Wills, Trusts & Estates Prof Blog

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

Wednesday, January 28, 2009

How a judge copes with making end-of-life decisions

Pull_plugIf a person fails to plan properly with a living will, advance directive, designation of a health care agent, or similar technique, the burden of deciding whether to remove life support often falls on a judge.

For a discussion of how one judge copes with this situation, see Veronica Torrejón, Lehigh County judge's panel wrestles with end-of-life decisions, The Morning Call, Jan. 26, 2009, from which the following excerpts are taken:

Everyone dies, but how and under what circumstances are matters Lehigh County Judge Edward Reibman often finds himself pondering.

Not because he's a particularly morbid man. He has the awesome responsibility of making decisions when a person is incapacitated and there's a dispute over who makes end-of-life choices.

In the absence of a living will, Reibman can decide whether someone lives on a respirator in a hospital room or dies at home with friends.

He wrestles with his decisions, wondering if his rulings reflect his own end-of-life preferences or the little he knows about the wishes of the person he's charged with deciding for. * * *

His search for answers led him to convene a panel earlier this month, a talk that those who attended said probably will be the first of many. Reibman called together doctors, lawyers, religious leaders and court-appointed guardians, all charged with helping make decisions for others.

They all agreed on one thing -- the right choices are seldom clear.

Special thanks to Neil E. Hendershot of the Harrisburg, Pennsylvania law firm of Goldberg Katzman, P.C., who also authors the PA Elder, Estate & Fiduciary Law Blog, for bringing this article to my attention.

January 28, 2009 in Death Event Planning | Permalink | Comments (0) | TrackBack (0)

Drafting to avoid will contests

Rpte_2The American Bar Association Section of Real Property, Trust and Estate Law , General Practice, Solo and Small Firm Division, and the ABA Center for Continuing Legal Education are sponsoring a teleconference and live audio webcast on February 3, 2009 entitled Drafting to Win: How to Win the Will Contest at the Drafting Stage.

Here is a description of the program:

Is your client disinheriting a child?  Leaving assets to a heartthrob?  Any time your client treats a potential beneficiary differently than the potential beneficiary is expecting, you should be prepared for a challenge to a will. Learn what you can do on the front end to defeat challenges to wills from an experienced litigator in this area.  The program will discuss common pitfalls to avoid and provide practical tips to strengthen a will.

This teleconference and live audio webcast will cover the following topics and more:

  • What to do during client meetings in the drafting process to help avoid a challenge and to help support the will
  • How to avoid mistakes during the will execution ceremony that could cause a challenge to the will or increase the possibility that a challenge might succeed
  • What to do after the will execution ceremony to help avoid a challenge and support the will
  • How to make time entries clear to support the validity of a will
  • The pros and cons of videotaping a will execution

January 28, 2009 in Conferences & CLE, Wills | Permalink | Comments (2) | TrackBack (0)

Tuesday, January 27, 2009

Guardianship CLE

Aba_law_agingThe following is from an announcement I recently received:

The American Bar Association (ABA) Commission on Law and Aging is producing a FREE, one-hour Webcast titled "Why States Should Enact the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA or Act).
Experts will cover the following issues:   

(1) Introduction to Guardianship and the Need for a Uniform Law;

(2) Three Key Problems of Interstate Guardianship and How the Act Addresses Them;

(3) How the Act Could Help Reduce Elder Abuse; and

(4) Advocating for State Enactment. 

WHY: Adult guardianships often involve more than one state.  As a result, judges, guardians, and lawyers frequently face questions about which state should have initial jurisdiction, how to transfer a guardianship to another state, and whether a guardianship in one state will be recognized in another.  Lack of clear jurisdictional guideposts can take up vast amounts of time for courts and lawyers, burden family members, exacerbate family conflict, and facilitate "granny snatching" and other abusive actions.  To address these problems, in 2007 the Uniform Law Commission (ULC) approved the UAGPPJA to clarify jurisdiction and provide a procedural roadmap for addressing multi-state dilemmas.   The UAGPPJA cannot work as intended - providing jurisdictional uniformity and reducing conflict - unless all or most states adopt it. 

Who Should Participate: Lawyers, judges, legislators and staff, aging and elder abuse network, guardianship practitioners, Alzheimer's Association advocates, and other professionals interested in state legislative reform.

Who is Presenting: Professor David English, the ULC's reporter for the UAGPPJA; Eric Fish, Legislative Counsel, ULC; Lori Stiegel, Senior Attorney, and Erica Wood, Assistant Director, of the ABA Commission on Law and Aging.

When: Thursday, February 5, 2009 at 2:00 PM Eastern, 1:00 PM Central, Noon Mountain, 11:00 AM Pacific

This presentation will be archived and available for viewing for a year on www.abanet.org/aging/guardianshipjurisdiction.

