Wills, Trusts & Estates Prof Blog

Arizona Man Says his Mother's Body was Blown up in a Military Detonation Test Without his Consent

Jim Stauffer was at loss after his mother, Doris, died of Alzheimer's at the age of 73 back in 2014 and the neurologist rejected her body for research. He sought out other biological donation facilities with the hopes his mother’s body could be used to further research into what causes memory loss in Alzheimer's patients. He contacted Biological Resource Center (BRC) which arrived 45 minutes after his mother's death. The company has since been shut down after being raided by the Federal Bureau of Investigation in 2014 for allegedly selling body parts for profit.

Jim said he signed paperwork that specified what was and what was not to happen to his mother's body. "Performing these medical tests that may involve explosions, and we said no. We checked the 'no' box on all that." He later received a box that contained supposedly the majority of her ashes. Five years later, he learned that BRC had sold his mother's body to military and it had been tied to a chair and a bomb was detonated underneath it to simulate what happens to the human body when a vehicle hits an IED.

A spokesperson from the Pentagon stated that BRC provided body parts to U.S. Army contractors under false pretenses, claiming they had the consent of the families. Jim has now joined a civil lawsuit against BRC and its owner, Stephen Gore, alleging that the company preyed on low-income and grieving families. Gore pleaded guilty in 2015 to defrauding customers by selling contaminated body parts to paying medical institutions.

See Danielle Wallace, Arizona Man Says his Mother's Body was Blown up in a Military Detonation Test Without his Consent, Fox News, July 31, 2019.

Life Insurance Developments and How to Protect the Insured

Lawrence J. Rybka recently authored an article entitled Life Insurance in the Client's Best Interest. Here is the introduction to his article:

Life insurance is a unique and important financial product for many clients and the only product that can protect clients’ families and businesses against the risk of early death. Properly designed life contracts
also allow the client to benefit from some unique tax benefits afforded only to life insurance products.
But standards for life insurance advice have not kept pace with the marked increase in types of life products or the complexity of these products. Most state insurance regulators have not modernized consumer protections or duties to clients to keep pace with protections offered by banking regulation, securities laws, trust laws or pension laws where greater duties are owed to clients both when a recommendation is made and on an ongoing basis. Many complex modern life products involve important tradeoffs that are not well understood by consumers or perhaps by most agents who sell them. Nor is there any ongoing requirement to monitor and advise the client after the product is placed. This white paper will explore how two upcoming changes may bring life insurance standards into the modern era.

There are two important developments in 2019 that will impact the standard by which life insurance recommendations are made to clients. The first was the CFP Board’s change in their Code of Ethics and Standards of Conduct (“Code and Standards”). The new standards now extend to any financial advice including all life insurance recommendations. These recommendations must now be in the client’s best interest and advice about them offered under a fiduciary standard.

The second change is a regulation by the State of New York, Regulation 187,1 that takes effect on February 1, 2020, for a recommendation to purchase life insurance products and August 1, 2019, for annuity products sold in the state. This regulation requires agents and insurance companies to make life insurance recommendations that are both suitable for the client and in the client’s best interests. Both new standards change how advisors will need to document life insurance recommendations and substantially raise the standard for life insurance advice. This white paper will explore what it means to make a life insurance recommendation either as a CFP® under the new standards or under New York’s best interest standard.

Follow this link to read this interesting article: Download Life_Insurance_In_the_Client's_Best_Interest.

Article on Section 112: The Problem Child of the Uniform Trust Code

Russ Willis recently published an Article entitled, Section 112: The Problem Child of the Uniform Trust Code, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

Section 112 of the Uniform Trust Code extends the rules of construction for a decedent's will, "as appropriate," to the interpretation of an irrevocable trust. Even where a decedent's revocable trust (which has become irrevocable at her death) is functioning as a "will substitute," there are several circumstances in which the statute is at odds with the common law.

Anti-lapse, pretermitted heirs, omitted spouses, the surviving spouse's elective share – none of these fit comfortably with the theory under which the revocable trust gained acceptance at common law, which is, that the remainder interests are not contingent, but vested at the inception of the trust, subject to defeasance by the settlor's exercise of her reserved power to amend or revoke, or by her depleting the corpus.

It is unlikely most state legislatures enacting this provision would have understood the nuances of what they were doing. Often the state bar committees drafting the legislation did not. State courts are beginning to struggle with the fallout.

Gangster John Dillinger's Body Reportedly to be Exhumed from Heavily Protected Grave

The remains of the 1930's gangster that was gunned down by FBI agents and was notorious for eluding prison, John Dillinger, are now set to be exhumed. Michael C. Thompson, Dillinger's nephew, filed a permit with the Indiana State Department of Health and was approved on July 3. Details are scarce on why, but a History Channel spokesperson said it was for an "upcoming project," without elaborating.

