Wills, Trusts & Estates Prof Blog

‘ER’ creator Michael Crichton’s estate sues Warner Bros. over upcoming hospital drama ‘The Pitt’

The estate of Michael Crichton has sued Warner Bros. Television, claiming that the studio is producing a new medical drama, "The Pitt," as a rebranded and unauthorized reboot of Crichton’s iconic show "ER." After failing to reach an agreement with Warner Bros. to produce an official "ER" reboot, Crichton's estate, led by his widow Sherri, alleges that the studio proceeded with "The Pitt" without their consent.

"The Pitt" is set in Pittsburgh, featuring Noah Wyle, who starred as John Carter in "ER," along with other "ER" alums like executive producer John Wells and showrunner R. Scott Gemmill, all named in the lawsuit. Warner Bros. denies the claims, stating that "The Pitt" is an original show.

Crichton had a "frozen rights" provision in his contract, preventing Warner Bros. from making any derivatives of "ER" without his or his estate's approval. The estate argues that Warner Bros. violated this agreement, and the lawsuit seeks to halt production of "The Pitt" and demands punitive and compensatory damages.

The dispute began when Warner Bros. started developing an "ER" reboot for HBO's Max in 2020 without informing Sherri Crichton. Negotiations broke down in 2022, leading to the creation of "The Pitt." The estate’s lawsuit claims that Warner Bros. has a history of diminishing Crichton's contributions, citing a similar incident with his "Westworld" series credit.

For more information see Associated Press's "‘ER’ creator Michael Crichton’s estate sues Warner Bros. over upcoming hospital drama ‘The Pitt’" New York Post, August 28, 2024.

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

Estate planning lessons from the $600M fight over Michael Jackson’s music catalog

Michael Jackson's estate has faced ongoing legal challenges and tax disputes since his death in 2009, despite the continued financial success of his music. A significant event occurred in August 2024 when a California court approved the $600 million sale of Jackson’s music catalog, despite objections from his mother, Katherine Jackson, who argued that Michael never wanted his assets sold.

Jackson’s will, signed in 2002, left most of his estate to his children through a trust and granted his executors the authority to sell assets. Katherine Jackson's challenge was dismissed because the court determined that Michael’s will allowed such sales, emphasizing the importance of formally documenting wishes in a will.

The situation underscores the importance of clearly defined wills and the broad powers often granted to executors. It also provides lessons for estate planning, advising that wills should be carefully drafted with an understanding of executor powers. Imposing restrictions on asset sales can create challenges and may not align with future circumstances, as shown in a similar case involving Joseph Pulitzer. Ultimately, estate plans must be formalized in writing and carefully considered to avoid posthumous disputes and unintended consequences.

For more information see The Conversation's "Estate planning lessons from the $600M fight over Michael Jackson’s music catalog" Theconversation.com, August 28, 2024. 

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

Saying goodbye to pets with aquamation, water-based cremation

One Marana woman opened Cholla Afterlife, a pet funeral home that offers aquamation. The owner had a not-so-pleasant experience with having her pets cremated years ago, inspiring her to start this business and offer the service.

Dr. Paula Rivadeneira, the owner, says when her dog and cat were cremated in 2008, she was unsure if she got the right ashes and paw prints from the crematorium and felt the process was impersonal.

Through aquamation, or alkaline hyrdolysis, water and alkali chemicals are used to break down the remains instead of flames. At the end of the process, the bones of your beloved pet are turned into powder that is returned to you.

Dr. Rivadeneira highlights how the process is tracked from start to finish to ensure that your pet's remains are the one's you end up with.

Also, the leftover water from the process is pathogen-free, full of nutrients and can be used as fertilizer. Dr. Rivadeneria says it's giving life to life and they love that. Owner's can take this home and know this plant is living and thriving because of the water from the process.

Dr. Rivadeneira says she wants to help send pets off to the rainbow bridge in a way that leaves everyone comfortable, offering a full array of afterlife care.

For more information see Jacqueline Aguilar "Saying goodbye to pets with aquamation, water-based cremation" KGUN 9, August 24, 2024.

Arizona man says remains of late sister now missing after shipping through USPS

A Valley man who lost his sister earlier this year now says her remains are also lost after he shipped them through the United States Postal Service. At the end of April, Bob Severson mailed out packages with precious items, including his sister Joie Severson’s remains.

One of the packages was sent to their nephew, one to their sister, and the last to a man in northern Wisconsin, Gordy, with whom his sister had recently reconnected. While Joie Severson was still alive, she decided she wanted to be buried in northern Wisconsin. 

A week and a half later, after Bob had mailed out the packages, he said Gordy had contacted him, saying he had never received Joie’s remains. Out of the three of packages, only two of them made it. The one that was missing was the one with the remains inside.

