Wills, Trusts & Estates Prof Blog

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

Friday, February 23, 2024

Article: Rectification of Testamentary Writings in Scotland, England and Wales, and Australia

Daniel James Carr (University of Edinburgh Law School) recently published, Rectification of Testamentary Writings in Scotland, England and Wales, and Australia, Journal of Equity, forthcoming. Provided below is an Abstract:

This article considers statutory and non-statutory means of rectifying a testamentary writing in Australia, England and Wales, and Scotland. Assessing the statutory provisions in the comparator jurisdictions shows that there are tangible differences between the statutory regimes. Such differences embody different policy decisions concerning the importance of formally recorded testamentary intention in an instrument and the circumstances in which it will be possible to resort to rectification based upon other means of identifying the testator’s intentions or instructions. Differences between the non-statutory routes to rectification in the Scottish and the Anglo-Australian traditions are outlined, and the article identifies enduring questions about the precise contours of the non-statutory rectification jurisdiction in each tradition. The article concludes by noting the benefits of looking at the evolution of the different rectification approaches together and how they fit with changing approaches to the importance of insistence upon strict testamentary formalities.

February 23, 2024 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Thursday, February 22, 2024

Article: Taxing Old Money: Considerations in Crafting a Rignano Tax

Miranda Perry Fleischer (University of San Diego School of Law) recently published, Taxing Old Money: Considerations in Crafting a Riganano Tax, Law, Ethics and Philosophy, 2020, January 2024. Provided below is an Abstract:

This article explores whether it is possible to tax “old money” differently than “new money.” In The Inheritance of Wealth, Daniel Halliday proposes that we tax wealth more heavily the second time it is transferred than the first, and even more heavily the third time. He envisions something like the following: Grandfather builds a business from the ground up and bequeaths $10,000,000 to Mother. No tax is imposed, but if Mother does not create any wealth of her own and simply retransfers $10,000,000 to Daughter, all of Mother’s estate is taxed. In contrast, if Mother creates new wealth, different portions of her estate are treated differently. The inherited $10,000,000 that Mother re-transfers is taxed, while any newly-earned wealth is not. Although Halliday offers a few broad structural suggestions, he does not detail how such a tax—referred to as a Rignano tax—would work. This article explores what implementing a Rignano tax requires. Crafting one is complex but feasible and requires six key design decisions. Drawing on experience with existing transfer taxes and Halliday’s ethical premises, this article offers specific recommendations for each.

February 22, 2024 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, February 21, 2024

Article: On the Macroeconomics and Distributional Effects of Federal Estate Tax Reforms in the United States

Pieter Van Rymenant (Ghent University), Freddy Heylen (Ghent University), and Dirk Van de Gaer (Ghent University) recently published, On the Macroeconomic and Distributional Effects of Federal Estate Tax Reforms in the United States, December 2023. Provided below is an Abstract:

This paper argues that the strong reductions in U.S. federal estate taxes since 1980 have not generated positive effects on labor supply, private capital formation, and economic activity. Rather, these estate tax cuts have contributed considerably to rising after-tax wealth inequality. To study the macroeconomic and distributional effects of estate tax changes over time, we construct and simulate a dynamic general equilibrium OLG model with firms, a fiscal government, and heterogeneous households. Our model also captures the joint taxation of inter-vivos transfers and bequests in the U.S. since 1976. The key underlying result is that the aggregate stocks of pre-tax bequests and wealth are very insensitive to estate tax changes, even when households value after-tax bequests (warm glow). As a result, the yearly foregone estate tax revenues are large, especially in the long run.

February 21, 2024 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Sunday, February 18, 2024

Article: A Critical Analysis of the Law of Death, Marriage and Wealth

Alyssa A. DiRusso (ACTEC Academic Fellow, Professor of Law at Cumberland School of Law at Samford University) recently published, A Critical Analysis of the Law of Death, Marriage, and Wealth, ACTEC Law Journal, VOLUME 49, Number 1, Fall 2023 (pub 1/24). Provided below is an Introduction:

Whether “until death do us part” is a viable estate planning technique depends upon the wealth of the couple. Federal law regulating asset retention and transfer when death is nigh creates two strikingly different systems. Whereas the federal estate and gift taxes provide powerful incentives and support for marriage, the Medicaid system extends paltry protections and incentivizes divorces or remaining unmarried.

