Wills, Trusts & Estates Prof Blog

Book Review: On Living

Kerry Egan is a graduate of Harvard Divinity School and is a hospice chaplain. The book is a collections of lessons that she has derived from her experiences, and observations about live, death, and spirituality.

Egan describes her chaplain’s role as talking and listening to patients about their families and, perhaps, about religion, God, or the meaning of life — but mostly about families. "Family is where we first experience love and where we first give it.”

The author invites us to say important things now without waiting, to live without regret, to cherish our bodies how they are. She reminds us that what we were in life we are in death: “Death does not automatically make you a better person.” 

Egan attempt to inform the read that everyone is broken, but that listening to others' stories can heal a person's soul. "I know this because it healed mine.” The dying are still living, still growing, still learning, and may want to release long-held secrets or simply want to be seen as who there were before they became ill.

As attorneys, we are trained to be logical and analytical and to solve problems for our clients. Reading this book will guide us in contemplating the softer side of ourselves, the work we do, and the clients we represent. It invites us to consider how our experiences with our clients shape us, both individually and professionally.

See Shelley D. Coelho, Book Review: On Living, NAELA,org, Spring, 2018.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.) for bringing this article to my attention.

Book on Cases and Materials on Gratuitous Transfers, Wills, Trusts, Gifts, Future Interests, and Taxation

Mark L. Asher and Grayson MP McCouch recently published a Book entitled, Cases and Materials on Gratuitous Transfers, Wills, Trusts, Gifts, Future Interests, and Taxation (West Academic Publishing, 7th ed., 2018). Provided below is a brief summary of the book.

The new edition of Gratuitous Transfers incorporates developments in the law of wills, trusts and estates since 2013, including a new principal case involving beneficiary consent to trust accounting. The text also includes references to case law and literature relating to same-sex marriage, revocation by divorce, reformation of wills, directed trusts, trust decanting, and fiduciary access to digital assets, as well as statutory references to recent amendments to the Uniform Probate Code and Uniform Trust Code. The coverage has been thoroughly updated while maintaining continuity of organization and general approach with previous editions.

Stormy Daniels’s Oral Will: Noncupative Wills Make for Risky Estate Planning

Stormy Daniels's recently released memoir, Full Disclosure, was written over a period of 10 years and reveals several facets of the former adult-film stars life. At the forefront is the 2006 encounter with President Donald Trump at Lake Tahoe and the chaos that occurred after her execution of a Non-Disclosure Agreement prior to the 2016 election.

The final chapters of the memoir highlight the tremendous fear Daniels experienced after the Wall Street Journal story featuring the aforementioned Non-Disclosure Agreement and the lawsuit Daniels filed in federal court claiming that the document was invalid. Daniels claimed that she was intimidated by Trump's attorney, Michael Cohen, into signing the agreement as well as being threatened in a Las Vegas parking lot in 2011. By March, 2018, when she filed the suit and was interviewed on CBS's 60 Minutes, Daniels was receiving death threats - on her and her young daughter. This resulted in her having a friend record her directing the disposition of her estate in case any of the threats were carried out.

An oral will, such as a recorded will produced by Stormy Daniels, is known as a nuncupative will and is rarely enforceable, except for some specific exceptions. They are problematic because they raise questions as to authenticity and fraud. Even in our technological era, wills are still required to be signed and witnessed, and the witness are to testify to the person's ability and capacity to execute a will. A document containing a person's original signature must be filed to be entered into probate.

See Cori A. Robinson, Stormy Daniels’s Oral Will: Noncupative Wills Make for Risky Estate Planning, Above the Law, October 9, 2018.

Special thanks to Carissa Peterson (Hrbacek Law Firm, Sugar Land, Texas) for bringing this article to my attention.

Book on The Advisor's Guide to Disability Insurance

Tamra L. Barraclough, Erik T. Reynolds, & R. David Watros recently published a book entitled, The Advisor's Guide to Disability Insurance, ABA Book Publishing (2018).Provided below is a summary of the book.

It may not be the first thing that comes to mind, but disability insurance may represent the most important financial product that individuals need during their working years. Generating an income from work is the foundation for all financial planning, allowing individuals to maintain their lifestyle as well as plan for future retirement. The Advisor’s Guide to Disability Insurance is a clear, concise, and approachable guide that helps attorneys and other financial professionals understand the opportunities and benefits of disability insurance for their clients as well as for themselves and their families.

This book presents information on disability insurance with a long-term duration until retirement, beginning with the basics and an overview of the different types of disability. Subsequent chapters address key topics in greater depth:

• Individual and group long-term disability
• Integrated group and individual plans
• Underwriting the disability risk
• Filing a claim under different policy types
• Employment/shareholder agreements
• Evaluating and selecting a disability insurance carrier
• Regulations and relevant benefit laws
• Income protection planning and how it will evolve in the future
• The role the advisor plays in planning
• Sample planning situations

Harper Lee Estate Sues Broadway Interpretation of To Kill a Mockingbird

In a June 2015 agreement, author Harper Lee granted the production company Rudinplay, owned by Scott Rudin, the option to acquire the worldwide stage rights for To Kill a Mockingbird for $100,000, subject to Lee’s right of approval regarding the selection of a playwright, as well as the right to review and comment on the script. The agreement also provided that the play could not “derogate or depart in any manner from the spirit of the Novel, nor alter its characters." Lee approved Rudin's choice of playwright, but died before she could approve of the play's first draft.