A USPS spokesperson says an initial review suggests the urn separated from the box at some point from the initial drop-off in Arizona to the final destination in Wisconsin.

USPS has started a search for the urn and will continue to search to reunite the urn with the family. Now, nearly four months after the urn was last seen, Bob is trying to hold out hope his sister’s remains will be found.

USPS says there is a special process for shipping cremated remains, which includes ensuring the packaging is highly visible and that the remains are sent with expedited services.

For more information see Zach Prelutsky "Arizona man says remains of late sister now missing after shipping through USPS" 13News, August 24, 2024. 

What net worth does one need to be rich in 2024? Here's what Americans think

It takes more to be viewed as rich in the U.S. this year than it used to, according to new data. Charles Schwab's annual Modern Wealth Survey released this week found Americans now believe it takes a $2.5 million net worth on average to be considered wealthy in 2024, up from $2.2 million for the past two years. 

Older generations actually think $2.5 million isn't enough to be considered rich, with baby boomers saying on average that the threshold for wealth should be $2.8 million. Gen Xers said the number is more like $2.7 million. New Yorkers say it takes $2.9 million to be rich, while residents of Washington, D.C., Denver and Seattle all said on average that being wealthy means a $2.8 million net worth.

Although the results showed Americans think it takes more to be wealthy now than it did in years past, the survey indicated they believe the amount needed for financial comfort has declined. Respondents said that in 2024 it takes a $778,000 net worth to be financially comfortable, down from last year's survey, where they said it takes a cool $1 million.

Rob Williams, managing director of financial planning at Charles Schwab says wealth means different things to different people, whether it’s financial freedom, enriching experiences with friends and family, or a certain dollar amount.

For more information see Breck Dumas "What net worth does one need to be rich in 2024? Here's what Americans think" FOXBusiness, August 23, 2024.

Court Website Asks Users If They're Presently Dead: How often does this option get clicked?

Documenting legal transactions requires considering every possible circumstance. And maybe a few less than possible ones.

Mecklenburg County North Carolina’s registry of deeds and other public legal documents has a website. That’s good! But it might have a user experience issue because not EVERY legal document requires the same decision tree…

A question prompt asks "Who is on the Death Certificate?" with answer options being "Myself" or "Someone Else." Hint: it’s someone else.

Or the county has bigger problems.

For more information see Joe Patrice "Court Website Asks Users If They're Presently Dead: How often does this option get clicked?" Above the Law, August 22, 2024.

Article: Wealth Taxes Under the Constitution: An Originalist Analysis

David M. Schizer (Columbia University - Law School) and Steven G. Calabresi (Northwestern University - Pritzker School of Law) recently published, Wealth Taxes Under the Constitution: An Originalist Analysis, 2024. Provided below is an Abstract:

A federal wealth tax is high on the wish list of progressive icons like Elizabeth Warren and Bernie Sanders, but is it constitutional? This Article shows that it is a "direct tax," which must be apportioned among the states. This means that the percentage of revenue collected in each state must match its percentage of the population. For instance, if two states each have three percent of the population, each must provide three percent of the revenue from a wealth tax. This leads to an unappealing outcome: if one state is less wealthy, it needs a higher tax rate to supply its share. To rescue wealth taxes from apportionment, distinguished commentators have offered a range of theories. For example, some treat apportionment as a mistake, while others dismiss it as a protection for the shameful institution of slavery.

But these commentators do not give the Framers enough credit. The taxing power was too important for them to be sloppy or to focus only on the institution of slavery. In our view, the taxing power reflects the same influences as the rest of the Constitution. Like the new government’s other features, the taxing power was supposed to be effective but limited. The Framers wanted to solve the fundamental problem under the Articles of Confederation (insufficient revenue), without recreating the fundamental problem under imperial rule (taxation without representation). Specifically, they sought to discourage what we call “fiscal raids,” in which states join forces to enact national taxes that mostly burden other states. As Professors Ackerman and Amar have shown, this risk could arise with an unapportioned tax on enslaved persons, since it would have been collected mainly in the South. But we show that the same was true of other region-specific practices, such as tobacco plantations and undeveloped land in the South, as well as ships, timber, farms, and manufacturing in the North. Apportionment was supposed to protect all these region-specific assets from fiscal raids.

In pursuing these various goals, what did the Framers mean by a “direct tax”? They considered a tax “direct” if it applied to taxpayers themselves, instead of to their transactions. A direct tax could be triggered merely by residing in the jurisdiction or owning property. In contrast, taxes on transactions—including on imports (“imposts”) and on domestic production and consumption (“excises”)—did not have to be apportioned. Admittedly, some courts and commentators have offered the narrower interpretation that “direct” is limited to head taxes and real estate taxes. But at ratifying conventions, John Marshall, Oliver Ellsworth, and other Framers offered a broader definition, which included livestock, business assets, and other personal property. Dicta in an early case, Hylton v. United States offered the narrower interpretation (head and land taxes), but the holding can be reconciled plausibly (although not perfectly) with our interpretation, while most other Supreme Court cases on the Direct Tax Clause align with our reading.

