Friday, July 30, 2021
David Orentlicher and Judit Sandor recently published an article entitled, Decisions at the End of Life, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:
Advances in medical technology have increased the ethical and legal dilemmas at the end of life. It is difficult to know the “good death “or what constitutes a dignified ending of life. Nor is the proper role of the law in regulating end-of-life medical care clear. To what extent should these matters be worked out between physicians and patients (or families), and to what extent should legal rules guide practice? And who should determine the rules—legislators issuing laws of broad application, or judges developing nuanced standards on a case-by-case basis?
In this chapter we explore the similarities and the major differences between U.S. and European legal thinking and jurisprudence. Of course, on a number of issues, there is no single U.S. or European approach. Accordingly, while we will give special attention to the jurisprudence of the U.S. Supreme Court and the European Court of Human Rights, we also will consider the significant variations among different U.S. states and different European countries.
Saturday, July 24, 2021
Ugo Stefano Stornaiolo Silva recently published an article entitled, Family, Property & Inheritance: Institutions for Civilization and their Enemies, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:
English Abstract: In the history of ideas, few institutions are as important or are as closely related as Family, Property, and Inheritance, for on the establishment and function of an ordered society.
About them, many perspectives have been taken by legal and political thinkers and philosophers on both the traditional Catholic and libertarian schools and their contemporary variants, which coincidentally agree that all of them are products of a perennial order, in most cases of a spontaneous origin that manifests itself within Natural Law, and as such, must be protected by positive legislation, although its relation is always understood as one of logic and not one of institutions.
On the other hand, an opposing and hostile perspective on Family, Property, and Inheritance is promoted by revolutionary Marxism, revealing that, at least on its negation, there is a universal outlook on the mutual need of these three institutions to subsist as part of the social order, and particularly, as legal institutions, which uses, and formal aspects are protected by legislation to be applied in a particular community.
By exploring these stances, as well as the proper definitions of Civilization, and order, one may understand the meaning of family, private property, and inheritance, as well as their legal conceptions in the history of ideas, and the way they are universally opposed by the Marxist schools of thought, based on their own revolutionary ends.
Spanish Abstract: En la historia de las ideas, pocas instituciones son tan importantes o están tan estrechamente relacionadas como la Familia, la Propiedad y la Herencia, por lo que respecta al establecimiento y funcionamiento de una sociedad ordenada.
Sobre ellos, pensadores y filósofos jurídicos y políticos han adoptado muchas perspectivas tanto sobre las escuelas tradicionales católicas como libertarias y sus variantes contemporáneas, que coinciden en que todas ellas son producto de un orden perenne, en la mayoría de los casos de un origen espontáneo que se manifiesta dentro del Derecho Natural, y como tal, debe ser amparado por una legislación positiva, aunque su relación se entiende siempre como lógica y no institucional.
Por otro lado, el marxismo revolucionario promueve una perspectiva opuesta y hostil sobre la familia, la propiedad y la herencia, revelando que, al menos en su negación, existe una perspectiva universal sobre la necesidad mutua de estas tres instituciones de subsistir como parte de el orden social, y en particular, como instituciones jurídicas, cuyos usos y aspectos formales están protegidos por la legislación para ser aplicada en una determinada comunidad.
Al explorar estas posturas, así como las definiciones adecuadas de civilización y orden, se puede comprender el significado de familia, propiedad privada y herencia, así como sus concepciones jurídicas en la historia de las ideas, y la forma en que se oponen universalmente. por las escuelas de pensamiento de tipo marxista, basadas en sus propios fines revolucionarios.