The representative of Harper Lee's estate, Tonja Carter, sued the producer alleging that he violated the terms of the licensing agreement. She alleges that the play's script drastically altered the character of the iconic defense attorney Atticus Finch (who is to be played by Jeff Daniels), changed the way the Finch's children spoke, expanded the role of the housekeeper, Calpurnia, and even added two new characters. She also claims that Rudin's responses to the estate objections were insufficient.

Rudin and Rudinplay countersued for $10 million, alleging Carter was attempting to default the play into cancellation by throwing the production off the required timeline for Rudinplay to exercise its option to acquire the novel’s live stage rights set forth in the 2015 agreement. Rudin not only asked the court to rule quickly as to not throw the production off schedule, but also declared that the court should see the play in all its entirety before they could determine if it was in the spirit of the beloved book.

The court declined, but ordered them to create and submit a filmed version of the play before the trial. The parties settled amicably in May before a filmed version was submitted.

See Amanda DiChello, Harper Lee Estate Sues Broadway Interpretation of To Kill a Mockingbird, At Your Bequest, August 3, 2018.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.) for bringing this article to my attention.

Steve Jobs' Daughter Pens Sad Memoir About Their Often Brutal Relationship

Lisa Brennan-Jobs has written a memoir depicting her relationship with her father, Steve Jobs, and the often heart-breaking memories times that she remembers with the Apple CEO. She claims that she wanted to be close to him, to have a normal relationship with him. "The closer I was to him, the less I would feel ashamed; he was part of the world, and he would accelerate me into the light."

Jobs initially denied paternity of Lisa when she was born in 1978, and after he was court-ordered to take a paternity test and to pay child support, he attempted to finalize all pay outs for the child just 4 days before Apple would go IPO - making him a highly wealthy individual.

Lisa writes that her father was never "generous with money, or food, or words." When asked if she could get his old Porsche when he replaced it - supposedly for getting a "scratch" on it, Jobs replied that, "You’re not getting anything. "You understand? Nothing. You’re getting nothing."

See Shona Ghosh, 'You're Getting Nothing': Steve Jobs' Daughter Pens Sad Memoir About Their Often Brutal Relationship, San Francisco Gate, August 2, 2018.

Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

 

Book on Estates, Future Interests and Powers of Appointment in a Nutshell

Thomas P. Gallanis published a book entitled, Estates, Future Interests and Powers of Appointment in a Nutshell (West Academic Publishing, 6th ed., 2018). Provided below is a description of the book:

This comprehensive guide provides an overview of the rules and principles of estates and future interests, including concurrent estates, marital estates (including the modern elective share), and powers of appointment. It includes new innovations from the Restatement 3d of Property, modernizing the law of future interests and dramatically changing the Rule Against Perpetuities. With respect to powers of appointment, the book incorporates the clarifications and modernizations of the law in the Restatement 3d of Property and the Uniform Powers of Appointment Act (2013, with subsequent amendments). The book also has exercises, with answers at the back. Valuable for students in first-year Property and upper-year courses in Trusts and Estates.

Helpful Guide to Locating an Advisor-Friendly Trust Company

This book, 2018 America's Most Advisor-Friendly Trust Companies 7th Edition: The Winners List: Details On Their Technology, Custodians, Fees, In-House Experts, Advisor Support and More, provides detailed information on trust companies which the authors believe are better at working with advisors.

With over 5,000 trust companies in the United States, this guide may assist both advisors and private investors in narrowing their search for the company which will best serve their needs.

In addition, the book provides useful information on how trusts operate and why they may make an effective part of a person's estate plan.

This publication is available on Amazon.com in Kindle format.

What the Living Can Learn by Looking Death Straight in the Eye

There are several books currently on the market that explain the possibilities to die with dignity, whether it be from terminal illness or simply a longed lived life. This book, Advice for Future Corpses (and Those Who Love Them), by Buddhist practitioner Sallie Tisdale is different; it speaks about the sensitive subject of dying but with a refreshing realistic attitude. "But in its loving, fierce specificity, this book on how to die is also a blessedly saccharine-free guide for how to live."

Dying is not always done alone, and those around the person nearing the end of their lives may also need some guidance. To the caretaker, she writes: “You are the defender of modesty, privacy, silence, laughter and many other things that can be lost in the daily tasks. You are the guardian of that person’s desires.”

The book also recites a brief history of death as it pertains to different cultures and rituals around the world, up to the numerous options available in the present day.

See Parul Sehgal, What the Living Can Learn by Looking Death Straight in the Eye, New York Times, June 26, 2018.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.

Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

 

Article on Defective Catastrophe Clauses in Wills: Paths to Reform

Adam J. Hirsch published an Article entitled, Defective Catastrophe Clauses in Wills: Paths to Reform, 52 Real Property, Trust and Estate Law Journal, Vol. 52, No. 3, Winter 2018. Provided below is an abstract of the Article:

This Article explores the problem of construing what I term “defective catastrophe clauses” in wills. Defective catastrophe clauses provide for the contingency that a beneficiary will die simultaneously, or in a common calamity, with the testator but neglect to allow for the possibility that the beneficiary will predecease the testator. The Article explores the extensive case law addressing this problem, spotlighting the most recent and ballyhooed case on point, Estate of Duke. The Article observes that this body of decisions reflects a tension between applying existing law, which fails to respond adequately to the problem, and employing one or another legal fiction to circumvent existing law. The Article argues that lawmakers should confront the problem head on by establishing a new default rule, ideally in the form of a statute, construing catastrophe clauses by implication to cover the possibility that the beneficiary will predecease the testator.