Wills, Trusts & Estates Prof Blog

A man trying to recover a hard drive containing $750 million of bitcoin from a landfill just had his latest bid rejected

James Howells, a British man who accidentally discarded a hard drive containing 8,000 bitcoins in 2013, has faced another legal setback in his decade-long quest to recover it. The hard drive, now worth approximately $757 million, is believed to be buried in a landfill in Newport, Wales. A judge recently rejected Howells' legal bid to access the site or seek £495 million ($608 million) in compensation from Newport City Council.

The judge ruled that the council legally owns the hard drive as it became its property upon entering the landfill and deemed Howells' claim unlikely to succeed at trial. Despite the setback, Howells remains determined to continue his fight, emphasizing that while the council may own the physical drive, he still owns the bitcoin.

For more information see Nora Redmond "A man trying to recover a hard drive containing $750 million of bitcoin from a landfill just had his latest bid rejected" Yahoo Finance, January 11, 2025. 

After Sveen v. Melin, Is There a Contracts Clause Argument Against Laws Retroactively Terminating Child Support Obligations After the Death of the Obligor Parent?

Millions of children in the United States benefit from child support agreements, which establish enforceable financial obligations against a payor parent, often following divorce. Historically, under common law, the death of an obligor parent terminated these obligations, leaving the supported child without financial recourse. While some states continue to uphold this rule through case law or statute, others, such as California, have reversed it judicially or legislatively. Variations exist, with some states preserving the obligation post-mortem or granting courts discretion to either terminate or revive it. However, any termination or reduction of child support obligations after the obligor parent’s death disproportionately harms the child, raising questions of fairness and constitutional implications under the U.S. Constitution's Contracts Clause.

The Contracts Clause prohibits state laws from impairing contractual obligations, but its scope has narrowed significantly since 1980. The U.S. Supreme Court, in cases like Sveen v. Melin, has allowed retroactive laws to impair contracts if they advance a significant and legitimate public purpose in a reasonable way. However, child support agreements differ from other financial arrangements, like life insurance policy designations, as they directly benefit children’s well-being. Despite the Sveen precedent, arguments can be made that retroactive laws terminating child support obligations constitute substantial impairments that fail to serve legitimate public purposes, violating the Contracts Clause.

This issue becomes more complex because the Contracts Clause applies only to legislative actions, not judicial rulings. States adhering to the common law rule avoid constitutional scrutiny under the Clause, while those legislatively codifying retroactive termination risk violations. This essay contends that retroactive termination laws not only constitute poor policy but also likely fail constitutional muster under the Sveen framework. By distinguishing child support agreements from other contractual arrangements, the essay argues that terminating such obligations upon the obligor parent’s death undermines children’s rights and welfare, presenting a compelling case for legislative reform to preserve these vital agreements.

For more information see Diane Kemker "After Sveen v. Melin, Is There a Contracts Clause Argument Against Laws Retroactively Terminating Child Support Obligations After the Death of the Obligor Parent?" ACTEC Law Journal, Fall 2024. 

Wife of late Padres owner Peter Seidler sues for control of team

Sheel Seidler, the widow of San Diego Padres chairman Peter Seidler, has filed a lawsuit against her late husband's brothers, Robert and Matthew Seidler, accusing them of fiduciary breaches and self-dealing as executors of Peter's estate. She claims they ostracized her and her three children from the organization after Peter’s death in November 2023. Sheel opposes the Padres' decision to appoint Peter’s older brother, John Seidler, as the team’s control person, asserting it contradicts Peter’s wishes and her own role as the largest individual stakeholder. In her lawsuit, Sheel seeks to be named control person, citing her position as the sole beneficiary of the Seidler Trusts, which own a significant share of the franchise.

The Seidler Trust refutes Sheel's claims, arguing that Peter's estate plan explicitly excluded her from serving as trustee or control person, a stance she allegedly agreed to in a sworn 2020 document. The trust also notes Sheel’s past support for John Seidler's leadership. Despite this, Sheel's complaint accuses Robert and Matthew of misleading her, mismanaging trust assets, and undermining Peter’s legacy. Sheel alleges they used trust funds to intimidate her and excluded her from the team's operations and legacy events. She further claims that a handwritten note from Peter prioritized her and their children as successors, a document she contends has been ignored.

