Wills, Trusts & Estates Prof Blog

New Utah Laws

Utah has recently adopted the Revised Uniform Anatomical Gifts Act (2007 Utah Laws 60) and the Advance Health Care Directive Act (2007 Utah Laws 3).

New South Dakota Laws

South Dakota has recently adopted the Revised Uniform Anatomical Gifts Act (2007 S.D. Sess. Laws 197) and has revised the law governing living wills including the statutory form (2007 S.D. Sess. Laws 75).

New Arkansas Laws

Arkansas has recently adopted the following Acts:

• Uniform Estate Tax Apportionment Act.    2007 Ark. Acts 276.
• Uniform Statutory Rule Against   Perpetuities.  2007 Ark. Acts 240.

Britain's Wealthy Getting Richer

According to Richard Woods, Super-rich treble wealth in last 10 years, Times Online, April 29, 2007, the rich are getting richer in Britain.

The 260% rise in the wealth of Britain’s richest contrasts with a 120% average wealth increase for the population as a whole. Britons have benefited from the booming housing market but, unlike the super-rich, have done less well with their financial investments.

As the prime minister prepares to leave Downing Street, one legacy is a nation that has become a haven for the international super-rich. The number of billionaires living in Britain has surged to 68, up from 54 last year. About a third are from overseas and only three of the wealthiest 10 billionaires were born here [Britain].

The richest are Lakshmi Mittal, the Indian-born steel magnate now worth £19.25 billion, and Roman Abramovich, the Russian oil tycoon valued at £10.8 billion.

“They have come for the tax, the social circles and the security,” said Philip Beresford, the compiler of the list. “At first they were concentrated in London but now they are snapping up country estates.”

Complex rules on residency and domicile status mean the super-rich from overseas can, as one accountancy expert put it, “avoid paying virtually any tax in Britain apart from council tax”. Beresford added: “There’s the cluster effect. Russians have followed Abramovich, Indians are following the Mittals and Swedes are following the Rausings.”

Special thanks to Prof. Joel C. Dobris of the University of California-Davis for bringing this article to my attention.

Scott Finally Beamed Up

As discussed several times before on this blog [here, here, and here], on July 20, 2005, the actor James Doohan passed away at age 85.  Mr. Doohan is well-known for his portrayal of the chief engineer, Scotty, on the Enterprise, a starship traversing the universe in the television and movie Star Trek franchise.

After several delays, the rocket launch to send some of his cremains into space took place on Saturday, April 28, 2007.  According to Wendy Brundige, Beam Me Up, Scotty, ABC News, April 28, 2007, the launch was a success and include the cremains of about 200 people.  However,

Saturday's launch is a suborbital mission, meaning the spacecraft -- and the remains onboard -- reach the outer reaches of the atmosphere and fall back to Earth.

"We launch his remains into space and return them so there's a keepsake of a little bit of Scotty who has flown to space," Chafer said.

But Chafer said another portion of Doohan's ashes will fly on a future mission, when they will be released into orbit.

Disinheritance -- English Style

For an interesting discussion of the English approach to disinheritance, see Sally Hamilton, With the best will in the world . . ., The Observer, April 29, 2007.

Here are a few excerpts from the article:

Wills can be challenged in court by disappointed would-be beneficiaries, and they can be declared invalid for a host of reasons - not least 'undue influence' or if the will writer was not of sound mind. Even inappropriate use of legal 'gobbledegook' or loss of the original copy are reasons for a will to be declared invalid. The most cunning plans to disinherit can fail if it can be argued that you have ignored your 'moral obligations' to family members. The result could be changes to your will and even an ugly family feud. * * *

There are five main ways for a will to be challenged, with additional rights available under the Inheritance (Provision for Family and Dependants) Act 1975, which allows certain people to be given 'reasonable provision' from a will.

