Wills, Trusts & Estates Prof Blog

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

Friday, September 23, 2022

Article: Inheritance in an Unequal Age

Jack Whiteley (Georgetown University Law Center) recently published an article entitled, Inheritance in an Unequal Age, Northwestern University Law Review (Forthcoming 2023). Provided below is the abstract to the paper:

For centuries, the common law limited aristocratic wealth. In the last three decades, that has changed. One by one, state legislatures have eliminated the Rule against Perpetuities, and now dynasty trusts can make carefully controlled payments to a trust settlor’s descendants for hundreds of years. This change occurred soon before a large and ongoing intergenerational wealth transfer in the United States. Trusts scholars have roundly criticized the Rule’s removal, and some have described it as charting a path to a new Gilded Age.

This Article draws a theoretical lesson from the Rule’s demise. I argue that part of the reason for the Rule’s end was its complexity: most lawyers, and most citizens, do not really know what the Rule is, or how it operates. Thus, in spite of its value, the Rule found too few defenders when special-interest advocates from financial industries competing jurisdictionally for trust fees sought to remove it. Complexity in inheritance law has this specific and timely cost: it can enable mechanisms for aristocratic wealth defense, even when it is meant to do the opposite. This is because rule complexity causes asymmetric information among future players. This dynamic should figure into proposals for reform.

September 23, 2022 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Thursday, September 22, 2022

Article: The Slayer Rule: An Empirical Examination

Frederick E. Vars (Ira Drayton Pruitt, Sr. Professor at Law at the University of Alabama School of Law) recently published an article entitled, The Slayer Rule: An Empirical Examination, The American College of Trust and Estate Counsel Law Journal (Forthcoming 2023). Provided below is the abstract to the article:

Elmer Palmer murdered his grandfather. The undisputed motive was money. The grandfather’s will included a large gift to Elmer, which the grandfather was poised to eliminate. Elmer acted first. Under the law at the time, Elmer would inherit despite having intentionally killed his grandfather: the existing will controlled. Unfortunately for Elmer, the New York Court of Appeals announced a new equitable principle: Murderers cannot inherit from their victims. Since this famous decision in 1889, some version of the “slayer rule” has been adopted by nearly every state and lauded by nearly every commentator. Still, important questions about the proper scope of the slayer rule remain unanswered. Case law and scholarship identify multiple rationales for the slayer rule, which push in different directions in difficult applications.

This study is the first to empirically test key assumptions underlying the slayer rule. Over a thousand survey respondents answered the question “What’s fair?” or “What would the decedent want?” in twelve different scenarios. Some of the most significant conclusions are that the slayer rule should not apply to assisted suicide, killings in self-defense, or killings due to mental illness. On the other hand, the slayer rule should be expanded beyond murder in some circumstances, such as elder abuse and neglect. And the slayer rule should be converted from a mandatory rule into a default rule, which testators could opt out of in their wills. Carefully probing what people think about the slayer rule illuminates its many aspects and points toward needed reforms.

September 22, 2022 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Monday, September 19, 2022

Article: The Transgender Persons (Protection Of Rights) Act 2018: A Shariah Appraisal of Self-Perceived Gender Identity and Right of Inheritance of The Transgender

Afrasiab Ahmed Rana (International Islamic University, Islamabad) and Hafiz Muhammad Siddique (University of Oxford) recently published an article entitled, The Transgender Persons (Protection Of Rights) Act 2018: A Shariah Appraisal of Self-Perceived Gender Identity and Right of Inheritance of The Transgender. Provided below is an abstract of the Article:

The national legislature of Pakistan enacted the Transgender Persons (Protection of Rights) Act 2018 with the aim to provide rights to the transgender community and also for their welfare. This act contain as many 11 rights including the right to self-perceived gender identity and right of inheritance of property. This article aims to study appraise the Shariah side of the right of self-perceived gender identity and right of inheritance.

Islam has set standard for the perception of gender identity with no room to the self-perception. On the other hand, Islamic law does not recognize the share on the basis of self-perceived gender identity.

This article is made up of the 5 parts, first part introduces the transgender in Pakistan and the Transgender Persons (Protection of Rights) Act 2018 providing its background, the next part discusses the definitions of the transgender in the act and Shariah. The third section discusses the issue of gender identity, followed by the next section discussing the issue of inheritance and final section of conclusion.

September 19, 2022 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Saturday, September 17, 2022

Article: Sticky Omitted Choice-of-Law Clauses: The Case of Heir Hunters

David Horton (Martin Luther King Jr. Professor of Law at UC Davis School of Law) recently published an article entitled, Sticky Omitted Choice-of-Law Clauses: The Case of Heir Hunters. Provided below is an abstract of the Article:

Commentators once thought that contracts were the product of natural selection. Supposedly, over time, drafters learned to keep useful clauses and delete the others. More recently, though, scholars have challenged this assumption by demonstrating that contractual provisions and gaps can be resistant to change, or “sticky.”

