Wills, Trusts & Estates Prof Blog

Article: Constructive Trusts in Malaysia: A Methodological Reappraisal

Hang Wu Tang (Singapore Management University - School of Law) and Ying Khai Liew (University of Melbourne - Melbourne Law School) recently published, Constructive Trusts in Malaysia: A Methodological Reappraisal, 2024. Provided below is an Abstract:

In recent times, Malaysian courts have resorted to a ritual incantation of unconscionability and the notion of a remedial constructive trust to justify a declaration of a constructive trust. This methodology for approaching constructive trusts is unhelpful and has led the law to develop in an unprincipled and unpredictable fashion. Our central thesis is that the key Malaysian decisions could have been decided based on pre-existing legal principles upon which English and Commonwealth courts have declared a constructive trust. We argue that future courts ought to realign its methodology with the orthodox tradition of incremental development of the law in this area instead of resorting to broad notions of unconscionability and the remedial constructive trust.

Article: Conflict of Laws and Trust Arbitration: Which Law Controls the Availability and Scope of Arbitration?

S.I. Strong (Emory University School of Law) recently published, Conflict of Laws and Trust Arbitration: Which Law Controls the Availability and Scope of Arbitration?, 2024. Provided below is an Abstract:

Trust arbitration-meaning the arbitration of disputes 'internal' to the trust pursuant to an arbitration provision found in the trust itselfis becoming increasingly popular around the world. However, laws authorizing such procedures can vary significantly across jurisdictional lines, giving rise to a variety of conflict of laws concerns. Perhaps the most challenging issue involves identification and application of the law governing the interpretation of the arbitration provision, since that will determine the availability and scope of arbitration. This chapter undertakes a detailed analysis of this important question, which requires consideration of principles gleaned from trust law, arbitration law, and private international law.

A Blood Test Accurately Diagnosed Alzheimer’s 90% of the Time, Study Finds

A recent study has shown that a combined blood test has a 90% accuracy rate in diagnosing Alzheimer's disease, significantly higher than the accuracy rates of neurologists (73%) and primary care doctors (61%). This test measures plasma phosphorylated tau 217 (p-tau217) and the amyloid 42/40 ratio, key biomarkers for Alzheimer's. The combination of these measures, known as the amyloid probability score, provides a highly predictive assessment.

The p-tau217 biomarker, which indicates amyloid pathology, has profound implications for diagnosing Alzheimer's, as its levels are notably higher in affected individuals. Previous research has demonstrated that p-tau217 tests can identify elevated levels of beta-amyloid with up to 96% accuracy and tau with up to 97% accuracy. These findings suggest that the presence of beta-amyloid and tau tangles are definitive markers of Alzheimer's disease.

The study’s blood test was validated against spinal fluid taps, which, along with amyloid PET scans, are the current gold standards for Alzheimer’s diagnosis. These traditional methods are costly and invasive, making the blood test a potentially revolutionary tool in Alzheimer’s diagnosis. However, current cognitive assessments and brief tests used by doctors often misdiagnose Alzheimer’s due to the similarity of its symptoms to other conditions such as vascular dementia, depression, and vitamin B12 deficiency.

While the blood test holds promise for quicker and more accurate diagnoses, routine use in primary care is still on the horizon. More research, physician education, and guideline development are necessary. Nevertheless, the potential for such blood tests to reduce diagnostic wait times and improve early intervention is significant. In the meantime, lifestyle changes like regular exercise, a Mediterranean diet, and managing vascular risk factors can help prevent or slow cognitive decline.

For more information see Pam Belluck "A Blood Test Accurately Diagnosed Alzheimer’s 90% of the Time, Study Finds" The New York Times, July 28, 2024.

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

The NextGen Bar Exam Threat to Wills and Trusts

The American College of Trust and Estate Counsel (ACTEC) has called on states to reject the forthcoming NextGen Bar Exam, citing the National Conference of Bar Examiners’ (NCBE) decision to exclude wills and trusts from the exam. Dana Fitzsimons, an ACTEC Fellow, explains the implications of this change in a recent podcast.

