Wills, Trusts & Estates Prof Blog

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

Friday, January 25, 2008

State statute provides exclusive method for creating survivorship rights in community property.

Texas In a case of first impression, the court in Beatty v. Holmes, 233 S.W.3d 475 (Tex. App. 2007), held that satisfying the requirements of Texas Probate Code § 452 is the sole method for creating rights of survivorship in community property, rejecting the argument that the general authorization for the creation of non-probate property in Probate Code § 450 provides an alternative method.

In a companion case, Beatty v. Holmes, 233 S.W.3d 494 (Tex. App. 2007), the court applied its prior holding to the facts of the case and held that extrinsic evidence could not be considered in determining whether a brokerage account agreement satisfied the requirements of § 452 and that if the brokerage agreement validly created survivorship rights, those rights did not apply to share certificates issued out of the account.

January 25, 2008 in New Cases, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)

The stranger to the adoption rule applies to a stepchild adopted as adult

New_jerseyIn In re Trust Under Agreement of Vander Poel, 933 A.2d 628 (N.J. Super. Ct. App. Div. 2007), the court held that the stranger to the adoption rule applies to a person adopted as an adult who is therefore excluded from a class gift to the adoptive parent’s issue in a trust created by the adoptive parent’s mother even though the rule would not apply had the adoption taken place when the adopted person was a child.

In addition, although the doctrine of equitable adoption probably would apply under the facts, equitable adoption would give the child legal rights only against the parent.

January 25, 2008 in New Cases, Trusts | Permalink | Comments (1) | TrackBack (0)

Kaiser Writing Contest

KaiserThe following is from kaiserEDU.org:

KaiserEDU.org invites undergraduate and graduate-level students in all disciplines to submit an original essay for the website's annual competition. Students are asked to submit entries by March 17, 2008 in response to the following topic:

The date is November 24th, 2008. You have just started a job as an analyst working on the President-elect's health care transition team. The director of the transition team has asked you to draft a memo to flesh out the health priorities for the new Administration on a major health policy issue. Select an issue area and a candidate (from the list below) and identify the major policies or strategies that the Administration could develop to advance this issue. Make sure to include evidence and analysis to support your recommendations. Your priorities and strategies should be consistent with the proposals forwarded by the candidates in the campaign. You should also address the challenges in implementing your recommendations, such as budgetary and political considerations, delivery system issues, and how different stakeholders and constituencies would perceive the proposals. Your memo should not exceed 800 words. * * *

The following prizes will be awarded to the top undergraduate and graduate student entries:

  • First Prize: $1,000
  • Second Prize:  $500

Complete information is available here.

January 25, 2008 in Writing Competitions for Students | Permalink | Comments (0) | TrackBack (0)

Thursday, January 24, 2008

Using "Feelings" to Teach Intestacy and Wills

DirussoAlyssa D. DiRusso (Assistant Professor, Cumberland School of Law) has recently published her article Tactile Learning in the Wills Classroom, Law Teacher, Spring 2007, at 4, which discusses innovative ways of teaching (1) the difference between probate and non-probate assets, (2) the right of a surviving spouse to a forced share, and (3) the different methods of distributing property when there are heirs from more that one generation of descendants.

Here is an excerpt from her discussion of how Prof. DiRusso uses this technique to teach the differences between per stipes, per capita with representation, and per capita at each generation:

Students were divided into groups of three and given a chart showing a family tree, and a bag holding 36¢ (four nickels and sixteen pennies). The family tree showed one decedent at the oldest generational level with three children (A, B, and C). A had two children, and B and C had one child each. Students were told that the decedent had died leaving an estate of 36¢ (net of legal fees) and instructed to place the 36¢ on the decedent’s square on the family tree. Students were given a set of fact patterns, and asked to move the coins to represent how the property would pass under each system of inheritance. * * *

Having the students physically move the coins across he page seemed to help them understand the practical implications of these three systems of inheritance - that it actually changes how much money each heir gets - better than talking about the systems in the abstract or working through hypotheticals.

January 24, 2008 in Teaching | Permalink | Comments (0) | TrackBack (0)

Abuse of Power of Attorney Alleged

MotzThe following is from Laura Italiano & Hasani Gittens, Doc BilksS Ma, 92, OF 832G: DA:

Dr. Robin Motz, who works at Columbia-Presbyterian Hospital, was indicted [on January 23, 2008] on charges that he scammed his 92-year-old mother out of nearly $1 million dollars - leaving her virtually penniless and on the brink of eviction from her Upper West Side co-op.

Motz, 64, who used power-of-attorney over his ailing mother's accounts to bilk her out of $832,453, is also being investigated to see if he used his knowledge of and access to prescription drugs to speed her demise, a high-level law-enforcement source said.

In 2003, Motz took control of his mother's finances because she was ailing physically - but not mentally - prosecutors said inside Manhattan Supreme Court yesterday.

