Wills, Trusts & Estates Prof Blog

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

Friday, January 8, 2021

Mere and Other Discretionary Objects in Australia

Jessica Hudson recently published an article entitled, Mere and Other Discretionary Objects in Australia, Wills, Trusts, & Estates Law ejournal (2020). Provided below is the abstract to the Article. Estate planning

This Chapter draws on the Australian experience of discretionary trusts to show that a mere object, and an object from an open class of an exhaustive power, do have a right to due administration. This Chapter will explain that the Australian position is an outcome of that jurisdiction’s conception of the essential feature of an express trust and its recognition of discretionary powers that have the effect of suspending an entitlement to the benefit of trust property. The Chapter will go on to address the risk of the opportunistic object, and explain why the object’s right to due administration is consistent with the beneficiary principle as an expression of the basic imperative that a legal relationship must be constituted by more than one legal person.

January 8, 2021 in Articles, Trusts | Permalink | Comments (0)

Wednesday, January 6, 2021

Article on Forfeiture and the Effect of Section 33A of the Wills Act 1837

Brian Sloan recently published an article entitled, Forfeiture and the Effect of Section 33A of the Wills Act 1837, Wills, Trusts, & Estates Law ejournal (2020). Provided below is the abstract to the Article. Estate planning

The forfeiture rule is “the rule of public policy which in certain circumstances precludes a person who has unlawfully killed another from acquiring a benefit in consequence of the killing”. Section 33A of the Wills Act 1837 (applicable to deaths on or after 1 February 2012) provides that “where a will contains a devise or bequest to a person who” “has been precluded by the forfeiture rule from acquiring it”, “[t]he person is, unless a contrary intention appears by the will, to be treated for the purposes of this Act as having died immediately before the testator”. On one view, any will is now simply read as if the forfeiting beneficiary has predeceased the testator. As this paper will explain, however, the phrase “for the purposes of this Act” has created unintended complications in the minds of some, with the potential considerably to reduce the impact of section 33A in an undesirable manner. The paper considers whether the problem with the scope of section 33A identified by some scholars is truly present, alongside what the solution to it might be.

January 6, 2021 in Articles, Current Events, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)

Article on Trusts of Cryptoassets

Kevin F.K. Low recently published an article entitled, Trusts of Cryptoassets, Wills, Trusts, & Estates Law ejournal (2020). Provided below is the abstract to the Article. Digitalassets

The birth of bitcoin in the Great Recession of 2008 appealed to cypherpunks and libertarians distrustful of government. Together with copycat altcoins, the volatility of cryptoassets has drawn interest from investors and speculators who did not share in these ideals, including trustees, raising four questions. First, can cryptoassets be the subject-matter of trusts? Secondly, if so, how may the rules relating to validity be applied to cryptoassets? Thirdly, is such an investment permitted under the terms and/or governing law of a particular trust? Finally, what must trustees be aware of in deciding whether to invest in this new asset class?

 

January 6, 2021 in Articles, Current Events, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Monday, January 4, 2021

Article on IRA Help by Seymour Goldberg

Estate planningSeymour Goldberg recently wrote an article in which he offers IRA advice. Roth IRA's are discussed in particular with added help on conversions and information on traditional IRA's. 

Goldberg discusses particular questions to consider when handling your IRA, like retirement and tax considerations. 

The intro paragraph is pasted below for an introductory into the nature of the Article. 

Roth IRA conversions is a tactic that has gained ground, post- SECURE Act. Roth conversions must be mathematically compared to doing nothing. An important driver here is the possibility of income tax rate arbitrage. Will the account owner be able to convert some traditional IRA dollars to the Roth side at lower tax rates than future beneficiaries will likely pay. 

See https://www.irahelp.com/pdf/Goldberg-202101.pdf for the full article. 

