Wills, Trusts & Estates Prof Blog

The Family of a Former Supreme Battles for Control of Her Life

Cindy Birdsong, the former Supremes member, and Motown royalty, has mainly remained hidden since the early 1990s. She left the group in 1976, later experiencing financial hardship, and withdrew from the limelight. However, her financial and medical struggles are becoming more public lately as her family requests a legal conservatorship to govern the singer's affairs.

Birdsong suffered several strokes over the past few years, with her family claiming she is now totally incapacitated. The family claims that her longtime friend and roommate, Rochelle Lander, has been an undue influence on Birdsong's care and isolated her from her friends and family.

For more information see Julia Jacobs and Christopher Petkanas “The Family of a Former Supreme Battles for Control of her Life” The New York Times, June 29, 2023.

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

Netherlands euthanizing autistic and intellectually handicapped people, researcher finds

The Netherlands became the first country to legalize euthanasia in 2002 and recently expanded to include assisting in the death of children as young as 1-year-old. Belgium has allowed physician-assisted death for children since 2014.

Researchers have found that the Netherlands permitted five otherwise healthy individuals to seek legal euthanasia by citing autism as a factor. The study noted that doctors determined there was no prospect for improvement and no treatment available in these cases and that the intellectual disability prevented them from leading a normal life.

One record includes a woman in her 30s diagnosed with autism and borderline personality disorder, preventing her from connecting and maintaining relationships with others.

Palliative care specialist Irene Tuffrey-Wijne told reporters, "There’s no doubt in my mind these people were suffering… but is society really OK with sending this message, that there’s no other way to help them, and it’s just better to be dead?" 

For more information see Timonthy H.J. Nerozzi “Netherland euthanizing autistic and intellectually handicapped people, researcher finds” Fox News, June 28, 2023.

Article: Creating a Trust Through Delegation

Raymond C O’Brien (Catholic University of America- Columbus School of Law) recently published an Artcile, Creating a Trust Through Delegation, Quinnipiac Probate Law Journal, Vol. 36 Pp. 1-40, 2023. Provided below is an abstract:

Aging in America has precipitated increasing use of planning for incapacity devices, which include forms creating powers of attorneys (“POAs”). Simple forms may be found online, or they may become part of a sophisticated estate planning portfolio drafted by professionals. Resultingly, to support portability, enforceability, and protection against financial exploitation of vulnerable adults, the National Conference of Commissioners on Uniform State Laws approved the Uniform Power of Attorney Act in 2006 (“UPOAA”), which has been adopted by more than half of United States jurisdictions. One of the Act’s provisions requires an express grant of authority contained within the principal’s POA before an agent designated by the principal may create, amend, revoke, or terminate a trust. As a result, a general grant of authority to an agent is insufficient to permit an agent to create an inter vivos trust, revocable or irrevocable. This component is counterproductive because it lessens the agent’s fiduciary effectiveness, particularly given the flexibility and management advantages that trusts bring to modern estate planning. The rationale for requiring express authorization is that it protects the principal from possible financial exploitation by the agent, a serious and prevalent form of abuse adversely affecting many older Americans. And yet, states and the federal government have enacted various legislative protections, such as mandatory reporting, immunity for reporting, withholding funds when there is reasonable suspicion of financial abuse, increased statutory avenues for elder financial abuse prosecutions, and educational programs for financial officers and enforcement agencies. In addition, there are fiduciary restraints incorporated into the UPOAA and current trust law enacted in all states. With these advancements, it is far more likely today that financial exploitation by agents will be identified and perpetrators punished. This Article argues that provisions in POA statutes, specifically the UPOAA, requiring an express grant of authority before an agent may create an inter vivos trust is violative of public policy and statutes should be amended to permit agents to create, amend, revoke, or terminate a trust under a general grant of authority. The public policy argument is based on the abundant use of inter vivos trusts, the acceleration of reporting and prosecution of reasonable suspicions of financial exploitation, and the unawareness of a significant number of signers of POAs that a general grant of authority will not authorize their agents to take advantage of the substantial benefits associated with trusts and estate planning.

Older Americans Robbed Of $20 Billion A Year by People They Know

The improper or illegal use of older adult's funds, property, or assets is "elder financial exploitation." It often goes unreported, and in 88% of cases, the victim knows the individual who is exploiting them. 