Under Peter’s leadership, the Padres grew into a financial powerhouse, achieving competitive success and fan engagement. Sheel argues she is best positioned to carry forward Peter's vision, emphasizing her dedication to the team's future and her children’s eventual inheritance. She believes her exclusion jeopardizes the family's legacy and aims to honor Peter’s dream of bringing championships to San Diego. Meanwhile, John Seidler’s appointment as control person is pending MLB owners' approval, which could occur at their February meeting.

For more information see Alden Gonzalez "Wife of late Padres owner Peter Seidler sues for control of team" ESPN, January 6, 2025. 

Special thanks to Deborah S. Gordon (Professor of Law, Drexel University Thomas R. Kline School of Law) for bringing this article to my attention.

Testamentary Freedom: A Constitutional Perspective

As the 2024 Legislative Session in Oklahoma concluded, the House Judiciary Committee recommended HB 3505, a bill addressing the validity of estate planning instruments for individuals diagnosed with Alzheimer’s, dementia, or other cognitive impairments. The proposed law would invalidate any powers of attorney, wills, trusts, or amendments made after such a diagnosis, as well as any instruments created or amended within two years prior. In cases of invalidation, the original document would take precedence. While the bill did not advance to a vote on the House floor, its potential reconsideration raises significant legal and ethical concerns.

Critics argue that HB 3505 is problematic due to its rigid, mandatory language and retroactive effects. The bill presumes testamentary incapacity without requiring factual evidence, barring individuals with cognitive impairments from engaging in estate planning by default. This approach diverges from traditional practices, where a testator’s competency is a factual question determined by courts, often allowing individuals under guardianship to make wills under judicial oversight. By creating a statutory presumption of incapacity, the bill shifts the burden of proof onto those seeking to uphold amendments, thereby circumventing established legal protections.

Additionally, the bill’s constitutionality under federal and state law remains uncertain. Critics suggest that HB 3505 could violate due process rights by stripping individuals of their ability to manage their affairs based on an arbitrary timeline rather than clear evidence of incapacity. The lack of individualized assessment undermines fundamental principles of fairness and autonomy, raising serious legal and ethical questions. As Oklahoma lawmakers consider similar measures in the future, the implications of HB 3505 warrant careful scrutiny to ensure compliance with constitutional standards and respect for personal agency.

For more information see Richard J. Goralewicz "Testamentary Freedom: A Constitutional Perspective" ACTEC Law Journal, Fall 2024. 

What Dr. Ruth Left Behind

Dr. Ruth Westheimer, who passed away in July at the age of 96, was widely celebrated as a pioneering sex therapist and cultural icon who revolutionized how society discusses intimacy. Beyond her professional achievements, she was a self-proclaimed "pack rat" whose Washington Heights apartment was brimming with books, awards, photographs, and her beloved collection of turtle figurines. Her children, Joel and Miriam, have taken on the delicate task of sorting through her possessions, balancing the emotional weight of preserving their mother’s life while clearing out the space. Many of her archives, including personal letters, research notes, and memorabilia, have been donated to the Kinsey Institute, ensuring her legacy continues to inform and inspire future scholars.

The Kinsey Institute views Dr. Ruth’s materials as invaluable, not only for their insights into her remarkable life but also for the broader cultural significance they encapsulate. Born in 1928 in Germany, she escaped Nazi persecution via Kindertransport, later training as a sniper in Israel and eventually building an extraordinary career in the U.S. Her 1980s radio show, Sexually Speaking, made her a household name, blending expertise with humor to normalize discussions about sex. Her daily planners reveal a life deeply embedded in popular culture, featuring appointments with icons like Oprah and Henry Kissinger. This archive stands as a testament to her ability to traverse academic, social, and cultural boundaries with charm and intellect.

Dr. Ruth’s quirky spirit remains evident in the artifacts she left behind, from cheeky books on sexuality to her whimsical turtle collection, which symbolized her philosophy of sticking one’s neck out to move forward. Despite efforts to declutter over the years, her home always reflected her dynamic and layered life. Among the treasures discovered were touching relics, such as a Kindertransport list transcribed in her handwriting, showcasing her enduring connection to her past. As her family prepares to sell the apartment, her legacy continues to inspire through her archives, her bold conversations about intimacy, and her unwavering zest for life.

For more information see Jennifer Schuessler "What Dr. Ruth Left Behind," The New York Times, January 9, 2025.

