Wills, Trusts & Estates Prof Blog

Re-examining standing of heirs and beneficiaries to challenge decedent’s marriage after death

Terry L. Turnipseed (Assistant Professor of Law, Syracuse University College of Law) has recently posted on SSRN his article entitled How Do I Love Thee, Let Me Count the Days: Deathbed Marriages in America. 

Here are excerpts from the introduction to his article:

Should you be able to marry someone who has only days to live? If so, should the government award the surviving spouse the many property rights that ordinarily flow from marriage?

In almost every state, the only person allowed to challenge the validity of a marriage (or, by extension, the property consequences thereof) after the death of one of the spouses is the surviving spouse! Seems incredible, does it not? The expectant heirs of a dying man (or woman) who marries on his (or her) deathbed cannot challenge the marriage post-death. Ironically, the one person allowed to challenge is the only person who has absolutely no motivation to do so.***

This article explores these and other related questions, including a proposed theoretical framework for a model act giving heirs and beneficiaries standing to sue in order to negate the property consequences that flow from marriage, depending on the level of mental capacity at the time of the marriage.***

Extrinsic evidence deemed insufficient to permit the reformation of a document revoking a trust

The settlor sent a letter to the corporate trustee of her revocable lifetime trust stating , “I am revoking my trust.”  The settlor made statements indicating that she intended to revoke the trust but also made statements to a bank officer and an attorney which led them to conclude that she intended only to remove the bank as trustee and the attorney prepared documents to do so.  The settlor died from injuries sustained in an accident before she could execute the papers. 

In In re Trust Created by Isvik, 741 N.W.2d 638 (Neb. 2007), the court held that the Nebraska Uniform Trust Code applied to the question of whether the trust was revoked; that the letter could be subject to reformation because it met the definition of a “term of the trust”; that under Nebraska precedents dealing with the reformation of written instruments, the trial court was correct in hearing extrinsic evidence in determining whether to reform the letter to express an intent to remove the bank as trustee; and that the evidence of the grantor’s intent not to revoke was not clear and convincing.

Doctor accused of hastening patient’s death to retrieve organs faces criminal charges

The Following is from Jesse Mckinley, Surgeon Accused of Speeding a Death to Get Organs, NYTimes.com, Feb. 27, 2008:

On a winter night in 2006, a disabled and brain damaged man named Ruben Navarro was wheeled into an operating room at a hospital here. By most accounts, Mr. Navarro, 25, was near death, and doctors hoped that he might sustain other lives by donating his kidneys and liver.

But what happened to Mr. Navarro quickly went from the potentially life-saving to what law enforcement officials say was criminal. In what transplant experts believe is the first such case in the country, prosecutors have charged the surgeon, Dr. Hootan C. Roozrokh, with prescribing excessive and improper doses of drugs, apparently in an attempt to hasten Mr. Navarro’s death to retrieve his organs sooner.***

Dr. Roozrokh has pleaded not guilty, and his lawyer said the charges were the result of overzealous prosecutors. But the case has sent a shudder through the tight-knit field of transplant surgeons — if convicted on all counts, Dr. Roozrokh could face eight years in prison — while also worrying donation advocacy groups that organ donors could be frightened away.***

The Supreme Court's LaRue Decision CLE

ABA Joint Committee on Employee Benefits and the American College of Employee Benefits Counsel are sponsoring a teleconference and live audio webcast on April 8, 2008 entitled The Supreme Court's LaRue Decision: What's the Next Generation of 401(k) Litigation?

Here is a description of this program:

The Supreme Court’s decision in LaRue v. DeWolff, Boberg & Associates, Inc. makes it clear that a single participant can bring a fiduciary breach claim on behalf of a defined contribution plan, even if the losses relate only to that participant’s account. However, with two concurring opinions, the LaRue decision leaves many unanswered questions. Our panel of experienced ERISA litigators will discuss how the LaRue decision is likely to impact future 401(k) plan litigation.

Topics will include:

•  Do participants have to exhaust administrative remedies?
•  What are the implications of LaRue for other types of plans?
•  Are fiduciary claims in defined contribution plans really benefit claims?
•  What types of claims and equitable remedies will be available under Section 502 (a)(3)?
•  What actions should 401(k) plans take to lessen the possibility of lawsuits?
•  Will this case impact issues surrounding auto-enrollment and investment advice?
•  Can former participants bring suit if they’ve gotten a distribution?
•  Who's liable if the participant's investment instructions aren't followed?

Joint power to revoke limits the power of the sole surviving settlor to revoke

A husband and his wife created a joint revocable trust reserving to themselves the power to revoke and stating that the sale or other disposition of the trust property “by us” would be a revocation. 

