Friday, August 31, 2007
Faith Rivers (Associate Professor of Law, Vermont Law School) has recently published her article entitled The Public Trust Debate: Implications for Heirs' Property Along the Gullah Coast, 15 S.E. Envtl. L.J. 147 (2006).
Here is the introduction of her article:
Heirs' property ownership is a significant problem facing the African American community in the "Lowcountry" of South Carolina. Heirs' property generally refers to real property purchased by African Americans and held within families for generations without clear title. The land is owned by a group of relatives - the heirs - who possess fractionated fees as tenants in common. This form of concurrent ownership is an undivided interest in a fractional share of property. All cotenants share unity of possession, but acquire titles to varying sized interests at different times. Each generation passes the property down to their heirs, as there is no right of survivorship for tenants in common. The disposition of tenants in common property is governed by the law of partition. Partition provides for the division of property, or its cash "equivalent," according to owner interests.
The scope of the heirs' property problem has been difficult to document. According to scholarly opinions rendered nearly three decades ago, more than one-third of all "black-owned" property in the rural South is owned as heirs' property. More recent research conducted for the Coastal Community Foundation of South Carolina (CCF) confirms that a significant portion of land in the Lowcountry is still held as heirs' property. Assessors identified nearly 2,000 property tracts of heirs' property in Charleston County, and another 1,300 properties (involving 17,000 acres) in neighboring Berkeley County. Within Berkeley County, the president of the Cainhoy Huger Community Development Corporation estimated that "85 percent of the *149 property [on the Cainhoy Peninsula] is owned as heirs' property." The prevalence of heirs' property is most evident on the Sea Islands and in isolated rural communities within the Lowcountry. At the time of the CCF study, there were 111 tracts of heirs' property on Wadmalaw Island in Charleston County. Likewise, on St. Helena Island, a small 64 square mile island in Beaufort County, researchers identified 124 heirs' property parcels.
Over the past three decades, scholars have proposed various strategies to re-conceptualize and protect heirs' property. Building upon work of scholars in the field, and the work of two generations of land preservation activists and lawyers who began the struggle in Hilton Head, this piece considers the state of heirs' property in the Lowcountry of South Carolina and evaluates various conservation strategies that may be utilized to preserve heirs' property. This Article examines the efficacy of utilizing the public trust doctrine and various tax incentive mechanisms as tools to conserve heirs' property. In particular, this Article proposes the development of a Gullah Culture Preservation Exemption as a conservation tool that preserves Gullah ownership and traditional use of coastal lands without hindering the property rights of heirs' property owners.
Yesterday (August 30, 2007), the Iowa District Court for Polk County issued its opinion in Varnum v. Brien.
The court held that the Iowa law which prohibits individuals of the same sex from marrying violates "due process and equal protection rights [because of] the absence of a rational relationship to the achievement of any legitimate governmental interest."
Accordingly, the court concluded, "[c]ouples * * * who are otherwise qualified to marry one another may not be denied licenses to marry or certificates of marriage or in any other way prevented from entering into a civil marriage * * * by reason of the fact that both persons comprising such couple are of the same sex."
Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for being the first reader to bring this case to my attention.
Thursday, August 30, 2007
According to Wikipedia, the reason why Leona Helmsley did not leave anything to two of her grandchildren (Craig and Meegan Panzirer) is because they failed "to name any of their children after her late husband."
Special thanks to Chasity West (J.D. Candidate, Texas Tech University School of Law) for bringing this theory to my attention.
The New York Daily News has posted a better copy of Leona's will on which the names the three witnesses are visible although somewhat difficult to read.
Special thanks to Michael J. Hussey (Assistant Professor, Widener University School of Law) for bringing this copy to my attention.
Terms of "Pet Trust" -- There has been a huge interest in the terms of the Leona Helmsley July 2005 Trust which probably contains all of the details regarding Trouble's care and what happens to any unspent funds upon the dog's death. This would indeed be a fascinating document to examine!
Value of Leona Helmsley's Estate -- According to Peter Grant, Will Helmsley's Dath Break Up Her Empire?, Wall St. J., Aug. 21, 2007, at B1, Leona's estate is worth at least $2.5 billion.
Trouble -- At the time of her death, Leona was too incapacitated to take care of Trouble. Rumor also has it that the dog was taken away because it bit some of her advisors.
Leona and Harry Helmsley Charitable Trust -- According to the same article, "[i]n recent years it has primarily been making donations to medical facilities that have been involved in her care, like New York-Presbyterian and Greenwich Hospital."
Capacity to Execute Will -- The best chance the grandchildren would have at obtaining $600 million or more each would be to set aside Leona's will on the basis that she lacked capacity when she wrote it. According to the same article, "her mental abilities * * * were slipping." Leona signed the will on July 15, 2005. It will be interesting to see if her grandchildren decide to contest with such a big incentive to do so. I would think, however, that Leona's attorney has a huge file of material to support Leona's capacity at the time of will execution such as affidavits of the witnesses, friends, doctors, etc., a video-recording of the will execution ceremony, etc. And, perhaps the originals of prior wills so that if this will is deemed invalid, the property passes under a prior will rather than via intestacy.
