Wills, Trusts & Estates Prof Blog

Should Graves Be Reused?

According to Julie Rugg of the University of York’s Cemetery Research Group, grave plots should be reused in order to address the oncoming shortfall of spaces.

Research by the BBC found about a quarter of cemeteries are expected to be full within the next decade and about 44% within the 20 years.  And due to high cost and environmental concerns, creating new graveyards is not the answer to this shortfall. 

Reusing graves has its own troubles as well.  Graves can belong to the same families for a century, “[s]o even after 100 years you have to find the family of the bereaved and get their permission to reuse the graves.”  But Dr. Rugg says we still need to consider this as an option as it will bring money and people back into these typically abandoned and neglected places.

See Ben Rossington, Graves May Be REUSED as Graveyard Spaces Become Scarce, Mirror, Sept. 27, 2013.

Count Scarpa's Stunt

Count Scarpa, an eccentric Sao Paulo entrepreneur, wanted to drive in style in the afterlife so he announced plans to bury his £300,000 Bentley Flying Spur in his garden.

Count Scarpa got the idea to bury his “most precious item” while watching a television show about the ancient Egyptians.  Scarpa posted pictures on his Facebook page with his Bentley next to a large hole, but ended up not burying the valuable car.

It turns out his plan was a stunt meant to bring attention to organ donation.  Scarpa says, “I did not bury my car, but everyone thought it was absurd when I said I was going to.  It’s absurd that people bury their organs, which can save many lives.  Nothing is more valuable.  Be a donor, tell your family."

See A Gift for the Afterlife, The Art Newspaper, Sept. 30, 2013.

Bequest to Police Sergeant Contested

Geraldine Webber died last December at age 93.  She left the bulk of her estate to Portsmouth, New Hampshire, police sergeant Aaron Goodwin, which reduced or cut out inheritances to several other heirs including charitable organizations like Portsmouth’s police and fire departments and a Massachusetts high school.

Webber’s former lawyer was the first to challenge the will, claiming Goodwin asserted undue influence.  Because Webber left behind a charitable trust, the state Attorney General’s Office has since entered the lawsuit as an interested party.

See James A. Kimble, Attorney General Eyes Elderly Portsmouth Woman’s Bequest to Police Officer, New Hampshire Union Leader, Sept. 25, 2013.

Article on Graev v. Commissioner

Wendy C. Gerzog (University of Baltimore School of Law) recently published an article entitled, Graev: Conditional Façade Easement, Tax Notes, Vol. 140, No. 14, 2013.  Provided below is the abstract from SSRN:

In Graev v. Commissioner, the Tax Court decided whether the taxpayers’ donations of a facade easement and cash contributions were conditional gifts and therefore disallowable as charitable deductions under the requirements of the regulations. The court reviewed the facts to determine whether the condition was allowed because it was “so remote as to be negligible.” The taxpayers argued that case law at the time of the donation allowed for a donation of between 10 and 15 percent of the value of the property, and that they had deducted a value constituting 11 percent of the property’s appraised value; that the example provided in Notice 2004-41 did not apply to the specific transaction at issue; that there was no possibility that the charity would return the property; that when the easement deed was recorded, the doctrine of merger extinguished the charity’s refund letter; and that the letter was a nullity under Commissioner v. Procter.

New Zealand Proposes New Trust Law

The Law Commission in New Zealand has proposed a new trust law to keep up with the times. In previous years, New Zealand created and managed between 300,000 and 500,000 trusts yearly. However, the law that was governing the trusts was drafted in 1956. After a recent study of the trust law, the Law Commission is proposing the Trusts Act. Some of the highlights of what the act will include are mandatory trustee duties, an increase the duration of a trust lifetime, the creation of a duty to provide information to potential beneficiaries, and a ban on limiting trustee's liability for breaches arising from willful misconduct or gross negligence. As the proposed legislation changes, different trust implications will arise.

See Arthur Young, John Holland, Bradley Kidd, Lyndsey Partridge, Phillippa Wilkie and Sabrina Muck New Zealand: A New Trusts Act "Fit For the 21st Century", Mondaq,  Sep. 14, 2013.

Trump Decides to Split his Business Among his Children After Death

Donald Trump has decided that his three oldest children will inherit his real estate business after his death. Donald Jr., Ivanka, Eric, and the children's mother Ivana will control the Trump organization. Trump was quoted saying “I think, and I hope, for their own sake, that they’ll be able to get along…It’s not a deal where there’s going to be one person succeeding me." Each child will be in charge of a particular aspect of the organization. Ivanka will probably be the lead negotiator since she has negotiated some of the organizations largest deals. Donald Jr. has previously worked on leasing, and Eric the youngest Trump will probably be in charge of construction. Trump's decision to pass on his organization equally amongst his children is unusual because most real estate businesses do not have more than one heir. Some empires passed down to multiple heirs have decided to split to avoid family litigation. Trump acknowledged the danger for family drama and hopes that the siblings will continue to work together.

See Hiten Samtani, Donald Trump Plans To Split His Real Estate Empire Evenly Among His 3 Oldest Kids, Business Insider, Sep. 16, 2013.

