Monday, February 15, 2021
Article: Disinheritance, Discrimination and the Case for Including Adult Independent Children in Dependants’ Relief Schemes: Lawen Estate v Nova Scotia
Jane Thompson recently published an article entitled, Disinheritance, Discrimination and the Case for Including Adult Independent Children in Dependants’ Relief Schemes: Lawen Estate v Nova Scotia, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article.
In 2019 a Superior Court in Nova Scotia struck out adult independent children as dependants under Nova Scotia's Testator's Family Maintenance Act. The decision was based on a finding that testamentary autonomy was a constitutional right protected by s.7 of Canada's Charter of Rights and Freedoms. This paper demonstrates why the constitutional decision in Lawen Estate v. Nova Scotia was flawed. It also explains why including of adult independent children in dependants' relief schemes is not only benign in most instances, but may play a role in preventing the perpetuation of discrimination in the private law.
Sunday, February 14, 2021
Albert Feuer has recently posted on SSRN his article entitled Ethics, Earnings, ERISA and the Biden Administration which is forthcoming in 62 Tax Mgmt. Memo No. 3, 23. Here is the abstract of his article:
Ethical-factor investing shall be defined as using ethics, such as an enterprise’s policies regarding social/economic/health/environmental justice, sustainability, climate change, or corporate governance, as a factor to determine whether to acquire, dispose of, or how to exercise ownership rights in an equity or debt interest in a business enterprise.
Ethical-factor investing includes, but is not limited to the ESG, sustainable, socially responsible, impact, and faith-based investing. Ethical-factor investing may. but need not, be intended to enhance the investor’s financial performance. Ethical-factor investing also may, but need not, be intended to enhance an enterprise’s ethical behavior, i.e., to be socially beneficial.
The Trump administration discouraged ethical-factor investing. Nevertheless, such investing is becoming increasingly popular among Americans, American mutual funds, and American retirement plans.
The article introduces the current types of ethical investing, their history, their financial and ethical performance, and their pre-Biblical progenitors. All those issues are discussed more extensively in a longer referenced article.
This article suggests how the Biden Administration may encourage ethical-factor investing by ERISA retirement plan fiduciaries. This may be done with revised ERISA regulations and other interpretative documents. No ERISA amendments would be needed. ERISA permits such investing if it does not adversely affect the expected financial performance of such plans’ investment portfolios or investment choices. Finally, such plans investors, including plan participants and beneficiaries, may thereby generate their preferred benefits for society. Such benefits are, like desired financial benefits, most likely to be achieved if such investors are explicit about their preferred benefits and they regularly monitor the performance of their investments.
Saturday, February 13, 2021
Hanich Dagan and Irit Samet recently published an article entitled, Express Trust as the Missing Piece in the Liberal Property Regime Jigsaw, Wills, Trusts, & Estates Law ejournal (2020). Provided below is the abstract to the Article.
Trust sceptics are correct to revolt against the increasing abuses of the trust. But they are wrong to deem it beyond redemption. In this chapter, written for the “Philosophical Foundations of the Law of Trusts”, we develop a charitable interpretation of trust doctrine and of the legacy of the trust that offers a happy raison d’être around which it can, and should, be reconstructed. The trust, we argue, plays an indispensable role in a system of liberal (that is: autonomy-enhancing) property law. Pushing it to live up to this (implicit) promise offers an exciting reformist agenda in which many of its weeds are properly cleared.
Friday, February 12, 2021
Ying Khai Liew recently published an article entitled, 'Unconscionability' and the Case Against Lumping: Three Case Studies, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article.
This paper argues that unconscionability provides no good basis for arguments in favour of lumping equitable doctrines in English law. It explores three areas of equity where unconscionability has most strongly divided lumpers and splitters: undue influence and unconscionable bargains; proprietary estoppel and constructive trusts; and the ‘rule in Re Rose’ and the decision in Pennington v Waine. In relation to each discussion, the paper explains how lumpers rely on the idea of unconscionability to argue in favour of merging or expanding those established doctrines, and argues against lumping, by explaining how this distorts a proper understanding of the law.
Gerry W. Beyer recently published an article entitled, An Estate Planner's Guide to Specific Testamentary Gifts, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article.
Clients are excited to make specific gifts in their wills. For some, the goal is to pass treasured family heirlooms and other property with significant emotional attachment to the appropriate family members. Others seek instead to transfer assets of value to family members, friends, and charities so the recipients may keep or, more likely, sell the property to gain funds they desire for their needs.
This article discusses the variety of issues that arise with specific gifts with the aim of making it easier for an estate planner to structure them to effectuate their clients’ intentions.
