Wills, Trusts & Estates Prof Blog

‘Star Trek’ Actress Nichelle Nichols, 86, said to be Heard Screaming for Help in Audio Recording: Report

A recording that allegedly contains the voice of Nichelle Nichols, the actress that played Lieutenant Nyota Uhura on the original “Star Trek” television series in the 1960s, shrieking and screaming for help. Nichols is currently in a guardianship battle with her son over her suffering from dementia. 

“You get your hands off me! You’re trying to get rid of me!" the voice shouts from the recording. Gilbert Bell, a longtime friend of Nichols, supplied video and audio in which Nichols reportedly discusses her son’s efforts to gain control of her estate. Later the voice claims, “I didn’t give permission to have conservatorship over me. I didn’t know what he was doing.”

Nichols was praised by Dr. Martin Luther King Jr. for helping to break racial stereotypes with her role on the show. One year later Nichols and William Shatner, who played Captain Kirk, made TV history when they shared an interracial kiss.

See Dom Calicchio, ‘Star Trek’ Actress Nichelle Nichols, 86, said to be Heard Screaming for Help in Audio Recording: Report, Fox News, May 29, 2019.

Claus von Bülow, Society Figure in High-Profile Case, Dies at 92

The man at the center of a sensational murder plot that was convicted and acquitted twice has died at the age of 92. Claus von Bülow was charged with attempting to induce the death of his wife by injecting her with insulin and causing her to fall into a coma until her death in 2008. His death was confirmed by his son-in-law.

His wife, Martha von Bülow, also known as Sunny, was the heiress to a $75 million utilities fortune before her unrecoverable coma in December of 1980. Her first husband was the Prince of Austria and she was the mother of royalty: Prince Alexander von Auersperg and Princess Annie Laurie von Auersperg Kneissl. After being found guilty at the initial trial in 1982, Mr. von Bülow hired Harvard Law professor Alan M. Dershowitz to work on his appeal. Dershowitz was successful, and then Thomas Puccio, a former United States attorney, represented him for his second trial - that found him not guilty that time in 1985.

The von Bülow case became one of the most publicized legal contests in the second half of the 20th century due to Dershowitz profiting off the notoriety by writing a book based on the case, Reversal of Fortune. The book was later turned into a movie of the same title starring Jeremy Irons, who won an Academy Award for his portrayal of the protagonist husband, and Glenn Close as his heiress wife.

After his acquittal, his stepchildren filed a $56 million civil suit against him. It was settled in 1987 with the stipulation that Mr. von Bülow agree to a divorce and that he not discuss the case publicly. Their palatial Fifth Avenue apartment was handed over to the Prince and Princess, and Mr. von Bülow returned to London until his death.

See Enid Nemy, Claus von Bülow, Society Figure in High-Profile Case, Dies at 92, New York Times, May 30, 2019.

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

Don’t Do Me Like That: Tom Petty’s Widow, Daughter In Court Over Control Of His Estate

Tom Petty died in 2017 just one week after finishing off a concert tour. Since then, the tensions between his widow and his two daughters from a previous marriage have continued to build steam. His trust named his widow, Dana York Petty, as the sole trust but other instructions within the document has caused some confusion.

Earlier this month, Adria and Annakim filed a civil suit on behalf of Petty Unlimited LLC in Los Angeles Superior Court alleging that Dana was attempting to divert business opportunities from Petty Unlimited but creating a separate entity called Tom Petty Legacy LLC. The older daughter has also petitioned for control over her father's music catalog and legacy. Dana argues that as the trust's sole trustee, she has the broad discretion to create a limited liability company to handle Petty's music-related assets. The trust leaves the details of running the company to Dana, but that his daughters be included "equally" in its management. Hence the confusion and tensions.

Tom Petty's death was unexpected, but he was far more prepared for the end of his life than other celebrities of late. The current dispute between Petty's widow and his two daughters essentially comes down to intent and interpretation of Petty's wishes, and what he intended the word "equal" to mean. Did he mean each party is equal and has 1/3 control, or the widow has half and the daughter have half together, thus being two equal sides of the coin? A hearing is scheduled in June, so we may learn soon enough.

See Cozen O'Connor, Don’t Do Me Like That: Tom Petty’s Widow, Daughter In Court Over Control Of His Estate, Lexology, May 22, 2019.

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

Is Something Missing from Your Estate Plan? How to Keep 'Digital Assets' in the Family

In this modern day, people can often be confused on what digital assets are. Not all of them fit into a neat little box, because some may have merely sentimental value while others may indeed have real financial value. Those with financial value can include Bitcoin, blogs that earn income, reward points for credit cards or airlines, etc. Digital assets that only have sentimental value include social media accounts (except for maybe the Kardashians), email accounts, and digital photographs.

To make sure that the important files or accounts are passed on to your heirs, you need to make an inventory. Then consider using a "password manager" on your computer or cell phone for these accounts. For Bitcoin and other cryptocurrencies, there are several different cloud based wallets to store them.