January 4, 2021 in Articles, Estate Planning - Generally | Permalink | Comments (0)

University of Dayton School of Law Seeks Wills & Trusts (and other topics) Professor

University_DaytonThe following is posted as a courtesy to Prof. Jeannette Cox:

The University of Dayton School of Law invites applications for a tenure-track Assistant Professor position to begin August 16, 2021. Areas of particular need include contracts, secured transactions, business organizations, property, wills and trusts, and/or tax.

Applicants must have a J.D. or the equivalent degree from a foreign institution. While not everyone may possess all the preferred qualifications, the ideal candidate will bring many of the following: an outstanding academic record; a record of publication; demonstrated potential to be an outstanding teacher; potential to successfully mentor students from underrepresented groups; demonstrated and successful experience working with people from diverse backgrounds; relevant prior experience in law practice; excellent communication skills; effective interpersonal skills with various constituencies; interest in and/or experience teaching contracts, secured transactions, business organizations, property, wills and trusts, and/or tax, an expressed willingness and enthusiasm to teach in and develop UDSL's hybrid online J.D. program and to engage with Catholic and Marianist educational values that promote inclusive excellence. 

Applications must be received by February 1, 2021. Applications should include a cover letter and CV and must be submitted through the University of Dayton’s electronic employment site: https://employment.udayton.edu/cw/en-us/job/498365/assistant-professor. References will not be contacted until second round interviews. Inquiries may be directed to the Faculty Recruitment and Development Committee at lawfacultyhiring@udayton.edu.

The University of Dayton School of Law is a dynamic law school focused on inclusive excellence. In Spring 2020, National Jurist's preLaw magazine ranked UD Law 14th in the nation for African American students. To meet the needs of its growing J.D. program, the UD Law has hired 13 nationally and internationally prominent faculty in the last four years.

The University of Dayton is a top tier, Catholic research university with offerings from the undergraduate to the doctoral levels. Founded in 1850 by the Society of Mary, the University is a diverse community committed to advancing the common good through intellectual curiosity, academic rigor, and community engagement with local, national and global partnerships. Guided by the Marianist education philosophy, we educate the whole person and link learning and scholarship with leadership and service. 

Informed by its Catholic and Marianist mission, the University is committed to the principles of diversity, equity, and inclusion. In light of this commitment, we seek to increase diversity, achieve equitable outcomes, and model inclusion across our campus community. As an Affirmative Action and Equal Opportunity Employer, we will not discriminate against minorities, women, protected veterans, individuals with disabilities, or on the basis of race, color, national origin, religion, sex, sexual orientation, or gender identity.

The University is also pleased to provide support for spouses of prospective and newly hired faculty through its dual career program. While we cannot guarantee placement, we serve as an effective resource and support system for your spouse. Information can be found at http://www.udayton.edu/hr/employee_resources/dual_career_resources.php.

January 4, 2021 in Articles, Faculty Positions -- Permanent | Permalink | Comments (0)

Thursday, December 24, 2020

Article: Introduction: The Oxford Handbook of the New Private Law

Andrew S. Gold, John C. Goldberg, Daniel B. Kelly, Emily L. Sherwin, and Henry E. Smith recently published an article entitled, Introduction: The Oxford Handbook of the New Private Law, Wills, Trusts, & Estates Law ejournal (2020). Provided below is the abstract to the Article. Estate planning

“Private law” embraces the traditional common law subjects (property, contracts, and torts), as well as adjacent more statutory areas such as intellectual property and commercial law. It also includes important areas that have been neglected in the United States but are beginning to make a comeback. These include unjust enrichment, restitution, equity, and remedies more generally. “Private law” can also mean private law as a whole, which invites consideration of issues such as the public-private distinction, the similarities and differences between the various areas of private law, and the institutional framework supporting private law – including courts, arbitrators, and even custom.

