning Practice Strategies Survey

Earlier on this blog, I discussed the 2005 Estate Planning Practice Strategies Survey.

I have just learned that the deadline to participate is the morning of Thursday, September 1, 2005.

Again, please consider completing the survey -- the results should be very interesting!!

Tax Apportionment and Illinois Law

Attorney, CPA, and CFO with Frye Louis Capital Management in Chicago, David A. Berek has recently published an article entitled Taxes, Marital QTIP Trusts, and Anti-Apportionment Clauses, 93 Ill. B.J. 418 (2005).

This article warns practitioners, especially those practicing in Illinois, that "[i]t's time to revisit the language you've been using in QTIP trusts to shift the tax burden to residual beneficiaries."

Fallout From the Trio of "My Two Moms" California Cases

An earlier entry in this blog discussed the trio of cases decided by the California Supreme Court on August 22, 2005 holding that an individual could have two female parents.

For an interest account of immediate fallout from these cases, see David L. Hudson Jr., Same-Sex Parents, Same Responsibilities: California Supreme Court: Lesbian Partners Can Both Be Legal Parents, ABA J. e-Report, Aug. 26, 2005.

For example,  Courtney Joslin, senior staff attorney for the National Center for Lesbian Rights, is quoted as being pleased that these decisions, in effect, hold "that a lesbian or gay partner who agrees to bring children into the world through assisted reproduction is a full legal parent,"

On the other hand, Mathew D. Staver, president and general counsel of Liberty Counsel, opines that "the court has undermined the family. Gender does matter to children. Today’s ruling underscores the importance of amending California’s constitution to preserve marriage as one man and one woman. The people of California will not put up with such nonsense."

2005 Estate Planning Practice Strategies Survey

The following is extracted from an e-mail I received from Ms. Jennifer Campbell, VP/CEO of Integrity Marketing Solutions:

I noticed your interest in the Estate Tax Debate, and wanted to personally invite you to participate in our 2005 Estate Planning Practice Strategies survey. We conducted our first survey on this topic in January 2001, the results of which were published in Trusts & Estates magazine.

If you haven't completed the survey yet yourself, please click here now. It will only take a few moments of your time -- and there is nothing to buy or sell. Everyone who completes the survey will receive a free copy of the final report.

Also, if you could please help us get the word out to estate planning attorneys about our 2005 Estate Planning Practice Strategies Survey. Your collaboration in this research project is important. It will help attorneys practicing in this field plot a course for success regardless the outcome of federal estate tax reform.

Information about the survey is also available on our blog at http://integritymarketing.typepad.com/ims/

I encourage you to complete the survey -- the results should be very interesting!!

Note:  The deadline to participate is September 1.

Prof. Amy Morris Hess Honored

Congratulations are given to Amy Morris Hess, the UTK Distinguished Service and Waller Lansden Dortch and Davis Distinguished Professor of Law at the University of Tennessee College of Law, who recently received the 2005 Treat Award for Excellence from the National College of Probate Judges.

This award recognizes Prof. Hess for her many contributions to the development of probate and trust law including her work on the revision of the multi-volume Bogert treatise.