Wills, Trusts & Estates Prof Blog

The Musical Side of the Rule Against Perpetuities

Prof. Darryl C. Wilson (Stetson University College of Law) has recently published his article entitled Waltzing to R.A.P., 39 Creighton L. Rev. 129 (2005).  In the author's words, "this Article takes a very brief look at the common law real property rule and hopefully demystifies its meaning, simplifies its application, and verifies the sour notes that students have been singing about it are really a bum rap."

Given the limited amount time we have to cover RAP in most Property and T&E courses, Prof. Wilson's discussion of his teaching approach is both interesting and helpful.

Massachusetts Court Limits Same-Sex Marriage

For over two years, same-sex marriages have been permissible in Massachusetts.

Yesterday (March 30, 2006), the Massachusetts Supreme Judicial Court released it opinion in Cote-Whitacre v. Department of Public Health,  SJC-09436, upholding the validly of General Laws c. 207, § 11, which provides:

No marriage shall be contracted in this commonwealth by a party residing and intending to continue to reside in another jurisdiction if such marriage would be void if contracted in such other jurisdiction, and every marriage contracted in this commonwealth in violation hereof shall be null and void.

Thus, couples cannot come to Massachusetts from states which prohibit same-sex marriages and get married in Massachusetts.  However, couples from states that do not expressly prohibit same-sex marriages, may be able to get married in Massachusetts.

Specifically in this case,

as to the plaintiffs who reside in Connecticut, Maine, New Hampshire, and Vermont, a judgment for the defendants shall enter in the Superior Court because same-sex marriage is prohibited in those States. As to the New York and Rhode Island plaintiffs, their cases shall proceed in the Superior Court, on an expedited basis, for a determination whether same-sex marriage is prohibited in those States.

See also Pam Belluck & Katie Zezima, Massachusetts Court Limits Gay Unions, NY Times, March 31, 2006.

Probate Lawyer Exercised Undue Influence on His Parents

A judge in Long Island, New York recently ruled that Edward F. Campbell, Jr., a Manhattan probate attorney, exercised undue influence over his parents and used his superior legal skills to convince them to enter into an unwise transaction.

See Anthony Lin, Lawyer's Purchase of Home From Parents Found Too Good to Be True, N.Y.L.J.,
March 30, 2006, who reports:

For no down payment and a mere $1,000 a month, he was assigned the deed to a seven-bedroom house sitting on two wooded acres in a village where the median home sale price has been close to $2 million in recent years.  * * *

The purchase agreement provided that Campbell's parents, Edward Sr. and Lucy, could continue to live in the house for the rest of their lives, cared for by their son and daughter-in-law, Carol.

In their complaint, the elder Campbells claimed the arrangement had rendered them "virtual prisoners in their bedroom" who were "fed sandwiches for dinner" and denied air conditioning in the summer. * * *

Edward Jr., the oldest of nine children, also asked all of his living siblings to sign a release form agreeing not to sue over the agreement. The judge said it was significant that he did not also circulate a copy of the purchase agreement for his siblings to review.

[The parents' lawyer] said there was a history of strife within the family. He said Edward Jr. had cut off contact with his parents for most of the 1980s, apparently over their decision to invite a certain relative to the christening of one of Edward Jr.'s children. They did not speak again until the funeral of one of Edward Jr.'s brothers.

The judge seemed to reference the origins of the family strife in noting the unfairness of the purchase agreement in requiring the elder Campbells to seek permission to entertain guests in the house while placing no similar restrictions on Edward Jr.'s family.

Special thanks to Prof. Paul Caron (Tax Professor Blog) for bringing this case to my attention.

Life Insurance & Buy-Sell Arrangements

The American Bar Association is sponsoring a teleconference CLE program on April 5, 2006 entitled Life Has Never Been So Good:  Using Life Insurance Funded Buy-Sell Arrangements for Pass-through Entities.  The program is described as follows:

Life insurance is often used as a funding tool in buy-sell arrangements for owners of closely held businesses.  All too often, practitioners lack an understanding of the intricate tax effects that life insurance can have—especially the effects it can have on pass-through business entities.   

