Wills, Trusts & Estates Prof Blog

The Quest to Live Forever

If you could live to 200 and remain healthy, would you? The National Academy of Medicine’s Grand Challenge in Healthy Longevity is awarding at least $25 million for breakthroughs in the area of aging gracefully. For decades now, the idea that age could be twiddled with has consumed scientists, as they continue to transform death into a technical problem rather than a metaphysical one. Essentially, if we want to live longer, we must slow aging itself. Even then, we will not live forever; it is simply not possible with the rapid drain on natural resources and Social Security. So, the struggle between healthspanners and immortalists brings us into an age where preserving life, even at the cost of dying, is ever-so human.

See Tad Friend, Silicon Valley’s Quest to Live Forever, New Yorker, April 3, 2017.

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

Scholarships for International Researchers

Max Planck Institute for Private Law is offering scholarships for international researchers.

Here are some of the key features of this scholarship:

One of our primary aims is to promote academic exchange with foreign scholars. Towards this end, we extend scholarships to researchers whose primary place of residence is outside of Germany in order to give them the chance to work on their research projects here at the Institute. To this end, a limited number of short-term scholarships (up to a maximum period of four months) are awarded each year. Additionally, the scholarship programme serves to promote personal and institutional contacts with scholars working in the fields of comparative and international private law and thereby continually expand the Institute’s global network.

The research project in question must correspond to the academic interests of the Institute, as only then can it be ensured that scholarship recipients will be able to engage in meaningful academic exchange with other researchers and find relevant literature in our library.

Applicants applying for the current round of scholarship awards are advised that topics presently being researched at the Institute include, in particular, the following:

- Comparative Legal Methodology

- Uniform Private Law

- European Contract Law, especially Sale of Goods Law

- Partnership Law

- Close Corporations

- Company Valuation Law

- Comparative Succession Law (Europe and other continents)

- International Succession Law (especially the European Succession Regulation)

- Family and Succession Law in Islamic countries

- Procedural Law in Islamic countries

- Comparative and International Private Law in Islamic countries

- Chinese Product Liability Law

- Chinese Succession Law

- Chinese Nonprofit Organisation Law

- Chinese Civil Procedure

- Korean Family Law

- Japanese Company Law

- Japanese Capital Markets Law

Will You Be Able to Live Forever?

Have scientists found a revolutionary drug that could reverse aging? The drug may help to repair damaged DNA and protect astronauts on Mars by defending them against solar radiation. The drug was developed after using mice to discover a key signaling process in DNA repair and cell aging. Ultimately, the new drug will help mitigate the effects of DNA damage for astronauts and childhood cancer survivors. Human trials for this new anti-aging drug will begin within six months at Brigham and Women’s Hospital in Boston.

See Harry Pettit, Would YOU Choose to Live Forever? Age-Reversing Pill that Nasa Wants to Give to Astronauts on Mars Will Begin Human Trials Within Six Months, Daily Mail, March 23, 2017.

Article on Arbitration of Trust Disputes

S.I. Strong recently published an Article entitled, The European Succession Regulation and the Arbitration of Trust Disputes, 103 Iowa L. Rev. (Forthcoming 2018). Provided below is an abstract of the Article:

Over the last few decades, U.S. citizens have become increasingly mobile, with significant numbers of individuals living, working and investing abroad. Estate planning has become equally international, generating ever-larger numbers of cross-border succession cases. While these sorts of developments are welcome, they require lawyers to appreciate and anticipate the various ways that the laws of different jurisdictions can interact.

One of the most important recent developments in international succession law comes out of the European Union. While the European Succession Regulation may initially appear applicable only to nationals of E.U. Member States, U.S. citizens can also be affected by its provisions. This Article analyzes the interaction between the Regulation and trust arbitration, which has become increasingly popular in various U.S. and foreign jurisdictions. In so doing, the Article discusses how trust arbitration furthers the goals of the Regulation and how individual provisions in the Regulation may support or restrict the possibility of arbitration of trust-related disputes.

Trust Allows Ivanka Trump to Retain Power over Her Brand

The American public is still unclear on what role Ivanka Trump plays in her father’s administration, but in order to address any concerns, Ivanka gave up the day-to-day control of her company and transferred its assets to a trust, which will be overseen by her husband’s relatives. Under the trust, she can address potential conflicts in two ways: rescue herself from related political business or veto a potential business deal for the company. Additionally, Ivanka is the sole beneficiary of the trust and will continue to receive financial reports about her company. Seemingly, Ivanka is trying to pre-emptively act to comply with all conflicts of interest requirements.

See Rachel Abrams, Despite a Trust, Ivanka Trump Still Wields Power over Her Brand, N.Y. Times, March 20, 2017.

Special thanks to Savannah Edwards (J.D. Candidate, Texas Tech University School of Law) for bringing this article to my attention.