The NCBE, responsible for developing the bar exam, is introducing the NextGen Bar Exam in 2026. This new exam will shift focus from memorization of numerous legal subjects, reducing the testing duration from 12 to 9 hours and covering fewer subjects. Notably, wills and trusts have been removed, despite their critical role in legal practice.

Fitzsimons highlights that the omission of wills and trusts undermines foundational legal knowledge essential for attorneys. This decision contradicts requests from several legal bodies, including ACTEC and the American Bar Association, emphasizing the universal importance of wills and trusts in legal practice and personal life events such as marriage, childbirth, and inheritance.

The exclusion of wills and trusts from the bar exam is expected to influence law school curricula, potentially leading to a decline in the number of courses and qualified professionals in this area. This change could exacerbate the existing shortage of estate planning lawyers and impact public access to essential legal services.

NCBE’s temporary inclusion of trusts and estates concepts in the NextGen Bar Exam from 2026 to 2028 does not require students to have prior knowledge, which Fitzsimons argues is insufficient. Law schools are already adjusting their curricula based on the new exam format, threatening long-term competence in wills and trusts among new attorneys.

Fitzsimons stresses that the changes will affect all demographics, including seniors, rural communities, and marginalized groups. The legal profession's ability to manage wealth transfers, estate planning, and probate cases is crucial, especially given the ongoing massive intergenerational transfer of wealth.

ACTEC urges legal professionals, organizations, and the public to advocate for the reinstatement of wills and trusts in the bar exam. Fitzsimons encourages contacting NCBE, state boards of bar examiners, and state supreme courts to demand this essential change.

Ensuring attorneys possess basic competence in wills and trusts is vital for protecting the public and maintaining access to critical legal services. ACTEC’s call to action highlights the urgent need for states to reject the NextGen Bar Exam until these subjects are restored.

For more information see Deborah O. McKinnon "The NextGen Bar Exam Threat to Wills and Trusts" ACTEC Foundation, July 23, 2024.

The Secret Battle for the Future of the Murdoch Empire

Rupert Murdoch, 93, is engaged in a confidential legal struggle with three of his children over the control of the family's media empire. The conflict began when Murdoch attempted to amend the irrevocable family trust to ensure his eldest son, Lachlan, would maintain control after his death, preserving the company's conservative stance. This move blindsided his other three older children—James, Elisabeth, and Prudence—who united to oppose the change. Lachlan supports his father's efforts, setting the stage for a courtroom showdown in Nevada.

Murdoch argues that Lachlan's sole leadership is essential to protect the company's conservative editorial direction and, consequently, its commercial value. In contrast, the opposing siblings view this attempt as a violation of the trust's original equal governance provision. The Nevada probate commissioner ruled that Murdoch could amend the trust if he proves his actions are in good faith and benefit all heirs. A trial to decide this matter is scheduled for September.

The family's internal dynamics have long been complex, with past rivalries and political disagreements. Lachlan's alignment with his father's conservative vision contrasts sharply with the more moderate views of his siblings, particularly James, who has distanced himself from the family business due to disagreements over its direction. The trust, originally designed to ensure equal control among Murdoch's four oldest children, is now a battleground as Murdoch seeks to consolidate power in Lachlan's hands.

Murdoch's efforts to amend the trust have further estranged him from James, Elisabeth, and Prudence, leading to a fractured family dynamic in his final years. The outcome of this legal battle will determine not only the future leadership of the Murdoch media empire, which includes Fox News and The Wall Street Journal, but also its political influence. As Murdoch attempts to secure Lachlan's dominance, the trial will scrutinize whether his actions truly serve the best interests of all his heirs.

For more information see Jim Rutenberg and Jonathan Mahler "The Secret Battle for the Future of the Murdoch Empire" New York Times, July 24, 2024. 