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

Article: Anna Nicole's Constitutional Estates Law Legacy

Dave Fagundes recently published, Anna Nicole’s Constitutional Estates Law Legacy, ACTEC Law Journal, Fall 2024. Provided below is an Abstract:

If you were alive in the early 90s and even remotely cognizant of popular culture, you remember the billboard. It featured a young model recently re-styled Anna Nicole Smith recumbent in a grassy field sporting form-fitting Guess jeans and a top revealing ample cleavage. Herplatinum blond hair and smoky stare invoked—quite intentionally—her idol, Marilyn Monroe. The billboard was so compelling that it became a public safety hazard. The Norwegian parliament debated banning it because it was causing distracted drivers to crash. 

 

Anna Nicole’s turn as the leading Guess spokesmodel made her a world celebrity. She was discussed in the same company as leading supermodels of the time and enjoyed a few years of media favor thanks to her mix of down-home Texas simplicity and smoldering sex appeal. This moment didn’t last long. In 1994, Anna Nicole wed superannuated oil billionaire J. Howard Marshall II, and their yawning age difference and her perceived instrumentalism made her easy fodder for talk show ridicule. When Marshall died the next year, Anna Nicole found herself financially adrift, not only because she received nothing from Marshall’s estate but also because her incipient drug habit had alienated Guess and other sponsors.

 

Years of struggle followed. In 2002, she struck a deal to star in The  Anna Nicole Show, one of the earliest reality television shows. Its tagline  was “It’s not meant to be funny—it just is!” But twenty years on, the show appears more exploitative than humorous, showcasing Anna Nicole roaming aimlessly around Los Angeles, often visibly intoxicated, as a cadre of shady eccentrics swarm around her.

 

In 2005, Anna Nicole’s life moved from tragicomic to tragic. She gave birth to a daughter in November, only to have her 21-year-old son Daniel die of an overdose in her hospital room the next day. Anna Nicole never recovered from the blow, and in 2007 she too succumbed to a combination of drugs and illness and died at 39 in a Florida hotel.

 

Anna Nicole’s cultural legacy is conflicted. Her slow, painful public decline following her first few incandescent years of success made her a common subject of ridicule in the media. Her shocking early death made her an object lesson in the dangers of consumptive excess. Unlike her idol Marilyn Monroe, who continues to attract fascination even a half-century after her death, Anna Nicole no longer occupies a significant place in the popular consciousness.

But Anna Nicole’s story did leave a lasting mark in a way few would have imagined. Her protracted lawsuit to recover a share of the estate of her late husband spawned not one, but two, trips to the Supreme Court of the United States, and in so doing established a pair of important holdings about estates law and federal jurisdiction that continue to have salience to this day. Anna Nicole’s cultural legacy may have faded away, but her legal one remains.

 

This Essay examines Anna Nicole’s surprising constitutional estates legacy in three parts. First, it overviews the bitter litigation between Anna Nicole and the estate of J. Howard Marshall II. It then turns to the pair of Supreme Court cases spawned by that litigation. Part II discusses the holding and significance of Marshall v. Marshall, a successful challenge to the scope of the wills exception to federal jurisdiction. Part III discusses the holding and significance of Stern v. Marshall, which held that Article I bankruptcy judges cannot enter final judgments on state law counterclaims. In its Conclusion, the Essay reflects on the contrast between Anna Nicole’s absence from cultural memory with the impact left by the cases she litigated.

Ruth Bader Ginsburg reportedly left $40,000 to her housekeeper of 22 years

Ruth Bader Ginsburg’s will included an unexpected and touching detail, as reported by the Independent. While the majority of her estate was left to her children, Jane and James Ginsburg, she also set aside $40,000 for Elizabeth Salas, her housekeeper of 22 years. The gesture was a heartfelt acknowledgment of Salas’s loyalty and friendship over two decades. Salas, who shared a unique bond with Ginsburg, was seated beside President Joe Biden when Ginsburg lay in state at the U.S. Capitol—a historic first for a woman.

For more information see Jisha Joseph "Ruth Bader Ginsburg reportedly left her estate to one person — her housekeeper of 22 years", Scoop Upworthy, January 4, 2025. 

Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention.  

Article: Constitutional Limitations on the Enforcement of Foreign Forced Heirship Laws

Raquel Begleiter, Austin Bramwell, and Molly Schiff recently published, Constitutional Limitations on the Enforcement of Foreign Forced Heirship Laws, ACTEC Law Journal, Fall 2024. Provided below is an Abstract:

Nearly all fifty of the United States and the District of Columbia follow the common-law principle of testamentary freedom. By contrast, in countries that follow civil law or Sharia law, testamentary freedom is limited. Those countries instead have forced heirship regimes, whereby a decedent’s estate is required to be divided into shares for his or her legal heirs and distributed in proportions determined by the number of heirs living at the decedent’s death and degree of consanguinity. In some forced heirship regimes, shares are distributed on the basis of consanguinity and without regard to age, sex or legitimacy. Under other regimes, by contrast, a decedent’s sons receive shares of the estate twice as large as daughters receive. It is generally accepted that courts apply the law of a decedent’s dom-icile in matters involving decedents’ estates. 