Tuesday, February 2, 2021
Article: Zwingender Angehörigenschutz im Erbrecht – Entwicklungslinien jenseits der westeuropäischen Kodifikationen (Mandatory Family Protection in the Law of Succession – Beyond the Western European Codifications)
Reinhard Zimmermann recently published an article entitled, Zwingender Angehörigenschutz im Erbrecht – Entwicklungslinien jenseits der westeuropäischen Kodifikationen (Mandatory Family Protection in the Law of Succession – Beyond the Western European Codifications), Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article.
English Abstract: Following on from an earlier contribution devoted to the development of the notions of forced heirship and compulsory portion, this contribution pursues the development of mandatory family protection for legal systems beyond the West European codifications: in postsocialist countries of Central and Eastern Europe, in Nordic states, in South and Central American codifications, and in countries without a code of private law, i.e. England and the legal systems originally based on English law. An interesting panorama of different solutions thus presents itself, in particular legal systems operating with fixed shares in the estate, those making available a fixed share only in cases of need, those awarding a sum substituting for maintenance claims, or those turning the claim of the closest relatives into a discretionary remedy. Overall, an observation made in the previous essay is confirmed: a tendency towards achieving greater flexibility in legal systems traditionally operating with fixed shares. The concept of family provision originating in New Zealand, while providing a maximum degree of flexibility, cannot however serve as a model to be followed. The question thus arises whether maintenance needs are the criterion balancing legal certainty and individual justice in the comparatively best manner.
Deutsche Zusammenfassung: Im Anschluss an einen früheren Beitrag über die Entwicklung des Pflichtteils- oder Noterbenrechts wird hier die Entwicklung des zwingenden Angehörigenschutzes für Rechtsordnungen jenseits der westeuropäischen Kodifikationen verfolgt: in den postsozialistischen Ländern Zentral- und Osteuropas, den nordischen Staaten sowie den süd- und zentralamerikanischen Jurisdiktionen, und schließlich in den Ländern ohne Zivilrechtskodifikation, also dem englischen Recht und seinen Tochterrechten. Es bietet sich ein buntes Bild von unterschiedlichen Lösungsansätzen: insbesondere solchen, die mit fixen Anteilen für Abkömmlinge und den überlebenden Ehegatten operieren, die einen bedarfsabhängigen Quotenpflichtteil anerkennen, die sich nur am Bedarf orientieren, oder die die auszuwerfende Summe in das Ermessen des Gerichts stellen. Insgesamt bestätigt sich eine Beobachtung aus dem früheren Beitrag: die Tendenz zu einer Flexibilisierung in Jurisdiktionen, die traditionell mit festen Quoten arbeiten. Die family provisionneuseeländischer Provenienz, die eine extreme Flexibilität gewährleistet, bietet jedoch kein nachahmenswertes Modell. Damit fragt sich, ob nicht das konkrete Unterhaltsbedürfnis einen geeigneten Maßstab bildet, um Rechtssicherheit und Einzelfallgerechtigkeit zu einem Ausgleich zu bringen.
Monday, February 1, 2021
M. Ryan Groff recently published an article entitled, Keeping America: Wealth Concentration and the Need for Repaired Revenues and Basic Income, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article.
This paper comes from a place of deep concern about wealth concentration in the United States of America, but also from a place of hopeful expectation. When I started my research in mid-2019, I did not imagine preparing the final draft during a global pandemic which has already killed nearly half a million people. Unfortunately, the spread of COVID-19 exposed the fragility of the U.S. economy. While necessary, shelter in place orders suspended the livelihoods of millions without savings for unexpected expenses, and caused weekly unemployment claims to jump 1,068%. In a strong demonstration of its legal and moral duty to ensure the wellbeing of the American people during times of crisis, the U.S. federal government quickly passed the $2.2 trillion “CARES” Act, the largest appropriations bill in its history. Despite longstanding policy disagreements over using public funds for public welfare, a crisis compelled Congress and the White House towards unprecedented compromise on multiple stimulus bills in only a few weeks.
The same resolve will be necessary to combat wealth concentration. Deconcentrating wealth will not be easy. Effective solutions will require engaging unpopular topics like tax policy, estate planning and trust provisions, property law, and tedious readings of 18th century political theory. While few are qualified to propose solutions at this intersection, and even fewer are willing to undertake this Sisyphean task, it is as necessary as it is difficult.
The federal government must find the political courage to reverse half a century of policies creating unsustainable levels of wealth concentration by repairing revenues and guaranteeing Americans a basic income. The estate planning and private client bar should help.
Sunday, January 31, 2021
Article: On Bankruptcy’s Promethean Gap: Building Enslaving Capacity into the Antebellum Administrative State
Rafael I. Pardo recently published an article entitled, On Bankruptcy’s Promethean Gap: Building Enslaving Capacity into the Antebellum Administrative State,Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article.