Now, spouses and heirs cannot simply log on to your social media accounts if they know the login and password; federal privacy laws prohibit this. But Google and Facebook have settings where you can establish and name a person that will take over and oversee your account after your passing. As technology continues to find its way into different aspects of our lives, incorporating digital assets into your estate plan has become yet another way to leave behind a legacy that reflects a life well lived.

See Kevin Duncan, Is Something Missing from Your Estate Plan? How to Keep 'Digital Assets' in the Family, Fiduciary Trust, May 30, 2019.

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

For more information, see here.

Should You be Able to Disinherit Your Child?

In most of America, the question is not whether you can disinherit your child, but whether you should. A parent has every right to decide to completely block their assets from transferring to a particular offspring. In France, that is not the case. Under French law, for an estate with three or more children - such is the case with Johnny Hallyday - at least 75% of the estate must be divided equally among the children. Hallyday took the American approach and named is widow as the sole heir of his estate, estimated in the tens of millions.

The children from Hallyday's previous marriage filed in France, and obviously want French law to prevail. So the question truly is: was Hallyday more French or American, so what was his domicile? He had a home in both countries and died in France. From his stage name to his musical choices, the lifestyle he portrayed was much more American, though he was known as the "French Elvis" and very few Americans knew of him. He married a French-born American as his second wife, and she claims that he had plans to become an American citizen when they moved to Los Angeles. When he died in 2017 from lung cancer, hundreds of thousands of mourners flooded the streets at his funeral.

Though the court has yet to answer the question of which country has jurisdiction, the case has brought forth many questions from French citizens. The idea of forced heirship is derived from the French Revolution, when the reformers wanted to break up the wealth of the aristocracy. Now, parents are curious if they are required to leave assets to children that "have given them nothing but misery."

See Pamela Druckerman, Should You be Able to Disinherit Your Child?, New York Times, May 28, 2019.

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

Article on Wayfair: Its Implications and Missed Opportunities

Richard D. Pomp recently published an Article entitled, Wayfair: Its Implications and Missed Opportunities, Tax Law: Tax Law & Policy eJournal (2019). Provided below is an abstract of the Article.

This Article focuses on the United States Supreme Court’s decision in South Dakota v. Wayfair, Inc., its implications, and the Court’s missed opportunities. After an overview of the Wayfair case in Part I, Part II argues that the term “substantial nexus,” mentioned only once, and for the first time in a state tax case, in Complete Auto, should be given no weight. The Court in Quill latched onto the flawed term to bifurcate Commerce Clause and Due Process Clause nexus. This bifurcation served the Court’s political agenda by removing any due process obstacles to Congress’s intervention while protecting the reliance interests of the remote vendors. Wayfair should have discarded the term and returned the concept of nexus to its roots in the Due Process Clause, but it did not.

Part III contends that although Wayfair dealt only with the sales tax, its implications extend widely. A taxpayer can no longer make a credible argument that physical presence is a prerequisite to satisfy nexus, even in the context of taxes other than sales and use taxes.

Part IV explains that Congress can always overrule Wayfair and may now have the political impetus to do so. It is at least more likely that Congress will act post-Wayfair, where it can be viewed as protecting vendors, than it was pre-Wayfair, where Congress might have been viewed (incorrectly) as imposing a new tax on Internet purchases.

Part V urges states not to eliminate their pre-Wayfair techniques for sidestepping Quill, such as click-through nexus and Colorado-style reporting. This is because Congress might reimpose physical presence as the nexus standard. Additionally, as states seem not to be applying Wayfair retroactively, there will be open audit years when physical presence will remain the relevant nexus standard. Thus, pre-Wayfair techniques will still be relevant and should be held in reserve to draw on when necessary.

Part VI allays fears about the possibilities that offshore vendors will either refuse to collect the market state’s use tax or collect the tax and fail to remit it.

Part VII briefly summarizes state reactions to Wayfair and explains why there will not be a rush to adopt the Streamlined Sales Tax Agreement. This Part also offers advice about how to draft a post-Wayfair statute, suggesting that a transaction threshold as an alternative to a sales threshold is not particularly useful. States should instead consider requiring vendors to satisfy both a transaction and a sales threshold. But if a state wishes to only use one threshold, it should be sales and not transactions. Furthermore, this Part reiterates that states should retain their existing rules on physical presence, which may be needed during open audit years or if Congress overrules Wayfair. Eliminating these rules would gain nothing and could even result in lost revenue in some circumstances.

Part VIII explores the Pike balancing test, which has played no significant role in state tax cases, but has been elevated by Wayfair into a key feature of Commerce Clause jurisprudence.

Finally, Part IX focuses on local sales and use taxes, predicting that this area will be the source of future litigation.

Court Affirms Finding of Undue Influence Regarding Execution of Will

In a recently decided case, a woman in Texas executed a will while going through a divorce which was never finalized because she passed away. During the divorce, a sister of a friend started taking the decedent to doctor appointments and assisting with other tasks. The will that was executed named the new friend as sole beneficiary. The daughter of the decedent challenged the new will, and after a bench trial it was denied to probate due to undue influence.

