Saturday, November 28, 2020
Allison Anna Tait recently published an article entitled, The Law of High-Wealth Exceptionalism , Alabama Law Review (2020). Provided below is the abstract to the Article.
No family is an island.But some families would like to be--at least when it comes to wealth preservation and they depend on what this Article calls the law of high-wealth exceptionalism to facilitate their success. The law of high-wealth exceptionalism has been forged over the years from the twinned scripts of wealth management and family wealth law, both of which constitute high-wealth families as sovereign entities capable of self-regulation and deserving of exemption from the rules that govern ordinary wealth families. Consequently, high-wealth families take advantage of complicated estate planning techniques and highly favorable wealth rules in order to build walls around their family fortunes and construct bespoke governance systems. Hiding in plain sight, the law of high-wealth exceptionalism protects, privileges, and enables high-wealth families in their own particular form of organizational sovereignty. The fact that high-wealth families operate according to their own rules might seem totally unconnected to the political lives and financial health of original wealth families. However, high-wealth exceptionalism intensifies old harms and creates new ones within the larger policy. To begin, the law of high-wealth exceptionalism increases systemic risk in financial Markets, shifts tax burdens from high-wealth to lower wealth families, and widens the wealth gap. Compounding these problems, high-wealth family exceptionalism facilitates the growth of plutarchic and patrimonial system of government in which power is based on family wealth and privilege flows in a circuit between a small number of already exceptionally resourced families. Understanding how the lax of high-wealth exceptionalism functions is, consequently, an important step in identifying hidden levers of wealth inequality, and addressing the resulting democratic deficit.
Friday, November 27, 2020
Kelly Purser, Tina Cockburn, and Bridget J. Crawford recently published an article entitled, Wills Formalities Beyond COVID-19: An Australian-United States Perspective, Wills, Trusts, & Estates Law ejournal (2020). Provided below is the abstract to the Article.
Executing a valid will during the COVID-19 pandemic can be difficult, given various economic and public health restrictions, including social distancing and lockdowns. For that reason, many states in Australia and the United States have implemented emergency measures to facilitate valid will-making during the pandemic. When societies can begin to look forward, the question is whether these temporary measures, which permit remote witnessing of wills, should become the "new normal." Examination of these matters through the lenses of law in Australia and the U.S. raises associated concerns about reliance upon real-time audiovisual technologies to satisfactorily assess testamentary capacity, as well as the importance of incorporating safeguards to adequately identify and prevent undue influence, the perpetration of fraud and/or elder abuse.
Andrew S. Gold recently published an article entitled, Introduction to The Right of Redress, Wills, Trusts, & Estates Law ejournal (2020). Provided below is the abstract to the Article.
This is a draft of the Introduction chapter from my new book, The Right of Redress (Oxford University Press, 2020). As the book argues, the law enables private parties to engage in redress by undoing the wrongs committed against them. Moreover, a distinctive kind of justice governs our legal rights of redress, different from the kind described in leading corrective justice approaches. Through analysis of these key ideas, The Right of Redress helps to make sense of tort law, contract law, fiduciary law, unjust enrichment doctrine, and equity.
Thursday, November 26, 2020
Evan J. Criddle recently published an article entitled, Stakeholder Fiduciaries, Wills, Trusts, & Estates Law ejournal (2020). Provided below is the abstract to the Article.
Legal scholars and judges often assert that fiduciaries bear a duty of “undivided loyalty” that precludes concern for self-interest. This chapter explores the limits of selfless loyalty in American fiduciary law by showing that the law often permits parties to serve as fiduciaries while also maintaining a beneficial interest in their own exercise of fiduciary power. I coin the term “stakeholder fiduciary” to describe these fiduciaries who are formal beneficiaries of their own exercise of fiduciary power. I argue that stakeholder fiduciaries are genuine fiduciaries despite the fact that they claim a beneficial interest in their own performance. But I also make the case that fiduciary law does (and should) treat stakeholder fiduciary relationships differently than non-stakeholder fiduciary relationships.