This symposium Article adds to this literature by examining the puzzling absence of choice-of-law clauses in heir hunting contracts. Because states disagree about whether heir hunting is legal and most heir hunters hail from permissive jurisdictions, one would expect heir hunters to select the law of their domicile. However, the Article’s review of 558 contracts reveals that heir hunters rarely use choice-of-law provisions. The Article then explores potential explanations for this discovery and analyzes how they inform the debate over sticky terms.

September 17, 2022 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Monday, September 5, 2022

Article: Quistclose Trusts from a Corporate Insolvency Perspective: a Positive and Normative Analysis

Adam S. Hofri-Winogradow (The Hebrew University of Jerusalem) & Gal David (Heu & Co.) recently published an article entitled, Quistclose Trusts from a Corporate Insolvency Perspective: a Positive and Normative Analysis, Cambridge Law Journal, Forthcoming. Provided below is an abstract of the Article:

Leading cases show Quistclose trusts being used by companies nearing insolvency. Their use in this context raises serious normative problems: it may prefer the beneficiary to the company’s other creditors, and creates a misleading impression that trust funds are in fact free of trust. Building on the emergent normative literature on Quistclose trusts, we first examine which Quistclose trusts are currently allowed under company law and the law of corporate insolvency. We then discuss the normative question which Quistclose trusts should be allowed, given the principles of these branches of the law.

September 5, 2022 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Saturday, September 3, 2022

Article: Strange Case of Dr Jekyll, his English Wills and Scottish Law

Leslie Katz recently published an article entitled, Strange Case of Dr. Jekyll, his English Wills and Scottish Law. Provided below is an abstract:

In Robert Louis Stevenson’s Strange Case of Dr Jekyll and Mr Hyde, much of the action of the story is driven by the belief of Mr Utterson the lawyer that a will made by Jekyll leaving everything to Hyde was a valid will. That belief was caused in turn by Stevenson’s belief that, on a certain point, English and Scottish wills law were the same. Stevenson was mistaken; they weren’t. Although the will would have been valid under Scottish law, it wasn’t under English law. Much of Utterson’s conduct in the story is thus seen to have been unnecessary.

The paper also includes background information about Mr Utterson, Dr Lanyon and Dr Jekyll, as well as a chronology of events in the story.

September 3, 2022 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Thursday, September 1, 2022

Article: Creditors’ Rights in Property Subject to a Beneficiary’s Right of Withdrawal

S. Alan Medlin (David W. Robinson Professor of Law at the University of South Carolina School of Law) and F. Ladson Boyle (Charles E. Simons, Jr. Distinguished Professor Emeritus of Federal Law at the University of South Carolina School of Law) recently published an article entitled, Creditor’s Rights in Property Subject to a Beneficiary’s Right of Withdrawal, ABA Real Property, Trust and Estate Law Journal, 2022. Provided below is an abstract of the Article:

Estate plans often give trust beneficiaries powers of withdrawal for both tax and nontax reasons. For tax reasons, these powers of withdrawal are typically limited, such as a “five or five power” or a so-called Crummey power commonly pegged to the annual gift tax exclusion amount. A central issue with limited powers of with-drawal is the right of a beneficiary’s creditor to reach trust property subject to the beneficiary’s power to withdraw. Recent uniform statutes, such as the Uniform Trust Code and the Uniform Power of Appointment Act, as well as the Restatement (Third) of Trusts, provide guidance. This Article discusses the typical reasons for creating powers of withdrawal and the historical and recent treatment of the rights of creditors of trust beneficiaries with powers of withdrawal, along with some planning considerations.

September 1, 2022 in Articles, Estate Administration | Permalink | Comments (0)

Tuesday, August 30, 2022

Article: A Behavioural Economics Analysis of Will Making Preferences: When to Begin and Who Should Have the Most Input?

Tina Cockburn, Kelly Purser, Ho Fai Chan, Bridget J. Crawford, Stephen Whyte, and Uwe Dulleck recently published an article entitled, A Behavioural Economics Analysis of Will Making Preferences: When to Begin and Who Should Have the Most Input?, Minnesota Journal of International Law, Forthcoming. Provided below is an abstract of the Article:

The global COVID-19 pandemic has highlighted the need to plan for death, including the transmission of property through a valid will. Surprisingly little is known, however, about when people tend to make wills, how they go about doing so, and whether those practices vary from jurisdiction to jurisdiction. To begin building a foundation of knowledge, a research team comprised of United States and Australian lawyers and economists recently conducted the first-ever behavioural economics empirical study exploring these questions. This Article reports the results of the team’s survey of both members of the Australian general public and estate planning lawyers in that country. The research aim was to elicit and compare the attitudes of members of both groups on three questions: (1) when people should begin to plan their estates in anticipation of death; (2) the relative role that the lawyer (compared to the client) should play in the estate planning process; and (3) whether remote witnessing rules for wills—newly adopted during the pandemic in several jurisdictions including states in Australia and the United States—have any impact on individuals’ expressed preferences towards will making.

