Wills, Trusts & Estates Prof Blog

Article on Statutory Limitations to Testamentary Freedom in Nigeria: A Comparative Analysis

Desmond Oriakhogba & Alero Fenemigho published an Article entitled, Statutory Limitations to Testamentary Freedom in Nigeria: A Comparative Analysis, Wills, Trusts, & Estates Law eJournal (2013). Provided below is an abstract of the Article.

In Nigeria, a person when alive often has the freedom to dispose of his property to whomever he chooses. However, when he dies, limits have been put upon that freedom by legislation in some states of the country, when he has made a will concerning the disposition of his estate. These restrictions to testamentary freedom are often justified on cultural, religious, moral and social grounds. This paper appraises these limits to testamentary freedom in Nigeria, while comparing it with the positions in England, Ghana and South Africa. The question as to whether or not the limitations to testamentary freedom are justified is also considered in the paper. The paper finds that some limitations whilst worthy ideals and thus justified, could bring about unrealistic and impracticable results while some totally take away freedom from the testator. The paper recommends that a balance between the wishes of the testator and following the strict letter of the statutes as to the limitations be found so as to as much as possible, give effect to the desires of the deceased testator as stated in his will.

Article on Everybody Dies. Or, a Consideration of Simultaneous Death Statutes and the Struggles of the Self-Represented

Victoria J Haneman recently published an Article entitled, Everybody Dies. Or, a Consideration of Simultaneous Death Statutes and the Struggles of the Self-Represented, 32 Notre Dame J.L. Ethics & Pub. Pol'y 221-250 (2018). Provided below is an abstract of the Article.

The access to justice problem has been the cause célèbre of the social justice movement in the United States for many years, with calls for the legal community to support legal services programs and contribute pro bono hours. The stark reality is that while sixty-one million people are potentially eligible to receive legal aid, most will find themselves unassisted when need arises. Notably, however, the access to justice problem in this country reaches beyond the poorest and most disadvantaged. The working-class and middle-class are ineligible for legal services programs but often find themselves unable to afford standard attorney rates. While access to information through technology should allow basic legal issues to be resolved in an efficient and predictable manner, the reality is that the complexity of the system interferes. The business of dying is extremely lucrative for estate planning attorneys and probate practitioners, and the legal process has been designed to accommodate the represented. To that end, an overarching purpose of this Article is to explore the idea of revising probate statutes to protect the self-represented from an obvious pitfall, especially when and where it is clear that the underrepresented and unrepresented are going to blindly fall into the pit. This discussion is framed within the context of an obvious flaw that presently exists in states that allow holographic wills: protection of the layperson from simultaneous or closely proximate death scenarios.

Twenty-six states recognize the validity of holographic wills, which are wholly or partially handwritten wills commonly utilized by the self-represented testator. While the will of a competently represented testator contains survivorship language as a matter of course, the holographic will of the self-represented layperson is unlikely to include the legalese of survivorship language. Only ten of the twenty-six states authorizing holographic instruments have adopted language that protects the instruments with a default 120-hour rule in the absence of contrary language. The remaining sixteen states have chosen to implement incomplete language that does not apply the 120-hour rule to holographic instruments, or alternatively, to reject adoption of the 120-hour rule altogether. The consequence is that while twenty-six states have authorized holographic wills as a convenience for those unable to retain counsel, sixteen of these states have implicitly endorsed and enabled self-representation while also failing to make simple, nonconsequential adjustments to the probate codes that would ease the path of the self-represented. It is in this failure that something implicit and troubling can be found.

Elections, Brothels, Family: Dennis Hof and Lessons in Estate and Succession Planning

Dennis Hof was discovered unresponsive at the age of 72 on October 16 by his friend Ron Jeremy, at the Love Ranch South, a legal brothel Hof owned in Crystal, Nevada. Despite his death, the cause of which remains unknown, he is expected by many to win his election for state assembly in November as his name remains on the ballot. According to the State of Nevada’s Constitution, the 36^th District of Nevada will appoint another Republican to serve in Hof’s place should he posthumously win the election.

Questions as to who would inherit his businesses are being asked because it is unclear if Hof had a will. There has been a report that he had a trust, and friend Heidi Fleiss claims that there is indeed a last will existing somewhere. Though Hof dealt in unconventional businesses, there is still a lesson to be learned from the brothel owner's death. Ownership interest in a business is an asset like any other, and sole proprietorships must be transferred by probate or the laws of intestacy.

As is often the case with estates, litigation may ensue. It is already reported that Hof’s two estranged daughters from his first wife have surfaced inquiring as to the succession plan for their father’s empire. Suzette Cole, who worked as a madame with Hof at his brothels, may manage the brothels as her name appears on many of the brothel licenses. Interestingly, her name does not appear on the license for Love Ranch South where died.