Although family law scholars have robustly criticized the law for its preferences for marriage (and sometimes nonmarriage), a critical trusts and estates perspective can enhance this discussion. The following paper will demonstrate how the zone of overlap between trusts and estates and family law—as marriages near death—is particularly fraught and dysfunctional. Taking Medicaid and the estate tax as examples, this paper will show the way the law entrenches marriage among the already privileged yet threatens it for the poor. Comparing these particular systems creates a compelling foil to contrast marriage at the top and the bottom of the wealth spectrum.

February 18, 2024 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Saturday, February 17, 2024

Article: Confusing Cy Près

CJ Ryan (Indiana University Maurer School of Law) recently published, Confusing Cy Près, Georgia Law Review, Vol. 58. 2023. Provided below is an Abstract:

American courts have increasingly considered the possibility of prolonging the life of charitable trusts through cy près and the closely related doctrine of equitable deviation. This requires courts to interpret the material purposes of trusts and even the administrative terms on which settlors of charitable trusts condition gifts in trust made for public benefit. Yet, the implicit reasons why courts might invoke cy près to change a charitable trust’s material purpose have not been explored in significant depth heretofore—and neither has a common but vexing trend of courts conflating cy près with deviation, which negatively impacts charitable trust-making.

I analyze the extent to which judges have struggled with applying these remedies via an empirical analysis of a universe of cases receiving a published opinion from an American court from the nation’s founding through 2019. This study provides an original analysis of the cy près doctrine, including its use and misuse, along an extended timeline in American history. The study’s novel contributions are twofold. First, it teases out the distinction between cy près and like equitable doctrines. In doing so, it elucidates how courts confuse cy près with other equitable remedies. Second, it discusses the sources of the confusion around the cy près and deviation doctrines by empirically testing the factors that bear on a court’s decision to employ them accurately or inaccurately. These findings have implications not only for resolving the boundaries of the cy près doctrine, while encouraging charitable trust-making, but also for defining the critical role that judges play in shaping both the cy près doctrine and trust settlors’ expectations in the past, in the present, and for the future.

February 17, 2024 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Friday, February 16, 2024

Article: How Gender and Other Identity Factors Influence Attitudes Toward Will Making: Lessons from Australia

Bridget J. Crawford, Tina Cockburn, Kelly Purser, Ho Fai Chan, Stephen Whyte & Uwe Dulleck recently published, How Gender And Other Identity Factors Influence Attitudes Toward Will Making: Lessons From Australia, ACTEC Law Journal, VOLUME 49, Number 1, Fall 2023 (pub 1/24). Provided below is an Abstract:

This essay aims to stimulate interest in further empirical study of attitudes toward will making by reporting the results of a 2022 survey conducted in Australia of the general population (n=1202) and legal professionals (n=112). We asked participants for their views about the ideal age at which to begin the will-making process and the relative contributions of the client and attorney to any resulting will. There was a discernible gender-based difference in views on both questions. Women preferred to initiate those conversations approximately six years earlier than men did and especially at earlier life stages, preferred less professional input into the will-making process than men did. Income and education levels appear to have no impact on individuals’ responses to these questions. The sample population was sufficiently homogeneous that it is not possible to draw conclusions about how religious background or political views  may impact preferences about when the first will-making conversation should occur or the desired relative contribution of the legal professional to the ultimate will.

February 16, 2024 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Thursday, February 15, 2024

Article: When Twilight Becomes Darkness: Capacity Issues in Connection with Revocable Trusts

Sergio Pareja (ACTEC Fellow, The University of New Mexico School of Law) recently published, When Twilight Becomes Darkness: Capacity Issues in Connection with Revocable Trusts, ACTEC Law Journal, VOLUME 49, Number 1, Fall 2023 (pub 1/24). Provided below is an Introduction:

Lately, I spend a lot of time with my mother-in-law, who has Alzheimer’s Disease and lives in a memory care facility near our home. She is what we call high functioning. Although she has virtually no short-term memory, we have very pleasant conversations, and she knows who her children are. Her memory of events from the distant past is quite good, although she often gets very confused about the present.

