Wills, Trusts & Estates Prof Blog

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

Friday, June 30, 2006

Revocable trust is subject to right of election

Under the former Iowa law, a surviving spouse was entitled to an elective share comprising one-third of legal or equitable estate in real property “possessed by the decedent at any time during marriage” and one-third of the decedent’s personal property in addition to all exempt property. The court in Sieh v. Sieh, 713 N.W.2d 194 (Iowa 2006) held that the right of election extends to a revocable trust created by the deceased spouse before marriage, expressly adopting the positions in the Restatement (Third) Property, §9.1(c) and Restatement (Third) Trusts, §25. Note that state law has been amended to subject a revocable trust to the elective share.

June 30, 2006 in New Legislation, Trusts | Permalink | Comments (0) | TrackBack (0)

Thursday, June 29, 2006

Validity of Holographic Wills

In Berry v. Trible, 626 S.E.2d 440 (Va. 2006), the court reiterated the criteria for holographic wills. The handwriting must stand alone if the document is to be a valid holographic will. The court reversed the admission to probate of handwritten additions to a typewritten document because the handwritten language was “interwoven with the text, both physically and in sequence of thought” and the typewritten language therefore could not be ignored as surplusage.

June 29, 2006 in New Cases, Wills | Permalink | Comments (0) | TrackBack (0)

ABA CLE Meeting

The ABA Section of Real Property, Probate & Trust Law and Section of Taxation are co-sponsoring a Fall CLE Meeting from October 19-21,2006 at the Hyatt Regency in Denver, Colorado.

June 29, 2006 in Conferences & CLE | Permalink | Comments (0) | TrackBack (0)

Standards of Prudence and Management of the Insurance Portfolio (Part 2 of 4)

In the Summer 2006 edition of the ACTEC Journal, Kathryn A. Ballsun, Patrick J. Collins, and Dieter Jurkat, write the second part of a four part series of articles. Titled “Standard of Prudence and Management of the Insurance Portfolio,” this part examines the impact of the Prudent Investor Rule on holding life insurance in a trust. “Part 2 of this article provides insight into the skill sets required by trustees wishing to retain investment management functions.”

June 29, 2006 in Articles, Non-Probate Assets, Trusts | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 28, 2006

Enforcement of buy-sell agreement is barred by nonclaim statute

In Steen and Berg Co. v. Berg, 713 N.W.2d 87 (N.D. 2006), a corporation brought an action against the shareholder’s estate for specific performance of a buy-sell agreement well beyond the three-month period for bringing claims under the state’s version of the Uniform Probate Code. Reversing the trial court, a divided court held that the action involved a claim that was barred by statute in an opinion extensively discussing cases from other UPC jurisdictions.

June 28, 2006 in New Cases, Wills | Permalink | Comments (1) | TrackBack (0)

Court rejects latent/patent distinction

In University of Southern Indiana v. Baker, 843 N.E.2d 528 (Ind. 2006), the Supreme Court of Indiana rejected the distinction between latent and patent ambiguities. The decedent’s will poured over to her trust, in which she gave all of her automobiles, furnishings, “and other personal property” to her brother, a gift of $10,000 to a friend, and the residue of the trust proper to charity. The probate court found and the intermediate appellate courts affirmed that the language gave all of the decedent’s tangible and intangible personal property to her brother. The Supreme Court reversed based on extrinsic evidence, saying the distinction between latent and patent ambiguities “no longer serves any useful purpose” and that all relevant extrinsic evidence may be considered when resolving an ambiguity.

June 28, 2006 in New Cases, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 27, 2006

Domestic Partners of 9/11 Victim get Monetary Awards

In Cruz v. McAneney, (N.Y.A.D. 2 Dept) 2006 WL 1174142, the domestic partner of a victim of the terrorist attacks of September 11th, 2001, brought suit against the victim’s estate, seeking to recover all or part of a monetary award distributed by the federal Victim Compensation Fund. The defendant, the victim’s brother, moved to dismiss the complaint saying that it failed to state a cause of action.

The court said in pertinent part:

Viewing the allegations in the light most favorable to the plaintiff, justice in the instant case could conceivably require the imposition of a constructive trust, and concomitantly show that the defendant, in his personal capacity, would be unjustly enriched if he was also allowed to retain the portion of the Fund's award that was allegedly increased after the plaintiff's application to the Fund and in recognition of the plaintiff's loss of her lifetime partner.

The legislation enacted in our State following the September 11, 2001, terrorist attack also lends support to the argument that the plaintiff may be entitled, at least, to the increased portion of the award as compensation for her loss, such as a law providing same-sex domestic partners with certain rights to compensate for the loss of their loved ones due to this specific, horrific event.