This program will awaken you to the benefits that life insurance can provide as a funding vehicle for buy-sell arrangements with a specific focus on S Corporations and Limited Liability Companies (LLCs). After this program, you will be able to:

• Recognize when an entity purchase may be more advantageous than a cross-purchase
• Explain how proceeds from company-owned life insurance impacts an owner’s basis
• Examine life insurance benefits from the use of an entity redemption for pass-through entities
• Avoid transfer for value problems

The Best Legal Blog Index

Ian Best has just released the most comprehensive index of legal blogs that I have ever seen.  I dare say it is the best taxonomy that exists!  Below are direct links to his major catagories, for your convenience:

I. General Blogs

Advice for Lawyers and Law Firms

General Legal Blogs

General Blogs – Law and Culture, Economics, Politics, etc.

    

II. Blogs Categorized by Legal Specialty

Specialty Blogs

    

III. Blogs Categorized by Law or Legal Event

Case Blogs

Statute Blogs

Trial Blogs

    

IV. Blogs Categorized by Jurisdictional Scope

State Blogs

Federal Circuit Blogs 

U.S. Supreme Court Blogs

    

V. Blogs Categorized by Author/Publisher

Anonymous Blogs

Association Blogs

Blogs by Judges

Book Supplement Blogs

Class and Student Group Blogs

Institute Blogs

Law Firm Blogs – Listed by Blog

Law Firm Blogs – Listed by Firm

Law Journal Blogs

Law Library and Librarian Blogs

Law Professor Blogs

Lawyer Webjournals

Newspaper Blogs  

    

VI. Blogs Categorized by Number of Contributors

Group Blogs

    

VII. Miscellaneous Blogs Categorized by Topic

Blogs about Judges

Event Blogs

Fictional Blogs

Humor Blogs

    

VIII. Collections of Legal Blogs

Blog Post Collections

Legal Blog Collections

Legal Blog Networks

To learn more about Ian and his fantastic efforts, see Ian Best: Blogging for Credit, Moritz e-Record, March 27, 2006.

UMKC Seeks Visitor

The following information is adapted from several postings on the PropertyProf mailing list:

University of Missouri - Kansas City School of Law is looking for visitor to teach Property and Estates and Trusts in the Fall 2006 semester. It will consider a person to teach Property and Estates and Trusts in the Fall semester, or to teach two sections of Property. If this person is available and interested, we may make the visit a full year with the visitor teaching Property II and another course to be determined in the Spring.  We can afford someone at the mid-level for a year, or a senior person for a semester. We could also do a retired faculty member for ¾ pay, and ask them to teach two courses in the fall and one in the spring.

The first year Property course is part of our six unit Property requirement. The course covers basic concepts of ownership and possession (including personal property issues), adverse possession, cotenancy, estates in land, marital property, and nuisance law.  Here's your chance to spread your wings beyond the confines of the tiny little four or five unit course you're stuck in.

The UMKC Law School typically is ranked in or near the top tier, depending upon the vagaries of the U.S. News marketing program. It is located in a very pleasant residential neighborhood near the Country Club Plaza in Kansas City. The faculty is congenial and a very interesting group of folks.

Kansas City is a terrific place to spend the fall (which normally has a great "leafing season"). The city has a very strong cultural presence - a world class art museum (the Nelson Atkins Museum), excellent professional theatre (located in the on-campus playhouse) opera, ballet, and symphony offerings both indigenous and visiting, and terrific visual arts. The Kansas City Arts institute is virtually adjacent to our campus, and next to that is the Kemper Museum of Contemporary Art and the "Art Space" maintained by H. & R. Block. Visitors would overlap the season for the Royals (which are certain to be in a playoff hunt) and the Chiefs (likely to go to the Super Bowl). Interested parties will be hosted to both stadiums (Chiefs are perennially sold out - but I have season tickets.)

I'm not leaving, so, to the extent it's valuable for you, you'll be here at "DIRT central" and you'll find me a convivial foil for your views on the subject of Property. This is not a formal "look see" visit, although we may have needs in Property at some future time.

Interested parties should contact Associate Dean Jeff Thomas at 816 235 2378.

