Wills, Trusts & Estates Prof Blog

CLE on Technology and Estate Planning: the Rise of the Electronic Will

The American Law Institute is holding a webcast/telephone seminar entitled, Technology and Estate Planning: the Rise of the Electronic Will, on Tuesday, February 26, 2019 at 12:00 p.m. to 1:00 p.m. Eastern. Provided below is a description of the event.

Why You Should Attend
Did you know that:

A will handwritten and witnessed on a tablet was probated in Ohio
An unwitnessed will written on a smartphone was probated in Michigan
Three states now have statutes validating electronic wills, and one of those states allows the testator and the witnesses to be in different locations

Electronic wills are here, and they're headed your way! In recognition of the proliferation of technology in our lives, more and more states are now allowing for electronic wills. Further, a proposed uniform statute on electronic wills is nearing completion, and several start-up companies are clamoring to offer electronic wills on mobile phone applications.

If you want to stay ahead of the curve in your estate planning practice, join us for this 90 minute audio webcast to understand where we are now and where we are going with electronic wills!

What You Will Learn
Three fellows of the American College of Trust and Estate Counsel – including the chair of the Uniform Law Commission’s Drafting Committee on Electronic Wills – will discuss:

Which states now validate electronic wills, and which states have draft legislation under consideration?
What is the status of the Uniform Electronic Wills Act?
What will electronic wills do to your practice, and what can you do to get ready for them?
What are the concerns with authentication, security, and storage?
Will other end-of-life planning documents, such as advance medical directives or powers of attorney for health care or finance, follow suit?

Who Should Attend
Any estate planner will benefit from learning the latest developments with electronic wills and how they will impact your practice.

Call for papers for Modern Studies in the Law of Trusts and Wealth Management 2019

The third conference in the “Modern Studies in the Law of Trusts and Wealth Management” series will take place on 1 & 2^nd August 2019 at the Supreme Court, Singapore.  The 2019 conference will be co-organised by the Singapore Academy of Law, the Centre for Cross-Border Commercial Law in Asia Singapore Management University, and the University of York with the support of Trust Law International.

The theme of the conference is “Asian Wealth and the Global Context”. Like its predecessors, the conference will focus on current developments and challenges facing trust law and wealth management in the contemporary political climate, with particular emphasis on the issues raised by the growth of Asian wealth, and the global context in which that is happening.  The conveners of the conference (Richard Nolan (York), Tang Hang Wu (SMU) and Yip Man (SMU)) plan to produce a published volume from papers presented at this conference, and, possibly, a journal special issue. The confirmed speakers include Chan Ee Lin (Deloitte), Thomas Gallanis (Iowa), Jamie Glister (Cambridge), Lusina Ho (HKU), Adam Hofri-Winogradow (Hebrew), Arif Jamal (NUS), James Lee (KCL), Lou Jianbo (Peking), John Mee (Cork), Kelvin Low (CityU/SMU), Tamaruya Masayuki (Rikkyo), Jessica Palmer (Otago), David Pollard (Wilberforce Chambers, London), Tang Hang Wu (SMU), Graham Virgo QC (Cambridge), Yip Man (SMU) and Simone Wong (Kent).

There are some further slots for presenters and the conference organisers are pleased to consider offers for papers. The conference organisers are negotiating with a leading publishing house to produce a book comprising some of the papers presented at the conference. Trust Law International has also agreed to come on board as an official publication for some of the conference papers. Papers presented at the conference will be considered for the book (subject to adherence to the theme and space considerations) and the special issue of the journal (subject to the usual refereeing process and the editors’ discretion).

Presenters from the general call for papers will be expected to meet their own travel costs and to pay the conference registration fee of S$500 (excluding Goods and Services Tax of 7%). Unfortunately, the conference organisers do not have any funding to help meet cost of travel or the registration fee.  The organisers are particularly keen to hear from Asian, women and young scholars in the field. If you would like to offer a paper, please submit a working title and an abstract (of no more than 1500 words) by 28 February 2019 by email to all three of us: Richard Nolan ([email protected]), Tang Hang Wu ([email protected]) and Yip Man ([email protected] ).  Acceptance will be on a rolling basis and the organisers will be grateful for early submissions.