Dillinger was 31 when he was killed in 1934 outside of Chicago's Biograph Theater after seeing Clark Gable in Manhattan Melodrama. The gangster was portrayed by Johnny Depp in the 2009 film Public Enemies.

Thousands of people showed up to catch a glimpse of the infamous criminal when his body was brought back to his hometown in Indiana. Dillinger’s family reportedly ordered two and a half tons of concrete to be placed over his grave after reports emerged that attempts might be made to steal his corpse, according to the Indianapolis Star.

See Greg Norman, Gangster John Dillinger's Body Reportedly to be Exhumed from Heavily Protected Grave, Fox News, July 30, 2019.

In a Suit to Reform a Trust, a Texas Court Holds that There was a Fact Issue on the Settlors’ Intent and Remanded for a Fact Finding

A Texas appellate court recently reversed a summary judgement for a petitioner to declare that the wife’s child from a prior relationship was not a beneficiary of the trust. In In re Ignacio G. & Myra A. Gonzales Trust, the daughter petitioned as trustee that because only her and her brother, but not her half-sibling, were named in the Identification Article, this showed her parents (the settlors) only intended for them to benefit from the trust. The trial court agreed and readily granted her summary judgement, but the def
endant appealed.

The appeals court found that the "question of Ignacio’s and Myra’s intent was not shown by clear and convincing evidence as a matter of law." Instead, there was a scrivener's error, a mistake of fact that Ignacio and Myra only had two children. There was no dispute that the older daughter was Myra's natural child and Ignacio's adopted child. The Restatement (Third) of Property provides, “A donative document, though unambiguous, may be reformed to conform the text to the donor’s intention if it is established by clear and convincing evidence (1) that a mistake of fact or law, whether in expression or inducement, affected specific terms of the document; and (2) what the donor’s intention was.

As there was distinctly a mistake of fact - there were three children between the couple - the question of whether it was Ignacio's and Myra's intent to disinherit the eldest daughter is one for the finder of fact. If there was no intent to disinherit, the court may provide a remedy of reformation to relieve any ambiguity.

See David Fowler Johnson, In a Suit to Reform a Trust, a Texas Court Holds that There was a Fact Issue on the Settlors’ Intent and Remanded for a Fact Finding, Texas Fiduciary Litigator, July 24, 2019.

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

CLE on Trusts Asset Protection: New Critical Case Law You Need to Know

The National Business Institute is holding a teleconference entitled, Trusts Asset Protection: New Critical Case Law You Need to Know, on Monday, August 5, 2019, from 10:00 AM to 11:30 AM Central. Provided below is a description of the event.

Program Description
Learn How Changes Will Affect Trust Drafting and Administration Approaches

By now, domestic asset protection trusts are a mainstay of wealth planning, but the court challenges against them continue. The latest, Toni 1 Trust v. Wacker has further defined the potential risks of this planning technique and its strengths and benefits. Learn what this case, tax reform, and other recent changes mean to your drafting and administration practices. Safeguard your trusts against new case law and regulatory changes - register today!

• Analyze the implications of the latest case law and TCJA changes on DAPTs.
• Use trust amendments to shore up creditor protection of existing trusts.
• Learn what's used to determine whether a trust is a "sham."
• Hear what trust protectors can do to strengthen the trust.

Who Should Attend

This legal update is designed for attorneys. It will also benefit accountants, tax professionals, estate planners, trust professionals, and paralegals.

Course Content

• Achieving and Proving DAPT Situs: Lessons from Toni 1 Trust v. Wacker
• Assets Used to Fund the Trust: Key Questions and Answers
• Trust Modifications and Creditor Protection: The Good, the Bad, and the Ugly
• When is a Trust Considered a "Sham"?
• Is an International Asset Protection Trust a Prudent Option?
• Use of Trust Protectors
• Other Changes You Need to Know

Death is Not the End: The Lucrative World of Literary Estates

Andrew Wylie, a literary agent who is showing a knack for handling the publishing rights of deceased authors, is showing the market that these are "golden opportunities" for the authors' estates. Copyrights can last for many decades after an author's death, with the United Kingdom and most of Europe have 70 years of copyright following their death and American books published prior to 1978 being protected for 95 years.

Long, complex literary works of deceased authors are now being made into television of Netflix series years after their death. John Updike's Rabbit novels are set to be adapted for television by Andrew Davies, the leading UK screenwriter, and Philip Roth's novel The Plot Against America has been bought by HBO and will be a six-part series, starring Winona Ryder and Zoe Kazan.

Jonny Geller, chairman of UK literary agency Curtis Brown, which represents the Ian Fleming estate, says “The debate for all literary estates is, ‘Will we devalue our ancestor’s work by putting too much out there?’" With the modernization of the literature market, the new avenues include ebooks and publishing timeless novels in foreign languages, expanding the love of famous authors. “There is a strong interest in classic English literature now,” says Lisa Dowdeswell, head of literary estates at the Society of Authors in the UK. For some works, continuation novels may be desired, and the appeal is reeling in noted authors of today's fame.