How TO PARTICIPATE: http://www.visualwebcaster.com/event.asp?id=55393 * * *

This Webcast is supported by the American College of Trust and Estate Counsel Foundation.  The ABA Commission's Joint Campaign for Uniform Guardianship Jurisdiction is also funded by the ABA Section of Real Property, Trust and Estate Law and the Uniform Law Foundation.  See www.abanet.org/aging/guardianshipjurisdiction for more information about UAGPPJA and the Joint Campaign.

January 27, 2009 in Conferences & CLE, Guardianship | Permalink | Comments (0) | TrackBack (0)

Should organ donors have priority as organ donees?

Life_sharersThe following excerpts from Chris Joyner, Proposal: Sign a donor card, move up on transplant list, USA Today, Jan. 25, 2009, discuss some of the difficulties faced with organ allocation:

Last fall, for the first time in its history, the national organ transplant waiting list topped 100,000 people, according to the United Network for Organ Sharing (UNOS), the non-profit assigned by the federal government to maintain the list. The list is up to 100,457, and three out of every four are waiting for a kidney. * * *

The growing list of Americans waiting for organs prompted David Undis, president of the non-profit organ donation network LifeSharers, to propose last fall that UNOS reorder the list to give preference to patients who had agreed to become organ donors before their illness. The waiting list is now calculated to give the sickest patients the highest priority.

Undis says only half of the people eligible to become organ donors actually sign up, meaning millions of viable organs are buried with their original owners every year.

Creating "A" and "B" priority lists favoring those committed to becoming organ donors would greatly increase the number of people who sign up to be donors themselves, he says. No one would want to take the chance of ending up on the "B" list, Undis says.  * * *

Six-year-old LifeSharers, based in Nashville, is itself an attempt to create a preferential system in miniature. LifeSharers' 10,000 members all have agreed to donate their organs upon their death, with the stipulation that first priority goes to any LifeSharers member in need.

Undis says the idea has not yet been put into practice because no members have died. Incorporating the LifeSharers model into the national waiting list has not gained much traction with UNOS, which has committees tasked with tweaking the waiting list protocols. * * *

Mark Fox, associate director of the Oklahoma Bioethics Center at the University of Oklahoma-Tulsa, says fixes such as the LifeSharers plan have "inherent logic" to them.

Personally, I think that many European nations have an ever better solution because their laws presume that everyone is an organ donor unless they specifically sign an "anti-donor" card.

January 27, 2009 in Death Event Planning | Permalink | Comments (16) | TrackBack (0)

Does the splitting of title in trusts give beneficiaries "too good" of a deal?

SchenkelKent Schenkel (Associate Professor, New England School of Law has recently posted on SSRN his article entitled Trust Law and the Title-Split: A Beneficial Perspective.

Here is the abstract of his article:

Recent functional analyses of the trust tend to emphasize its effect on the parties to the trust deal and give less attention to the nature of the beneficiary’s interest, especially in relation to persons outside the trust transaction. In contrast, this article takes a critical approach to the trust from the primary perspective of the benefits it provides to beneficiaries. From this perspective, it finds that while the trust maintains the flexibility of a contract it also restricts legal interests of third parties who are strangers to the trust bargain; a feat that contracts are unable to accomplish. These consequences emerge because of the fiction of the trust form, which is that it splits title into “legal” and “equitable” parts. The title-split fiction has proved useful when put to beneficial ends, but at times it allows trust beneficiaries to escape certain important responsibilities of property ownership, causing economic and other distortions. In some cases courts acknowledge that evasion of ownership burdens by trust beneficiaries should be trumped by policy arguments in favor of third-party claimants to trust property; in others such arguments are ignored, and a deductive analysis of the title-split prevails without meaningful inquiry. Historically, trusts were used by the relative few and problems caused by the title-split fiction were sporadic. With trusts becoming more widely-used, a more measured approach to the analysis of a beneficiary’s interest is warranted.

January 27, 2009 in Articles, Trusts | Permalink | Comments (0) | TrackBack (0)

"Legal Education Commons" now online

Legal_education_commonsThe following material is posted as a courtesy for Austin Groothuis, Communications/Marketing Coordinator, Center for Computer Assisted Legal Instruction (CALI):

I wanted to let you know about a new CALI resource that may be of interest to your blog readers called the Legal Education Commons (http://www.cali.org/lec).

This link should give you some more info:  http://www.cali.org/index.php?fuseaction=pages.news#212

The Legal Education Commons (LEC) is the place to find and share legal education materials including syllabi, podcasts, presentations, and more. Faculty and librarians from CALI member schools can upload materials under a Creative Commons license that allows colleagues and students to find and use the materials.

The LEC also offers access to over 700,000 federal court opinions from the public.resource.org collection. As with other resources in the eLangdell system, these cases can be re-edited and incorporated into course materials.   