The AARP Public Policy Institute conducted a study in 2022 which concluded that the rate of financial exploitation has doubled since COVID-19 sent the world into lockdown in March 2020, fueled by the pandemic's social isolation. Most older victims do not get their money back, which can impact the entire family if loved ones contribute more money to care for their family members. 

For more information see Suzanne Wooley “Older Americans Robbed of $20 Billion A Year by People They Know” Financial Advisor, June 15, 2023.

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

My Siblings’ Inheritance Depends on Whom They Marry. Is That Wrong?

Philosopher Kwame Anthony Appiah is the New York Times resident Ethicist who weighs in on life’s trickiest situations and moral dilemmas sent in from readers. An anonymous reader wrote:

Around a decade ago, my mom informed each of her children that she and my stepfather put a codicil in their wills disinheriting any of their children married to someone not recognized as Jewish by her local Orthodox Rabbinate.

I believe a will is not just about money; it’s also an expression of values and love. I have strongly objected to this codicil, or more specifically, to her having informed us about it: The two are thereby using their wealth as an implicit weapon in service of their religious views.

She says I’m reading too much into it. She claims she informed us in the name of “transparency,” so we wouldn’t be surprised later, and that it’s her money to do with as she pleases, anyway — though she concedes that she also informed us in case it may influence decisions we make.

I’ve since married someone who fits her definition of a Jew, so the codicil doesn’t apply to me. Still, I have three middle-aged siblings who are all not religious and unmarried, and I think they remain so at least partially because they’re stuck, unable to both follow their hearts and avoid betraying my mother’s love — and its most powerful signifier, her will. Is she right to have the codicil? And to have told us about it? — Name Withheld

To read The Ethicist’s advice see Kwame Anthony Appiah “My Siblings’ Inheritance Depends on Whom They Marry. Is That Wrong?” New York Times, June 9, 2023.

Special thanks to Naomi Cahn (University of Virginia) for bringing this article to my attention.

Article: How Much Dead-Hand Control Is Too Much? Why Biometric Data Privacy Laws Need Expanding

Gavin Elliott (Texas Tech University School of Law) recently published, How Much Dead-Hand Control Is Too Much? Why Biometric Data Privacy Laws Need Expanding, Estate Planning and Community Property Law Journal, Vol. 15:1, 2023. Provided below is an abstract:

Biometric data privacy laws are meant to prevent certain harm envisioned by the legislature in the drafting process. The state legislatures that have passed and are currently drafting these laws consider their constituency’s discomfort with unforeseen downstream consequences of biometric data collection by companies and the potential for repeated fraud due to the immutability of biometric identifiers. In response to their constituency’s concerns, legislatures have passed laws that protect biometric identifiers in these two contexts.

This legislation stops short of its intended purpose by not extending the same protections to the deceased. This gap leaves the deceased vulnerable to cybercriminals and unintended downstream consequences alike. However, this Comment argues the right of control and right to private action created in biometric privacy legislation creates a property interest in biometric identifiers bringing this within the realm of estate planning. Estate planners in the states that have enacted biometric privacy legislation can protect the decedent’s privacy while managing the risk of post-mortem fraud.

Article: The Irreducible Cores of Trustee Obligations

Adam S. Hofri-Winogradow (Peter A. Allard School of Law, the University of British Columbia) recently published an Article, The Irreducible Cores of Trustee Oligations, Law Quarterly Review, 2023. Provided below is an abstract of the Article:

The law of trustees’ obligations is built around an enduring contradiction. On the one hand, trustees are subject to a heavy burden of duties. Though breach of those duties does not always lead to compensatory liability, trustees are also subject to a heavy burden of liabilities. On the other hand, drafters of trust instruments often exclude large parts of either or both burdens. In other cases, trustees’ duties are not excluded but undermined, as by subjecting trustees to the directions of a non-fiduciary protector. The law of many common law jurisdictions accepts much of this practice of exclusion and undermining, rendering much of the two burdens default law. Twenty-five years ago, leading trust jurists started referring to the mandatory elements of trusteeship, of trustee obligations or of trust law as an “irreducible core”. This article focuses on the irreducible core of trustee obligations, leaving aside other parts of the law of trusts. The topic encapsulates a dilemma fundamental to the law of trusts: how much of trustees’ burdens, hereinafter discussed as one composite burden, should be subject to contract-style tailoring and elimination, and how much of that burden should be inescapable? The article proposes an answer to that dilemma. I argue that attempts to define a single mandatory core, applicable to trustees of all express, non-charitable trusts except those statutorily subjected to special trust regimes, tend to be unstable. This instability is a result of the large differences between the many contexts in which trusts are used. The law governing trustees of express non-charitable trusts tends to coalesce around several cores rather than one, each applicable to a different context of trust practice. Concluding that the multiple cores trend is desirable, I propose a blueprint for its further development, including irreducible cores for three trust types: (i) settlor-controlled family trusts; (ii) non-settlor-controlled family trusts using remunerated trustees, some or all beneficiaries of which are minors or otherwise vulnerable; and (iii) commercial trusts.

