Wills, Trusts & Estates Prof Blog

Britney Spears Is Released From Her Father’s Oversight

Judge Brenda Penny has granted the request of Britney Spears' attorney, Mathew S. Rosengart, to remove Jamie Spears as conservator. The Judge's decision marks the first time since 2008 that Britney Spears will be without her father's oversight. 

According to Rosengart, Britney had been pleading for Jamie Spears' removal and stated, "[t]his man does not belong in her life, your honor, for another day. . .Please hear the plea of my client." 

After hearing both sides, Judge Penny agreed that suspending Jamie Spears was in the best interest of Britney Spears. Judge Penny stated, "[t]he current situation is not tenable." 

The decision by Judge Penny brought a significant ending to what has been a chaotic summer—in which Britney Spears broke her public silence at a hearing in June to plead her case and speak her truth. 

Although an attorney for Jamie Spears, Vivian Lee Thoreen, argued to end the conservatorship right away instead of suspend Mr. Spears, Rosengart asked the Judge to wait so that he could further investigate Mr. Spears's conduct. 

Rosengart asked for a termination hearing to be set for 30 to 45 days so that Ms. Spears could have an orderly transition. The next hearing is set for November 12. 

See Joe Coscarelli, Julia Jacobs, & Liz Day, Britney Spears Is Released From Her Father’s Oversight, The New York Times, September 29, 2021. 

Article: Dilution of the Doctrine of Survivorship

Sarthak Sharma recently published an article entitled, Dilution of the Doctrine of Survivorship, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:

The doctrine of survivorship was a model of property division, prevalent in the Mitakshara school of thought under Hindu legal traditions. It was a heavily patriarchal system which essentially mandated the division of the estate solely among the male claimants, terming them as coparceners. This selective exclusion of female descendants and disqualification of legal heirs’ claim in their ancestral property was gradually diluted and ultimately abolished via a series of legislations and amendments, providing females a greater equitable claim, a guaranteed share and a set of complimentary rights. This article documents this process and its impact, via examples of important cases and critical outlook of the currently persisting issues in the much-transformed doctrine.

Postmortem Conception

Kristine S. Knaplund (Professor, Pepperdine Caruso School of Law) has recent published her article entitled Reimagining Postmortem Conception, 37 Ga. St. Univ. L. Rev. 905 (2021). Here is the abstract of her article:

Hundreds, likely thousands, of babies have been born years after a parent has died. Thousands more people have cryopreserved their sperm, ova, and embryos, or have requested that a loved one's gametes be retrieved after death to produce still more such children. Twenty-three states have enacted statutes detailing how these postmortem conception children can inherit from their predeceased parents.

And yet, few of these children will be able to inherit. The statutes create a bewildering array of standards, with over a dozen definitions of consent, variations in signature and witnessing requirements, and hurdles imposed in one state but not another. With our mobile population, the odds that a consent executed in one place will be accepted in another are small. With one exception--a New York amendment effective in February 2021--the states exclude most LGBT persons from being a postmortem parent. By failing to define when conception occurs, the statutes provoke a fight with those who use in vitro fertilization while both genetic parents are alive.

This Article is the first time that the laws of all 50 states are examined to provide a comprehensive look at whether a postmortem child inherits and determine how wildly disparate the legal standards are from public sentiment. The Article details the precise ways the law fails the problem and proposes four concrete solutions for states to adopt.

Cryptocurrency: rise of decentralised finance sparks ‘dirty money’ fears

Just a few days before the July 4 holiday, Denver entrepreneur Erik Voorhees declared that "the company he had founded seven years earlier to help people exchange cryptocurrencies without making their names available to the government or anyone else would disappear from the face of the Earth — even as its services remained available to those who wanted them." 

Voorhees's enterprise, known as ShapeShift, would become a "decentralized autonomous organization," or DAO overtime. Voorhees wrote on twitter: "ShapeShift's vision is the establishment of an immutable, borderless financial system. . .Let's be direct: money and finance shall not be operated by coercive government among free people. They shall — like language, mathematics, and love — emerge voluntarily and without central rule." 