See Cori A. Robinson, Elections, Brothels, Family: Dennis Hof and Lessons in Estate and Succession Planning, Above the Law, October 23, 2018.

 

Article on Farewell Downton Abbey, Adieu Primogeniture and Entail: Britain's Brief Encounter with Forced Heirship

Lloyd Bonfield recently published an Article entitled, Farewell Downton Abbey, Adieu Primogeniture and Entail: Britain's Brief Encounter with Forced Heirship, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:

This article observes a little-noted proposal (the Landed Property of Intestates Bill) introduced into the British Parliament in 1836. It considers the debate upon it that ensued, and the accompanying pamphlet literature. The Bill proposed to alter the inheritance custom of primogeniture that directed the pattern of descent of freehold land in the absence of directions by settlement or will, and the dialogue is used as a lens to view the nexus between inheritance customs and broader political, economic and social concerns. The intensity of the dispute over primogeniture suggests that more was at stake than simply the devolution of land. The controversy in the Commons over the proposed legislation encompassed a discussion on the variety of purposes that succession law should serve. Lurking in the background in the debate over the proposed bill was a more abstract conundrum: should succession laws primarily be crafted to serve political ends, the constitution; or was it more appropriate to calibrate them to foster desirable social, economic or familial goals? In short, the debate put into sharp focus the question of what interests drive inheritance law, and how attempts can be made to modify it, if and when such concerns alter over time. The bill failed, and it would be for another century for Parliament to abolish primogeniture.

 

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.

Arab Women Left in Inheritance Trap by Delayed Reforms

Tunisia’s president, Beji Caid Sebsi, has backed culturally controversial legislation that would allow Arab women to have equal inheritance rights, completely eroding Islamic law in the area. The Koran is very specific, stating that daughters are only allowed to inherit half of what their brothers receive. If the law passed it would be the first of its kind in the Arab world.

Muslim clerics decry the proposed legislation as an attack on Islam, and they are backed by the country's conservative party, Nahda. “No political party can make this gamble, particularly with elections next year.” The debate now has engulfed other Arab countries and has underlined the difficulty of upending a centuries-old status quo that shapes the contours of power and wealth across the Arab world.

But for millions of Arab women from Saudi Arabia to Morocco, there is a more modest goal: getting the limited assets to which they are currently entitled. Many women, many of them from rural areas, are denied their legal share of inherited assets, especially land. Male relatives can make it expensive and troublesome for daughters and sisters to receive any portion of their inheritances.

Inheritance laws are part of a broader web of legal and social barriers that perpetuate gender inequality in the Arab world. In many Arab countries only 1 in 4 women are employed or looking for work, and close to that number of Middle Eastern women have bank accounts.

See Heba Saleh, Arab Women Left in Inheritance Trap by Delayed Reforms, Financial Times, September 27, 2018.

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

Article on Exonerated but Still Confined: Slayer Rules Present Extra Obstacles to Criminally Exonerated Individuals

Paige Foster recently published a Comment entitled, Exonerated but Still Confined: Slayer Rules Present Extra Obstacles to Criminally Exonerated Individuals, 10 Tex. Tech Est. Plan. & Cmty. Prop. L. J. 351-374 (Summer 2018). Provided below is an abstract of the Comment:

    In the early morning of June 5, 2005, Noura Jackson frantically called 911 to report that her mother, Jennifer, had been brutally murdered in her Memphis home. Four years later, a court convicted Noura of second-degree murder in connection with her mother's murder. In the interim of her mother's murder and her conviction, Noura's aunts and uncles sued her under Tennessee's "slayer statute" to prevent Noura from receiving her mother's $1.5 million estate. Noura was Jennifer's only child, and Noura's father had died years earlier, so Noura was entitled to the estate. Under Tennessee law, an interested party must show by a preponderance of the evidence that the "individual...feloniously and intentionally kill[ed] the decedent." A preponderance of the evidence standard requires the finder of fact to determine it is more likely than not that a fact is true.

    Tennessee law does not require a conviction to invoke the state's slayer statute, but Noura's second-degree murder conviction helped the relatives' case because it conclusively determined that she, in fact, killed her mother.

    In August of 2014, after spending nine years in prison, the Tennessee Supreme Court reversed Noura's conviction. Evidence of prosecutorial misconduct prompted a re-examination of her case, and Noura was exonerated of her mother's murder. After release from prison, Noura sued her family to recover some of the estate she lost during her murder trial. The parties settled in August 2017 for an undisclosed amount.