Florida woman leaves $2.5M mansion and inheritance — to 7 cats

Nancy Sauer of Tampa, Florida, was a cat lover, so much so that she left a hefty inheritance to her beloved cats when she died last year at age 84. 

Sauer’s will declared that all seven cats must remain together in a sprawling Tampa home, and the house must not be sold until the last cat passes. The seven Persian cats were left substantially more than enough to cover their food, medical, and grooming bills forever. The cats have remained in the home since her passing; however, last month, a probate judge ruled that the cats should be moved to a place they may be better cared for.

Sherry Silk, executive director of the Humane Society of Tampa Bay, has said she will do her best to keep as many of the felines together and that they go to the perfect house. The cats will be up for adoption later this week.

For more information see Natalie O’Neill “Florida woman leaves $2.5M mansion and inheritance— to 7 cats” New York Post, June 21, 2023.

Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) and David S. Luber (Florida Probate Attorney) for bringing this article to my attention.

Chad ‘Ochocinco’ stashed away 83% of his NFL salary by buying fake jewelry and sleeping in the stadium — here are 5 simple ways to preserve your wealth at an all-star level

Chad Johnson, former wide receiver for the Cincinnati Bengals and New England Patriots known as “Ochocinco” due to wearing the number 85 jersey, is making headlines for discussing his frugal spending habits. He made nearly $49 million over 11 seasons in the NFL and saved 83% of his earnings.

Many NFL stars have gone broke after falling prey to the extravagant culture and career-ending injuries. Instead, Johnson chose to wear fake jewelry, lease exotic cars and fly budget airlines to save money. He even admitted to living in the Bengals’ stadium for two years to avoid spending money on housing. “Everybody’s caught up in image, looking a certain way and being rich,” Johnson said. “It’s pointless.”

For more information see Bethan Moorcraft “Chad ‘Ochocinco’ stashed away 83% of his NFL salary by buying fake jewelry and sleeping in the stadium— here are 5 simple ways to preserve your wealth at an all-star level” Yahoo! Finance, June 7, 2023.

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

The Mystery of the NBA Team That Billions Can’t Buy

When Microsoft co-founder Paul Allen passed away in 2018, he left instructions with his sister, Jody Allen, the executor and trustee of his estate, to sell his assets and donate a majority of the proceeds to charity. His assets were valued at more than $20 billion at the time, which included a record $1.5 billion trove of art, multiple properties, two yachts, and a handful of professional sports teams, including the NBA’s Portland Trail Blazers.

Billionaire Nike co-founder Phil Knight has joined forces with real-estate investor Alan Smolinsky to offer Ms. Allen $2 billion to buy the Trail Blazers. Allen rejected their bid with no counteroffer or even a phone call. Her message publicly has remained clear: the Trail Blazers are not for sale. She has made similar statements regarding the National Football League’s Seattle Seahawks, which Paul Allen also owned.

Allen’s estate is an example of how simply pledging assets to charity may not be so simple after all. Allen was an early signer of the Giving Pledge, a movement among the ultrawealthy to commit the majority of their wealth to philanthropy. A spokesman for Allen has estimated that it may take 10-20 years to settle the estate, however, experts say it would be highly unusual to take such a long time to do so. “You would almost have to intentionally slow-walk it,” says Allan Cutrow, a partner at Mitchell Silberberg & Knupp, LLP. 

The NBA requires any team held by an estate to be transferred within a “reasonable time period,” which is ultimately determined by the league, and per the instructions left for Ms. Allen, she is under no obligation to sell the estate property within a specific time frame.

One factor that may compel her to hold onto the Seattle Seahawks for at least another year is related to bonds sold to fund the stadium construction. A public referendum that passed in 1997 required that 10% of the team’s selling price go to the state of Washington if the team was sold within 25 years, which ends on May 21, 2024.

For more information see Rachel Bachman “The Mystery of the NBA Tream That Billions Can’t Buy” The Washington Post, June 4, 2023.

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