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

Wendy Williams’ best friend: ‘I want proof of life’

Regina Shell is deeply worried about the well-being of her best friend, Wendy Williams, who she hasn't heard from in over a year. Williams recently turned 60 and is under court-ordered guardianship following her diagnoses of primary progressive aphasia and frontotemporal dementia. Shell, appearing on NewsNation’s “CUOMO,” expressed her distress over the lack of communication and visibility of Williams, emphasizing her desire for proof that Williams is alive and well.

Earlier this year, a documentary titled “Where Is Wendy Williams?” was released, which attempted to document Williams' life and struggles. However, the documentary has faced criticism, particularly from Shell, who was unaware of its contents prior to her participation. The producers later acknowledged they would not have proceeded had they known about Williams’ health condition during filming. This documentary coincided with the announcement of Williams’ medical diagnoses and her departure from “The Wendy Williams Show,” sparking further concern and speculation.

Shell recounted troubling instances where Williams was deprived of access to her finances, leading to delays in obtaining necessities like food. She highlighted the difficulties Williams faced due to the guardianship, needing to rely on others for basic needs. Shell also expressed doubts about the integrity of the appointed guardian, referencing legal allegations against them. This situation has compounded Shell's fears for Williams' safety and well-being.

For more information see Liz Jassin "Wendy Williams’ best friend: ‘I want proof of life’" NewsNation, July 19, 2024.

Priscilla Presley Sues for ‘Abhorrent’ Financial Elder Abuse, Claims Losses Over $1 Million

Priscilla Presley has filed a lawsuit against her former business associates, alleging financial elder abuse and fraud, claiming they swindled her out of over $1 million. The complaint, filed in Los Angeles, accuses memorabilia auctioneer Brigitte Kruse and investor Kevin Fialko of forcing Presley into a form of indentured servitude, where they took the majority of any revenue she earned. Presley describes Kruse as a con artist who misappropriated funds and fraudulently induced her into signing contracts that gave Kruse and Fialko significant control over her business ventures. The lawsuit outlines a scheme where the defendants gained Presley’s trust, isolated her, and exploited her financially.

Presley alleges that the defendants placed a stranglehold on her finances, withholding significant earnings from her work, including $500,000 from Sofia Coppola’s film adaptation of her biography and $349,900 from a cosmetics deal. Despite negotiating the film deal independently, Presley claims Kruse and Fialko never paid her. Furthermore, Kruse and her legal team have stated they have not received a copy of the lawsuit and cannot respond. This lawsuit follows a previous breach of contract suit filed by Kruse in Florida, where she accused Presley of illegally terminating their business partnership after the death of Presley’s daughter, Lisa Marie Presley.

In the detailed 45-page complaint, Presley describes how Kruse ingratiated herself into Presley’s life, manipulating her to distrust her former advisors and making substantial payments to themselves from Presley’s accounts. Presley claims they charged unnecessary fees, transferred her accounts to their banks, and even had her paying the mortgage on a home owned by Kruse’s husband. When their scheme was uncovered, the defendants allegedly portrayed themselves as victims by filing a lawsuit against Presley. Presley is seeking at least $1 million in damages, punitive damages, attorney’s fees, and the rescission of fraudulently induced agreements to regain control of her accounts and a full accounting of the defendants’ financial misconduct.

For more information see Nancy Dillon "Priscilla Presley Sues for ‘Abhorrent’ Financial Elder Abuse, Claims Losses Over $1 Million" Rolling Stone, July 18, 2024. 

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.

The viral $488,000 San Francisco home has a buyer — and the deal exposes a dramatic backstory

The headlines were buzzing: a three-bedroom home in San Francisco's Russian Hill was listed for an unbelievable $488,000. The catch? A tenant was paying just $417 a month under a lease that lasted until 2053. Despite this unusual setup, the house got several offers, some even higher than the asking price. Surprisingly, the accepted offer came from Cheryl Lee, who lives there with her mom, Sandra. This property has sparked a family feud, reminiscent of past high-profile inheritance disputes in the area.

