Wills, Trusts & Estates Prof Blog

Article: Intestate Succession in Ghana before and after PNDCL 111, 1985

Joshua Kweku Aba recently published an article entitled, Intestate Succession in Ghana before and after PNDCL 111, 1985, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article.

The study investigated intestate succession in Ghana before and after PNDCL 111, 1985. To satisfy the objectives of the research, qualitative research was held. The main objective is to find out if PNDC Law 111 fully promotes women’s property inheritance rights by relating it to international human rights protocols. The research is important because it highlights some of the weaknesses of law 111 on women’s rights of intestate property inheritance; and calls for necessary amendment or law reform. The Intestate Succession Act, 1985, (PNDC Law 111) was introduced in Ghana to curb the injustices, which the traditional customary practices mated of spouses after a man dies intestate. Before the coming into force of the Act people who died intestate had their self-acquired properties shared according to their family lineage. These customary practices normally rendered the children and the spouse of the deceased man with nothing and hence the introduction of the Law. The Law only becomes applicable when a man dies intestate. Upon all the significant successes the Law has chalked over the years, the Intestate Succession Act could not precisely address the veracity of polygamy. Where a deceased man in his lifetime had multiple wives, the courts interpret the succession law as granting the household chattels and one house to all of the deceased’s wives and children as tenants-in-common. If the woman was not lawfully or customarily married that woman may not be protected as the Law did not give any significant definition to who a spouse is as it does not include cohabitation. This is an area that the Parliament of Ghana needs to look at.

Article: Texas Estate Planning Judicial Update: End of 2020 Edition

Gerry W. Beyer, recently published an article entitled, Texas Estate Planning Judicial Update: End of 2020 Edition, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article.

This article discusses recent judicial developments (last half of 2020) relating to the Texas law of intestacy, wills, estate administration, trusts, and other estate planning matters. The discussion of each case concludes with a moral, i.e., the important lesson to be learned from the case. By recognizing situations that have led to time consuming and costly litigation in the past, estate planners can reduce the likelihood of the same situations arising with their clients.

New Hampshire Supreme Court Reverses Probate Court Finding That Son Was Not Pretermitted Heir

In In re Estate of Marie G. Dow, "the New Hampshire Supreme Court analyzed the pretermitted heir statute and case law to determine that decedent’s son was a pretermitted heir and entitled to his intestate share of his mother’s estate." Marie Dow executed her last will on June 30, 2014, when she lived in Massachusetts. Marie died in 2018 and lived in New Hampshire at the time. Marie's son Christopher Dow and ex-daughter in law Leslie Dow, another son, and granddaughter survived Marie. 

After Marie's death, her attorney filed her will in Massachusetts but did not attempt to open probate. Christopher Dow filed a petition for estate administration in New Hampshire, but the probate court would not act on the petition without the original will. A dispute over proper venue (Massachusetts or New Hampshire) followed. 

Probate was opened in New Hampshire and Marie's attorney was ordered to file the original will there.

Christopher then filed a motion claiming that he was a pretermitted heir under Marie's (his mother) will. Leslie, the beneficiary of the estate under the will, objected to the petition. 

The Court held that New Hampshire probate law applies despite the choice of law provision of a will, if the will disposes only of personal property.

The pretermitted heir statute, simply stated, holds that a child of the deceased not named or referred to in the decedent's will and who is not a devisee or legatee, shall be entitled to the same portion of the estate, real and personal, as they would if the deceased died intestate. 

The purpose of the statute is to "prevent a mistake or unintended failure by testator to remember the natural object of his or her bounty." 

In order for this statute to apply, the child must not be named or referred to in the will as it's purpose is prevent forgetfulness and not disinheritance. 

If the child is not referred to at all, it can be presumed that the it was not the testator's intent to disinherit the child. 

See New Hampshire Supreme Court Reverses Probate Court Finding That Son Was Not Pretermitted Heir, Probate Stars, January 28, 2021. 

Massachusetts Supreme Judicial Court: Personal Representative’s Power To Pay Claims Extinguished After Three Years

In In re Estate of Kendall, the Massachusetts Supreme Judicial Court decided "whether the personal representative of the Estate of Jacqueline Kendall was required to pay a creditor claim for reimbursement from the Commonwealth's MassHealth Program when the estate proceeding was commenced more than three years after Kendall died. The short answer: no." 

Kendall received about $105,000 in Mass Health Benefits before her death (Kendall died intestate in 2014). 

When Kendall died, she had a fifty percent interest in a house in Massachusetts and a portion of it was recoverable by MassHealth under Massachusetts law. In 2018, one of Kendall's heirs filed a petition for late and limited formal testacy and notified MassHealth. MassHealth then informed petitioner's counsel that it would file a notice of claim in the estate. 