But an agent should listen to the family's wishes instead of just believing them to be happy with a check every month. Wylie says that agents need to be sensitive to their desires. “We listen carefully to the people who own estates. They have both legal and cultural authority.”

See John Gapper, Death is Not the End: The Lucrative World of Literary Estates, Financial Times, July 25, 2019.

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

Article on Standing, Capacity, and Necessary Parties in Trust Litigation

Frank N. Ikard, Jr & Adam Herron recently published an Article entitled, Standing, Capacity, and Necessary Parties in Trust Litigation, 11 Tex Tech Est Plan Com Prop LJ 255 (2019). Provided below is an introduction to the Article.

Standing and capacity are two issues that are constantly present in trust litigation. Because lawyers and courts often conflate the two, this paper seeks to clarify the confusion.

A plaintiff must have standing and capacity to bring a lawsuit. "A plaintiff has standing when it is personally aggrieved, regardless of whether it is acting with legal authority; a party has capacity when it has the legal authority to act, regardless of whether it has a justiciable interest in the controversy." 4 "Capacity concerns 'a party's personal right to come into court,' while standing concerns 'the question of whether a party has an enforceable right or interest.'"

Standing is a component of subject-matter jurisdiction. "In Texas, the standing doctrine requires that there be (1) 'a real controversy between the parties,' that (2) 'will be actually determined by the judicial declaration sought.'" The court in Austin Nursing Center, Inc. v. Lovato adds:

In addition to standing, a plaintiff must have the capacity to pursue a claim. For example, minors and incompetents are considered to be under a legal disability and are therefore unable to sue or be sued in their individual capacities; such persons are required to appear in court through a legal guardian, a "next friend," or a guardian ad litem. Similarly, a [trust] "is not a legal entity and may not properly sue or be sued as such." Although a minor, incompetent, or [trust] may have suffered an injury and thus have a justiciable interest in the controversy, these parties lack the legal authority to sue; the law therefore grants another party the capacity to sue on their behalf. Unlike standing, however, which may be raised at any time, a challenge to a party's capacity must be raised by a verified pleading in the trial court.

In short, standing is jurisdictional. To have standing, (1) a party must have suffered an injury, and (2) there must exist a real controversy that can be resolved by the judicial relief sought (i.e., there must be a justiciable controversy).

Because they are intertwined with capacity and standing in trust litigation, this paper will also discuss necessary parties to trust disputes, claims against third parties, and derivative claims.

What to Know When Choosing Cremation

Traditions has shifted and funeral professionals say that the norm is now cremation instead of burials. By 2040, a study shows that cremation will be asked to be performed by client 79%. Over the same two decades, the practice of burials are expected to drop to a mere 16%.

One reason for the dramatic change is the price difference between the two services. A basic cremation on average runs around $2,400 without visiting hours, but can be as low as $800, which includes transportation of the body to the facility, back to the family, and any necessary paperwork. The median cost of a burial with a coffin and full funeral home services is about $7,400. Religious views have also changed with the amount of people over the age of 40 desiring a religious aspect to their funeral dropping to 35% in 2019, down from approximately half of people that were asked.

More and more funeral homes are now providing cremation services. There is no need to purchase a coffin or even an urn, instead the funeral home must inform you that alternative containers — such as those made of unfinished wood or even cardboard — are available. As family members or loved ones can take cremains home, there is no need for a funeral home ran memorial; instead, the family can arrange a more informal get together.

See Ann Carrns, What to Know When Choosing Cremation, New York Times, July 26, 2019.

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

Casey Kasem’s Widow Accuses Attorney of ‘Conspiring to Kill’ Him

Jean Kasem, the widow of the late radio DJ Casey Kasem, has now filed a wrongful death suit against his former attorney, Samuel D. Ingham III. She claims that the attorney and Casey's three adult children, Kerri, Julie and Michael, conspired to "isolate and kill Casey Kasem for financial gain."

This is just the latest in a string of legal allegations by the widow against Casey's children from his previous marriage. Last year, police in Gig Harbor, Washington, said they found no evidence of wrongdoing after investigating Kasem’s death at 82 in 2014. Jean has hired former LA Chief Prosecutor Becky James to fight her case.

Court documents state that Ingham did not "visit Casey in Washington state [where Casey died] to assess his needs when he was having trouble breathing" after he was hired to advocate for his interests. Jean and her daughter Liberty further claim the lawyer profited by billing hundreds of thousands of dollars in fees to the estate.

See Casey Kasem’s Widow Accuses Attorney of ‘Conspiring to Kill’ Him, Fox News, July 28, 2019.