My mother-in-law’s illness has proved to be quite the learning experience for my wife and me, and we have see the pitfalls and learned some tricks to spending quality time with a person with the disease. Lately, I find myself if my mother-in-law would have the mental capacity to execute a new will and revocable trust, should she ask to. For a will, the general standard, subject to some variations in different states, is that the testator must understand the nature and extent of her property, the natural objects of her bounty, and the contents of her estate plan. This is generally viewed as a lighter standard than the capacity necessary to make a deed or contract. Unlike testamentary capacity, contractual capacity only exists if a person has the ability to understand the consequences of the transaction…

February 15, 2024 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Monday, February 12, 2024

Article: Marvin Claims at Death

Patricia A. Cain (Professor of Law, Santa Clara University) recently published, Marvin Claims at Death, ACTEC Law Journal, VOLUME 49, Number 1, Fall 2023 (pub 1/24). Provided below is an Introduction:

The law applied to unmarried couples experienced a sea change in 1976 when the California Supreme Court handed down its decision in Marvin v. Marvin. Before Marvin, courts often held that contracts between cohabitants dealing with rights of support or property could not be enforced because they were against public policy.

Post-Marvin, all states but two have recognized the right of unmarried cohabitants to enter into enforceable contracts to the extent there is consideration for the contract other than sex. Those contracts may be implied, express, oral or written. States vary in their willingness to recognize such contracts. Some states require the contract to be express. A handful require such contracts to be in writing.

But Marvin went beyond announcing a rule regarding contracts between unmarried couples. It also established the right of an unmarried partner to asset equitable claims against the other partner upon dissolution of the relationship…

February 12, 2024 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Saturday, February 10, 2024

Article: The Haunting of Wealth Law

Allison Tait (University of Richmond School of Law) recently published, The Haunting of Wealth Law, ACTEC Law Journal, VOLUME 49, Number 1, Fall 2023 (pub 1/24). Provided below is an Abstract:

“If I am getting ready to speak at length about ghosts, inheritance, and generations, generations of ghosts, which is to say about certain others who are not present, nor presently living, either to us, in us, or outside us, it is in the name of justice.” -Jacque Derrida, Specters of Marx

 Wealth law is full of ghosts, ghosts everywhere all at once. AS a form of both preservation and disruption, a form of continuance as well as a form of interruption, ghosts are reminders of the past in its multiple forms. But they are also figures that prompt consideration of the present as well as speculation about the future. Jacques Derrida, who suggested the idea of “hauntology,” posited haunting and the ghostly as being “time out of joint,” a reference to Hamlet’s confused cry upon seeing his father’s ghost that Derrida analyzes extensively. In this sense, ghosts are akin to inheritance, a legal schema in which the past persists into both present and future. Like ghosts, inheritance and wealth transfer laws represent ruptures in time, enabling the destabilization presence of the past alongside the various possibilities for the present and future…

 

February 10, 2024 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Friday, February 9, 2024

Article: Estate Planning for the Apocalypse

Carla Spivack recently published, Estate Planning for the Apocalypse, ACTEC Law Journal, VOLUME 49, Number 1, Fall 2023 (pub 1/24). Provided below is an Introduction:

Members of ACTEC and of the Section of Real Property, Trusts, and Estates work on a daily basis advising clients about planning for the next generation. The practice of estate planning means helping people plan for the future. None of us can any longer ignore the fact that the future involves climate change. More accurately, the present involves climate change; the future involves more or less devastating effects of climate change depending on what we do now.

We also cannot ignore the fact that the fates of the wealthy and the poor will become more and more intertwined as the planet gets warmer. Wealth inequality will make the impact of climate change worse for everyone, not just for the world’s poor and geographically vulnerable, but for the comfortable and well-off in more privileged regions. At first, of course, climate change will devastate populations who live on coasts and islands, those who can’t afford air conditioning, medical care, and decent housing, those whose food supply the volatile climate will disrupt. But eventually, the heat will come for everyone else, even those who bought vast acreage in flyover country to escape the rising oceans or dug bunkers deep underground with artificial sunlight to grow their food—or even built floating “states” on the open ocean….

February 9, 2024 in Articles, Estate Planning - Generally | Permalink | Comments (0)