The personal representative of the estate informed MassHealth that she could not pay the claim since more than three years had passed since Kendall's death and MassHealth objected.

The Massachusetts Supreme Judicial Court held that although there are exceptions to ultimate time limitations on estates, no such exceptions apply to this particular claim. Massachusetts personal representative power to pay claims is extinguished after three years, with no exceptions. 

See Massachusetts Supreme Judicial Court: Personal Representative’s Power To Pay Claims Extinguished After Three Years, Probate Stars, January 4, 2021. 

Sorting Out Tony Hsieh’s Estate, From LLCs to Thousands of Sticky Notes

Tony Hsieh, who recently passed away due to complications from smoke inhalation following a house fire, died intestate which has left his family scrambling. 

Apparently, inside Hsieh's mansion was found thousands of color-coded sticky notes plastered on the walls/ Some of them represented financial commitments that Hsieh had made to employees, friends, and local businesses. 

It appears that Hsieh wrote these notes himself in the months leading to his death and may function as informal contracts. This adds a complicating piece of the puzzle to his estate which was already complex and difficult due to the lack of a will. The estate is said to be worth hundreds of millions of dollars. 

Within the estate plan is about $70 million worth of real estate he recently purchased, which are spread across about a dozen LLCs; some of Hsieh's friends continue to live in these houses and condos. Another asset is a $30 million "angel" fund planned for tech startups and other businesses in Park City.

According to Hsieh's friends and others that were close to him, Hsieh was struggling with alcohol and drug abuse in the months prior to his death, which only adds more complexity to handling the estate. With the many sticky notes and writings left around Hsieh's home. it is unclear whether or not he was of sound mind when he recorded these writings or when he made recent investment decisions or employment agreements. 

See Kristen Grind & Katherine Sayre, Sorting Out Tony Hsieh’s Estate, From LLCs to Thousands of Sticky Notes, Wall Street Journal, December 11, 2020. 

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

Maradona's unknown children in battle over his millions

Diego Maradona, Argentinian footballer, died last month was known for his complicated love life. The rumor mill contends that he slept with 8,000 women. Maradona's estate could possibly be up to $40 million and includes a Rolls Royce and the rights to some very profitable merchandising contracts. 

However, Maradona's relatives are beginning to realize that there may be a number of people fighting for the inheritance. 

Prior to his death, Maradona's lawyers acknowledged that he was the father of five children (four in Argentina and one in Italy. All of the children have made a claim in the the Buenos Aires courts. 

Since Maradona did not leave a will, there have been at least six others who say they are his children and have attempted to claim a share of the inheritance. 

Others trying to get involved include, three ex-lovers, four sisters, fellow players, past managers and business partners, and more. 

Maradona's former lawyer, Mauricio Dalessandro stated, "Those who have claims must present their case because the court has DNA and is charged with verifying (the claims) of any children and seeking proof of their claims,” he added. “They must present themselves quickly."

Also, with many of Maradona's assets scattered across this world, the fight won't be easy and locating assets will only be half the problem. 

See Colin Freeman, Maradona's unknown children in battle over his millions, Yahoo News, December 12, 2020

Special thanks to David S. Luber (Florida Probate Attorney) for bringing this article to my attention.

Article: The Uniform Probate Code's New Intestacy and Class Gift Provisions

Mary Louise Fellows and Thomas P. Gallanis recently published an article entitled, The Uniform Probate Code's New Intestacy and Class Gift Provisions, Wills, Trusts, & Estates Law ejournal (2020). Provided below is the abstract to the Article.

Law and society inextricably link family and wealth transmission. An individual’s right to inherit from an intestate decedent depends on whether the individual has a legally recognized familial relationship to the decedent. Similarly, when a class gift in a donative document uses a term of relationship to identify the class members, an individual’s right to share in the gift depends on the legal recognition of the relationship. The enactment of the 2017 Uniform Parentage Act required a revision of the intestacy and class gift provisions of the Uniform Probate Code.

We were the reporters, or principal drafters, of the UPC revisions, which were completed in 2019.

This article has three objectives. One is to describe each of the 2019 revisions to the UPC. A second is to explain how the statutory changes promote the UPC’s purposes and policies. A third is to encourage bar associations and legislative committees in each state to consider in tandem the 2017 Uniform Parentage Act and the 2019 UPC. The 2017 UPA provides the framework within which the 2019 UPC meets the wealth transfer needs of modern families. The 2019 UPC, in turn, supplements the 2017 UPA by determining inheritance rights and rules of construction based, in large part, on the UPA’s requirements for the establishment of parent-child relationships. The enactment of the 2017 UPA and the 2019 UPC, together, furthers a state’s obligation to provide clarity regarding parent-child relationships and to effectuate the lifetime and deathtime donative intent of its residents. Given the interstate mobility of state residents and their families, we encourage states across the U.S. to enact these uniform provisions.