If you would like to attend the conference as a delegate, the conference registration fee is S$700 (excluding Goods and Services Tax of 7%). Please connect with Teh Y-Lyn ([email protected]) from the Singapore Academy of Law to indicate your interest and she will gladly give you further information and assist you with registration and other details.

Court Affirmed the Probate of a Will Where the Testator, a Quadriplegic, Blinked his Desires to Draft and Execute the Will

In Estate of Luce, the court of appeals affirmed a trial court’s admitting a will to probate where the decedent did not personally sign it and communicated his desires only by blinking. A week after he had a serious accidently and was paralyzed from the chest down, intubated, and unable to a speak, the testator and his attorney was able to draft a will based on the testator’s blinked responses to a series of leading questions, and through this system, he directed a notary to sign the will for him.

When his estranged wife - the two were in the middle of a highly contested divorce at the time of the accident - attempted to probate an earlier, 1998 will, the sister entered into evidence the most recent 2015 will. After a jury trial, the trial court admitted the 2015 will to probate and appointed the sister as independent executor but awarded the wife nearly $200,000 in attorney’s fees and expenses. Both parties appealed.

The wife claimed that it was not a valid will due to the testator not personally signing it. The Texas Estates Code requires that a will be signed by the testator or by another person on the testator’s behalf in the testator’s presence and under the testator’s direction. Texas Government Code explains that a notary may sign for a person that is physically unable to do so, in front of the individual and a witness that has no legal or equitable interest in the document being notarized. A notary, through the blinking-response system and in front of the testator and his attorney, signed the will for the testator.

The wife also claimed on appeal that the testator did not have the mental capacity to execute a new will after the accident. The evidence showed that testator did not have a brain injury from the accident. The medical records indicated that he was lucid. Two days after executing the will, a doctor examined the testator. The doctor determined that he was fully competent and able to make his own decisions, including financial and medical decisions.

The appeals court affirmed the trial court's finding that the 2015 will was properly executed, and reversed the award of attorney's fees and expenses to the wife.

See David Fowler Johnson, Court Affirmed the Probate of a Will Where the Testator, a Quadriplegic, Blinked his Desires to Draft and Execute the Will, Texas Fiduciary Litigator, November 24, 2018.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.) for bringing this article to my attention.

Article on Elderly and Incarcerated: Preventing the Medical Deaths of Older People in Texas Prisons

Erika A. Parks published an Article entitled, Elderly and Incarcerated: Preventing the Medical Deaths of Older People in Texas Prisons, 23 Tex. J. on C.L. & C.R. 145-164 (2018). Provided below is an abstract of the Article.

Between 2005 and 2015, 2,284 people over the age of 55 died in Texas prisons. All but 53 of these deaths were due to natural causes. The older population in Texas prison has been growing in both number and percentage for some time, spiking from 11.9 percent of the total in 2005 to today’s 20.3 percent, a growth trend mirrored across the United States. The large number of older people in Texas prisons causes logistical challenges for the Texas Department of Criminal Justice (TDCJ) as well as for the people in prison themselves. Older people have different challenges in prison than their younger counterparts, including mobility problems, other physical and mental disabilities, and a variety of medical issues that can lead to death. This paper explores current conditions for older people in Texas prisons and analyzes data on older people who died of natural causes in prison. Analysis indicates that a plurality of these people entered prison when they were already at least 55 years old, and the majority had been in prison for fewer than 10 years at the time of their deaths. The paper also recommends policy options to prevent these deaths, including increasing availability of medical and compassionate release, prioritizing alternatives to prison for older people who commit crimes, and establishing residential facilities to safely house older people on parole.

