Wills, Trusts & Estates Prof Blog

Maine adopts Uniform Power of Attorney Act

Pursuant to legislation passed by the 124th Maine Legislature, the state has adopted the Uniform Power of Attorney Act.  See 2009 Me. Legis. Serv. Ch. 292.

Malpractice Outside of Estate Planning Context

Smith v. O’Donnell, 52 Tex. Sup. Ct. J. 52 (Tex. 2009): Executor sued Decedent’s former Attorneys for malpractice in advising Decedent in his capacity as the executor of his wife’s estate.  The lower court ruled in favor of Attorneys basing its judgment on the fact that Decedent’s executor and the estate lacked privity of contract with Attorneys.  The Supreme Court of Texas granted a petition for review without reference to the merits, vacated the lower court’s judgment, and remanded so the lower court could take into account the holding in Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., 192 S.W.3d 780 (Tex. 2006).

On remand, the Court of Appeals began its analysis by holding that Belt was not limited to estate planning malpractice actions.  Accordingly, the court explained that Executor stepped into Decedent’s shoes and could bring whatever malpractice action Decedent could have brought while alive, even if it did not involve the planning of Decedent’s estate.  The court relied on language in the Belt decision which provided that “legal malpractice claims alleging pure economic loss survive in favor of a deceased client’s estate.”  The court then examined the evidence and concluded that although there was no evidence that Attorneys acted with malice or breached fiduciary duties, there was a triable issue as to what damages were attributable to Attorneys’ acts.  The court remanded the case to the trial court to determine whether Attorneys’ acts amount to malpractice.  O’Donnell v. Smith, 234 S.W.3d 135 (Tex. App.—San Antonio 2007).  Attorneys appealed.

The Texas Supreme Court affirmed.  The court agreed with the Court of Appeals that Executor is in the same position as Decedent.  If Decedent had not died, Decedent could have brought the malpractice action and thus Executor may bring the action on Decedent’s behalf.  The court explained that the concerns about third-party malpractice suits (e.g., by disgruntled beneficiaries) do not apply in this type of case as the estate’s suit is the same as the one the client would have brought; the attorney-client relationship is not jeopardized by the attorney considering the impact on a third party.

Note:  The court does not address whether Attorneys’ actions constituted malpractice.

Dissent:  A two-judge dissent asserted that this case falls under the Barcelo v. Elliott, 923 S.W.2d 575 (Tex. 1996), rule which precludes a malpractice action by a non-client (e.g., an unhappy beneficiary) against the decedent’s attorney for malpractice because of lack of privity.

Moral:  A decedent’s claim for legal malpractice, regardless of whether it involves the planning of the decedent’s estate or some other legal matter, survives and thus may be brought by the decedent’s personal representative.

Book Offers Advice for Dealing With the Loss of a Loved One

Roberta Temes, Ph.D., has published her book entitled Solace: Finding Your Way Through Grief and Learning to Live Again(AMACOM 2009).  In the book,

Dr. Roberta Temes reframes bereavement, as a normal life crisis and necessary healing process. Drawing on the latest research and her decades of counseling experience, she offers psychological guidance, practical advice, and reassurance to every unique bereaved person.  Dr. Temes shares a wealth of information, techniques, rituals, tips, resources, and survivors’ stories to help anyone adjust to the death of a spouse, parent, child, or other significant person in his or her own way.

Trustees Don't Think Helmsley Intended Trust Focus to Be Dogs

I previously reported on the lawsuit to intervene in the administration of the estate of Leona Helmsley. Additional details are below:

• Helmsley established a trust worth around $5 billion that was to be distributed for good cause, showing preference for the care of dogs.
• A judge ruled that the trustees of the trust are free to give money to charitable causes they see fit.
• The Trustees have indicated that they do not believe Helmsley intended for the trust to focus on helping dogs rather than people.

See The Economist, The dog will have his day in court, Aug. 13, 2009.

Special thanks to Adam J. Hirsch (William and Catherine VanDercreek Professor of Law, Florida State University College of Law) for bringing this development to my attention.

Jackson's Death & Questions Regarding Propofol Dosage

The Los Angeles County Coroner ruled that Michael Jackson's death was a homicide resulting from a combination of drugs, including propofol and lorazepam.  The full autopsy and toxicology reports are on security hold.  See Alan Duke, Michael Jackson's death was a homicide, coroner rules, CNN, Aug. 28, 2009.

Meanwhile, some medical experts doubt that 25 milligrams of propofol would be lethal, which is the amount of the anesthetic given to Jackson shortly before his death according to unsealed court records.  Medical experts quoted by the Los Angeles Times suggest that there could be a reporting error or missing information.  "The medical experts said that if the propofol dosage were higher and combined with other medications, it could have led to an overdose."   Kimi Yoshino, Propofol dosage reported in Michael Jackson case is low, experts say, LA Times, Aug. 27, 2009.

And the Winners Are...

The results are in for the Real Property, Trust and Estate Law Section's student writing contest. Congratulations to all of this year's winners!