It is also generally accepted that a court may refuse to apply the law of another state or country where doing so would violate the public policy of the forum state. To date, no court in the United States appears to have had the occasion to decide whether to follow Sharia forced heirship laws applicable to the disposition of a decedent’s U.S. situs property. Similarly, it does not appear that a United States court has determined whether to recognize a foreign court’s forced heirship judgment based on Sharia law.

 

This article examines to what extent probate courts in the United States would refuse, on constitutional grounds, to apply the law of a decedent’s domicile or to recognize and enforce a foreign forced heirship judgment, if doing so would result in the court applying a discriminatory sex-based classification. The article proceeds as follows: Section II discusses conflicts of law and the public policy exception to the application of foreign law under conflicts-of-law principles. Section III reviews courts’ recognition and enforcement of foreign judgments under principles of comity and the exceptions thereto. Section IV addresses whether the public policy exception can be based on rights under the United States Constitution and argues that a United States court may have a basis, under the Equal Protection Clause of the Fourteenth Amendment, for refusing to apply sex-based succession law. Similarly, a court in the United States may have constitutional grounds for refusing to recognize a foreign forced heirship judgement ordering the distribution of a decedent’s estate in accordance with sex-based law. Finally, Section V provides practitioner considerations for planners whose clients may wish to ensure that a United States court will not—or will, as the case may be—apply Sharia forced heirship rules to the succession of U.S. situs property.

Article: The Concept of Beneficial Ownership in Express Trust: A Necessity?

Hui Jing (Faculty of Law, The University of Hong Kong) recently published, The Concept of Beneficial Ownership in Express Trust: A Necessity?, 2024. Provided below is an Abstract:

The symmetry between legal and equitable estate is often considered a defining characteristic of an express trust. Consequently, the concept of beneficial ownership plays a crucial role in understanding how an express trust is established and operated. However, concentrating solely on beneficial ownership leads to the categorisation of charitable and non-charitable purpose trusts as exceptions within the express trust framework. This also creates challenges in understanding the entitlement of discretionary trust beneficiaries to initiate legal proceedings regarding the mismanagement of trust property by trustees. This article argues that due administration, instead of beneficial ownership, is a shared concern applicable to all kinds of express trusts. By shifting the focus from beneficial ownership to due administration, it is possible to establish a doctrinal connection among all types of express trusts. Furthermore, the increasing adoption of express trusts in civil law jurisdictions demonstrates that trust law has surpassed the confines of the common law sphere, and the understanding of trusts is no longer limited to the context of common law. By emphasising due administration, it becomes feasible to encourage a conversation between civil and common law jurisdictions regarding their unique approaches to express trusts.

Tomiko Itooka of Japan, World’s Oldest Person, Dies at 116

Tomiko Itooka, the world's oldest person at the time of her death, passed away at 116 in Ashiya, Japan. Born on May 23, 1908, in Osaka, she lived through monumental changes in Japan’s history, from its imperial expansion to its post-war transformation into a peaceful democracy. The mayor of Ashiya praised her for inspiring courage and hope throughout her life, and she had been officially recognized as the world’s oldest living person by Guinness World Records in September 2024.

Ms. Itooka grew up in prewar Japan, excelling in volleyball during high school before marrying Kenji Itooka, the owner of a textile company. During World War II, she managed the family business and raised four children while her husband oversaw operations in Korea, then under Japanese control. Widowed in 1979 after 51 years of marriage, she relocated to Ashiya, where she remained active, hiking into her 80s and ascending shrine steps at 100 without assistance.

Known for her vibrant spirit and remarkable longevity, Ms. Itooka credited her long life to bananas and Calpis, a popular Japanese dairy drink. She left behind a legacy of resilience and determination, surviving by one daughter, one son, and several grandchildren. Her passing marks the end of an extraordinary life that spanned over a century of profound global and personal transformations.

For more information see Miharu Nishiyama and Hisako Ueno “Tomiko Itooka of Japan, World’s Oldest Person, Dies at 116”, The New York Times, January 4, 2025.

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