January 24, 2008 in Current Events, Disability Planning - Property Management | Permalink | Comments (0) | TrackBack (0)

Will Execution Parties

Party The following is from Hearsay, Trial, July 2007, at 104:

"Apart from getting a drop of merlot on one of the powers of attorney, it worked out well."

Michael Whitty, an estate and trusts lawyer in Chicago, commenting on Billerica, Massachusetts, attorney James Haroutunian's innovative approach to reaching clients.  Haroutunian hosts "will signing parties" that he likens to Tupperware parties, where gathered guests can mingle while signing their legal paperwork.  Whitty noted that while he doesn't host parties himself, he has sometimes brought estate-planning documents to clients' homes and, in at least one case, the signing became a festive occasion.

For information about will execution parties, see Sheri Qualters, Mass. Solo Uses 'Will-Signing Parties' to Expand His Practice, Nat'l L.J., March 1, 2007.

January 24, 2008 in Wills | Permalink | Comments (0) | TrackBack (0)

The story of a life-saving gift

GreenThe following is from Daniel Horgan, Father of organ donor unearths stories of new life, USA Today, Jan. 22, 2008, at 7D:

Nicholas and his sister, Eleanor, were traveling with their parents, Reg and Maggie Green, in Calabria, Italy, in September 1994 when would-be robbers mistook their vehicle for a jewelry delivery car and fired on it. The rest of the family were uninjured, but Nicholas was severely wounded.

After the boy was declared brain-dead, Green, a British journalist, and his wife announced they would donate Nicholas' organs and corneas to Italians who needed them.

That decision triggered an outpouring of emotion and publicity in Italy, where organ donation rates, which had been abysmally low, soared and made the Greens famous.*** The experience, detailed in Green's book The Nicholas Effect, marked the beginning of his crusade to persuade others to donate, one that has brought the 78-year-old former Times of London correspondent face-to-face with desperately ill patients, their families, doctors and transplant advocates around the world.***

Out of these encounters comes a new book by Green, The Gift That Heals. The book tells 42 stories of people at various stages of the transplant process.

January 24, 2008 in Death Event Planning | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 23, 2008

Discretion in Property Devolution and Heirs’ Misconduct


Anne-Marie Rhodes (Professor, Loyola University Chicago School of Law) has recently published her article entitled Consequences of Heirs' Misconduct: Moving from Rules to Discretion, 33 Ohio N.U. L. Rev. 975 (2007).

Here is the conclusion to her article:

The changing landscape of modern families and property necessitates an ongoing reconsideration of intestate statutes for the devolution of property. Concerns about an heir's misconduct have historically only been modestly addressed within intestacy, and that remains true today. Nevertheless, recent disinheritance statutes have moved beyond the tradition of an objective rule to granting a judge discretion in certain sensitive circumstances. This legislative grant of discretion is extraordinary. It may mark the beginning of a subjective approach in the disposition of intestate property, one that in balancing the intent of the decedent against society's general public policy in very limited circumstances of heirs' misconduct places a thumb on the scale in favor of the decedent's particular intent. For a system premised on the importance of decedent's intent, it is a step in the right direction and bears watching.

January 23, 2008 in Articles, Intestate Succession | Permalink | Comments (0) | TrackBack (0)

A Man Returns from the Dead after His Wife Collects His Life Insurance Proceeds

DarwinAccording to Canoeist's Wife Confesses To 'Plot', news.sky.com, Dec. 5, 2007:

John Darwin's wife has confessed to knowing he was alive after he "died" in a canoe accident five years ago, Sky News sources say.

Anne Darwin is said to have made the admission after her husband was arrested on suspicion of fraud.

Earlier, she had admitted to cashing in his life insurance policy after he was declared dead in a canoe accident in 2005.***

[T]he 57-year-old former prison officer was arrested after the emergence of a picture reportedly showing Darwin with Anne in Panama last year which investigators said "raised a lot of questions".

Mrs Darwin is said to have made the confession after being confronted with the photograph.***

January 23, 2008 in Current Events, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)

Animal Hoarder Stereotype and the Elderly


According to Linda Wilson Fuoco, Animal hoarders proving difficult to contain, post-gazette.com, Dec. 10, 2007:

It began with neighbors complaining about odors coming from the unkempt Uniontown home last month. Humane officers donned biohazard suits and breathing masks before entering, and emerged with 14 cats, six ferrets, four rabbits, one boxer dog and one red-eared slider turtle.

But inside among the feces, garbage and debris were nine dead animals, including seven cats.***

While many hoarders do fit the stereotype of women over 60 years old who live alone and have very little income, the HARC report says there are no age, gender or socioeconomic boundaries.***

Special thanks to Neil E. Hendershot, Esq. (Attorney at law, Goldberg Katzman, P.C., Adjunct Professor, Widener University School of Law) for bringing this article to my attention.  You can read more on Neil's blog at PA Elder, Estate & Fiduciary Law Blog.

January 23, 2008 in Elder Law | Permalink | Comments (0) | TrackBack (0)