Book on Uniform Trust & Estate Statutes

Thomas P. Gallanis recently published a book entitled, Uniform Trust and Estate Statutes (2017). Provided below is a summary of the book:

This statutory supplement is ideal for use in basic and advanced courses in wills and trusts and for practitioner reference. The 2017-2018 edition includes the updated text and official comments of the Uniform Probate Code, Uniform Trust Code, and more than a dozen other acts relating to the field of trusts and estates, including the Uniform Trust Decanting Act, Revised Uniform Fiduciary Access to Digital Assets Act, Uniform Powers of Appointment Act, Uniform Principal and Income Act, Uniform Prudent Investor Act, Uniform Custodial Trust Act, Revised Uniform Anatomical Gift Act, Uniform Prudent Management of Institutional Funds Act, Uniform Parentage Act, Uniform Premarital and Marital Agreements Act, Uniform Health-Care Decisions Act, Uniform Simultaneous Death Act, Uniform Transfers to Minors Act, Model Marital Property Act, Model Protection of Charitable Assets Act, and the amendments to the Uniform Fraudulent Transfer Act which is now renamed the Uniform Voidable Transactions Act. The book includes relevant provisions of the Restatement Third of Trusts and Restatement Third of Property, as well as selected prior versions of sections of the Uniform Probate Code and Uniform Principal and Income Act. The book is ideal for teaching basic and advanced courses in wills and trusts. It is also ideal for practitioner reference.

The Estate of Tupac's Mom Is Suing over the Rapper's Possessions

Tupac Shakur is about to be posthumously inducted into the Rock and Roll Hall of Fame, making his personal items more valuable than ever. This attention has triggered several recent lawsuits. The estate of Tupac’s mom is suing an auction house and two individuals who have possession of the items in order to regain the rapper’s passport, driver’s license, clothing, jewelry, and handwritten scripts and lyrics. The lawsuits claims that the individuals who now own the items bought them from third parties who had no ownership rights and therefore no right to sell the possessions.

See Tupac Shakur Lawsuits over Passport, Handwritten Song Lyrics, TMZ, March 29, 2017.

Death and Dying Talk Should Start Early in Physicians' Careers

Doctors learn about several important issues upon starting medical school, but what about learning how to talk with patients about death and dying? Effective end-of-life conversations—discussing how long patients will survive, what dying is actually like, and whether spirituality plays a role in a patient’s last moment—can be hard to grasp. At first glance, one might think that physicians’ poor understanding about these tough conversations is baffling, especially because of their role as custodians of health across the lifespan. But if you look deeper, perhaps it is less the attitude of the physicians and more of the system that nurtures them. Physicians actually get little training on how to confront death. Understanding how a transparent communication strategy can ease a patient’s pain and suffering plays a vital role in a patient’s point of view. However, it is still unclear on how this lack of preparedness arises—whether by personal difficulty talking about such a sensitive topic, an inadequate medical curriculum, or lack of training during residency. One way to address these deficiencies is to incorporate a course into the medical school curriculum; another way is to have senior physicians start taking more active roles as mentors.

See Junaid Nabi, Learning to Talk About Death and Dying Should Start Early in Doctors’ Careers, Fox News, March 27, 2017.

Article on a Carryover Tax Basis Regime

Richard Schmalbeck, Jay A. Soled & Kathleen DeLaney Thomas recently published an Article entitled, Advocating a Carryover Tax Basis Regime, Notre Dame L. Rev. (Forthcoming 2017). Provided below is an abstract of the Article:

For close to a century, an important (but unfortunate) feature of the Internal Revenue Code has been a rule that the tax basis of any asset is made equal to its fair market value at death. Notwithstanding the substantial revenue losses associated with this rule, Congress has retained it for reasons of administrative convenience.

But from three different vantage points, pressure has been mounting to change what is commonly referred to as the “step-up in basis rule.” First, politicians and commentators have historically tied the step-up in basis rule to the estate tax on the theory that income be taxed only once, rather than twice. However, with the recent emasculation of the transfer tax regime, no estate tax is levied in most cases, while taxpayers routinely capitalize on the step-up in basis rule. On another front, technological advances have greatly simplified tax basis identification and record keeping, making a carryover tax basis regime eminently feasible, which it previously was not. Finally, in an era of growing income inequality, retention of a rule that primarily benefits the wealthy seems wholly unjustified, necessitating reform.

Congress essentially has two different reform options to consider, namely, a deemed realization rule or a carryover tax basis rule. While a deemed realization rule has many advantages, it appears to be politically unachievable, at least for the time being, due to liquidity and administrative concerns. On the other hand, in light of the fact that a carryover tax basis rule is widely utilized, vetted, and accepted in the related context of inter vivos gift giving, extending its application to transfers at death appears entirely feasible. Its institution would have many virtues, including improved administrability, equity, and revenue generation.

New Zealand Arbitration Amendment Bill

The purpose of this Bill is to amend the Arbitration Act 1996 (the Act) to ensure arbitration clauses in trust deeds are given effect to extend the presumption of confidentiality in arbitration to a rebuttable presumption of confidentiality in related court proceedings under the Act, to clearly define the grounds for setting aside an arbitral award and bring New Zealand’s approach into line with foreign arbitration legislation, and to confirm the consequence of failing to raise a timely objection to an arbitral tribunal’s jurisdiction.

The nature of trusts has resulted in uncertainty as to whether an arbitration conducted pursuant to an arbitration clause in a trust deed would be binding under the Act. This uncertainty limits the effective use of arbitration in trust disputes and it can be removed by ensuring that arbitration clauses in trust deeds are treated as arbitration agreements for the purposes of the Act. By clarifying that arbitral tribunals have the same power as the High Court to appoint persons to conduct litigation on the part of minor, unborn, or unascertained beneficiaries (or classes of beneficiaries), those who are unable to represent themselves will be effectively represented ensuring that any decision of an arbitral tribunal will bind all interested parties. Arbitration can be a suitable mechanism for resolving disputes involving trusts as its inherent privacy is more suited to the private nature of most trusts.

See Arbitration Amendment Bill, New Zealand Legislation.

Special thanks to S.I. Strong (Professor of Law, University of Missouri School of Law) for bringing this article to my attention.