Monday, January 25, 2021
Alex C.H. Yeung and Jason Fee recently published an article entitled, Limiting the Fiduciary's Account of Profits: But-for Causation?, Wills, Trusts, & Estates Law ejournal (2020). Provided below is the abstract to the Article.
In an account of profits for breach of fiduciary duty, courts have understandably required some form of nexus between the breach and the gains to be disgorged, but have otherwise struggled to articulate a precise test. In the recent case of UVJ v UVH, the Singapore Court of Appeal broke new ground by requiring but-for causation, apparently branching off from the Anglo-Australian jurisprudence which advocates a more liberal approach to causation. While the but-for test is practically appealing as a technique well known to various areas of law, this article seeks to assess the normative justifications for such a bold move, in view of the attendant issues of deterrence, the unique policy of fiduciary law, and the juridical nature of an account of profits.
The Covid-19 pandemic forced most if not all real estate and trust and estate attorneys to work from home and away from clients. Further, the elderly and others with health issues were advised to stay home and/or in shelter and to avoid face-to-face meetings. Due to the shelter-in-place, the standard practice of ink signatures and in-person witnesses before an in-person notary became nearly impossible to execute.
This issue poses a conundrum because the people that are most at risk are the same people that are more in need of the execution of a will and other estate planning documents. In order to meet the legal needs of these people as well as attorneys and other clients, the legal industry had to evolve in a way that allowed clients to execute estate planning documents while also minimizing risks and danger.
Since state law controls most of the requirements and standards for real estate and health and estate planning documents, "the executive committee of the section determined that RPTE should advocate that states adopt special rules and procedures for remote ink execution during the pandemic."
These newly adopted rules would allow attorneys to serve clients that are or have family members that are susceptible to great risk to safely execute legal documents. The rules also provide protection to the attorneys with the same risk factor.
Working with the ABA Governmental Affairs Office, RPTE leaders drafted a letter to be sent to state governors. The letter advocated for the issuance of executive orders and other types of legislation to allow for remote ink notarization and witnessing by other—simpler—means.
See Jo-Ann Marzullo, RPTE Advocates for Remote Ink Notarization and Remote Witnessing During the Pandemic, ABA: Probate & Property, Jan/Feb. 2021.
Sunday, January 24, 2021
Richard L. Kaplan recently published an article entitled, Estate Planning for Retirement Benefits after the SECURE Act, Wills, Trusts, & Estates Law ejournal (2020). Provided below is the abstract to the Article.
This brief essay examines one of the most significant intersections of Elder Law and Trusts & Estates – namely, distributions from defined contribution retirement plans after the participant dies. Particular attention is paid to recently enacted statutory changes, including the end of so-called “stretch IRAs,” which allowed non-spouse beneficiaries to spread withdrawals from inherited retirement accounts over their lifetimes. This essay also addresses strategic considerations in designating beneficiaries for such accounts.
Saturday, January 23, 2021
Article: Research Paper #6: Class Action Remedies: Cy-près; ‘An Imperfect Solution to an Impossible Problem’
Peter Kenneth Cashman and Amelia Simpson recently published an article entitled, Research Paper #6: Class Action Remedies: Cy-près; ‘An Imperfect Solution to an Impossible Problem’, Wills, Trusts, & Estates Law ejournal (2020). Provided below is the abstract to the Article.
In this paper, we revisit the recommendation of the Victorian Law Reform Commission in 2008 that the courts be given an express power to grant cy-près remedies. We discuss the use of cy-près remedies in class actions in the United States of America and Canada is reviewed and the existing practice of granting cy-près distributions in limited circumstances. It is suggested that the courts should have an express statutory power to grant cy-près remedies.
Friday, January 22, 2021
Alexandra Braun recently published an article entitled, Forced Heirship in Italy, Wills, Trusts, & Estates Law ejournal (2020). Provided below is the abstract to the Article.
Civil-law systems do not generally grant testamentary freedom without limitations. Often, the most significant constraints on the freedom to dispose of assets on death derive from legislative provisions that protect the interests of close family members by way of a forced share, even against the wishes of the deceased. These restrictions can be more or less extensive. In the case of Italy, they are significant, both in terms of how little the testator can sometimes freely dispose of, whether on death or during her lifetime, and in terms of the limited degree of autonomy with which she can modify or reduce the forced share in the estate and enter into agreements with those entitled to a forced share. This chapter provides an historical overview of forced heirship in Italy and examines its main features as well as the mechanisms that are in place to protect forced shares. It evaluates the various proposals to reform forced heirship, including proposals to abolish forced heirship altogether, none of which have been implemented. It argues that Italian law in this area is in an unsatisfactory state, for not only do forced heirship provisions impinge on a person’s freedom of testation and her freedom to make gratuitous transfers during her lifetime, they also affect the interests of donees and other third parties, ultimately hampering the free movement of goods. What is more, the provisions that are in place, including those on the calculation of the forced share and on anti-avoidance, are of considerable complexity. A reform of the area is therefore highly desirable.