Belgium Investigates Doctors Who Euthanized Autistic Woman

Three doctors in East Flanders, are being investigated after a 38 year old woman died in 2010, Tine Nys, in an apparent legal killing that she had requested, only two months after being diagnosed with Asperger's, a mild form of Autism. This is the first criminal investigation in a euthanasia case since the practice was legalized in 2002 in the European nation.

Belgium is one of two countries with legal euthanasia that allow the procedure for psychiatric reasons if they can prove they have "unbearable and untreatable" suffering. Netherlands is the other country. Among the most common mental reasons for doctor assisted suicide, Asperger's is in the top three.

The Nys family filed a criminal complaint after the procedure and Tine's death, citing several "irregularities" in her death, and then her doctors attempted to block the investigation. They will now face trial "due to poisoning," said Francis Clarysse, a Ghent prosecutor. There have also been concerns that Dr. Lieve Thienpoint, Tine Nys' therapist, too easily approved euthanasia requests from patients with mental illnesses.

In the 15 years since doctors were granted the right to legally kill patients, more than 10,000 people have been euthanized. Only one case has previously been referred to prosecutors; that case was later dropped.

See Belgium Investigates Doctors Who Euthanized Autistic Woman, Fox News, November 27, 2018.

Simplify Inheritance Tax process for Bereaved Families, Says OTS [UK]

Chancellor Phillip Hammond ordered a review of the Office of Tax Simplification (OST), and in doing such the Office recommended reducing or removing the requirement to submit inheritance tax (IHT) forms for smaller or simpler estates.

As it stands now, probate is not granted until an IHT has been filed and if a tax is due it must be paid prior to the granting. For small estates that are not liable for an inheritance tax it is a needless step in a time of grief. The OTS recommends that the government implement a fully integrated digital system for the filings of the forms and paying the taxes so that the process is completely simplified and smoother. The report also includes a recommendation that Her Majesty's Revenue and Customs (HRMC) introduce a very short form for the simplest estates, while for other estates the burden should potentially be removed entirely. 

Over half a million people die in the United Kingdom each year, and half of them are required to fill out the IHT forms, though only 5% of them are liable for paying the death tax. “The recommendations will make it easier for the majority, and would mean that in future, many may not have to do the forms at all. Improving the administration of this tax in these ways is important, as having to deal with the current process can seem overwhelming to people at a time when they are both preoccupied and distressed," says Angela Knight, chairman of OTS.

See Kyle Caldwell, Simplify Inheritance Tax process for Bereaved Families, Says OTS, Money Observer, November 23, 2018.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.) for bringing this article to my attention.

Article on Introducing a "New" Human Right: Learning From Others, Bringing Legal Capacity Home

Kristin Booth Glen recently published an Article entitled, Introducing a "New" Human Right: Learning From Others, Bringing Legal Capacity Home, 49 Colum. Hum. Rts. L. Rev. 1-97 (2018). Provided below is the introduction to the Article.

The human right of legal capacity, most recently enunciated in Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), potentially transforms the way we see, understand, and treat people with a wide range of intellectual, developmental, and cognitive disabilities. This Article considers how the human right of legal capacity,  specifically for persons with disabilities, can be incorporated into legal discourse and practice in the United States. It recognizes the many challenges such an endeavor confronts. As well, it notes opportunities to enhance and improve the dignity, autonomy, and self-determination of persons who are routinely deprived of the right, most commonly through systems of substituted decision-making, like guardianship and conservatorship, or, in the case of persons with psychosocial disabilities, forced treatment or confinement.

This Article also looks at the ways in which legal capacity and the corresponding practice of supported decision-making (SDM) have been introduced in countries around the world and draws on those countries' experiences. Some countries have focused exclusively on legislative reform; others have utilized pilot projects demonstrating that protecting legal capacity through the use of SDM can constitute an effective and rights-enhancing alternative to guardianship. Incorporating references to some of these efforts in Europe, Africa, and Australia, this Article focuses on two of the longest-standing and most-developed efforts-those in Canada and Bulgaria-for lessons that might be learned. It considers efforts in the United States, which have, thus far, concentrated on SDM to the exclusion of the specific right of legal capacity. This Article concludes with some observations about what it will take to bring this critical human right "home."