Monday, July 19, 2021
Richard C. Ausness recently published an article entitled, These Are a Few of My Least Favorite Things, Quinnipac Probate Law Journal, (2021). Provided below is the Introduction to the Article:
The Uniform Probate Code (“UPC”) can trace its origins back to a Model Probate Code promulgated by the American Bar Association (“ABA”)'s section on Real Property, Probate, and Trust Law in 1946. In 1962, the Section on Real Properly, Probate, and Trust Law, along with National Conference of Commissioners on Uniform State Laws began work on what was to become the original UPC. The National Conference and the ABA's House of Delegates approved the UPC in 1969. The 1969 UPC was an attempt to modernize some of the traditional rules and provide a degree of uniformity for the American law of wills and intestacy. In general, the original UPC did a good job of achieving these goals. The 1990 revised UPC was somewhat more ambitious. It introduced entirely new concepts such as “harmless error” and substantially changed longstanding rules on descent and distribution and elective share rights for surviving spouses. Unfortunately, some of the 1990 UPC's sections are unnecessarily confusing and complex, while others seem excessively vague and open-ended. This Article will identify some of the worst offenders and suggest ways to improve them. Part II discusses the doctrine of representation and advocates replacing the Code's per capita at each generation rule with the more traditional per capita with representation approach. Part III examines the harmless error rule, or dispensing power, which allows a court to probate a will even though it has not been properly executed. Part IV is concerned with the treatment of revival in the 1990 UPC. This section further explores why only a few jurisdictions have adopted said revival as most courts are turned off by the provision's complex arrangement of presumptions going every which way. Part IV suggests a return to the 1969 UPC's treatment of revival. Part V provides a critique of the revised UPC's anti-lapse provision. Not only is this provision much too long and complicated, but it makes it unnecessarily difficult for a testator to allow a gift to lapse. Finally, Part VI analyzes the concept of ademption by extinction and recommends that the 1990 UPC's provision on ademption be jettisoned and replaced by the 1969 UPC's more workable version.
Tuesday, July 13, 2021
Prof. Adam J. Hirsch (University of San Diego) has recently posted on SSRN an undated version of his extensive article about e-will legislation entitled Models of Electronic-Will Legislation. Here is the abstract of the article:
This Article examines alternative ways lawmakers could structure legislation validating electronic wills. The Article identifies four essential models, each of which is currently reflected in acts or drafts of acts found either in the United States or abroad. These are: (1) acts validating electronic wills that meet formal requirements, (2) acts giving effect only to specialized variants of electronic wills (or none at all), (3) acts allowing electronic wills only when made under emergency conditions, and (4) acts allowing electronic records intended as wills on a case-by-case basis, without establishing formalities for their validation. In the course of the analysis, the Article performs the first-ever empirical survey of popular assumptions concerning the revocation of electronic wills. The Article ultimately concludes that, given the novelty of electronic wills, we are best off if states experiment with alternative legislative models until lawmakers have enough evidence to assess their relative merits. For this reason, the Uniform Electronic Wills Act of 2019 is premature.
Friday, July 9, 2021
Jeffrey Galvin, of Downey Brand LLP, has made available for download his article, “Ethics Opinion Guides Lawyers on Counseling Clients with Diminished Capacity”, published in JDSUPRA. The abstract is as follows:
What are the ethical obligations of a California lawyer for a client with diminished mental capacity? The ethics committee of the State Bar of California answers this key question in draft Formal Opinion No. 13-0002, with public comment due by August 24, 2021.
While all lawyers may represent clients who have questionable capacity, the situation arises with frequency and urgency for estate planning attorneys. The opinion interprets the California Rules of Professional Conduct as amended in 2018. Along with the updated ethics guide recently published by the Trusts and Estates Section of the California Lawyers Association, the opinion will provide key guidance to lawyers navigating their ethical duties.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Thursday, July 1, 2021
Article: Choice of Law for Cross-Border Trust Disputes in Japan: The Case for Adopting the Hague Trusts Convention
Ying Khai Liew recently published an article entitled, Choice of Law for Cross-Border Trust Disputes in Japan: The Case for Adopting the Hague Trusts Convention, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:
This paper argues that cross-border trust disputes cannot adequately be dealt with using the existing choice of law rules in Japan, because pigeonholing trusts within any of those established choice of law categories distorts a proper understanding of trusts law and disappoints the autonomy and legitimate expectations of parties. Ultimately, this paper suggests that serious consideration ought to be given to adopting the Convention and the dedicated trusts choice of law rules it provides.
Saturday, June 26, 2021
Due Wang recently published an article entitled, Impossibility Results about Inheritance and Order of Death, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:
If several relatives died with no will, the order of their deaths could affect the inheritance result. When the order of death is unknown, there are three approaches to determine the inheritance result: apply an inheritance method that is not affected by the order of death; artificially assign the order of death; regulate that persons with unknown orders do not inherit each other. The last approach is adopted by the current French Civil Code (denoted as the French Approach). We prove that under some basic requirements, the French Approach is the only valid solution to the order of death problem. Therefore, we propose that every country should adopt the French Approach. In the appendix, we study the existence and uniqueness of inheritance methods that are invariant for different orders of death and only violate one requirement, such as gender equality.