US regulatory circles have honed in on Vorhees's declaration who long worried that the secrecy of the crypto trade "create opportunities to disguise the origin and ownership of funds." In crypto trade, the coins are controlled by the holder of a "private key" which allows for anonymity. 

This anonymity is a major focus of concern for US regulatory circles, and those anxieties have grown stronger with the growth of decentralized finance or DeFi. DeFi platforms "seek to replace financial intermediaries such as banks or brokers with software known as smart contracts. . . .that would automate market activity." 

Although US regulatory circles are concerned with the hazy legal status and lack of customer knowledge that comes along with DeFi platforms, Vorhees and his "crypto allies" never intended to know their customers and feel that DeFi innovations will "enable them to break free of such obligations." 

See Gary Silverman, Cryptocurrency: rise of decentralised finance sparks ‘dirty money’ fears, Financial Times, September 14, 2021. 

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

Body composting a 'green' alternative to burial, cremation

Seth Viddal and one of his employees have built a "vessel they hope will usher in a more environmentally friendly era of mortuary science that includes the natural organic reduction of human remains, also known as body composting." 

According to Viddal, who compared the process to backyard composting of food scraps and yard waste, "It's a natural process where the body is returned to an elemental level over a short period of time. . .This is the same process but done with a human body inside of a vessel, and in our case, in a controlled environment." 

On September 7, Colorado became the second state after Washington to allow human body composting. Beginning next July, Oregon will allow the same practice. 

Viddal co-owns The Natural Funeral in Lafayette and lobbied the Colorado legislature for the option to practice body composting and. began building a prototype vessel soon after the bipartisan bill was signed into law. 

Viddal, who calls the process "an exciting ecological option," said that "[c]omposting itself is a very living function and it's performed by living organisms. . .There are billions of microbial, living things in our digestive tracts and just contained in our body." 

See Body composting a 'green' alternative to burial, cremation, Fox Business, September 16, 2021. 

Tulane/ACTEC Symposium on Conflict of Laws in Trusts and Estates

Tulane University School of Law and The American College of Trust and Estate Counsel’s Legal Education Committee are organizing the 9th academic symposium financially supported by The ACTEC Foundation. The symposium, Conflict of Laws in Trusts and Estates will be held at the Tulane University School of Law on Friday, October 21, 2022. The keynote address will be given by Professor Jeffrey Schoenblum of Vanderbilt University Law School.

Among the objectives of this symposium are the following:

• To bring together prominent and up-and-coming scholars for the discussion of important issues in conflict of laws;
• To spur leading-edge research on conflict of laws in trusts and estates;
• To encourage professors of trusts and estates to incorporate and consider issues of conflict of laws in their scholarship and teaching;
• To promote collaborations and exchanges between conflict-of-laws scholars and scholars of trusts and estates.

Papers presented at the symposium will consist of papers selected from this Call for Papers and papers from invited speakers. The papers will be published in the Tulane Law Review.

If you would like to be considered to present a paper, please submit an abstract of your paper to Ron Scalise by email ([email protected]) by November 1, 2021. Those chosen to participate  in the symposium will be notified no later than December 1, 2021. Symposium speakers will be required to submit a draft of their papers by August 15, 2022, so that the panel commentators will have sufficient time to prepare their commentary.

Symposium speakers will be reimbursed for their travel expenses (economy airfare, the cost of ground transportation, and up to two nights’ hotel stay). Speakers will be invited to dinner on the evenings of Thursday, October 20, 2022, and (for speakers staying Friday evening) Friday, October 21, 2022.

Breakfast and lunch will be provided to speakers and attendees on Friday, October 21, 2022, courtesy of The ACTEC Foundation.

Questions about the symposium or this call for papers should be directed to Ron Scalise at the email address above.

This symposium was made possible through the financial support of The ACTEC Foundation, https://actecfoundation.org.

