Wills, Trusts & Estates Prof Blog

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

Friday, May 10, 2024

Article: Inheritance Tax and Wealth Inequality: Evidence from Austria

Da-Kai Wu (Feng Chia University) recently published, Inheritance Tax and Wealth Inequality: Evidence from Austria, 2024. Provided below is an Abstract:

We investigate the impact of the 2008 abolition of inheritance tax on wealth inequality in Austria. Using the synthetic control method, we find a significant rise in the wealth share of the top 1 percent following the elimination of the inheritance tax. These results suggest that inheritance tax plays a crucial role in mitigating wealth inequality, highlighting its potential equalizing effect.

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

Thursday, May 9, 2024

Article: Executor Discretion

James Toomey (Elisabeth Haub School of Law at Pace University) recently published, Executor Discretion, 2024. Provided below is an Abstract:

The fundamental purpose of the law of wills is to distribute an owner’s property according to their intent. When a will is implemented, despite no longer reflecting the intent of the person who wrote it, the law fails at this purpose. As the average age of wills at death has increased, families and wealth have become more fluid, and a growing number of people live for a long time without the mental capacity to change their will, this happens all the time. But the enthusiastic reforms in wills law of the past half-century have largely ignored the problem.

This Article discusses a possible drafting solution to the challenge of expired intents in wills law. A testator might, after laying out a specific estate plan, include a clause granting their executor discretion to make adjustments reflecting the testator’s most recent intent. As bounded discretion offers flexibility in many legal contexts, an “executor discretion clause” along these lines might help better implement the intent of the testator at the time of their death.

Notwithstanding potential challenges sounding in compliance with the Wills Act and indefinite standing, executor discretion clauses are enforceable, or should be with modest doctrinal changes. And while implementing them raises new difficulties and concerns about abuse these issues are hardly insurmountable—the familiar doctrine of substituted judgment can cabin executor discretion, subject to challenge by those injured by its exercise, against a presumption of validity in executor decisions.

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

Wednesday, May 8, 2024

Article: Of Property and Pilgrims: The Myth of Communal Property and the Realities of Corporate Charters and Land Tenures in Plymouth Colony

Liam Cronan (Supreme Court of Vermont) recently published, Of Property and Pilgrims: The Myth of Communal Property and the Realities of Corporate Charters and Land Tenures in Plymouth Colony, 2024. Provided below is an Abstract:

Each Thanksgiving, journalists discuss and debate the “communal” ownership of land that allegedly existed in Plymouth Colony in the 1620s and its transition to “private” property, supposedly providing an early glimpse of socialism versus capitalism in America. Recent law review articles have uncritically accepted this view. This article, by contrast, seeks to challenge this inherent over-simplification and redefine its scope. Plymouth Colony did not begin as a “communal” system that radically broke away from contemporaneous English property law. Rather, the true nature of land ownership and property rights in Plymouth was simultaneously corporate and feudal: the colony existed through a series of corporate charters under the control of a London-based joint-stock company, and the colonists were bound by the last vestiges of centuries of feudal English land law. In advancing this claim, this article conducts a careful analysis of the series of land patents and land divisions that Plymouth Colony undertook during its first decades, as well as an exploration of the probate records, wills, and land deeds of six early colonists. It will then connect each series of documents to centuries of English property law, encapsulated in treatises such as Littleton’s Tenures and Coke’s Institutes. Lastly, it will highlight the pronounced influence of this legal history on American law. The Supreme Court has long relied on charters and other “ancient documents” from Plymouth Colony to resolve cases involving boundary disputes between states, from Rhode Island v. Massachusetts in 1838 to Virginia v. Maryland in 2002. State courts throughout New England, in turn, have relied on these same charters and other documents as recently as 2019. Thus this inquiry bears not only academic consequences but also practical ones, in analyzing the very same charters and documents that such cases have long relied upon. In all, this article provides a renewed understanding of Plymouth’s legal history and relevant insights into the impact of English legal customs on the origins of American property law.

 

May 8, 2024 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Tuesday, May 7, 2024

Article: Regulation of Electronic Wills in Kenya: A Case for Reform?