Marvin Gaye III is on Dialysis for Kidney Failure

Marvin Gaye's son recently announced he is on dialysis for his kidney failure, and has had this serious medical problem for the last three years. Gaye is having difficulty finding a kidney match for a transplant. Now, he is reaching out to the public for a kidney donation, and to bring to light the difficulty that minorities face securing healthy organ donation. Gaye is planning to give a charitable contribution from his upcoming album sales to a kidney research organization.

See Associated Press, Marvin Gaye III Pleads For Kidney Donation,  CBS 47 TV, Sep. 26, 2013.

Court Refused to Grant Diversity Jurisdiction to Beneficiaries

During the probate process of a trust, it is common for beneficiaries to be in more than one jurisdiction. Sometimes that means that the fiduciary of the estate is in a separate state than the beneficiary. In this recent case, the personal representative was from Texas but was handling a Florida estate. Following a dispute, two of the beneficiaries sued the personal representative. One of the beneficiaries was from Florida and the other was a citizen of Colorado. The beneficiaries moved to have the case moved to federal court on the basis of diversity jurisdiction.

 

In  Levya v. Daniels, 2013 WL 5313600 (11th Cir. 2013), the court held that because the personal representative was sued in his capacity as a fiduciary he was a Florida citizen for legal issues arising out of the Florida estate he was managing. As a result, the case was dismissed for lack of diversity jurisdiction. 

See Jenna G. Rubin, Levya v. Daniels , Rubin on Probate,  Sep. 26, 2013.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

Oklahoma City Hosted Conference Yesterday on Wills, Trusts & Estates Meets Gender, Race & Class

Oklahoma City University School of Law hosted a conference yesterday on Wills, Trusts &
Estates Meets Gender, Race & Class:

[The conference] will bring the insights of progressive property theory to the area
of inheritance and succession law and will address the many points of
intersection between inheritance law, gender and race, social structure, wealth
inequality, domestic violence, and indigenous people’s rights, among others.
Recognizing that inheritance law is a society’s DNA, the conference will present
both theoretical, historical and practical approaches to ways it has and
continues to maintain social structure and ways it can change it.

• Keynote Address:  Al Brophy (North Carolina), Commentator: William P. LaPiana (New York Law School)
• Panel #1:  A Critical Trusts and Estates Research
  Agenda:  Anthony Infanti (Pittsburgh), Bridget Crawford (Pace)
• Panel #2:  Class Matters:  Naomi Cahn (George Washington), Phyllis Smith (Florida A&M), Palma Strand (Creighton), Lee-Ford Tritt (Florida)
• Panel #3:  Past and Present:  Steven Clowney (Kentucky), Stuart Gold (Partner, Mandelbaum Barrett, West Orange, NJ), Casey Ross-Petherick (Oklahoma City), Kent Schenkel (New England)
• Panel #4:  Formalities and Language:  Deborah Gordon (Drexel), Anne Marie Rhodes (Loyola-Chicago), Karen Sneddon (Mercer),
• Panel #5:  Families and the Home:  Shelly Kreiczer-Levy (Academic Center of Law and Business, Tel Aviv, Israel), Browne Lewis (Cleveland State), Alan Oxford (Appalachian), Danaya Wright (Florida)

 

This post is a repost from the Tax Prof Law Blog: http://taxprof.typepad.com/taxprof_blog/2013/09/oklahoma-city.html.

Article on Fiduciary Law

Henry E. Smith (Harvard Law School) recently published an article entitled, Why Fiduciary Law Is Equitable, Wills, Trusts, & Estates Law eJournal, Vol. 9, No. 26 (Sept. 26, 2013).  Provided below is the abstract from SSRN:

Fiduciary law is both celebrated as unbound by rules and deplored as unprincipled. Moralists see in fiduciary law a fixed and mandatory system, even as legal economists and contractarians have cast fiduciary law as the ultimate set of defaults to fill in incomplete contracts. Like general equity, out of which it grew, modern fiduciary law suffers from the hard times the theory of equity has fallen into, and for the same reasons. This chapter argues that a functional theory of equity – of equity as a safety valve aimed at countering opportunism – captures the character of fiduciary law. Fiduciary relationships, in which someone undertakes to act on another’s behalf by using discretion, carry more than the usual potential for opportunism. In the equitable solutions to opportunism based on proxies and presumptions, fiduciary law gets its main features. Like equity but in a more sweeping and often more categorical way, fiduciary law sets the presumption against the fiduciary when certain proxies are triggered. Thus, in situations of undisclosed conflict of interest the presumption of opportunism arises even without regard to the substance of the deal. For self-dealing likewise the presumption arises in an almost indefeasible way. Like equity generally, fiduciary law features a constrained residuum of open-endedness to deal with new and creative ways of being opportunistic. The theory of equity as targeting potential opportunism unifies the best aspects of traditional and modern theories of fiduciary law, and helps explain why fiduciary law has become so disparate and contested after the fusion of law and equity. Cut off from the special rationales of equity, fiduciary law itself threatens to become too expansive or too narrow and hidebound – like equity generally. Finally, the functional theory of equity as anti-opportunism helps explain the similarity of fiduciary law to another much misunderstood area of private law – unjust enrichment – and the relation between the two. The chapter concludes with some remarks about fiduciary law within the overall architecture of private law.