Marvel Comics Creator Stan Lee's Cause of Death Revealed

Stan Lee, the beloved creator of several of pop culture's icons and super heroes, passed away on November 12 at Cedars-Sinai Medical Center in Los Angeles at the age of 95. He had suffered from numerous health conditions in his last few years including pneumonia, an irregular heartbeat, and vision issues. His wife of 70 years, Joan, had passed away last year.

On his death certificate, Lee's primary causes of death was heart and respiratory failure. His remains were cremated and given to his daughter, J.C. In accordance with Stan's wishes, there was a small, private funeral earlier this month. There was a video issued posthumously that expressed his admiration and love for his fans.

   "There’s something if you think about it, that is wonderful about somebody caring about you, as I care about them, whom you’ve never met, who may live in another part of the world," he said. "But they care, you have something in common and occasionally you contact each other. This business of fans, I think is terrific. And I love 'em all."

See Jessica Sager, Marvel Comics Creator Stan Lee's Cause of Death Revealed, Fox News, November 27, 2018.

The Future of Aging Just Might be in Margaritaville

Times are changing. The fastest growing age demographic in America is now between the ages of 85-94. People are living longer, having less children, and less immigrants are coming. The Census Bureau predicts by the year 2034, people over the age of 65 will outnumber those under 18 for the first time. This shift is evidence around the globe.

Senior citizen communities that are formed for reasons beyond religion, military, and failing health may be the secret to enjoying a person's golden years. The recently built Maragitaville in Daytona Beach, Florida, promises fun, sun, and camaraderie for those "55 and better." But it comes with a hefty $10,000 deposit and monthly expenses, which the majority of older Americans cannot afford. 30% of those 65 and older have an annual income below $23,000, according to a study by the Kaiser Family Foundation, and the least expensive house in Maragitaville is easily 10 times that.

But the change is still brewing: There are cruise ships and floating condos that cater to the wealthy; the Villages, outside of Orlando, has dozens of golf courses and feature enrichment programs; University of Arizona is developing a 20-story senior-living facility it calls “the world’s coolest dorm.” Can redesigning the physical environment where seniors live can redefine the way we experience aging itself? The mood of these facilities are vastly different. No more set times with drab cafeterias. Now there are come and go restaurants, delis, and take out joints is these communities, giving a level of freedom that was previously hidden away.

See Kim Tingley, The Future of Aging Just Might be in Margaritaville, New York Times, November 17, 2018.

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

Article on Whom Do You Represent?: The Role of Attorneys Representing Individuals with Surrogate Decision Makers

Nina A. Kohn published an Article entitled, Whom Do You Represent?: The Role of Attorneys Representing Individuals with Surrogate Decision Makers, Wills, Trusts, & Estates Law eJournal (2017). Provided below is an abstract of the Article.

Attorneys frequently represent clients who have a surrogate decision-maker with authority to make decisions on the matter underlying the representation. Such representations raise important questions for both attorneys and the courts in which they appear. Key questions include: From whom should the attorney take direction? With whom should the attorney communicate? If the attorney is taking direction from the surrogate decision-maker and not the principal, when should the court treat the principal as an unrepresented party?

This article provides answers to these challenging questions, thus providing both courts and attorneys with much needed guidance. Specifically, the article considers two types of surrogates: 1) agents appointed pursuant to a power of attorney for finances, and 2) guardians or conservators appointed by a court. In doing so, it seeks to inform the courts about expectations for attorney behavior so that courts can be confident that the attorneys appearing before them actually represent the persons whom they allege to represent, and can identify situations in which the attorney may be facilitating exploitation of a vulnerable person.