A divided Pennsylvania Supreme Court reversed the appellate court, reported in the March/April 2006 column, and held that the language of the revocation provision unambiguously prevents the surviving settlor from exercising the power to revoke.  Scalfaro v. Rudloff, 934 A.2d 1254 (Pa. 2007).

Online Version of The Bluebook Now Available

Editors of the Harvard Law Review announced the launch of an online version of The Bluebook: A Uniform System of Citation on February 15. The standard citation guide for American legal writing, The Bluebook is widely used throughout legal practice, by paralegals, attorneys, professors, and students.***

The new online format responds to longstanding requests for a fully-featured electronic edition of The Bluebook that is easier to search, use, and teach. It allows practitioners and students with jurisdiction-specific or publication-specific citation rules to combine them with the general rules of The Bluebook, and it makes an essential tool of legal writing fully accessible to the visually impaired. The online version is also designed to allow future editions to address a wide array of foreign, international, and administrative material much more fully than is possible in the confines of a small printed handbook.***

You can read more about this exciting development at Harvard Law Review launches online version of The Bluebook, law.harvard.edu, Feb. 19, 2008.

Special thanks to Neil E. Hendershot, Esq. (Attorney at law, Goldberg Katzman, P.C., Adjunct Professor, Widener University School of Law) for bringing this information to my attention.

Presumption that amendments by the settlor were properly delivered applies even though the trustee accepted the amendments after the settlor’s death

An Illinois land trust provided that amendments are valid when made by a written instrument delivered to the trustee but that any amendment changing any “duty, right, power, liability, or responsibility” of the trustee would be effective on acceptance by the trustee.  The settlor executed an amendment changing the beneficiaries on her death, but the grantor’s attorney mailed the amendment to an incorrect address causing the amendment to be cosigned by the trustee the day after the settlor’s death. 

In upholding the amendment, the court held that the amendment did not concern the trustee’s duties, that therefore there exists a presumption that the amendment had been received before the settlor’s death and that the trial court’s holding that the evidence was not sufficient to overcome the presumption was not against the weight of the evidence.  Estate of Bantsolas v. Bantsolas, 878 N.E.2d 1227 (Ill. App. Ct. 2007).

Johnson & Johnson Heir’s Films Cause Discord among Family and Friends

The following is from Robert Frank, The Rich Man's Michael Moore, online.wsj.com, Feb. 23, 2008:

Jamie Johnson, heir to the Johnson & Johnson fortune, used to be an accepted member of the New York elite, with a trust fund, a top education and loads of old-money friends. Now, thanks to his film career, he's not as welcome.***

The films have generated their share of controversy. "Born Rich," which featured several of Mr. Johnson's childhood friends talking about everything from drugs to prenuptial agreements, sparked a lawsuit and accusations from a few of his friends that Mr. Johnson portrayed them unfairly.***

"The One Percent," which is running on Cinemax until April 1, has spawned its own mini scandal. After Warren Buffett's adopted granddaughter, Nicole Buffett, spoke to Mr. Johnson on camera about her views on money, Mr. Buffett sent her a letter stating that she was not legally his granddaughter[.]***

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

Terri Schiavo Analogue Recurs

According to Sean O'sullivan, Parents battle over life of brain-damaged daughter, delawareonline.com, Jan. 31, 2008:

In a case with parallels to the 2005 uproar over Terri Schiavo, a Newark father is fighting a court order that could allow the removal of a feeding tube and end the life of his brain-damaged daughter.***

According to court records, Lauren Marie Richardson, 23, is in a persistent vegetative state following a heroin overdose in August 2006. She was pregnant at the time and was kept alive at Christiana Hospital -- with feeding tubes and a breathing machine -- to allow her to give birth, which she successfully did in February 2007 to a healthy baby girl.

Late last week, a court awarded guardianship of Lauren Richardson to her mother, Edith Towers, who maintains her daughter did not wish to live this way and seeks to end artificial life support measures.***

Lauren Richardson, a Glasgow High School graduate, did not leave a "living will" stating her desires in such a situation, or use a mechanism in the Delaware law called an Advanced Health Care Directive, a simple form a person can fill out to make their end-of-life wishes clear.***

Special thanks to Alyssa A. DiRusso (Assistant Professor, Cumberland School of Law, Samford University) for bringing this article to my attention.

Getting an estate plan in the State of Victoria, Australia

In Victoria, Australia, there is a wholly-owned Victorian Government Business Enterprise called "State Trustees" which exists to provide comprehensive estate planning and estate administration services.

The business employs more than 500 lawyers, accountants, and financial planners to prepare wills, trusts, enduring (durable) powers of attorney, etc.  They prepare the estate plan and then serve as the executor or trustee.  Follow this link for a complete list of services.  This "one stop shopping" for estate planning services is very different from the way things are done in the States.