Really, LEC is the first step toward the completion of another CALI project with which you and some of your readers may be somewhat familiar: eLangdell (http://www.cali.org/elangdell).

January 27, 2009 in Teaching | Permalink | Comments (0) | TrackBack (0)

Monday, January 26, 2009

Off topic -- The Famous "Wayne's World" Case


In 1992, United States District Judge James C. Paine authored the famous "Wayne's World" case, Noble v. Bradford Marine, Inc., 789 F. Supp. 395 (S.D. Fla. 1992).

The case is filled with references to phrases popularized by the movie such as "hurling chunks, " "Like a Winged Monkey Flying Out of the Ashes," and "not worthy."

Here are some examples:

The blaze hurled chunks of flaming debris to other vessels, destroying those owned by LYN C. NOBLE NOBLE") and  ROBERT C. MUIR ("MUIR").  * * *

A Schwing and a Miss -- Because of the court's admiralty jurisdiction, MUIR's original Complaint, like his Amended Complaint, provided BRADFORD with a basis for removal. * * *

As a result, PRIME TIME's removal, almost ten months after MUIR commenced suit, is untimely and is a defect deemed "way" improvident. For similar reasons, the court finds that removal of the NOBLE case, which had been remanded, was also untimely. In short, PRIME TIME's most bogus attempt at removal is "not worthy" and the Defendants must "party on" in state court . . .

January 26, 2009 in Humor | Permalink | Comments (1) | TrackBack (0)

Bad economy opens doors to estate planning opportunities

EconomyThe downward spiraling economy has opened the door to some advantageous tax-savings techniques as described in Tough Times Are Good Times to Trim Estates, Wall St. J., Jan. 20, 2009.

Here are some of the strategies discussed in the article:

  • low interest loans to family members
  • grantor-retained annuity trusts
  • direct gifts taking advantage of the lower market values of the gifted property

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

January 26, 2009 in Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Avoiding Estate Planning Errors

BsodGerry W. Beyer (Governor Preston E. Smith Regents Professor of Law, Texas Tech University School of Law) has recently published his article entitled Avoiding the Estate Planning "Blue Screen of Death" -- Common Non-Tax Errors and How to Prevent Them, 1 Est. Plan. & Comm. Prop. L.J. 61 (2008).

Here is an excerpt from the article's introduction:

Have you ever been using your computer and unexplainably encountered the dreaded “blue screen of death” where work completely disappears and is replaced by a blue screen with white text indicating that an unrecoverable system error has occurred and that you must restart your computer and lose all unsaved data?  If you have, you know the frustration and anger that follows especially because there was nothing you could do to prevent it.  In the estate planning context, a malpractice action can be considered a blue screen equivalent.  Fortunately, unlike the virtually unpreventable computer error, you have the ability to reduce tremendously the likelihood of estate planning “crashes.”

This article discusses the potential liability of estate planners for malpractice, the common non-tax related mistakes attorneys may make while preparing estate plans, and the risky but commonly seen practice of preparing estate plans for both spouses.

A limited number of reprints of this article are available at no charge.  If you are interested in a copy, please let me know.

January 26, 2009 in Articles, Estate Planning - Generally, Malpractice | Permalink | Comments (1) | TrackBack (0)

Happy Lunar New Year!

OxThis year (2009), just like the years 1913, 1925, 1937, 1949, 1961, 1973, 1985, 1997, 2021, and 2033, is the Year of the Ox.

According to GoToHoroscope.com:

The Ox is the sign of prosperity through fortitude and hard work. As one might guess, such people are dependable, calm and modest. Like his animal namesake, the Ox is unswervingly patient, tireless in his work, and capable of enduring any amount of hardship without complaint.

The ox person needs peace and quiet to work through his/her ideas, and when he/she has set his/her mind on something it is hard for him/her to be convinced otherwise. The ox person has a very logical mind and is extremely systematic in whatever he/she does, in spite of a total lack of imagination. He/she can be very stubborn, and difficult to dissuade once he/she decides on something. These people speak little, but are intelligent, and when necessary, they are both articulate and eloquent.

The ox person is not extravagant, and the thought of living off credit cards or being in debt makes him/her nervous. The possibility of taking a serious risk could cause the ox person many sleepless nights. These people are truthful and sincere, and the idea of wheeling and dealing in a competitive world is distasteful to them. It would be right to mention that people born in the ox years are rarely driven by the prospect of financial gain. These people are always welcome because of their honesty and patience. They have many friends, who appreciate the fact that the ox people are rather introverted and wary of new trends, although every now and then they can be encouraged to try something new. It is important to remember that the ox people are sociable and relaxed when they feel secure, but occasionally a dark cloud looms over such person and he/she takes on the worries of the world and tries to find solutions.

January 26, 2009 in Current Events | Permalink | Comments (0) | TrackBack (0)