Thursday, January 21, 2021
As of late September 2020, 77,000 residents and staff of long-term care facilities have died of COVID-19 with adults 65 and older accounting for 79 percent of COVID-19 deaths in the United States. This number is exceptionally troublesome given the fact that the age group only accounts for 15.2 percent of the population.
Why so many deaths?
Well, the residents in nursing homes are much older and more fragile, leaving their immune systems more susceptible. Further, "the top three underlying conditions for those hospitalized with COVID-19 (heart disease, chronic lung disease, and diabetes) rise with age, posing a greater risk to those is nursing homes and similar facilities.
The high infection rate results from a combination of factors which are shown below:
- Problems with high infection control in nursing homes, a long-time issue that the pandemic has exacerbated.
- Chronic lack of personal protection equipment (PPE)
- Failure to separate COVID-19 cases from non-covid residents
- Nursing home designs that make it easy for infections to spread
- Staffing shortages made worse by the pandemic, and
- Inadequate testing
From a practical standpoint, in order to control the increasing death rate and lower the COVID-19 cases in nursing homes, these issues will need to be addressed.
See David English, So Many Have Died: COVID-19 in America's Nursing Homes , ABA: Probate & Property, Jan/Feb 2021.
Nebraska Supreme Court Construes Will: Intent To Disinherit Heir Must Be Express Or Necessarily Implied In Will
Michael Brinkman died in 2016 survived by two children, Nicole and Seth. Kimberly Milius was named as personal representative. Kimberly is Seth's mother but not Nicole's. Nicole believed that she was entitled to an undivided one-half interest in Michael's estate, despite the fact that Kimberly is not her mother. Kimberly and Seth alleged that it was Michael's intent to disinherit Nicole.
Since Nicole's name is not mentioned in then will, she filed a motion to construe the will under Nebraska law, "contending that an ambiguity existed in the term 'issue.'" Nicole argued that the term 'issue' was meant to refer to both her and Seth.
The Nebraska county court found that the will was ambiguous on whether Michael intended to disinherit Nicole and found that the language of the will did not disinherit her.
The Nebraska Supreme Court found that the decedent (Michael) did not intend to disinherit his daughter.
See Nebraska Supreme Court Construes Will: Intent To Disinherit Heir Must Be Express Or Necessarily Implied In Will, Probate Stars, January 18, 2020.
Wednesday, January 20, 2021
As you probably know, every house is unique, as is its character and history; and some houses have more character and history than others. This is especially true for a home in England in which the previous owner is buried where the garden used to be.
Relatives of the previous owner put the house up for sale last September and according to the description, the owner had lived in the house their entire life. The owner's last wish was to be "laid to rest in the garden."
The home's listing stated, "Please be aware this property is being sold by family members as part of a relatives estate. It was the deceased's wishes to be buried in the garden as he was born and died in the house. This wish has been carried out and the property will be sold as is." The listing included that the house was being sold "with no onward chain" which means that the owner isn't wait on money from the sale of the house to move out.
Although, the burial situation is an odd feat of the home, it also includes solar panels, a wood-burning stove and three-bedrooms.
See Michael Hollan, Real estate listing claims former owner is buried in house's backyard, Fox News, January 19, 2021.
Lonnie Dillard died one month after being diagnosed with stage 4 pancreatic cancer. Dillard died in Austin, Texas at the age of 75. Instead of having a boilerplate obituary, Dillard decided to write his own and did so in an eloquent fashion!
Dillard did not write about himself in his obituary, but instead he penned an inspirational obituary that implored readers to take a look at their own lives.
Dillard wrote, "I hope to make your time worthwhile. Instead of cataloging careers and adventures I have had, honors I received, missteps I made or some I loved (I was blessed to have more than my share of each of these) or bemoaning how much my sparkling wit or wisdom will be missed, I though it better to share a few of the big lessons I learned during my 75 eventful years on Planet Earth."
Dillard had three main focus points in his obituary, specifically centered around things that come for free, like love. Those points are below:
- "A mother’s unwavering love can turn a very ordinary little boy into an extra-ordinary man, if only in his own mind,"
- "Making and keeping friends, like tending a garden, requires attention and effort. Yet doing so yields greater returns than anything else you will ever do."
- "As Buddhists say: Be kind; everyone you meet is traveling a difficult journey. There is no substitute for a good deed; but simply helping a stranger laugh or smile can lighten a load, too."
The rest of the obituary follows this same sort of inspiring modality and is no doubt an eloquent farewell from Dillard who seems to have been a wise and thoughtful man.
See Zachary Kussin, Texas man wrote his own obituary, offering poignant life lessons, Fox News, January 18, 2021.
Durham Law School is recruiting an Assistant prof in Equity and Trusts. The current Equity/property team at Durham includes ETRN members Dr Johanna Jacques and myself. It would be great to add another critically inclined colleague to the team. Anybody who had questions about work and life in Durham should feel free to contact either of us and we would be very happy to discuss our experience.