Wills, Trusts & Estates Prof Blog

Widow claims Virgin Atlantic lost luggage containing husband's cremated remains

Joyce Jackson boarded a Virgin Atlantic flight from Manchester to Florida earlier this year, making the trip in order to bury her husband’s ashes and their wedding rings at the couple’s favorite vacation destination. Unfortunately, his remains did not make the flight.

Gordon Jackson died last year in a tragic accident and his wife planned to bury some of his ashes at Walt Disney World. Jackson believes the luggage tag assigned by the airline fell off at the Manchester Airport causing the luggage to miss the flight, leaving her stranded in Florida with very few personal belongings and without her husband. While Walt Disney World was helpful when learning of her predicament, making sure she was able to wash her clothes and provided her with a toothbrush, Ms. Gordon feels she lost the opportunity to lay her husband to rest in Florida.

Virgin Atlantic is investigating the incident.

For more information see Jon Brown “Widow claims Virgin Atlantic lost luggage containing husband’s cremated remains”, Fox News, October 24, 2022.

‘The Cash Monster Was Insatiable’: How Insurers Exploited Medicare for Billions

Two decades ago, Congress designed Medicare Advantage to be a private-sector alternative to traditional Medicare in an effort to encourage health insurers to find innovative ways to provide better care at lower cost. The government pays Medicare Advantage insurers to set an amount for each person who enrolls, with higher rates applying to “sicker” patients, which was an attempt to prevent companies from only offering the service to the healthiest patients. The New York Times has reviewed dozens of lawsuits, audits, and investigations which shows that many health insurers exploited the program to inflate profits.

Federal audits show that eight out of the ten largest Medicate Advantage insurers have submitted inflated bills, with more being investigated by the Department of Justice. Allegations include mining old medical records for patients that had not seen in weeks to find more illnesses so insurers could collect more money. The most common allegation is not correcting potentially invalid diagnoses after becoming aware of the mistake, resulting in a similar outcome.

Many of the fraud lawsuits were brought by former employees who were acting as whistle-blowers. The Justice Department has brought or joined 12 of the 21 cases that have been made public while whistle-blower cases remain secret until the department has an opportunity to fully review them. 

Companies continue to vigorously defend their compliance with Medicare Advantage requirements.

For more information see Reed Abelson and Margot Sanger-Katz “The Cash Monster Was Insatiable’: How Insurers Explored Medicare for Billions,” The New York Times, October 8, 2022.

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

British woman found guilty of decapitating friend, forging will to take 95% of her estate

Earlier this week Jemma Mitchell was convicted of murdering Mee Kuen Chong, also known as Deborah Chong, in June 2021 and forging her will to receive 95% of her estate. The two met through a church group where Mitchell acted as a “spiritual healer.” Acting in this capacity, Mitchell convinced Chong to give her $230,000 for home renovations, but Chong later backed out of the deal. 

Detective Chief Inspector Jim Eastwood, the lead investigator on the case, said that Mitchell became so desperate to complete the renovations on her house, she made further attempts to take advantage of Chong’s good will and change her mind. When she was unable to do so, she decapitated her friend and put her remains in a suitcase. As decomposition progressed, Mitchell disposed of the suitcase in the seaside town of Salcombe and texted Chong’s landlord that she had gone to “stay near the sea.”

Mitchell is set to be sentenced on Friday.

For more information see Paul Best “British woman found guilty of decapitating friend, forging will to take 95% of her estate,” Fox News, October 27, 2022.

Lawyer is disbarred after email falsely claims he is dead

Last month, the California Supreme Court approved the disbarment of Donald Martin Stone. An email was sent to deputy trial counsel investigating Stone stating that he passed away, however, while attempting to confirm this information, an investigator discovered Stone alive and well at a new address.

Stone was initially facing disciplinary hearings for failing to disclose a no-contest plea to a petty theft misdemeanor in 1995, which was ultimately vacated after he successfully completed probation. He asked for the disciplinary case to be dismissed due to the fact he was retired, but court moved forward anyway. Stone missed four bar court appearances, including his ethics trial. It was at this point an email address associated with stone sent an email to the bar informing them that Stone had “passed away months ago.”

Once Stone was found alive, the bar submitted a petition for disbarment. The disbarment was finalized early this month.