Ms. Hamilton then lists these reasons as follows:

• Forgery or fraud
• Undue influence
• Testamentary capacity
• Knowledge and approval
• Due execution

In addition:

Certain people omitted from a will - known as 'disappointed beneficiaries' - can make a claim under the Inheritance Act 1975, which says everyone has a moral obligation to look after a spouse, children or other dependants that they have supported in some way for at least two years before their death. In some circumstances, this can include mistresses.

Special thanks to Prof. Joel C. Dobris of the University of California-Davis for bringing this article to my attention.

Anna Nicole Smith Update

The court in the Bahamas is going to permit Dannielynn's father, Larry Birkhead, to leave the country with Anna Nicole Smith's daughter.

A custody dispute between Dannielynn's biological father (Larry) and her biological grandmother (Virgie Arthur) is still ongoing but it is going to be a court in the United States that will make the final decision.

The Bahamian court also updated Dannielynn's birth certificate to add Larry's name as the father and remove Howard K. Stern's name who had claimed to be Dannielynn's father.

The court also ordered Anna's mother to pay $3,000 to Birkhead in legal costs.

See AP, Bahamas court says Birkhead may leave with baby, CNN.com, April 27, 2007.

James Brown Update

According to AP, Judge allows James Brown's partner to choose special guardian for her son, International Herald-Tribune, April 25, 2007:

• Tomi Rae Hynie (James Brown's alleged fourth wife) may select the special legal guardian for her son according to an April 25, 2007 court ruling.
• This guardian will be Stephen M. Slotchiver (attorney, Charleston, S.C.).
• The trustees of James Brown's trust had submitted a list of attorney whom they preferred.
• Now that the court has appointed a guardian, a DNA test on Hynie's child is possible to determine whether James is the father.
• However, the court did not order the paternity test because the child has not yet made a claim against the estate.

Australian Intestacy Laws and Indigenous People

Prue E. Vines (Associate Professor, University of New South Wales) has recently posted her article entitled  Drafting Wills for Indigenous People: Pitfalls and Considerations on SSRN.

Here is the abstract of her article:

Intestacy laws in Australia are grossly inadequate to deal with the inheritance issues of Indigenous people. This paper sets out some of the considerations which are important if wills are to be drafted to meet these needs. The article considers dealing with kinship issues, guardianship and the disposal of the body, but in particular focuses on the use of equitable vehicles to protect customary law obligations and secret knowledge.

Divorce and Step-Child Bequest

In re Estate of Nash, 2007 WL 1163925 (Tex. 2007), Testator’s will left his entire estate to Wife, but if Wife failed to survive him by thirty days, to Step-Daughter.  Testator later divorced Wife but did not change his will.  Wife outlived Testator by more than thirty days.  The trial court determined that Step-Daughter was entitled to Testator’s estate because under Texas Probate Code § 69, Wife is treated as predeceasing Testator because of the divorce.  Thus, the condition of Step-Daughter’s gift was satisfied, that is, legally, Wife did not outlive Testator by thirty days.

The appellate court reversed and the Supreme Court of Texas affirmed on April 20, 2007.  The court recognized that Texas Probate Code § 69 provides that the divorce causes the will to “be read as if the former spouse failed to survive the testator.”  However, the court explained that this reading of the will is only with respect to provisions in favor of the testator’s former spouse and that other will provisions remain undisturbed.  Because the alternative gift was not to Wife, Wife is not legally dead with respect to the condition on Step-Daughter’s gift.  Since Wife was biologically alive thirty days after Testator’s death, the condition on Step-Daughter’s gift was not satisfied.  Testator’s will lacked another alternative gift and thus Testator’s estate passed by intestacy to his mother and brother.

Moral:  A testator who makes a testamentary gift to a spouse should include express instructions in the will regarding the disposition to be made of that property if they are later divorced paying particular attention to gifts that are conditioned on the spouse predeceasing the testator.  Alternative gifts, unless to individuals who would also be ex-relatives whom the testator would not want to benefit if a divorce occurred, should state, “If [primary beneficiary] does not survive me by [number] days or is otherwise unable to take under this provision of my will, I leave this property to [alternative beneficiary].