As the United States contends with the economic crisis triggered by the COVID-19 pandemic, federal bankruptcy law is one tool that can be used to resolve the financial distress suffered by individuals and businesses. When implementing this remedy, the question arises whether the law’s application should be viewed as limited to addressing private debt matters, without regard for the public interest. This Article answers the question by looking to modern U.S. bankruptcy law’s first forebear, the 1841 Bankruptcy Act, which Congress enacted in response to the depressed economic conditions following the Panic of 1837. That legislation created a judicially administered system that nationalized bankrupts’ assets, some of which featured prominently in the business of slavery. This Article focuses on a specific episode from New Orleans, which at the time was the nation’s third-most-populous city, had the nation’s largest slave market, and had one of the nation’s largest money markets. One of the bankruptcy cases commenced in that city involved the administration and sale of Banks Arcade, which was a premier commercial exchange for auctioning enslaved Black Americans. This history about how the federal administrative state restructured one component of the U.S. slavery complex should prompt critical reflection on how present-day bankruptcy law manages the fallout from a financial crisis. This Article concludes that courts have the authority to permit the public to advocate for its interests in distressed assets redeployed through the federal bankruptcy system.
Saturday, January 30, 2021
Max M. Schanzenbach and Robert H. Sitkoff recently published an article entitled, Risk Management and the Prudent Investor Rule, Wills, Trusts, & Estates Law ejournal (2020). Provided below is the abstract to the Article.
The prudent investor rule, now enacted in every state, is the centerpiece of trust investment law. In accordance with modern portfolio theory, the rule directs a trustee to implement an overall investment strategy having risk and return objectives reasonably suited to the trust. This article, recently published in Trusts & Estates magazine, summarizes the results of an earlier empirical study of the effect of the rule on asset allocation and management of market risk by bank trustees. We had two main findings. First, enactment of the rule was associated with increased stockholdings by bank trustees, but not among banks with average trust account sizes below the 25th percentile, a result that is consistent with sensitivity in asset allocation to trust risk tolerance. Second, enactment of the rule was associated with increased portfolio rebalancing by bank trustees, a result that is consistent with increased management of market risk. Given these findings, we concluded that reallocation toward additional stockholdings after enactment of the rule was correlated with trust risk tolerance and that the increased market risk exposure from those additional stockholdings was more actively managed.
Friday, January 29, 2021
A Hindu Daughter’s Right to Property: Is the Retrospective Amendment of Section 6 of the Hindu Succession Act a Step Towards Women’s Economic Empowerment?
Shalu Nigam recently published an article entitled, A Hindu Daughter’s Right to Property: Is the Retrospective Amendment of Section 6 of the Hindu Succession Act a Step Towards Women’s Economic Empowerment?, Wills, Trusts, & Estates Law ejournal (2020). Provided below is the abstract to the Article.
When Karl Marx explained his famous theory about the class conflict between the bourgeoisie and proletariat, he ignored those societies where the property and land ownership significantly play an important role and conflicts may be initiated on the basis of who owns and controls the material resources within the families or societies. More specifically, in India, an agricultural economy, the land holds not only economic but also an emotional value for individuals mostly from marginal families who may own smallholdings and/or other immovable property. As per the law, both men and women can acquire property and land through different ways such as purchase, inheritance, gift, or transfer by government. Yet, inheritance remains a significant option where land is privately owned. In the patriarchal North Indian society, for centuries, it is the male lineage that determines the ownership of the land and the control of the family property. Women, in such situations, where they hardly control any resources, are in financially constrained position than men in their ability to purchase any land or property. Therefore, for ages, Hindu women as daughters, mothers, and wives are facing economic discrimination within the hierarchical, unequal, and autocratic families. Owning immovable property or a piece of land or controlling economic assets, is a distant dream for the majority of women.
The amendments made in Section 6 of the Hindu Succession Act (HSA) of 1956 in the year 2005 grant the substantial equal right to daughters as that of sons in a Hindu joint family to benefit Hindu women who constituted 80 percent of women population in India. However, there are problems with the interpretations of this provision, mostly in cases, where the fathers have died prior to 09.09.2005, the courts have denied daughters their right to be the coparceners in such properties. It is on 11.8.2020, that the three judges’ bench of the Supreme court, in a landmark judgment has clarified that the amended provisions of Section 6 of the HSA to provide the daughters equal rights as that of sons in a joint Hindu family retrospectively and therefore the death of father before 09.09.2005, the day the amendments to HSA 2005 came into existence, has nothing to do with the daughter’s rights in the family property. This judgment has paved a way for the constitutional value of equality and democratic norms in an unequal world of the Hindu joint family. It is seemingly a step to make biased personal laws more gender-equal without any pre-conditions thus may lead to the economic empowerment of Hindu women in the long run. This article will discuss this interpretation of the Supreme Court in light of expanding the scope of women’s rights as daughters in Hindu families and argues that a lot more needs to be done to alter the personal laws to transform the patriarchal norms to bring constitutional values of equality, justice and democracy within families and societies not only for a women from Hindu communities but for all women.