The home, located at 30 North View Court, was built in 1924 and bought by Florence and Kenneth Goo in 1968. They placed it into a family trust in 1991. After Florence passed away, the trust split into two. The current owners are the Kenneth Goo Family Trust-B and the Koon K. Goo Revocable Trust. Trusts are common in estate planning since they let assets transfer directly to heirs, bypassing probate. Todd Lee, appointed as trustee by his grandfather Kenneth in 2020, chose Cheryl's offer despite higher bids because of family ties and responsibilities.

A big part of this story is the long-term lease signed by Kenneth Goo before he died in 2022. Originally signed in 2019, the lease required the tenant to cover property taxes and insurance, ensuring Cheryl and possibly Sandra had a place to live. In 2021, the lease was amended to cap payments at $5,000 annually and extend the term to 2053. This lease also allowed subleasing, benefiting Cheryl financially. Legal experts confirmed the lease’s validity, making eviction or a more profitable sale tricky.

The sale has revealed deep family issues, with allegations of mismanagement. Sandra Lee opposed the sale, accusing her son Todd and her brother Cedric of mishandling the trust and legal fees. Todd denies these claims, saying he’s just trying to do his job as trustee amidst financial strain. The trust’s funds were depleted after Kenneth's death, putting more pressure on the family. A property reassessment also raised taxes significantly, adding to their financial burden.

Figuring out the sale of the house depends on settling these family disputes and financial issues. Selling the house without tenants could get around $1.8 million, but the current situation lowers its value. If Sandra and Cheryl’s bid is accepted, they’d own a potentially valuable asset, while Cedric's share would be much less. This ongoing family drama highlights the complicated and emotional nature of handling inherited properties.

For more information see Kathleen Pender "The viral $488,000 San Francisco home has a buyer — and the deal exposes a dramatic backstory" San Fransisco Chronicle, June 29, 2024. 

Special thanks to John O’Grady (Attorney, San Fransisco, California) for bringing this article to my attention.

Article: How Wrongful Death Statutes Can Kill an Estate Plan: Part 2

Noel Brock (Eastern Michigan University) recently published, How Wrongful Death Statutes Can Kill an Estate Plan: Part 2, 2024. Provided below is an Abstract:

A study of considerations for minor beneficiaries and guardian choice, and suggestions for statutory change. This article is a continuation of Part 1 of the article, which appeared in last month's issue. A Not-So-Perfect Solution: Bifurcated Guardianship *1 As mentioned in Part 1, parents facing the daunting task of deciding who to name as guardian of their minor child(ren) upon their death or disability inevitably (and rightfully so) focus on the nurturing aspects of guardianship. They ponder 'who has my values and will teach my child the things I would have taught my child,' 'who do I trust to be stable and patient enough to raise my child,' 'who has the resources to assume financial responsibility for my child, ' and so on. These are all qualities that a guardian of a minor child's person would hopefully need to possess. What many parents and, in the authors' experience, even many practicing lawyers and State court judges do not realize is that all States and the District of Columbia allow for the appointment of at least two guardians for minor children: (1) a guardianship affecting personal interests, known as a guardianship of the person (a custodial guardian), and (2) a guardianship affecting property interests, known as a guardianship of the estate (a financial guardian).

Article: Agent Fiduciary Status

Robert Flannigan (University of Saskatchewan) recently published, Agent Fiduciary Status, 2024. Provided below is an Abstract:

The conventional logic is that agent status engages default fiduciary status. Historically that logic has been challenged irregularly by misinformed voices claiming that the presence of certain supposed exceptions means that it cannot be said that every agent initially is accountable as a fiduciary. Now, inexplicably, that notion of agency without fiduciary discipline appears to be gaining traction in some quarters. A proper analysis, however, exposes the vacuity of the claim. Neither principle nor authority justify the denial of default fiduciary status for agents. The opportunism risk that is latent in every agency, legally defined, manifestly requires fiduciary accountability.