Stakeholder fiduciary law departs from non-stakeholder fiduciary law in two important respects. First, the fiduciary duty of loyalty applies differently to stakeholder fiduciaries, requiring not complete self-abnegation, but rather solidarity with other beneficiaries. This means that a stakeholder fiduciary may retain an equitable share of the profits she generates through her position—even when those profits are the product of conflicted transactions or misappropriated opportunities. More striking still, when a stakeholder fiduciary exercises voting rights in collective governance, she may vote solely in her own interests as long as she does not misuse her voting power to undermine the purposes of the fiduciary relationship or dominate other beneficiaries.
Second, courts repose a different kind of trust in stakeholder fiduciaries. When a non-stakeholder fiduciary is alleged to have violated her duty of care, courts do not ordinarily accord any deference to the fiduciary’s judgment. The same cannot be said of stakeholder fiduciaries: as long as a stakeholder fiduciary’s interests are plausibly aligned with the interests of other beneficiaries, courts allow the fiduciary to decide for herself how much time and energy she should devote to a particular decision. Taking into account the stakeholder character of certain fiduciary relationships therefore clarifies why courts apply a highly deferential standard of review to the decisions of some fiduciaries (e.g., business partners) but not others (e.g., investment managers). The best explanation, I argue, is that courts trust stakeholder fiduciaries to exercise reasonable care without intrusive judicial oversight precisely because these fiduciaries have a direct personal stake in their own performance.
Jeffrey A. Cooper, John R. Ivimey, & Katherine Mulry recently published an article entitled, 2019 Developments in Connecticut Estate and Probate Law, Wills, Trusts, & Estates Law ejournal (2020). Provided below is the abstract to the Article.
This Article provides a summary of recent developments affecting Connecticut estate planning and probate practice. Part I discusses 2019 legislative developments. Part II surveys selected 2019 case law relevant to the field.
Tuesday, November 24, 2020
Ben Chen recently published an article entitled, Family Fiduciaries in the Protective Jurisdiction, Wills, Trusts, & Estates Law ejournal (2020). Provided below is the abstract to the Article.
Baby boomers in Australia are entering retirement with a higher life expectancy and more wealth than any generation before them. Mental and physical decline can make it difficult or impractical for many older people to safeguard their own financial interests. In particular, guardians and attorneys who manage property for the elderly have the opportunity to misuse their power to enrich themselves. Responding to recommendations from law reform commissions, Australian legislatures tend to impose the strictest form of fiduciary regulation on guardians and attorneys.
Bucking the trend, this article argues in favour of a flexible model of fiduciary regulation. This model originates from historical Chancery jurisprudence and continues to enjoy support in New South Wales. The prevailing, strict model not only tends to be overprotective, it also ignores the reality that litigation about the properties of the elderly is often driven by inheritance expectations. The flexible model can alleviate the potential overprotectiveness of fiduciary law and accommodate harmless conflicts in close families.
Article on Cooperative Compliance Program for Individuals and Trusts: A Proposal for a Compliance Passport
Philip Marcovici and Noam Noked recently published an article entitled, Cooperative Compliance Program for Individuals and Trusts: A Proposal for a Compliance Passport, Wills, Trusts, & Estates Law ejournal (2020). Provided below is the abstract to the Article.
Tax and beneficial ownership transparency regimes result in substantial costs and risks for many law-abiding individuals, family trusts, and private investment vehicles. Such parties suffer from substantial direct and indirect costs, legal uncertainties, and risks to their privacy. This article develops a proposal for a voluntary program which draws upon cooperative compliance programs such as the International Compliance Assurance Programme. Under the proposed program, the authorities of the relevant jurisdictions would determine on a joint basis whether the participant is in full compliance with their tax obligations and whether there are any money laundering concerns. The proposed program would ensure the participants’ compliance while reducing the costs and risks for the participants and the relevant governmental authorities.
Monday, November 23, 2020
Stephen R. Alton recently published an article entitled, Dr. Jekyll & Mr. Holmes A Tale of Two Testaments, South Carolina Law Review (2020). Provided below is the abstract to the Article.
