Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Saturday, June 27, 2020

Article on Proposed Technical Corrections for Cash-Flow Relief Provisions of the Cares Act for Individuals with Savings or Retirement Benefits

Albert Feuer recently published an Article entitled, Proposed Technical Corrections for Cash-Flow Relief Provisions of the Cares Act for Individuals with Savings or Retirement Benefits, Wills, Trusts, & Estates Law eJournal (2020). Provided below is the abstract to the Article: Unknown

The CARES Act provides cash-flow relief for individuals who want to access their savings and retirement plan benefits without adverse tax consequences. There are significant outstanding issues with those provisions. The article discusses and proposes technical corrections to address three such issues.

• Is there a single certification procedure to determine who is eligible to access their own savings and retirement benefits? The HEROES Act, the multi-trillion-dollar proposal to supplement the CARES Act that the House of Representatives approved in mid-May, addresses this issue differently than both the IRS guidance and the article’s proposal.

• Are those eligible to so obtain their own benefits defined sufficiently broadly? The HEROES Act broadens the eligibility for the Covid-19 enhanced family and medical care leave relief. The Act does not address the far narrower CARES Act eligibility criteria for individuals who wish to access their own savings and retirement benefits.

• Is there an unambiguous and intuitive method to determine the new amortization schedule for an eligible individual who wishes to take advantage of the CARE Act deferral of 2020 due dates for plan loans? The HEROES Act, again, does not address this issue.

The article also proposes a state law change to prevent adverse state and local personal income tax consequences for plans, participants, and beneficiaries who wish to take advantage of the cash-flow relief of the CARES Act to access their own savings and retirement benefits. For example, the CARES Act permits in-service distributions that would otherwise cause savings and retirement plans to lose their tax-exemption. State and local tax laws that are not coupled with the Internal Revenue Code may tax plans that decide to provide such cash-flow relief, and also prevent participants and beneficiaries from deferring tax on their plan benefits. The article therefore presents a technical correction to state and local personal income tax laws that conformed to the Code before the enactment of the CARES Act, such as those of New York State, to assure that those laws conform to the Code provisions changed by these relief provisions and only those provisions.

June 27, 2020 in Articles, Current Affairs, Current Events, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Friday, June 26, 2020

Article on The Pension Trust: Fit for Purpose?

M. Scott Donald recently published an Article entitled, The Pension Trust: Fit for Purpose?, Wills, Trusts, & Estates Law eJournal (2020). Provided below is the abstract to the Article: Unknown

The law of trusts plays an integral and multi‐faceted role in the regulatory scheme shaping the occupational pensions arena in Australia and the United Kingdom. It facilitates the operation of private law modalities, such as innovation and competition. However, that openness also renders members’ interests vulnerable and the lack of transparency and emaciated accountability mechanisms within trust law undermine the powerful normative force exerted by the language in which trust doctrine is so often couched. That said, the regulatory regimes buttress, and rely upon, the protections offered by trust law. The result is a compelling illustration of the nuanced way in which private law is employed in a modern regulatory state.

 

June 26, 2020 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Thursday, June 25, 2020

Article on Inheritance of Full Sister/s with Consanguine Brother/s in Pakistan: A Critical Analysis of Saadullah v Gulbanda

Shahbaz Ahmad Cheema recently published an Article entitled, Inheritance of Full Sister/s with Consanguine Brother/s in Pakistan: A Critical Analysis of Saadullah v Gulbanda, Wills, Trusts, & Estates Law eJournal (2020). Provided below is the abstract to the Article: 182667184-56a636213df78cf7728bd987

In Pakistan, Hanafi version of Islamic law of inheritance is followed by the courts in view of overwhelming number of Sunni Hanafi Muslims unless proved otherwise. Despite accurate appraisal of Islamic law of inheritance by the superior courts in general, one specific issue has been causing problem for last many years. In Saadullah v Gulbanda (2014 SCMR 1205), the Supreme Court excluded consanguine brother from inheritance in presence of full sisters that stirred debate about entitlement of those residuaries who are remotely related to deceased than full sister/s. This judgment is based on the faulty appraisal of Islamic law of inheritance by misreading the chart of residuaries prepared by D. F. Mulla’s Principles of Muhammadan Law. Case law analysis in the article reveals that, prior to the above mentioned case, the courts appreciated the analogous matters more accurately. The article presents correct perspective of Islamic law of inheritance on the subject with an expectation that the Supreme Court would revisit its erroneous approach for the protection of inheritance rights of eligible legal heirs.