The friend appealed the decision. To establish undue influence, a contestant must show the following: (1) the existence and exertion of an influence; (2) the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of the execution of the testament; and (3) the execution of a testament which the maker thereof would not have executed but for such influence. The woman was estranged from her children because they had taken their father's side on some of the issues in the divorce, and the daughter claimed the new friend "froze her out" and would not allow her to repair her relationship with her mother. The friend also had a deferred adjudication for a theft and required to pay restitutions of over $38,000, and the decedent's estate was valued at $28,000 at the time of her death. The court held that the evidence was legally and factually sufficient to support the trial court’s findings that an influence existed and was exerted by the friend.

The decedent had health issues that caused her to need assistance in transportation to appointments and the hospital, and the court found that the woman became dependent on the friend for these needs. The decedent was also lonely because of the circumstances and the friend became deeply involved in the divorce proceedings. The court concluded that this evidence was sufficient to establish that the decedent was incapable of resisting her susceptibility to the influence. The decision was affirmed.

See David Fowler Johnson, Court Affirms Finding of Undue Influence Regarding Execution of Will, Texas Fiduciary Litigator, May 25, 2019.

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

CLE on Skills Training for Estate Planners

The American Bar Association is holding a seminar entitled, Skills Training for Estate Planners, from Sunday, July 14 to Friday, July 19 at the South Carolina School of Law in Columbia, South Carolina. Provided below is a description of the event.

This is the ideal estate planning CLE program for both new and experienced lawyers. Young or transitioning lawyers new to the practice will receive a strong educational experience focused on the “how to” or estate planning in the program Fundamentals course; while more experienced lawyers will appreciate the opportunity to further expand their knowledge in the program’s Advanced Topics course. The outstanding facility includes experts in all aspects of estate planning and will cover a wide range of topics.

Fundamentals Program

Who Should Attend the Fundamentals Program?

New estate planners — both young attorneys new in the profession, and attorneys seeking to make a transition from another area of law. We recommend that attorneys have been practicing law for at least three years. Please note that this program is not open to law school graduates of 2019. Download the Fundamentals brochure.

Advanced Topics Program

Who Should Attend the Advanced Topics Program?

Attorneys experienced in estate planning seeking to increase their knowledge and skills within the practice. Attorneys who have completed the Fundamentals Program are encouraged to attend the Advanced Topics Program for more training. 

Benefits of Attending

• An outstanding facility who share their insights and strategies on the most pressing issues estate planners currently face
• An intensive classroom environment that encouraged interaction and integrates substance with practical skills instruction
• Detailed course materials that serve as a valuable reference when you return to your office
  The opportunity to network with faculty and other participants from across the country at receptions, complementary breakfasts and lunches, as well as informally in the evenings
• Between 24 – 54 hours of CLE credit depending on your state and the course chosen

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

Penniless Care Worker, 31, Inherits One of Britain's Finest National Trust Stately Homes

Jordan Adlard Rogers, now 31, said he had been suspicious that a famous aristocrat, Charles Rogers, was his father since the age of 8. When Charles died on his estate at the age of 62 from an apparent drug overdose, his mother passing away within 2 weeks, and his brother dying from cancer, a DNA test was finally performed to determine is Jordan was his heir. There were some "obstructive family members," Jordan said, but the DNA test confirmed that Charles was indeed Jordan's father.

Jordan left his job as a community worker to move into the grand 1,536-acre National Trust Penrose Estate, estimated to be worth £50m, and now lives off of the income derived from the estate. But he says he will not become complacent. "I don't need to work anymore so I want to set up a charity and help the Porthleven and Helston communities. I've been at the point of worrying about the next bill and have had a tough start in life but now I'm here I want to help people."

There are also some regrets about not performing the DNA test earlier. Jordan believes that if Charles had known he had a son, he may have made different choices in the last months of his life and had someone looking out for his well-being. Charles was reportedly malnourished, neglected personal hygiene and rarely changed his clothes in the months leading up to his death. He was also not living in the lavish home but instead sleeping out of his car parked on the estate.

See Emer Scully, Penniless Care Worker, 31, Inherits One of Britain's Finest National Trust Stately Homes, Daily Mail, May 20, 2019.

Article on Older Victims of Crime: Vulnerability, Resilience and Access to Procedural Justice

Kevin J. Brown & Faith Gordon published an Article entitled, Older Victims of Crime: Vulnerability, Resilience and Access to Procedural Justice, Elder Law eJournal (2018). Provided below is an abstract of the Article.

This article provides the first comprehensive examination of the phenomenon of unequal access to procedural justice for older victims of crime. It analyses quantitative and qualitative data exploring the interactions of older people with the criminal justice system of Northern Ireland. It identifies that older victims of crime are less likely to have a successful crime outcome (known as ‘detection’ or ‘clear-up’ in other jurisdictions) to their case when compared to other adults. The results provide evidence of a system failing to adequately take into account additional vulnerabilities that disproportionately impact on older victims’ ability to engage with the justice process. There is an analysis of the relationships between vulnerability, resilience and access to justice. The current conceptual understanding of vulnerability as applied to older people within the justice system is challenged. The findings are relevant for researchers and policy-makers in the United Kingdom, Ireland and further afield concerned with the treatment of older and vulnerable victims by the justice system.