Great-Grandchildren -- Leona had 12 great-grandchildren. None of them are beneficiaries of her will.
Satisfying the once per year grave visit -- For David and Walter to receive distributions from their trusts, they must visit their father's (Leona's son) gravesite "at least once each calendar year." As pointed out to me by several people, this could be satisfied in a few minutes for two years if the visit was near midnight on January 1. The grandchild could sign the register a few minutes before (meeting the requirement for the December year) and then a few minutes after midnight (meeting the requirement for the January year).
Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for providing sending me the Wall Street Journal article discussed above and for sharing his thoughts on the "once per year grave visit" issue.
The full text of the Last Will and Testament of Leona M. Helmsley is now available on-line.
Here is my detailed analysis of this will:
Technical Details: The will is 14 pages long (mostly single-spaced) including the self-proving affidavit. Leona signed the will on July 15, 2005. The names of the three witnesses are blotted out. I assume this was done for publication purposes and that the names are not blotted out on the original. The will lacks a notation of the drafting attorney's name.
Body Disposition Instructions: Although not the preferred place for body disposition instructions given that a person's will is typically not available until after the burial or cremation, Leona included several instructions in her will such as her desire to be interred wearing her gold wedding band and to be placed next to her predeceased husband (Harry) and predeceased son (Jay) at the Helmsley Mausoleum at Woodlawn Cemetery (Bronx, New York).
Mausoleum: Leona granted permission for her brother (Alvin) and his wife (Susan) to also be interred in the mausoleum. She also stated that no one else may be interred there. She created "The Helmsley Perpetual Care Trust" with $3 million. The trust will maintain not just her mausoleum but also the burial places of various other family members. Among other instructions is the requirement that the mausoleums be "acid washed or steam cleaned at least once a year." The trustees must inspect the mausoleums at least once every three months.
Outright Gifts: Leona made the following outright (not in trust) bequests:
- Brother (Alvin) = $5 million
- Grandson (David) = $5 million
- Grandson (Walter) = $5 million
- Chauffeur (Nicholas) = $100,000
Gifts in Trust: With the intent of providing "a flow of income," Leona left $10 million in trust for her brother (Alvin) and $5 million in trust for each of David and Walter (two of her four grandsons). Upon the death of a trust beneficiary, the remaining trust assets will pass to The Leona M. and Harry B. Helmsley Charitable Trust. The trusts are "charitable remainder unitrusts" entitling the beneficiary to 5% of the net fair market value of the assets each year. David and Walter may not receive distributions unless they visit their father's grave (Leona's son) at least once each calendar year, "preferable on the anniversary of [Jay's] death," unless they are physically or mentally unable to do so. If a grandchild misses just one unexcused time, the trust for that grandchild ends. The trustees must keep a register at the mausoleum to be signed by each visitor and they are to look in this book to determine if the grandchild has made the required visit.
Pet Provisions: Leona left her dog, Trouble, to her brother (Alvin). She also left $12 million to the Leona Helmsley July 2005 Trust. This is the "pet trust" for Trouble's care. The exact terms of this trust are unknown because the trust was create inter vivos (while Leona was alive) and is not required to be placed on the public record.
Express Disinheritance: Leona expressly "cut out" her other two grandchildren (Craig and Meegan) "for reasons that are known to them."
Things Bearing the Name Helmsley: Leona directed that "anything" with the name Helmsley must be maintained in "mint" condition. This request will be difficult to enforce. No money was left to carry out this request and she did not place any limitation on the items with the Helmsley name -- it could be items from different families who just happen to share the same last name. A court may conclude that this request is too vague to be enforceable.
Residuary: The balance of her estate (many billions of dollars) will pass to the Leona M. and Harry B. Helmsley Charitable Trust. Like the pet trust, the exact terms of this trust are unknown.
No-Contest Clause: Leona included an in terrorem provision.
Fiduciaries: Loena named five people as co-executors/co-trustees: Alvin (brother), David (grandson), Walter (grandson), Sandor Frankel (attorney), and John Codey (friend). If less than three are able to serve as executors, or less than two as trustees, than a corporate fiduciary is to serve instead with priority given to Citibank of New York. Individual fidicaries are to receive reasonable compensation but not statutory commissions. Leona waived bond and included an exculpatory provision.
Administration Instructions: The executors must sell all of Leona's personal residences and all of her tangible person property. Thus, none of her personal affects, even jewelry and heirloom items, will pass to family members unless the executors sell the items to family members.
Wednesday, August 29, 2007
Tomorrow, I will post a more detailed (accurate) description of the terms of her will. The prior newspaper accounts of the provisions of the will left out many interesting things!
Special thanks to Andrew Vaughn (J.D. Candidate, Texas Tech University School of Law) for bringing this cartoon to my attention.