June 25, 2020 in Articles, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Trust Parties’ Uniquely Easy Access to Rescission: Analysis, Critique and Reform

Adam Hofri-Winogradow and Gadi Weiss recently published an Article entitled, Trust Parties’ Uniquely Easy Access to Rescission: Analysis, Critique and Reform, Wills, Trusts, & Estates Law eJournal (2020). Provided below is the abstract to the Article: Trust-law-800x600

Parties to trusts currently enjoy easier access to judicial avoidance of voluntary dispositions resulting from mistakes and inadequate decision‐making than other persons. The principal doctrinal basis for this advantage has shifted from the rule in Re Hastings‐Bass to rescission in equity. The article argues that this advantage is normatively unjustified, and recommends a uniform legal framework to govern the avoidance of voluntary dispositions resulting from mistakes or inadequate decision‐making, whether or not a trust was involved. Under this framework, dispositions resulting from laypersons’ mistakes and inadequate decision‐making should be avoided, subject to appropriate defences, whenever that causative nexus is present, while dispositions resulting from professionals’ mistakes and inadequate decision‐making should only be avoided where the mistake or deliberative flaw was so serious as to render the transferee's retention of property transferred unjust.

June 25, 2020 in Articles, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Wednesday, June 24, 2020

Article on Against Subversion, a Contribution to the Normative Theory of Trust Law

Mark J. Bennett and Adam S. Hofri-Winogradow recently published an article entitled, Against Subversion, a Contribution to the Normative Theory of Trust Law, Wills, Trusts, & Estates Law eJournal (2020). Provided below is the abstract to the Article: Eo-scale2

This article closes a gap in the theory of trust law by supplying a normative account of the use of trusts to avoid and subvert other legal norms. While the use of trusts to subvert other law has been a major function thereof since the middle ages, a fact acknowledged by jurists, doctrinal and textbook authors for centuries, theorists of trust law have largely steered clear of this function. We evaluate the two most commonly proffered justifications for the use of trusts to subvert the law: that such use enhances users’ autonomy, and that trusts allow people to avoid or mitigate injustices found in law to which they are subject. We find that such justifications are not plausible in liberal legal systems, and so the subversion use of trusts should be, and usually is, curtailed, principally by anti-subversion norms found outside trust law.

June 24, 2020 in Articles, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Tuesday, June 23, 2020

Article on Children of Assisted Reproduction vs. Old Dynasty Trusts: A New Approach

Kristine S. Knaplund recently published an Article entitled, Children of Assisted Reproduction vs. Old Dynasty Trusts: A New Approach, Wills, Trusts, & Estates Law eJournal (2020). Provided below is the abstract to the Article: Trusts-for-children-wisconsin

Today, thousands of children are born each year using assisted reproduction technology (ART), including assisted insemination, in vitro fertilization, and gestational carriers, and the numbers continue to rise. Many of these children are not genetically related to one or both of their parents because donated gametes are used; in cases where a gestational carrier gives birth, the intended parents may adopt the child even if they are the genetic parents. Some of these ART children may find themselves clashing head on with old dynasty trusts that presume that adoptees are excluded from class terms such as “issue,” “descendants” or “grandchildren,” and require all beneficiaries to be related by blood to the settlor. Two recent cases, McGehee v. Edwards, 268 Va. 15 (2004) and Matter of Doe, 7 Misc. 3d 352 (N.Y. 2005) have raised this issue, but we are likely to see many more in the next few years.

Will courts treat ART children just as they have treated adopted children, parsing the difference between “issue,” “lineal descendants,” “heirs of the body,” “heirs,” and other class terms; debating whether the writer’s intent or public policy should prevail; and raising questions about whether a change in the common law presumption may or should be applied retroactively? Or should an entirely different approach be used, one that allows us to avoid extensive litigation, the invasion of privacy that extensive DNA testing would produce, and the inevitable stigmatization of children of same-sex couples who can’t be biologically related to both people raising them? This article examines the language of 74 old wills and trusts, ones that are already up and running and cannot be amended, to see if there is a better way to deal with ART children. Can the trustee use doctrines such as decanting to solve this dilemma? Can courts be persuaded to broaden their approach so that trustees or executors can accurately predict what these terms mean, and not flood the courts with requests for instructions? I will propose solutions that might just do that.