The study yields three significant findings. First, members of the legal profession in Australia tend to prefer the execution of a will at a much younger age than members of the general public do. Estate planning attorneys tend to cite age 29 as the “right” time to make a will, but the general public tends to think that age 47 is best. Second, laypeople in Australia tend to hold widely divergent opinions on the appropriate balance of client vs. professional input into the estate planning process. Those who already have engaged at least once in the will-making process tend to desire far greater levels of input from estate planning attorneys than those who have never made a will. Attorneys, in contrast, have relatively uniform views about the same question, tending to cite 70% as the appropriate percentage of estate planning decisions that should be driven by the client. Finally, among both members of the general public and attorneys in Australia, expressed preferences on these matters appear to be largely unaffected by any stated benefits or drawbacks of remotely executed wills.

The survey’s focus on Australia was intentional. Australia is an industrialized, democratic country with both a largely capitalist economic and a history of innovation in the law of wills, trusts and estates. Furthermore, Australia’s population is smaller than that of the United States, making it easier to obtain a more representative sample. At the same time, we conceive of this study as the beginning point for further, cross-jurisdictional inquiries. Future research can explore whether or how attitudes about will making differ across jurisdictions, using the results reported here as a touchstone. Separate from any country-specific considerations, knowledge about when people make wills, how they do so, and differences between and among jurisdictions will allow lawmakers to make more informed decisions about whether to make permanent some of the pandemic-era rules that enabled the remote online audio-visual witnessing of wills.

August 30, 2022 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Thursday, August 18, 2022

Article: Resulting and Constructive Trusts Over Public Housing—Recent Developments and the Way Forward

Wei Xuan Timothy Chan (Sheridan Fellow, National University of Singapore) recently published an article entitled, Resulting and Constructive Trusts Over Public Housing—Recent Developments and the Way Forward, Singapore Journal of Legal Studies, 2022. Provided below is an abstract of the Article:

Inherent in any public housing system which seeks to provide subsidised housing for sale is the need to impose restrictions on ownership and alienation in order to prevent abuse by those who would seek to exploit those subsidies for profit. In Singapore, section 51(10) of the Housing and Development Act restricts the operation of resulting and constructive trusts over property sold by the Housing and Development Board ("HDB"). It has been accepted since the 2009 decision of Tan Chui Lian v Neo Liew Eng that under this provision, a person "ineligible" to acquire an interest in a HDB flat may not become entitled to a flat under a resulting or constructive trust. However, recent cases have questioned the focus on eligibility and cast doubt on the effect of section 51(10) on the underlying trust. This article examines these developments and proposes a framework for the reconciliation of common law equitable doctrines with the provisions of the Housing and Development Act.

August 18, 2022 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Tuesday, August 16, 2022

Article: An Historical and Empirical Analysis of the Cy-Près Doctrine

CJ Ryan (Associate Professor of Law at the University of Louisville Brandeis School of Law) recently published an article entitled, An Historical and Empirical Analysis of the Cy-Près Doctrine, ACTEC L.J., 2022. Provided below is an abstract of the Article:

Cy près is a pivotal doctrine in estate law and indeed American jurisprudence. It places courts in the shoes of settlors of charitable trusts to discern not only their original intent but also affords the possibility of continuing the material purpose for which settlors created enduring legacies of philanthropy benefitting society. For this reason, it may well be that no other legal doctrine is as closely tied to the interests of the individual and the collective as cy près. And my first-of-its kind study puts the cy-près doctrine front and center, while providing three major contributions to the field.

First, through deliberative historical analysis, I offer an in-depth look at the types of cases American courts have heard involving the use of cy près. This historical categorization and explication is itself unique and provides significant insight into the controversies that allowed the doctrine to evolve. Second, the application of empirical methods to examine the doctrine is groundbreaking. By holistically examining the data I collected, I have been able to discern three major themes. The passage of time yields a gradual but greater adoption of the use of the cy-près doctrine. The presence of reversionary, gift-over, or private interests renders the use of the cy-près doctrine less practicable. And finally, courts are overwhelmingly more likely to apply cy près in cases involving public charitable trusts, educational purpose trusts, and medical purpose trusts, even when controlling for other independent variables and typologies of charitable trusts. Last, fifty-state surveys are commonplace; yet, none exists for the doctrine of cy près. I was able to assemble such a survey that not only assisted me in conducting this research but will undoubtedly aid other researchers for years to come, which I have addended to this Article in the Appendix.

August 16, 2022 in Articles, Trusts | Permalink | Comments (0)