Wills, Trusts & Estates Prof Blog

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

Sunday, August 30, 2015

Article On Mutual Exclusivity And The Nature of Property

Article PictureJames Y. Stern (Professor of Law, William & Mary Law School) recently published an article entitled, Mutual Exclusivity and the Nature of Property. Provided below is an excerpt from the article:

Property has long been understood to center on “exclusive” rights, but the nature of exclusivity in property law is poorly understood. This article shows that property is governed by a general principle of mutual exclusivity, which differs significantly from the various ways in which property theorists have described property’s exclusive nature. The mutual exclusivity principle holds that one valid property right forecloses the existence of an inconsistent property right held by someone else. While two people can have contractual rights to purchase the same item of property, for instance, those two people cannot have their own separate and independent ownerships of it. The article shows how the mutual exclusivity principle is fundamental to the structure of property law and is often the key determinant that distinguishes property from other kinds of legal relationships, in both form and function. Unlike other conceptions of exclusivity prevalent in commentary on property, mutual exclusivity holds true not only for ownership of land and physical objects but for other types of rights, such as security interests, servitudes, intellectual property, and corporate shareholding.

In addition to identifying the mutual exclusivity principle and demonstrating its fundamental role in organizing property, the article makes three other contributions to the literature on property. First, it shows how the mutual exclusivity principle explains a number of basic institutional features of property law, such as the use of possession-based rules, the system of future interests, recording acts, and the negative structure of property rights. Second, it modifies the influential theory that property is heavily shaped by problems of high information costs. Many of the ways property entails relatively high information costs result from the mutual exclusivity principle, rather than of the scope of property duties, as information cost theories often suppose. Finally, the article calls for a change in direction in the property literature more broadly, arguing that American property scholarship has been excessively preoccupied with questions about the scope and strength of property rights, overlooking the critical separate problem of ascertaining who happens to hold a given right. Property, it argues, is at least as much about title chains, patent searches, and creditor priorities as it is about trespass, remedies, and eminent domain.

August 30, 2015 in Articles | Permalink | Comments (0)

Saturday, August 29, 2015

Woman Convicted Of Stealing From Granddaughters Inheritance

MilwaukeeA Milwaukee woman has been convicted for stealing over $50,000 from her granddaughter’s inheritance.  Prosecutors say that Betty J. Coleman lied about her past criminal history in order to be named as her granddaughter’s legal guardian.  The young granddaughter had been the beneficiary of a $50,000 inheritance from Coleman’s deceased husband.  When Coleman was appointed guardian in April 2013 and later received the inheritance money in May she was told to invest $20,000 of it and to use the rest for her granddaughter’s benefit.  She ended up spending all of the money within five months of receiving it.  On Friday Betty J. Coleman was sentenced to 3 ½ years in prison for misappropriating her granddaughters inheritance.

See Bruce Vielmetti, Woman sentenced after blowing granddaughter’s inheritance, Milwaukee Wisconsin Journal Sentinel, August 28, 2015.

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

August 29, 2015 in Current Affairs, Estate Planning - Generally, Guardianship, Professional Responsibility, Wills | Permalink | Comments (0)

Businessman Wins Divorce Dispute Over Classic Car Collection

Royal courtBusinessman Clive Joy-Morancho and his estranged wife Nichola Joy have been involved in a tussle over money after the breakdown of their five-year marriage.  Mr. Joy-Morancho has secured a victory over his massive collection of about 35 classic automobiles.  Ms. Joy wanted some of the cars to be transferred to her as part of a divorce payout, but a judge in the Family Division of the High Court in London has dismissed her claims.  According to Mr. Joy-Morancho the car collection belonged to a company that he had ties with.  The divorced couple have extreme disagreements over the distribution of marital property.

See Businessman wins tussle over classic cars in divorce case, British Telecommunications, August 28, 2015.

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

August 29, 2015 in Current Affairs, Estate Planning - Generally | Permalink | Comments (0)

Estate Of Ernie Banks Faces New Challenge As Creditor Steps Forward

Article PictureAs I have previously discussed, the estate of Ernie Banks has been embroiled in legal challenges from his estranged wife who was left out of the will. Now, the estate faces more trouble as a long time friend of Banks has stepped forward claiming he owed her $80,000 from his time as an executive at her families moving company. Shirley Marx claims that she had loaned Banks the money over the years as the Hall of Famer faced cash flow problems, however, no documentation exist that proves the debt. Between this new claim and the potential for a long legal battle over the will, some worry that the estate will be exhausted of assets before a resolution is reached. Let us hope that this case does not end in Dickensian fashion

See Jason Meisner, Longtime friend of Ernie Banks wants his estate to repay $80,000 debt, Chicago Tribune, August 28, 2015.

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

August 29, 2015 in Current Affairs, Current Events, Wills | Permalink | Comments (0)

Article On The Effect--And Non-Effect--Of Revocation On A Will Post-Divorce

Article PictureMolly Brimmer (J.D. Candidate, 2016, University of Maryland Francis King Carey School of Law) recently published an article entitled, When an ex can take it all: the effect--and non-effect--of revocation on a will post-divorce, 74 Md. L. Rev. 969-1000 (2015). Provided below is an excerpt from the article:

The National Conference of Commissioners on Uniform State Laws’ (now known as the Uniform Law Commission) decision to promulgate the UPC’s revocation upon divorce statute resolved a systematic inconsistency in American estate jurisprudence. The inconsistent state court decisions regarding revocation upon divorce contrasted sharply with the Uniform Law Commission’s executive goal of uniformity. This Comment will delve into this inconsistency, with the hope that such an analysis will exemplify why state courts should adopt the UPC’s recommended revocation upon divorce statute.  Part I.A will discuss the general purpose and development of the UPC. Part I.B will then focus specifically on the rationale and objective principles underlying Section 2-804. The Comment then conducts a jurisdictional case study, with each subsequent section addressing a different type of statutory scheme.  Part I.C.1 will discuss jurisdictions whose revocation upon divorce statutes mirror that of the UPC. Part I.C.2 will examine jurisdictions that have failed to adopt a specific revocation upon divorce statute and instead rely on general revocation statutes and a couple’s property settlement agreements when probating the testator’s will. Part I.C.3 will evaluate jurisdictions that refuse to revoke any will without an explicit revocation statute. Part I.C.4 will discuss the rare occurrence in which a jurisdiction will totally and explicitly abolish revocation upon any change in marital status. Part I.D will conclude the Background Section with an edifying case study analysis of the Maryland Court of Appeals case, Nichols v. Suiter.

August 29, 2015 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Friday, August 28, 2015

DIY Wills Have Many Pitfalls

DiyAs more baby boomers prepare for retirement the popularity of “do-it-yourself (DIY)” wills is probably going to increase.  Clients should be warned about many of the risks involved with DIY wills that often involve a downloadable fill in the blank form.  A poorly drafted will can lead to a lot of expensive heartbreak and hassle for heirs and beneficiaries in probate court.  For example, this article discusses a cautionary tale about a Florida woman who made a DIY will that forgot to mention her half siblings.  As a result the will was contested by the half siblings in probate court leading to nearly $22,000 in litigation expenses.  Clients may think they are saving money by creating a DIY will, but mistakes can lead to much more expensive problems down the line.  It is a good idea to consult with an estate attorney when creating a will.

See Hallie L. Zobel, Advising Your Clients About the High Cost of DIY Wills, Wealth Management, August 28, 2015.

Special thanks to Jim Hillhouse for bringing this article to my attention.

August 28, 2015 in Estate Planning - Generally, Wills | Permalink | Comments (0)

Things That People Should Do Before Retiring

TravelGetting emotionally and financially prepared for retirement can be a difficult task.  This article discusses some of the ways people can plan ahead for the life adjustments they will need to make when entering retirement.  It is important to create a list of goals and to try and stick to them.  People should make a budget and try to live on it as a way of getting prepared for the possible reduction in income that will come about because of retirement.  Getting plenty of exercise is also important for health and longevity.  This article also recommends traveling while the client is still young because the longer a person waits the more expensive traveling will become. 

See Rosie Wolf Williams, 5 things you should do before you retire, Market Watch, August 21, 2015.

Special thanks to Jim Hillhouse for bringing this article to my attention.

August 28, 2015 in Elder Law, Estate Planning - Generally, Travel | Permalink | Comments (0)

How Trusts Can Be Used To Influence Heirs

Trust moneyClients who plan to leave an inheritance to a loved one may want to have some control over how the heir spends his or her inheritance.  This article provides an example of a woman who does not like her son’s political views and would like to prevent him from using his inheritance to support the causes that she disagrees with.  One common way clients can maintain control over an inheritance after they die is by creating a trust.  For example, an incentive trust can distribute assets to beneficiaries so long as they meet some type of condition. 

Any requirements made by a trust would have to be legal or acceptable for public policy purposes.  A trust that seeks to prohibit donations to certain political causes might run into trouble on freedom of expression grounds.  This article discusses some of the ways around that like listing acceptable expenses and having the trustee enforce that. 

See Kerri Anne Renzulli, How to Control How Heirs Spend Your Money, Time, August 27, 2015.

August 28, 2015 in Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

New York Siblings Allege Stepmother Filed Fraudulent Will

Last willTwo New York siblings have put forward a claim that their stepmother filed a fraudulent will that disinherited them of a portion of their father’s estate.  Jennifer and Robert Shafer have asked a Manhattan judge to put aside patient-client privilege so that they can get a psychiatrist who provided marriage counseling to their father and stepmother to hand over intimate details about the relationship.  The siblings are hoping to prove that their father’s December 2010 will that cut them out and gave everything to their stepmother and her child from a previous marriage was a fraudulent.  If the 2010 will is declared invalid then that would revive an earlier 2009 will that leaves the siblings half of the estate.

See Julia Marsh, Siblings claim stepmom filed fake will to get $10M inheritance, The New York Post, August 28, 2015.

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

August 28, 2015 in Current Affairs, Estate Planning - Generally, Wills | Permalink | Comments (0)

IRA Charitable Rollover Excellent Benefit... If It Is Resurrected

TrustStarting in 2006, the IRS has allowed those over age 70 1/2 to make direct gifts to charity from their IRA account up to $100,000 per year. This rollover was a great benefit because it skipped the intermediate step of the funds being distributed to the taxpayer first, which created a tax liability, then having the after tax amount donated to charity. However, the authorization to allow this tax break expired in 2014 and, as of yet, has not been revived by Congress. But there is good news, using traditional methods of withdrawal from an IRA or other retirement account the taxpayer can still make the charitable donation without facing an additional tax liability. While alternative means are not as easy as under the old law, an individual can still fund their charitable activities while retaining many of the benefits the IRA rollover once allowed.

See Robert S. Sharpe Jr., Rolling With the Rollover, Wealth Management, August 27,2015.

Special thanks to Jim Hillhouse for bringing this article to my attention.

August 28, 2015 in Estate Planning - Generally, Income Tax, Non-Probate Assets | Permalink | Comments (0)