The New Private Law is an approach to these subjects that aims to reinvigorate the study of private law by moving beyond reductively instrumentalist policy evaluation and narrow, rule-by-rule, doctrine-by-doctrine analysis, so as to consider and capture how private law’s various features fit and work together, as well as the normative underpinnings of these larger structures. This movement has begun resuscitating the notion of private law itself in the United States and has brought an interdisciplinary perspective to the more traditional, doctrinal approach prevalent in Commonwealth countries. The Handbook embraces a broad range of perspectives to private law – including philosophical, economic, historical, psychological, to name a few – yet it offers a unifying theme of seriousness about the structure and content of private law. This Introduction introduces the New Private Law and briefly summarizes the chapters in the volume.

December 24, 2020 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Article: Stock Broker Mutation

Robert Flannigan recently published an article entitled,  Stock Broker Mutation, Wills, Trusts, & Estates Law ejournal (2020). Provided below is the abstract to the Article. Estate planning

The principle that agents are status fiduciaries does not apply to stock brokers in Canada. Though brokers are agents with respect to their trading function, the Supreme Court has said that their agent status does not make them accountable as status fiduciaries. I will explain how that mutation developed. I will show that the Supreme Court misconstrued the prior law, and that there is no present justification for the lesser accountability of stock brokers.

December 24, 2020 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, December 23, 2020

Article: Obligations And Powers Of Superannuation Trustees Concerning Situations Of Actual Or Possible Conflict

Joseph Campbell recently published an article entitled, Obligations And Powers Of Superannuation Trustees Concerning Situations Of Actual Or Possible Conflict, Wills, Trusts, & Estates Law ejournal (2020). Provided below is the abstract to the Article. Estate planning 

Part 1 summarises the present status as a matter of precedent in Australia of the general law rule that a fiduciary not be in a situation of conflict, the meaning of being “in a situation of conflict”, and the recognised circumstances in which there is an exception to the rule. It also criticises the application of the rule to a superannuation trustee in Jones v AMP Perpetual Trustee Co NZ Ltd . Part 2 considers the relationship of the pre-existing general law and statute law governing trusts to the provisions of the Superannuation Industry (Supervision) Act 1993 (“SIS Act”). Part 3 considers the effect of the initial introduction of the SIS Act on the application of the no-conflicts rule to superannuation trusts. Part 4 considers how the replacement of the original statutory covenants in the SIS Act with a set that included express obligations concerning conflicts affects the possible application of the general law no-conflicts rule. It argues that it is still possible, in some circumstances, for the general law no-conflicts rule to apply, and considers the limitations on now amending a trust deed that did not already exclude the no-conflicts duty to amend or limit that duty. Part 4 also considers various aspects of the construction and practical application of the new covenants concerning conflicts, including the role of the prudential standards, and some other statutory amendments that came into operation in 2013 and 2019 that bear upon a trustee’s actions in a situation of conflict. Part 5 provides several miscellaneous examples, discussed with particular reference to outsourcing, of principles that do not mention the word “conflict” but that could need to be taken into account when a superannuation trustee is in a situation of conflict.

December 23, 2020 in Articles, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Article: Legal Consequences of the Flawed Exercise of Scheme Powers

Jessica Hudson and Charles Mitchell recently published an article entitled, Legal Consequences of the Flawed Exercise of Scheme Powers, Wills, Trusts, & Estates Law ejournal (2020). Provided below is the abstract to the Article. Estate planning

The paper discusses the powers that are typically conferred on trustees and employers under English occupational pension schemes and Australian superannuation schemes, the legal rules by which the exercise of such powers is governed and the legal consequences of failures to comply with these rules.

December 23, 2020 in Articles, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Sunday, December 20, 2020

Article: Representing a Trustee

Eric P. Hayes and Frederick D. Royal recently published an article entitled, Representing a Trustee, Wills, Trusts, & Estates law ejournal (2020). Provided below is the abstract to the Article. Estate planning

The Author's chapter 22, Representing a Trustee, in UNDERSTANDING AND USING TRUSTS, covers the essential issues in Massachusetts trust law and practice. Two critical areas of trust-related law practice are explored in detail: lawyers acting as trustees and lawyers representing trustees. A number of difficult regulatory and ethical issues for these types of practice are raised and covered in depth.

December 20, 2020 in Articles, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)