Author'sNote: This Article takes theform ofan epistolaryexchange across the centuries, comparing and contrasting two noted wills in Victorian literature. To preserve verisimilitude, the author lets these letters and emails speak for themselves, without any formal introduction, just as would have occurred in Victorian epistolary fiction. It is the author's hope that the relevant testaments and the legal issues they present will make themselves clear as these exchanges proceed.Any reader desiring a more formal introduction to this Article is directed to the first email (below) written by the author to Mr. Utterson and Mr. Holmes; this email has the subject line "Your Correspondence of 1905 An Introduction." This introductory email occurs in the text immediately preceding, accompanying, andfollowing notes 62-68, infra.
Michael J. Hidden recently published an article entitled, Parens Patriae and The Disinherited Child , Washington Law Review (2020). Provided below is the abstract to the Article.
Most countries have safeguards in place to protect children from disinheritance. The United States is not one of them. Since its founding, America has clung tightly to the ideal of testamentary freedom, refusing to erect any barriers to a testator's ability to disinherit his or her children-regardless of the child's age or financial needs. Over the years, however, disinheritance has become more common given the evolving American family, specifically the increased incidences of divorce, remarriage, and cohabitation. Critics of the American approach have offered up reforms based largely on the two models currently employed by other countries: (1) the forced heirship approach, in which all children are entitled to a set percentage of their parent's estate; and (2) family maintenance statutes, which provide judges with the discretionary authority to override a testator's wishes and instead award some portion of the estate to the testator's surviving family members. This Article takes a different approach and looks at the issue of disinheritance through a new lens: the doctrine of parens patriae. Just as this doctrine limits the decision-making autonomy of living parents vis-A-vis their children, this Article argues that it should likewise limit the dead hand control of deceased parents. Focusing on minor children, adult children who remain dependent as a result of disability, and adult children who are survivors of parental abuse, it is the contention of this Article that testamentary freedom must sometimes yield to the state's inherent parens patriae authority to protect children from harm. Specifically, this Article proposes that courts must refuse enforcement of testamentary schemes that disinherit children who fall into those categories if that disinheritance would constitute abuse or neglect. Such an approach is not only mandated by the doctrine of parens patriae but, in contrast to the approaches other countries have adopted, is much more deferential to testamentary freedom. The limitations imposed by this proposal represent a relatively modest curtailment of the rights testators currently possess and, at the same time, are consistent with existing exceptions to testamentary freedom, most notably those in place to protect spouses and creditors as well as those that prohibit the enforcement of testamentary provisions that violate public policy.
Wednesday, November 18, 2020
Article on Preserving the Artistic Afterlife: The Challenges in Fulfilling Testator Wishes in Art-Rich, Cash-Poor Estates
Hannah K. Feldman recently published an article entitled, Preserving the Artistic Afterlife: The Challenges in Fulfilling Testator Wishes in Art-Rich, Cash-Poor Estates, Fordham Intellectual Property, Media, & Entertainment Law Journal (2020). Provided below is the abstract to the Article.
Artists' estates present unique legal issues distinct from the estates of art collectors-cum-investors, as these estates tend to be much more art-rich and cash-poor,leading to difficulties in funding legacies when there is no cash readily available and all of the value of the estate is tied up in the artworks themselves. Robert Indiana, an American sculptor who was frequently exploited throughouthis lfe and now appearsto be subject to posthumous exploitation, will be examined as a textbook example of such an artist'sestate. The issues surrounding Indiana's estate exemplify the challenges in following a testator's intent to leave a lasting artistic reputation when the artist has not also left behind the cash necessary to fund their dreams. This Note looks at the judicial doctrines of cy pres and equitable deviation and various legal scholars' proposed solutions to modifying such impracticable dreams, particularly in the case of artists 'and art collectors' estates. Specifically, the Note argues that Indiana's collection should not be housed in his ramshackle man- sion on a rural island in Maine, but rather should be bequeathed to the Farnsworth Museum in Rockland, Maine. Substantively, this Note concludes that public benefit should prevail over dead hand control in the case of artists'estates.