For more information see Debra Cassens Weiss “Lawyer is disbarred after email falsely claims he is dead,” ABA Journal, October 10, 2022.

Special thanks to Adam J. Hirsch (Professor of Law at the University of San Diego School of Law) for bringing this article to my attention.

The man who made Red Bull the world's best-known energy drink and amassed a $25 billion fortune has died aged 78

The Austrian billionaire and Red Bull cofounder, Dietrich Mateschitz, has died after battling a long illness. Red Bull is the world’s best-selling energy drink and helped Mateschitz amass a $25 billion fortune.

Mateschitz used this fortune to create a Formula 1 team that is known as one of the most successful teams in the sport. Team principal Christian Horner told reporters at the US Grand Prix last weekend in Austin, TX how grateful he is for Mateschitz for providing opportunities based on his vision for the sport. “Never be afraid to chase your dreams.” 

Stefano Domenicali, F1 CEO, said the F1 community was deeply saddened by his passing, recounting how Mateschitz was a widely respected visionary that helped transform the sport and was a “much-loved member of the Formula 1 family.”

Through Red Bull, Mateschitz also owned football clubs in Austria, New York, and Leipzig, and sponsored sports such as surfing, cliff diving, winter sports, and mountain biking.

For more information see Sam Tabahriti “The man who made Red Bull the world’s best-known energy drink and amassed a $25 billion fortune has died aged 78”, Business Insider, October 23, 2022.

Special thanks to David S. Luber (Florida Probate Attorney) for bringing this article to my attention.

New Edition of Wills, Trusts, and Estates--Examples & Explanations Published

Wills, Trusts, and Estates: Examples and Explanations covers intestate succession, wills, trusts, estate administration, nonprobate assets, wealth transfer taxation, disability and death planning (including elder law concerns), and malpractice and professional responsibility. This book is designed to augment Wills, Trusts, and Estates and related courses that expose students to estate planning, decedents’ estates, and trusts. This book also provides essential background and review material for students taking advanced courses in estate planning, elder law, and wealth transfer taxation. The discussion, along with the examples and explanations, covers both the theoretical and practical applications of the legal concepts. 

 

New to the 8th Edition:  

• The development of electronic wills, electronic signatures and notarization, and other components of estate planning in light of the impact of the COVID-19 pandemic 
• Updated percentages and exemption amounts for gift, estate, and generation-skipping tax
• Revision of content and standards from the Uniform Probate Code, Uniform Trust Code, and other uniform laws to reflect recent changes and amendments 
• Developments in physician-assisted suicide 
• Updated casebook correlation tables reflect new editions of the major casebooks 
• Text and examples updated and “fine-tuned” to enhance readability and pedagogical value
  

Article: Modern Post-mortem Estate Planning for Non-citizen Spouses: Why Qualified Domestic Trusts are a Risky Proposition

Fabio Ambrosio (Central Washington University) recently published an article entitled, Modern Post-mortem Estate Planning for Non-citizen Spouses: Why Qualified Domestic Trusts are a Risky Proposition, Journal of Financial Planning, 2022. Provided below is the abstract to the article:

Trusts are an essential part of estate planning. These legal ‘creatures’ often mystify laypersons as obscure vehicles offering tax saving opportunities to the rich. While there is often some truth to this, administering certain types of trusts can be a matter of enormous complexity, even for the most qualified advisors, and careless planning can lead to catastrophic consequences. The Qualified Domestic Trust (QDOT) is perhaps the most complex of these estate planning vehicles. Qualified Domestic Trusts are born by the interplay of (a) the distinction between income and wealth and (b) the jurisdictional limitations on the reach of U.S. tax laws on the wealth of noncitizens.

New Titles from Carolina Academic Press

Fundamentals of Trusts and Estates

Sixth Edition

Roger W. Andersen & Ira Mark Bloom

2022 • 824 pp • 978-1-5310-2484-0 • $215.00 • casebound
Teacher’s Manual available  

This edition continues to provide a lean set of materials, flexibly structured to accommodate different lengths of courses. Specifically updated, in addition to case developments, are the 2019 UPC Amendments to the intestacy and class gifts areas, including extensive treatment of parentage and descendancy based on assisted reproductive technologies. The Uniform Electronic Wills Act and the Fiduciary Income and Principal Act are also covered. 

