Wills, Trusts & Estates Prof Blog

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

Thursday, August 25, 2016

Article on Trust Law & Nigerian Pension Law

Pension reform actNuel Chinonyelum Oji recently published an Article entitled, An Appraisal of the Concept of Trust in the Nigerian Pension Reform Act 2014, (2016). Provided below is an abstract of the Article:

Prior to 2004, the administration of pension in Nigeria was largely marked by the non-contributory defined benefit scheme. With the coming into force of the Pension Reform Act 2004, the Nigerian pension system was, to say the least, overhauled. A contributory pension scheme was established for every employee under the Pension Reform Act 2004. It also brought along with it a triangular relationship of the employee, pension fund administrator and pension fund custodian. The pension fund administrator was made the exclusive manager of the fund while custody of the funds was the preserve of the pension fund custodian. Though not immediately visible, the concept of trust was central to the relationship between the pension fund administrator, the pension fund custodian and the employee. In 2014, the 2004 Act was repealed and a new Pension Reform Act enacted. However, the concept of trust remained unaffected. This work, therefore aims at examining the relationship between the law of trust and Nigerian pension law. It seeks to unveil the meaning of pension trust with a painstaking analysis of the nature, parties, advantages, breach and remedies of the pension trust created under the Pension Reform Act 2014.

August 25, 2016 in Articles, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Graceland to Run Tours at Paisley Park

Paisley parkElvis Presley’s people are now running tours at Prince’s Paisley Park. Bremer Trust, the bank that manages Prince’s estate, just announced the deal that lets Graceland’s people run public tours starting in October. Some family members are disgruntled about the situation due to Graceland Holdings having previous financial problems. Graceland Holdings will receive 50% of the revenue generated from the new tours.

See Prince Tour Paisley Park Courtesy of Elvis Presley, TMZ, August 24, 2016.

August 25, 2016 in Current Events, Estate Planning - Generally, Music | Permalink | Comments (0)

Europe's Wealthiest Bank on Years of Inheritance

VineyardMaintaining inherited wealth is more prevalent in Europe compared to the United States, evidencing the continent’s low social mobility and stagnant education, income, and social connections; 33% of Italy and 65% of Germany’s richest people inherited their fortunes compared to only 29% in the United States. America’s economy is expanding, creating a need for more professionals. In Europe, however, when the economy is stalling, wealth and inheritance must be monitored to prevent the inability to revive growth. The Article details the effects of substantial wealth inherited by prominent families in Europe.

See Alessandro Speciale & Chiara Vasarri, How to Stay Rich in Europe: Inherit Money for 700 Years, Bloomberg, August 23, 2016.

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

August 25, 2016 in Estate Planning - Generally | Permalink | Comments (0)

Article on Harmless Error Rule's Clear and Convincing Evidence Standard

Harmless errorMark Glover recently published an Article entitled, In Defense of the Harmless Error Rule’s Clear and Convincing Evidence Standard: A Response to Professor Baron, 73 Wash. & Lee L. Rev. Online 289 (2016). Provided below is an abstract of the Article:

In Irresolute Testators, Clear and Convincing Wills Law, Professor Jane Baron draws attention to a conflict between the mechanics of the law of wills and the realities of testation. Baron observes that the law of wills is designed to be used as a tool by resolute and rationale testators to communicate their intent regarding the distribution of property upon death. However, the law’s archetypical testator does not represent the many real testators who are irresolute and irrational, those possessing incoherent and only partially formed thoughts regarding the disposition of their estates.

Based upon the disconnect between the law’s paradigm of resolute will-making and the irresoluteness of testation in the real world, Baron argues that reforms that have given probate courts discretion to correct mistakes in testation do not function appropriately. For instance, Baron argues that the harmless error rule, which allows courts to excuse defects in a testator’s compliance with will-execution formalities when the testator’s intent is established by clear and convincing evidence, does not meaningfully limit probate courts’ discretion to correct mistakes. Specifically, she argues that many courts are concerned with not only the technical mistakes of resolute testators but also the more troubling mistakes of irresolute testators, and consequently, these courts overreach the boundaries of the harmless error rule.

This essay acknowledges Baron’s insight regarding the tension between the law and reality but questions whether this tension renders the harmless error rule and its clear and convincing evidence standard ineffective. More particularly, this essay argues that, despite potential overreaching by some courts, the clear and convincing evidence standard likely operates in the way that reformers intended and that the harmless error rule represents an improvement upon the conventional law of will- execution.