Why Americans are traveling to Vermont and Oregon to die

There is a growing trend of Americans traveling to Vermont and Oregon to access medical aid in dying, especially after these states removed their residency requirements in 2023. Francine Milano, a 61-year-old from Pennsylvania with terminal ovarian cancer, is highlighted as an example of someone who made multiple trips to Vermont to secure the right to end her life on her own terms. These trips are challenging, involving complex logistics and emotional strain, as patients must meet strict legal requirements, including being physically present in the state for medical assessments and drug administration.

In 2023, at least 26 out-of-state patients died using Vermont's medical aid-in-dying law, and 23 in Oregon. Despite the growing demand, the process remains burdensome, with patients needing to navigate unfamiliar healthcare systems, travel while gravely ill, and find places to stay during the waiting period before they can receive the medication. Advocates argue that these restrictions place an undue burden on already suffering individuals, while opponents, including some religious groups and medical professionals, view assisted dying as immoral or contrary to the role of healthcare.

The article notes that while several states have considered similar legislation, only Delaware passed such a law in the 2023-24 legislative session. The topic remains a contentious issue, with no federal resolution in sight, leaving it to be addressed state by state.

For more information see Debby Waldman "Why Americans are traveling to Vermont and Oregon to die" CBS.com, August 20, 2024.

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

Alain Delon’s family refuse to put down pet dog the actor wanted to be buried with

French actor Alain Delon, renowned for his roles in classics like "The Leopard," passed away at the age of 88. Before his death, Delon had expressed a heartfelt wish for his Belgian Shepherd dog, Loubo, to be euthanized and buried alongside him. In a 2018 interview, he described Loubo as his "end-of-life" companion and spoke of their deep bond, stating he wanted the dog to be put to sleep in his arms if he died first. This request, however, sparked significant controversy in France, particularly among animal welfare organizations.

Following the public outcry, Delon's family decided not to honor his unusual request. They confirmed that Loubo would remain with the family at Delon's Douchy residence. French animal welfare groups, including the Brigitte Bardot Foundation and the Society for the Protection of Animals (SPA), had strongly opposed the idea, arguing that an animal's life should not be conditional on that of a human. These organizations also offered to help find a new home for Loubo if needed, ensuring the dog would continue to live in good health.

For more information see Niamh Kennedy "Alain Delon’s family refuse to put down pet dog the actor wanted to be buried with" CNN.com, August 21, 2024.

Technology-Property - Back to the Future of Digital Ink

The use of electronic signatures has become increasingly common in today's digital age, with many transactions now occurring virtually rather than in person. This shift was accelerated by the COVID-19 pandemic, which made in-person meetings challenging and led to the widespread adoption of e-signatures for legal and commercial transactions. The Uniform Electronic Transaction Act (UETA) and the Electronic Signatures in Global and National Commerce Act (E-SIGN) played significant roles in legitimizing electronic records and signatures, ensuring they cannot be denied legal effect simply because they are in electronic form. New York implemented its own Electronic Signatures and Records Act (ESRA), which allows for electronic records with specific exceptions, particularly in estate planning and health care directives.

As digital transactions became the norm, the distinction between electronic records and digital signatures became crucial. Electronic records are simply documents saved in digital formats like PDF or Word, but for them to be legally binding, there must be verification, similar to how ink signatures require witnessing. Digital signatures, however, go a step further by embedding specific signer information within the document, making it more secure and difficult to alter. These signatures capture details such as the time and place of signing, device used, and, in some cases, even use blockchain technology for enhanced security and traceability.

The adoption of eSignature platforms offers numerous benefits, including saving time and money by eliminating the need for in-person signings, reducing the risk of fraud, and ensuring that documents cannot be altered after signing. These platforms provide a full audit trail, allowing for the verification of the signer’s identity and authority. As a result, they have become a reliable and efficient way to manage legal documents and transactions, even across international borders.

When choosing an eSignature platform, several factors should be considered, including cost, ease of use, functionality, integration with existing systems, security, and compliance. It is also essential to assess the platform’s ability to handle identity verification, provide audit trails, and offer scalable management features. The ongoing evolution of eSignature technology, including the potential for blockchain integration, suggests that digital signatures will continue to play a vital role in the future of global commerce, replacing traditional ink signatures in many areas.

For more information see Seth Rowland "Technology-Property - Back to the Future of Digital Ink" ABA Probate & Property July/August 2024 Edition, July 1, 2024.