The Legislature declared, inter alia, “that domestic partners of victims of the terrorist attacks are eligible for distributions from the federal victim compensation fund, and the requirements for awards under the New York State World Trade Center Relief Fund and other existing state laws, regulations, and executive orders should guide the federal special master in determining awards and ensuring that the distribution plan compensates such domestic partners for the losses they sustained” (L. 2002, ch. 73, § 1).

Although this legislation did not make any changes to this State's intestacy laws, it recognized that domestic partners should be compensated from the Fund for the loss of their loved ones ( see 2002 McKinney's Session Laws 8 N.Y. at 1710).

June 27, 2006 in Current Events, New Cases, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)

New Hampshire passes new trust statute

In the June 2006 Real Property and Probate Bulletin, Christina Thoda of Fulbright & Jaworski L.L.P. writes:

The Trust Modernization and Competitiveness Act, SB 394, passed by both houses of New Hampshire's legislature this past April, amends the state's current trust statute in order to make New Hampshire more attractive for those individuals establishing or servicing trusts. Backers of the bill argue that the new legislation, along with the state's lack of income tax and already favorable trust laws, will benefit New Hampshire by potentially creating new jobs and millions in state business tax revenue. The legislation streamlines the application process for the formation of trust companies and clarifies the authority of these companies, conferring upon them the power and privileges applicable to a limited liability corporation. The statute provides for the appointment of Trust Protectors and Trust Advisors and states that Trustees are not responsible for the acts of such Protectors and Advisors. The provisions of the Uniform Principal and Income Act, including the Power to Adjust, are adopted in the New Hampshire Act. The Act also allows for the formation of "Family Fiduciary Services Companies"--entities which specifically service one or more family members rather than the general public. Though these new companies would not be allowed to take deposits or make loans, the law essentially allows any family with $500,000 in start-up capital to form their own private trust company to manage and control the family's wealth. A final key provision of the law includes additions, ensuring that confidential information only be shared with state and federal regulators.

June 27, 2006 in Articles, New Legislation, Trusts | Permalink | Comments (0) | TrackBack (0)

Monday, June 26, 2006

Statutes of Limitations

The first personal representative in Verbrugghe v. Select Spec. Hosp., 270 Mich.App. 383 (Mich.App.), was appointed on December 26, 2001. On December 2, 2003, he filed notice of his intent to bring a medical malpractice suit and thereafter filed suit on June 24, 2004. On September 27, 2004, Suzanne Verbrugghe, the first personal representative’s sister, was issued letters as the successor personal representative. She then proceeded to file a second law suit on October 21, 2004. The trial court dismissed both actions, saying the statute of limitations had run. The appellate court reversed on the second cause of action, saying it was timely filed.

The court first cited MCL 600.5852, which states:

If a person dies before the period of limitations has run or within 30 days after the period of limitations has run, an action which survives by law may be commenced by the personal representative of the deceased person at any time within 2 years after letters of authority are issued although the period of limitations has run. But an action shall not be brought under this provision unless the personal representative commences it within 3 years after the period of limitations has run.

Continuing, the court said:

Under the plain language of the statute…we conclude that plaintiff timely filed this complaint. The decedent died within two years of the cause of action accruing, plaintiff's letters of authority were issued on September 27, 2004, and the complaint was filed less than a month later, on October 21, 2004. Finally, plaintiff commenced this lawsuit before October 14, 2006. Thus, plaintiff's complaint was filed in strict compliance with MCL 600.5852.

June 26, 2006 in New Cases, Wills | Permalink | Comments (0) | TrackBack (0)

Father not an Interested Person under Will

Amy Hewitt died suddenly after completing a marathon from a heart condition discovered post-mortem, and her husband was the primary beneficiary and personal representative under her will. Thereafter, her father, Edwin Hewitt petitioned the court to be appointed special administrator of the estate, wanting access to her medical records and an investigation into her death. The court in In re Estate of Hewitt 897 A.2d 807 (Me. 2006) said her father was not an interested person and therefore could not be appointed as special administrator of the estate.

In the present case, Amy Hewitt left a will that named her husband as the primary beneficiary and personal representative of her estate. Moreover, the will named alternative devisees and an alternate personal representative. It is significant that Edwin Hewitt was not included in the will as an alternate devisee or personal representative. The remote possibility that Edwin Hewitt could have been appointed personal representative under a significantly different factual scenario does not mean that he has an interest in the estate.

June 26, 2006 in New Cases, Wills | Permalink | Comments (0) | TrackBack (0)