First-place - Shea B. Airey from the University of South Carolina - "Conservation Easements in Private Practice: A Detailed Overview of the Device and Why It Should Be Embraced by the American Lawyer"

Second-place - Jonathan Ohring from Emory Law School - "Mommy, Where's Daddy (And the Money He Left Me)? A Model for Legislatures and Courts in Determining the Neglected Inheritance Rights of Posthumously Conceived Children"

Third-place - Elliott Joh from the University of Chicago Law School - "Denominations and Denominators: Applying Lucas v. South Carolina Coastal Council to Resolve RLUIPA 'Substantial Burden on Religious Land Use' Cases"

Top SSRN Downloads

Here are the top downloads from June 30, 2009 to August 29, 2009 from the SSRN Journal of Wills, Trusts, & Estates Law for all papers announced in the last 60 days.

Rank	Downloads	Paper Title
1	283	Ghosts of 1932: The Lost History of Estate and Gift Taxation Jeffrey A. Cooper, Quinnipiac University School of Law, Date posted to database: July 26, 2009 Last Revised: July 26, 2009
2	184	Protecting Trust Assets from the Federal Tax Lien Bryan Camp, Texas Tech University - School of Law, Date posted to database: June 24, 2009 Last Revised: August 3, 2009
3	111	Jorgensen: A Familiar FLP Story Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: July 6, 2009 Last Revised: July 6, 2009
4	99	Estate Tax on Gift Tax: The Liability Conundrum Bridget J. Crawford, Jonathan G. Blattmachr, Pace University School of Law, Milbank, Tweed, Hadley & McCloy LLP, Date posted to database: June 8, 2009 Last Revised: June 12, 2009
5	72	Estate Planning Implications of the Right of Publicity Paul L. Caron, University of Cincinnati - College of Law, Date posted to database: July 1, 2009 Last Revised: August 19, 2009
6	59	On Estate Tax Repeal and Charitable Bequests David Joulfaian, U.S. Department of the Treasury, Date posted to database: June 5, 2009 Last Revised: June 27, 2009
7	53	Fiduciary Conflicts Steven L. Schwarcz, Duke University - School of Law, Date posted to database: August 1, 2009 Last Revised: August 26, 2009
8	45	The Effects of Donor Standing on Philanthropy: Insights from the Psychology of Gift-Giving Reid K. Weisbord, Peter DeScioli, Government of the United States of America - Eastern District of Pennsylvania, Chapman University Economic Science Institute, Date posted to database: July 16, 2009 Last Revised: August 13, 2009
9	23	2009 Texas Legislative Update: Intestacy, Wills, Trusts, and Related Matters Gerry W. Beyer, Texas Tech University School of Law, Date posted to database: July 23, 2009 Last Revised: July 23, 2009

Slayers: Verdict of Not Guilty by Reason of Insanity Does Not Prevent Forfeiture

In re Estate of Kissinger, 206 P.3d 665 (Wash. 2009): Charged with first degree murder for the slaying of his mother, step-brother, and his mother’s boyfriend, the defendant in In re Estate of Kissinger was found not guilty by reason of insanity.  The mother’s estate received a wrongful death recovery and began a proceeding to determine statutory beneficiaries and argued that defendant was a “slayer” under Washington’s slayer statute.  In In re Estate of Kissinger, a case of first impression, the Supreme Court of Washington held that the defendant was disqualified under the statute which applies to anyone participating in a “wilful and unlawful” killing.  The standard to be used is civil not criminal; “wilful” therefore is to be taken in its everyday meaning and the verdict of not guilty by reason of insanity did not make an unlawful killing lawful.

French Tribunal Will Determine if L'Oreal Heiress was Exploited

Liliane Bettencourt, the daughter of L'Oreal founder and the richest woman in Europe, is the center of a criminal expoitation investigation in France. The details are as follows:

• Bettencourt met Fracois-Marie Banier, a celebrity photograher, over 20 years ago.
• Although estimates differ, Bettencourt appears to have given Banier at least $1.35 billion dollars through gifts, by naming him the beneficiary of life insurance policies, and by promising him artworks upon her death since meeting him.
• Bettencourt's daughter prompted an investigation of Banier when she filed a criminal complaint alleging that Banier was manipulating her mother for financial gain.
• Bettencourt, who is 86, has refused the investigating judge's request for neurological examinations and has asked the French president to intervene.
• Banier will soon face criminal exploitation charges in a French court.

For more information, see Doreen Carvajal, Generous to a Fault?, NY Times, Aug. 21, 2009.

Trust Protectors: Trust Agreement May Create the Protector's Duty

Robert T. McLean Irrevocable Trust v. Patrick Davis, P.C., 283 S.W.3d 786 (Mo. Ct. App. 2009): A trustee and the mother of a beneficiary brought suit against the predecessor trustees and the trust protector alleging that the trustees improperly managed the trust and that trust protector violated his duties.  Finding that the Missouri statutes (identical to Uniform Trust Code § 808) does not define the function and duties of a trust protector, the court turned to the trust document which stated that the trust protector is a fiduciary, is not to be liable to actions taken in good faith, and has the power to remove the trustee.  The court held that the trust language created a duty in the trust protector to exercise the power to remove the trustee sufficient and reversed the lower court’s summary judgment for the trust protector.