Mitchelle Musyoka (Independent) recently published, Regulation of Electronic Wills in Kenya: A Case for Reform?, 2024. Provided below is an Abstract:

We live in what has been termed ‘a quicksilver technological environment’. Regardless of perceived ethical or enforcement limitations, laws have become increasingly significant in applying general principles to the electronic environment. Some people will argue that ‘technology can be just as powerful as the law in constraining or regulating digital activity.’ Legal technology has a low penetration in succession laws in Kenya. The place of legal technology in Kenyan succession laws and the accompanying role of technology in succession will be examined in this paper. The paper will then present recommendations for reforms in the Kenyan succession laws to accommodate legal technology.

May 7, 2024 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Monday, May 6, 2024

Article: End-of-life Decision-making in the Emergency Department and Intensive Care Unit: Health Professionals’ Perspectives on and Knowledge of the Law in Queensland

Jayne Hewitt (Griffith University - Griffith Law School), Nemat Alsaba (Independent), Katya May (Independent), Evelyn Kang (Griffith University), Colleen Cartwright (Southern Cross University), Lindy Willmott (Queensland University of Technology - Faculty of Law), Ben White (Queensland University of Technology - Faculty of Law), and Andrea Marshall (Griffith University), recently published, End-of-life Decision-making in the Emergency Department and Intensive Care Unit: Health Professionals’ Perspectives on and Knowledge of the Law in Queensland, 2024. Provided below is an Abstract:

Objective: To investigate ED and intensive care unit healthcare professionals’ perspectives and knowledge of the law that underpins end-of-life decision-making in Queensland, Australia.

Methods: An online survey with questions about perspectives, perceived, and actual, knowledge of the law was distributed by the professional organisations of medical practitioners, nurses and social workers who work in Queensland EDs and intensive care units.

Results: The survey responses of 126 healthcare professionals were included in the final analysis. Most respondents agreed that the law was relevant to end-of-life decision-making, but that clinician and family consensus mattered more than following the law. Generally, doctors’ legal knowledge was higher than nurses’; however, there were significant gaps in the knowledge of all respondents about the operation of advance health directives in Queensland.

Conclusions: The legal framework that supports end-of-life decision-making for adults who lack decision-making capacity has been in place for more than two decades. Despite frequently being involved in making or enacting these decisions, gaps in the legal knowledge of healthcare professionals who work in EDs and intensive care units in Queensland are evident. Further research to better understand how to improve knowledge and application of the law is warranted.

May 6, 2024 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Thursday, May 2, 2024

Article: Trustees Competing Over Indemnity Rights

Matthew Conaglen (The University of Sydney - Faculty of Law), recently published, Trustees Competing Over Indemnity Rights, 2024. Provided below is an Abstract:

This article considers how, if at all, trustees’ indemnity rights compete with one another. Each trustee has its own right to indemnity, but each trustee’s indemnity is a single right to indemnification; not a series of separate rights generated by each legitimate transaction. The indemnity is a right for the trustee to be reimbursed or exonerated out of the trust assets before the beneficiaries can lay claim to those assets. Where more than one trustee claims indemnification, and there are insufficient assets to cover all such claims, it is suggested that a rateable sharing approach is preferable.

May 2, 2024 in Articles, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Wednesday, May 1, 2024

Article: Enforcement

Kelvin F.K. Low (National University of Singapore (NUS) - Faculty of Law) recently published, Enforcement, 2024. Provided below is an Abstract:

The importance of enforcement to a trust is an inadequately examined issue: must beneficiary enforcement be realistic or does notional enforceability suffice? If a settlor entrusts property to a trustee and no beneficiary is realistically able to enforce it, does he create a trust? This variation of the famous philosophical thought experiment regarding observation and perception is unfortunately far from theoretical as modern trusts, perhaps epitomised by the massively discretionary trust, set up numerous obstacles to enforcement. First, there are informational barriers to enforcement: if no beneficiaries are aware of their beneficial interests, can enforcement follow? Secondly, modern trusts increasingly employ exemption clauses, ouster clauses and even no contest clauses to deter beneficiaries from challenging trustee decisions. How far can trust law accommodate settlor autonomy before it endangers the institution itself by rendering enforcement notional yet impractical? Furthermore, many jurisdictions have either introduced or are contemplating introducing non-charitable purpose trusts that do away with beneficiaries altogether. Alternative enforcement mechanisms are proposed in place of beneficiaries. But are these enforcement mechanisms realistic substitutes or do they again only cast a mirage of accountability?