August 25, 2016 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Wednesday, August 24, 2016

Article on Incomplete Dispositions

Will dispositionNaomi Cahn recently published an Article entitled, Incomplete Dispositions, 73 Wash. & Lee L. Rev. Online 259 (2016). Provided below is an abstract of the Article:

In Irresolute Testators, Professor Jane Baron provocatively suggests the existence of two distinct types of testators: the rational, autonomous testator who has made deliberate choices about the contents of her will and whose errors, if any, are minor; and the more vulnerable, less resolute testator who may not have actually made the final decisions enshrined in a formal will. To illustrate how these testators appear in wills law, she analyzes how courts apply the doctrines of harmless error and mistake reformation. While the two doctrines appear to be intended to help the resolute testator, courts instead, she suggests, also apply the doctrines to help the irresolute testator. In causing us to reflect on the distinctions between dispository intent and a formal writing recognizable as a final statement, on rational and boundedly rational testators, on final and almost-final declarations, her article focuses us on the art of line-drawing in wills law. In this commentary, I explore another context that similarly raises issues about testators whose final intent is not clearly expressed: when can a disappointed beneficiary sue the drafting attorney for malpractice? The doctrine of privity confronts the spectre of the irresolute or inconclusive testator, yet courts have developed some dividing lines that differ from those they have developed surrounding harmless error. Privity seems to offer another illustration of how bright-line rules do not necessarily achieve dispository intent, although the privity rules do achieve certainty on only allowing final dispository statements (that are incomplete or show a lack of resolution) to provide a basis for a malpractice action. This commentary applauds Professor Baron’s achievement in focusing us on the limits of the wills reform doctrines and the significance of accounting for different types of testators.

August 24, 2016 in Articles, Estate Planning - Generally, Malpractice, Wills | Permalink | Comments (0)

Heir-Location Firm Charged with Conspiring to Allocate Customers

AntitrustIn a federal antitrust complaint, an heir-location services firm and its co-owner were charged with conspiring to allocate customers with a competitor. The firm had a 15-year-long streak of allocating customers to co-conspirators “to suppress and eliminate competition.” Similar cases have included a criminal fine of $890,000.

See Jonny Bonner, Heir-Location Firm Charged in Antitrust Probe, Courthouse News Service, August 22, 2016.

Special thanks to Deborah Matthews (Attorney, Alexandria, Virginia) for bringing this Article to my attention.  

August 24, 2016 in Current Events, Estate Planning - Generally, New Cases, Professional Responsibility | Permalink | Comments (0)

Pills Containing Fentanyl Found at Prince's Estate

Prince6Several of the pills taken from Prince’s estate were counterfeit drugs containing fentanyl, a synthetic opioid more powerful than heroin. Officials say the pills were falsely labeled but are still unsure of how Prince obtained the drugs. Prior to his death, Prince’s tests showed no fentanyl in his system, leading officials to believe he was not a long-time abuser of the drug that caused his fatal overdose.

See Official: Pills Found at Prince’s Estate Contained Fentanyl, Fox News, August 21, 2016.

August 24, 2016 in Current Events, Intestate Succession, Music | Permalink | Comments (0)

For-Profits Join PACE Program

InnovageInnovAge is a company that uses private equity money to aggressively expand a Medicare program, Program of All-Inclusive Care for the Elderly (PACE), that keeps older and disabled people out of nursing homes. Before, only nonprofits were allowed to run this type of program, but the gates have opened to for-profit companies with the hope of expanding the services faster. In exchange for monthly payments from Medicare and Medicaid, PACE programs pay for all doctor’s visits, medications, rehabilitation, daily needs, and hospitalization. This capped monthly payment forces organizations to invest in maintaining a patient’s health to avoid large hospital bills. Critics, however, note that caring for elders is full of abuse, something that is correlated with increased commercialization of the industry.

See Sarah Varney, Private Equity Pursues Profits in Keeping the Elderly at Home, NY Times, August 20, 2016.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.  

August 24, 2016 in Current Events, Death Event Planning, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Tuesday, August 23, 2016

Panama Papers Scandal Has Trust Companies Reviewing Their Client Lists

PanamaAfter the Panama Papers scandal, trust companies are scrutinizing their client lists in order to identify any tax cheats who could drag them into an evasion lawsuit. Companies were setting up offshore trusts to reduce exposure to new proposed regulations targeting tax evasion enablers. The government has authorized new measures to reduce this avoidance by fining advisors and accountants facilitating the evasion. Advisors will be required to send letters to clients who have been provided offshore services within the past three years. 

See Vanessa Houlder, Trusts Comb Client Lists for Tax Cheats, Financial Times, August 18, 2016.

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

August 23, 2016 in Current Events, Estate Planning - Generally, Estate Tax | Permalink | Comments (0)

Proposed Regulations Will Keep Wealthy Americans from Lowering Estate Taxes

IRSThe IRS will implement new rules likely limiting techniques used by rich individuals to lower their estate and gift taxes. These new regulations apply to valuation discounts, which allow people with assets greater than the current $5.45 million exemption to lower the value of their assets subject to gift and estate taxes. Asset owners of this type typically put their assets into a holding company that is not traded, giving shares of the company to family or charity. Subsequently, the assets’ value drops due to dispersed control of the company. The proposed regulations will allow the IRS to ignore these discounts.

See Laura Saunders, The Controversial Way Wealthy Americans Are Lowering Their Estate Taxes, Wall Street Journal, August 19, 2016.

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.

August 23, 2016 in Current Events, Estate Planning - Generally, Estate Tax, Gift Tax, New Legislation | Permalink | Comments (0)