ACTEC Shares Useful Resource

ACTEC Trust and Estate Talk  

Estate Planning for Special Purpose Acquisition Company Founders - Insights into the capital structure and risk/reward of SPAC investing for founders along with estate planning advice for potential valuation issues, the applicability of section 2701, and the use of GRATs with these assets.

Nearly 70% of millionaires are worried about leaving ‘too much’ money to their kids, survey finds

Millionaires are increasingly worried about leaving too much money to their children. Wealthy celebrities have expressed their concern and are worried about how much of their fortunes they should leave to their kids. 

"According to a survey conducted by the Motley Fool, which asked 2,000 high net worth individuals — classified as people with a net worth over $ 1 million — about their attitudes toward inheritances." 

Among the top concerns was the possibility of leaving too much money to their heirs and what the effects will be. Further, wealthy individuals were concerned that the wealth would be "used irresponsibly" or that it "would cause beneficiaries to be lazy." 

According to Motley Fool research analyst Jack Caporal, "What's clear is that high net worth individuals are concerned about the effects of leaving too large an inheritance. . .They are aware of and actively considering leaving inheritances with conditions that incentivize their heirs to pick up on values that they think are important, such as hard work, doing well in school and finding a good career track." 

See Nicolas Vega, Nearly 70% of millionaires are worried about leaving ‘too much’ money to their kids, survey finds, CNBC, September 19, 2021. 

Article: Study Paper on Health Care Consent and Capacity Assessment Tribunals

The British Columbia Law Institute and the Canadian Centre for Elder Law recently published an article entitled, Study Paper on Health Care Consent and Capacity Assessment Tribunals, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:

A finding of mental incapacity to give informed consent to health care, or to decide whether to accept or refuse admission to a care facility, results in a very significant loss of personal autonomy. A mature legal system must provide a readily accessible means to obtain review of a finding of incapacity by an independent decision-making body. This imperative has been accentuated by Canada’s ratification of the UN Convention on the Rights of Persons with Disabilities.

British Columbia once experimented with an administrative tribunal as a forum for review of decisions about mental capacity to consent to health care, and for resolution of disputes connected with substitute decision-making. The experiment was aborted well before reliable conclusions could be drawn about its merits.

At the present time, British Columbia nominally provides a mechanism for review of incapacity assessments, and of health care or care facility admission decisions of substitute decision makers, by application to the Supreme Court. In the course of the Canadian Centre for Elder Law’s project on Health Care Consent, Aging and Dementia: Mapping Law and Practice in British Columbia, it came to light that the court-based remedy is not utilized to any extent. In all likelihood, this is because it is inaccessible as a practical matter to most persons whose mental capacity is in question and their supporters.

A recommendation by the Advisory Committee on Health Care, Consent, Aging and Dementia called on government to consider the restoration of a non-court review mechanism, and for robust research to shed light on a model that would be appropriate for British Columbia.

This study paper is a response to that call for research. It examines existing tribunals in Canada and Australia that deal with mental capacity and consent to health care, and analyzes issues and considerations that would enter into the design of a tribunal suited to British Columbia. In so doing, the study paper lays groundwork for the public policy exercise that it is hoped will follow to bring a truly accessible non-court review mechanism into being in the health sector.

The single mother’s guide to financial planning

Single mothers often face an onslaught of challenges as the sole breadwinners. Single mothers are tasked with preserving the welfare of their children as well as sustaining the household financially. 

With this responsibility comes "the emotional strain of shouldering the family's finances alone." This often time makes mothers fell overburdened and financially strained. 

However, "single mothers have a special type of resilience and resourcefulness when it comes to managing their finances. Research shows that women make better investors because they are more likely to seek advice, stick to their financial plans, and remain composed in times of market volatility." 

There are certain steps single mothers can take to "fortify their financial positions:"

1. Budgeting and money management
2. Insurance Protection
3. Estate Planning 
4. Saving and Investing, and 
5. Medical Aid Cover

See Craig Tor —Crue Invest (Pty) Ltd, The single mother’s guide to financial planning, Money Web, August 12, 2021. 

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