    This comment will address the hypothetical legal consequences exonerees face after release from prison but having lost their inheritances through civil suits. Often, the exonerees must sue the same families they want to re-connect with after prison. Many state compensation statutes for exonerees contain gaps and shortcomings and vary vastly from state to state. The first section of this comment with address the goals of the Innocence Project and the relief it provides for the wrongfully convicted. This section with specifically address exonerations for murder and what generally happens to property after incarceration. Next, an analysis of slayer statutes and requisite case law will demonstrate how each state addresses people who murder for inheritance. The wording of the statutes reflect a particular policy standpoint either in favor or against forfeiture of property. Each state approaches the treatment of slayers differently, including outright forfeiture, staying the proceeding, or prohibition of forfeiture altogether.  Some states provide for a constructive trust remedy rather than a slayer statute. Next, this comment will address the overlap of criminal exonerations and slayer statutes and the inevitable gaps that form when someone falls into both categories. Finally, five solutions provide alternative options for exoneree-beneficiaries.

A Lesson in Intestacy from Tupac Shakur

The 22nd anniversary of the unsolved murder of Tupac Shakur, known as 2Pac within the rap world, recently passed on September 13th. Though his life and death may be steeped in controversy and mystery respectively, his estate can seen as a study in mult-generational estate planning, litigation, and management.

Shakur died in intestate in 1996 at the young age of 25, and his entire estate was inherited by his mother, Afeni Shakur. There was even litigation in 1997 from William Garland claiming to be Tupac absent father and demanding one half of the late rapper's estate. The court found that Garland had not demonstrated a substantial relationship nor support to be treated as an heir of Shakur's. His fatherly support over the artist's life consisted of $820, a bag of peanuts, and a ticket to "Rollerball."

Afeni Shakur, however, managed her deceased son's estate admirably, growing his estate both popularly and financially. Shakur's estate released six posthumous albums — including 1996’s The Don Killuminati: The 7 Day Theory and 1998’s Greatest Hits, which are each certified 10 times platinum — a Broadway musical, several books, documentaries, clothing, and merchandise. Shakur is the first deceased performer to appear as a hologram (at Coachella in 2012). He is also the only artist to be nominated posthumously for the Grammy’s Best Solo Rap Performance award (in 2000 for Changes).

Afeni Shakur passed away in 2016 at the age of 69, but the estate had alternative fiduciaries so little is left up to chance and speculation. The words of Shakur’s homage to his mother ring true in his song dedicated to her: “Oh mama, I appreciate you. Although my shadow’s gone I will never leave you.”

See Cori A. Robinson, A Lesson in Intestacty from Tupac Shakur, Above the Law, September 11, 2018.

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

Making Wills Easier and Cheaper with Do-It-Yourself Options

People are bombarded with different avenues of technology and advancements, and with these advances come the benefit of convenience and decreased expense for undertakings that seemed out of reach for some. While it is recommended that every person over the age of 18 possess a legal and valid will, numerous people saw them as too cumbersome and expensive - or in selected cases if unnecessary as they may have limited assets to pass on to heirs. In fact, a recent survey by Caring.com found that 60% of Americans do not have a will in place.

Patrick Schmitt, co-founder and co-chief executive of FreeWill, said he set out to offer wills that were easy to create and update, and the site even allows users to leave money to charities. Their business models works in that the company receives money from the charitable institutions that pay a fee for using the FreeWill service to reach out to donors. Schmitt had worked during the Obama administration on the Democratic National Committee’s midterm fund-raising team and was frustrated in with the availability of estate planning service online.

Attorneys disagree over to what degree technology can substitute for legal counsel. Richard A. Behrendt, a trust and estates lawyer outside Milwaukee, said, “There are so many things that can be done improperly or planning opportunities that could be overlooked if you’re just sitting at your computer trying to make a one-size-fits-all will work for you.”

See Paul Sullivan, Making Wills Easier and Cheaper with Do-It-Yourself Options, New York Times, September 7, 2018.

Special thanks to Richard A. Behrendt, Esq. (Wisconsin Estate & Legacy Planning Attorney) for bringing this article to my attention.

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

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

What Happens if you Die Without a Will? You Might Leave a Hot Mess Behind

If you die intestate, meaning with a valid, legal will, your assets will be transferred according to the intestacy laws of your state. Those regulations may or may not coincide with your wishes, and even if they do, it can still create a large hassle because of the potential of litigation by your loved ones.

You will must be a legally binding document, and the elements of that also depends on the laws and guidelines of your state. It is not always sufficient to print off a last will and testament template off the internet, fill in the blanks, sign, and shove into a folder somewhere. A sheet of paper (or computer document) explaining your "recommendations of handling" your financial accounts as well as your personal and real assets should never be considered as a substitute for a valid will.

Even if you have "modest" means or finances does not mean that you should entirely discount a will or an estate plan. Attorneys will be upfront about their fees and projected cost, and do not be afraid to ask.

See Michelle Singletary, What Happens if you Die Without a Will? You Might Leave a Hot Mess Behind, Washington Post, August 19, 2018.

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.