May 1, 2024 in Articles, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Saturday, April 27, 2024

Article: Directors, Concurrent Fiduciary Duties, and Ad Hoc Fiduciary Relationships

Weiming Tan (National University of Singapore - Faculty of Law) recently published, Directors, Concurrent Fiduciary Duties, and Ad Hoc Fiduciary Relationships, 2024. Provided below is an abstract:

In Tan Teck Kee v Ratan Kumar Rai, the Singapore Court of Appeal had occasion to decide whether, and when, a director of a company may owe concurrent fiduciary duties both to a third-party and to his principal company. Furthermore, the apex court took the chance to consider when an ad hoc fiduciary relationship could arise. This note critically examines the Court’s analysis, and discusses the approaches adopted by the courts in other common law jurisdictions. It concludes that, overall, the decision of the Court of Appeal is to be welcomed.

April 27, 2024 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Thursday, April 25, 2024

Article: Implications of Voluntary Assisted Dying for Advance Care Planning

Ben White (Queensland University of Technology - Faculty of Law), Madeleine Archer (Queensland University of Technology - Australian Centre for Health Law Research), Casey Haining (Queensland University of Technology - Australian Centre for Health Law Research), and Lindy Willmott (Queensland University of Technology - Faculty of Law) recently published, Implications of Voluntary Assisted Dying for Advance Care Planning, 2024. Provided below is an abstract:

Voluntary assisted dying is now lawful in all Australian states, with territories likely to follow. As this new end-of-life choice becomes more widely available and known, we should anticipate it arising during end-of-life care discussions with patients. In Australia, unlike some international models, voluntary assisted dying is not available to people without decision-making capacity. Therefore, patients cannot request voluntary assisted dying through an advance care directive or other advance care planning document. However, some competent adult patients undertaking advance care planning may want to discuss voluntary assisted dying. Reflection is needed to prepare patients, clinicians and health services for discussions about voluntary assisted dying during advance care planning.

April 25, 2024 in Articles, Death Event Planning, Estate Planning - Generally | Permalink | Comments (0)

Sunday, April 21, 2024

Article: A New Look at Old Money

Miranda Perry Fleischer (University of San Diego School of Law) recently published, A New Look at Old Money, 2024. Provided below is an Abstract:

Taxing wealth—including inherited wealth—is a hot topic, making headlines and generating heated debate. Should millionaires and billionaires face an annual wealth tax, as championed by Senators and former Presidential candidates Elizabeth Warren and Bernie Sanders? Should we strengthen the existing estate tax, as President Biden contends? Or, as opponents argue, are both annual wealth and once-a-generation wealth transfer taxes unfair and impractical? What makes this debate so intractable is not only that the public as a whole is divided on these issues, but many individual Americans hold simultaneous beliefs about wealth, opportunity, fairness, desert, and family that seemingly contradict each other. This Article cuts through that debate by proposing a novel solution for inheritance taxation that reconciles these deeply held beliefs with the benefits of wealth transfer taxation.

Our current estate tax treats the self-made millionaire the same as an heiress who has not earned a cent when they pass their fortunes on to their heirs. But this is misguided. Drawing on recent work on the psychology of taxation, this Article makes the case for an innovative inheritance tax system that taxes old money more heavily than new. This approach would allow individuals to bequeath wealth that they have earned—but not wealth that they have inherited—free of tax. Known as a Rignano tax, this proposal harnesses the finding that many Americans “silo” beliefs about wealth, holding seemingly contradictory beliefs that differ in part based on whether wealth is earned or inherited. By leveraging these findings and building on experience with the existing transfer tax system, this Article elaborates and advances a set of specific and concrete design recommendations for a Rignano tax.

This comprehensive analysis of a Rignano tax—the first in the law review literature—complements philosophical work that advocates for such a tax but does not address key design and policy questions. Further, it contributes to tax scholarship by advancing our understanding of the relationship between a tax’s normative goals and structural design choices. And for both advocates and opponents of the estate tax, it offers a nuanced and fair exploration of the debate surrounding inheritance taxation as well as a potential resolution of the enduring stalemate over taxing wealth.

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