Following a largely traditional organization, the book presents fundamental material clearly and concisely while including creative vehicles for further inquiry. Questions and problems provide the flexibility for teachers to tailor their courses to meet the needs of their particular students and curriculum. Without the inconvenience of hopping and skipping, teachers can ignore, focus upon, or expand upon different problems and questions. The excerpted readings fulfill the same function—they can serve as background or as springboards for further inquiry. Policy debates, ethics issues, and practical considerations lace their way through the material. Often by placing students in various roles, the questions and problems help students develop skills and values to carry throughout their professional careers.
 

Understanding Trusts and Estates

Seventh Edition

Roger W. Andersen & Susan N. Gary

2022 • 432 pp • 978-1-5310-2560-1 • $55.00 • paper  

This new edition of Understanding Trusts and Estates retains the style and clear language that have kept generations of students engaged as they explore this intriguing field. Updates include coverage of electronic wills, new uniform act treatment of the parent-child relationship and unmarried cohabitants, directed trusts and trust protectors, and the uniform power of appointment act. Examples, charts, cross-references among similar concepts, and frameworks for analyzing problem areas all combine to give students the tools to deepen their understanding. Examples throughout the book demonstrate how trusts and estates doctrines affect real people.

Although the book is designed primarily as a student supplement, some teachers have used it successfully as the primary text, supplemented by statutory materials, for both the basic course and for more specialized courses. Practicing attorneys may also find it useful if they are new to the subject or have been away from it for some time.

ACTEC Recent Updates

ACTEC shared a podcast providing an overview of case disputes based on unconscionability of premarital agreements, a video on how to prepare for an initial estate planning meeting with professionals, 
and provided resources in recognition of this week being National Estate Planning Awareness Week.

ACTEC Trust and Estate Talk  (podcast series for professionals)

Unconscionability of Premarital Agreements - Part 2 of 2

In the conclusion of this podcast series, ACTEC Fellow Richard A. Gorini explores cases involving disputes of premarital agreements, aka post-nuptial agreements, based on the concept of unconscionability under the Uniform Premarital Act.

(Part 1 provides a subject overview.)

Family Estate Planning Guide (video series on estate planning) In Preparing for Your Initial Estate Planning Meeting estate planning experts explain what information and documents clients need to provide to an attorney during the initial meeting to be efficient with time.

National Estate Planning Awareness Week – ACTEC Resources

ACTEC joins the NAEPC Association In recognition of "National Estate Planning Awareness Week," (October 17 – 21) and provides basic estate planning resources to encourage everyone to make an estate plan! 

Markets or Regulators: Who Decides on ESG?

Environmental, social and governance investing (ESG) has become controversial, with conflicting discourse around ESG investing. One conclusion is that fiduciary duty prohibits ESG investing, while the other is that it mandates ESG investing. 

The concept originated at the United Nations in 2005 as a follow up to Socially Responsible Investments (SRI) and calls upon investment professionals to understand the implications environmental, social, and governance factors of their investments. Regulators are partially to blame, as The Department of Labor under the Trump administration initially said that ESG investing violates fiduciary duty, while under the Biden administration the Department has all but said fiduciary duty requires ESG investing. The final rule is still pending.

Part of the confusion is regarding the semantics surrounding ESG investing. The first uses factors that can improve risk-adjusted returns, while the second is that ESG can starve “bad” firms of capital, providing benefits to third parties, which is essentially rebrand of SRI. The confusion this has created is not good for financial markets or investors, in particular, it complicates the management of nearly $40 trillion in retirement savings.

Traditionally, the Employee Retirement Income Security Act (ERISA) dictates that until an individual receives a distribution, the fiduciary managing the individual’s retirement savings must consider only expected risk and return. Using ESG factors to assess risk and return can be permissible investment for an ERISA fiduciary, but a fund that uses ESG factors to advance collateral benefits is not as ERISA prohibits investing for social impact. “A governmental push for or against ESG investing will create regulatory uncertainty while variously freezing in place strategies that may stop working or freezing out strategies that may be beneficial.”

For more information see Max Schanzenbach and Robert H. Sitkoff “Markets or Regulators: Who Decides on ESG?”, Barron’s Economy & Policy, October 20, 2022.