Baby Boomers Fear Small Inheritances

In Empty Nest Eggs: Inherit the Wind; There's Little Else Left, NY Times, March 26, 2006, Eduardo Porter reports that:

As the baby boomers deal with the final days of their aged parents, a question often lurks, sometimes unspoken, in the pragmatic discussions about nursing homes, retirement savings, the future of the family house: After all the living is done, will anything be left over for an inheritance?

After all, the evidence shows that baby boomers are going to need it: working Americans are unprepared for their own retirement, economists say. They have little savings of their own, and are facing the possible erosion of Social Security and the limits of company pensions.

Parents often rely on their children for assistance in making a wide variety of financial and health care decisions.  Parents seem to have a "special trust" for advice from their children.  The reality is, however, that many children will "lead" their parents to make decisions which they think will increase the likelihood of a larger windfall upon the death of the parents.

Attorneys and others involved in the estate planning field needs to recognize that a child's self-interest may play a significant part in the advice he or she provides a parent.

Family Property Law (4th ed.) Set for April Release

Foundation Press has recently announced that an April 2006 release date has been set for Lawrence W. Waggoner (University of Michigan Law School), Gregory S. Alexander (Cornell Law School), Mary Louise Fellows (University of Minnesota Law School), and Thomas P. Gallanis (Washington and Lee University School of Law), Family Property Law (4th ed. 2006).

The following description is from the publisher's announcement:

[This edition] is dedicated to the memory of Richard V. Wellman * * * [and] continues the tradition of the previous editions in identifying new themes and perceptively reporting on new developments in the area of family wealth transmission. Please note that the authors have succeeded in their efforts to reduce the size (and weight) of the previous edition by nearly 30%, while steadfastly maintaining wide coverage in this evolving area. * * *

The forthcoming Teacher's Manual for the new edition will be published this spring. It gives the authors' analysis of all of the cases and problems in the book. An electronic version of the Teacher's Manual will also be made available to those adopting the book, thus facilitating preparation of lecture and discussion notes.

The Fourth Edition will be sent upon publication to all law school professors teaching Trusts and Estates. Other professors wishing to review the primary text may contact a Foundation Press Account Manager at 1-877-888-1330. If preferred, an email can be sent to the Foundation Press Account Managers. Please use ISBN 1-59941-070-2 when placing an order with your bookstore.

[New coverage includes]:

• Innocuous will-execution errors, traditionally associated with home-drawn wills, but now starting to arise in lawyer-supervised ceremonies. * * *

• The growing body of federal law dealing with innocuous execution errors by employees seeking to change the beneficiary designation of their ERISA-covered employee benefit plans. * * *

• Same-sex marriage and civil unions or domestic partnerships.

• The continued emergence of off-shore and domestic asset-protection trusts. * * *

• Recent developments in the law of charitable trusts. * * *

• The perpetual-trust movement facilitated by the abolition of the rule against perpetuities. * * *

• Recent developments in fiduciary law. * * *

• Comprehensive coverage of the ongoing law-reform movement. * * *

I would be afraid, very afraid

Bruce Williams is the author of a popular syndicated financial advice column entitled Smart Money.

In his March 21, 2006 column, Mr. Williams reprinted a letter from an Idaho reader who wrote:

This summer, I will be inheriting approximately $100,000.  My current mortgage balance is $40,000.  Should I use this money to pay off my mortgage or invest the entire amount?

The answer addressed the financial question but begged the question that first came to my mind, "How does the reader know he is going to inherit 100Gs?"  If were related to this reader, did not have a will, and had sufficient funds that under intestacy someone would inherit about $100,000, I would not be sleeping very well ----

Terri Schiavo -- The Book Battle Begins

We are rapidly approaching the one year anniversary of the death of Terri Schiavo who died on March 31, 2005.  Both sides in this protracted battle are releasing books today to justify their positions.

• The Husband -- Michael Schiavo & Michael Hirsh, Terri: The Truth (2006).
   
• The Parents -- Mary and Robert Schindler, Bobby Schindler, & Suzanne Schindler Vita, A Life That Matters : The Legacy of Terri Schiavo -- A Lesson for Us All (2006).

Amazon.com is running a special -- you can buy both books as a "package" for only $31.29.