June 23, 2020 in Articles, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Article on A Theory of The Business Trust

Eric C. Chaffee recently published an Article entitled, A Theory of The Business Trust, Wills, Trusts, & Estates Law eJournal (2020). Provided below is the abstract to the Article: 1444665727126

Business trusts have played and continue to play an important role in the economy of the United States. They are commonly used for a variety of different business activities, including mutual funds, employee pensions, real estate investment trusts (“REITs”), and asset securitization. Despite the importance of these entities, very little legal scholarship exists focusing on this type of business form. Even the essential nature of these entities is not well understood. Although the metaphysical inquiry into the essential nature of the corporate form is well-developed, an essentialist theory of the business trust has never been advanced. The purpose of this article and my related writing is to develop an essentialist theory of the business trust, based on an essentialist theory of the corporation that I have developed called “collaboration theory.” The collaboration theory of the business trust suggests this entity is a narrowly focused collaboration among the individuals involved in the trust for the economic development and gain of the beneficiary through the action of a trustee. This model has a number of normative implications, including that these entities must engage in unrelenting wealth maximization; that all other behavior should follow from this wealth maximizing mandate; and that these entities should be governed under a trustee primacy model. This article discusses these issues and more.

June 23, 2020 in Articles, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Monday, June 22, 2020

Article on About the Need to Adjust the Regulations Regarding the Form of Will to the Modern Requirements

Mariusz Zalicki recently published an Article entitled, Article on About the Need to Adjust the Regulations Regarding the Form of Will to the Modern Requirements, Wills, Trusts, & Estates Law eJournal (2020). Provided below is the abstract to the Article: GettyImages-1094462068-19fc79bb34764a3eae21b21a29924b5f

A will is a traditional instrument for disposing of property in the event of death. Model solutions of this kind date back to Roman times, which survived thousands of years and are still, in a slightly modified form, in the legal regulations of individual states. However, recent years have been a period of intensive development of new technologies. Against this background, the question arises as to whether or not instruments linked to new technologies can be used by testators to dispose of their property in the event of death, and whether or not there is a need to do so, and whether inheritance law based on Roman tradition fulfils its role. This has become the subject of research in which the author tries to demonstrate the need to adapt the testamentary formalities to the requirements of modern times. The aim of the study is to present the challenges posed by technological possibilities in the area of wills and to consider whether the legislators should take into account technological changes and related social needs in the inheritance law. In this connection, the author describes the issues that took place in selected countries which concerned the preparation of wills using technological benefits and, contrary to the current requirements as to the form of preparation of wills, presents how individual legislators coped with the emerging problems in this area. In his dogmatic and comparative legal analysis, he tries to answer the question of the need to adapt the formal requirements accompanying the drafting of wills to the technological requirements.

June 22, 2020 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Friday, June 19, 2020

Article on Bringing the Dead Back to Life: Preparing the Estate for a Post-Mortem Acting Role

Ben Laney recently published an Article entitled, Bringing the Dead Back to Life: Preparing the Estate for a Post-Mortem Acting RoleWills, Trusts, & Estates Law eJournal (2020). Provided below is the abstract to the Article: Unknown

Computer generated imagery (CGI) now has the ability to accurately recreate deceased actors and actresses for movie roles long after their death. This student comment examines how the right to publicity gives an actor the ability to protect their postmortem persona rights beyond their death using estate planning techniques.

June 19, 2020 in Articles, Estate Planning - Generally, Technology | Permalink | Comments (0)

Thursday, June 18, 2020

Article on What's Wrong About the Elective Share "Right"?

Naomi Cahn recently published an Article entitled, What's Wrong About the Elective Share "Right"?, Wills, Trusts, & Estates Law eJournal (2020). Provided below is the abstract to the Article. Last-will-and-testament-clipart.med_

This Article examines one form of property rights available to a surviving spouse, the elective share. The elective share serves as an override to a testator’s stated intent by allowing the surviving spouse to choose to take a portion of the decedent’s estate — even if the will explicitly disinherits the surviving spouse. The Article analyzes a recent five-year period of state cases raising elective share issues with the goal of determining the circumstances under which an elective share is most likely to be contested. The reported elective share disputes typically involve a subsequent spouse challenging a will that leaves property to an earlier family. The petitioners are almost invariably women. The length of the marriage ranges from a few months to decades, and some of the cases involve waiver of the share, some involve estranged spouses, and a few involve marriage fraud. Disputes over the elective share illustrate family tensions, rarely involving parents against joint children, and more frequently pitting a surviving spouse against the decedent’s earlier families. The Article provides an empirical assessment of the current rationales for the elective share and suggests revisions to existing elective share approaches that reflect both differing theories of what values marriage should represent and the changing demography of marriage and remarriage.

June 18, 2020 in Articles, Estate Planning - Generally | Permalink | Comments (0)