Thursday, June 24, 2021
Article: Study Paper on Inclusive Investing: Respecting the Rights of Vulnerable Investors through Supported Decision-Making
The Canadian Centre for Elder Law recently published an article entitled, Study Paper on Inclusive Investing: Respecting the Rights of Vulnerable Investors through Supported Decision-Making, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:
Supported decision-making allows adults to pick who may assist them in making decisions. Supported decision-making can enable people living with disabilities to make their own decisions about financial, personal, health care, legal, or other matters. For people living with dementia, supported decision-making may open a door to maintaining a degree of autonomy in making decisions regarding their investments.
The Inclusive Investing Project was born out of a desire to enhance capacity within the investment sector to work with clients who may prefer to make decisions with the support of family and friends. We are thrilled to share with you this study paper, which is the culmination of many years of research and consultation.
The work of the Canadian Centre for Elder Law (CCEL) aims to break down silos of practice to support robust conversations about law and policy reform. The Inclusive Investing study paper reflects the perspectives of stakeholders from financial, legal, and other professional sectors, and incorporates the lived experience of older people living with dementia, people living with intellectual or developmental disabilities, and family members who provide support. Like many CCEL projects, the Inclusive Investing Project was a collaboration — this time with project partners Alzheimer Society of B.C. and Inclusion BC. The collaboration amongst the project partners was integral to ensuring this research reflected diverse experiences.
Wednesday, June 23, 2021
Albert Feuer recently published an article entitled, IRS Guidance About the SECURE Act's Beneficiary Provisions Requires Revision, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:
The IRS has presented its first and only guidance about how the SECURE Act changed the Required Minimum Distribution (RMD) Rules. This was done in a detailed IRS guide for preparing 2020 returns, and an IRS FAQ web site that referenced the guide that had been released a day earlier. The SECURE Act limited the set of individual beneficiaries permitted to use their own life expectancy to stretch out the benefit distributions after the death of participant. Non-favored individual beneficiaries became subject to a 10-year rule similar to the 5-year rule upon which it is based. The 5-year rule does not require any benefit distributions before the end of the 5-year period, but requires distribution on or before the final day of the period. The 5-year rule is applicable to an estate or trust not treated as a pass-through entity when the participant died before attaining the participant’s required beginning date.
The IRS correctly treats the 10-year rule as replacing a disfavored individual beneficiary’s ability to use the beneficiary’s life expectancy to determine annual RMDs. The return guidance incorrectly describes the 10-year rule as requiring annual distributions in each year following the participant’s death even though the 5-year rule has no such requirement. Furthermore, if the participant dies after attaining the participant’s required beginning date, the IRS guidance prevents a disfavored individual beneficiary from continuing to use the participant’s life expectancy to determine annual minimum required distributions. The IRS does this even though such continuation would result in no further stretch-out of the benefit distributions, and an estate or trust not treated as a pass-through entity may so use the participant’s life expectancy. These limitations are not consistent with the stated purpose of the SECURE Act RMD provisions, the long-standing IRS regulations interpreting the RMD rules, or the amended RMD statute as a whole. Moreover, they may be readily avoided by well-advised participants.
Tuesday, June 22, 2021
Mohammad Habibur Rahman recently published an article entitled, Trusts as Vehicles for Tax Evasion and Tax Avoidance: a Critical Study, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:
The legal arrangements related to the trusts are proved to be cumbersome and many also abuse this mechanism as a vehicle of tax evasion and avoidance. The secrecy is one of the disadvantages of the trusts which do not allow tax officials and other crime-fighting agencies to discover the existence of the trusts. This is also a case for the offshore trusts where foreign jurisdiction usually does not share the information with a third-party. This particular feature mainly popularized the notion of the offshore tax shelter. Undeniably, the trusts also have some positive implications which cannot be fulfilled by any other principle of law e.g. asset protection cases, commercial purpose, charitable trusts etc. Thus, this article intends to critically evaluate how trusts are often used as a vehicle for the tax evasion and avoidance particularly taking into account the political, social and moral contexts in which trusts operate.