Former Zappos CEO Tony Hsieh Dies Intestate With Reported Net Worth Of $840 Million

Tony Hsieh, the former CEO of Zappos, died on Friday after being found unconscious in a house fire in Connecticut. Hseih's family filed court documents in Nevada which revealed that Hseih died intestate and did not leave a will. Hseih's estate is reported to be worth an estimated $840 million. 

 

Hseih's father and brother have asked to be allowed access to Hseih's accounts and his mother and other brother were listed as next of kin. 

A recent report stated,

Documents filed in court in Nevada on Wednesday on behalf of his family said they are ‘unaware of the existence of a fully executed estate plan and have a good faith belief that the Decedent died intestate.’

Hsieh’s father Richard Hsieh and his brother Andrew Hsieh have asked for an order that would allow them to access his accounts and protect his assets. His mother Judy and other brother David were listed as next of kin.

The family’s lawyers wrote that they ‘seek authority to investigate the existence of an estate plan by accessing safe deposit boxes, speaking with the Decedent’s legal counsel and associates, and taking such other reasonable acts to ensure that Decedent’s properly executed testamentary directives are implemented.’

"When a person dies intestate, state law controls the distribution of their estate assets." Since Hseih was a resident of Nevada when he died, Nevada law will control the distribution of his estate. 

See Former Zappos CEO Tony Hsieh Dies Intestate With Reported Net Worth Of $840 Million, Probate Stars, December 4, 2020.

Former Zappos CEO Tony Hsieh died without a will, family says

Tony Hseih, founder of Zappos, died from complication of smoke inhalation in a Connecticut house fire. Apparently, Hseih did not have a will when he died.

Hseih's family filed court papers in Las Vegas asking a judge to make his father and brother special administrators to his estate. The family stated that they will need access to Hseih's financial and social media records and also to connect with his lawyers. 

Hseih died Friday after being found unconscious in a burning shed in New London, Connecticut. The cause of the fire is still unknown. 

Hseih retired as CEO in August after leading Zappos for 20 years. He had just recently purchased the home in Connecticut for a woman named Rachael Brown, who was believed to be Hseih's girlfriend. 

"A death certificate with the family’s filing says Hsieh died at 5 a.m. Friday and lists his occupation as entrepreneur and urban developer." 

See Lia Eustachewich, Former Zappos CEO Tony Hsieh died without a will, family says, NY Post, December 3, 2020. 

Special thanks to Deborah Matthews (Virginia Estate Planning Attorney) for bringing this article to my attention.

A Per Stirpes Primer From The Connecticut Supreme Court

In Schwerin v. Ratcliffe, the Connecticut Supreme Court analyzed the application of and rationale behind per stripes distribution. "The Court analyzed the terms of two family trusts and law from Connecticut and other jurisdictions to determine the correct generation to serve as the root for the per stirpes distribution in this case."

The plaintiffs, Francis and Brenda Schwerin sought a declaratory judgment regarding proper distribution of assets from two family trusts. The two trusts were (1) the Hubbell Trust and (2) the Roche Trust. Defendants were the trustees and potential beneficiaries of the trusts. 

The Hubbell Trust was to expire upon "the death of the last survivor of the grantor [Harvey Hubbell III], his wife Virginia W. Hubbell, his children Harvey Hubbell, Jr., William [Ham] Hubbell and Elizabeth H. Schwerin, and his grandchildren Lisa Lorraine Hubbell and Francis Timothy Schwerin …”

The Roche Trust was set to expire upon the death of the last survivor of the grantor [Roche], her son Harvey Hubbell, her grandchildren Harvey Hubbell, Jr., William [Ham] Hubbell and Elizabeth H. Schwerin, and her great-grandchildren Lisa [Lugovich] and Francis Timothy Schwerin …”

The people in quotations were defined as the measuring lives for the expiration of the Trusts. Therefore, the Trusts would expire upon the death of the last survivor of the measuring lives. 

When this case was brought, five of the measuring lives were deceased. 

In analyzing the rational behind Per Stirpes Distribution, the  Connecticut Supreme Court stated that when the testator has not "expressly provided otherwise" the law favors an equal distribution. 

The Court ultimately concluded that "the trial court properly determined that the per stirpes distribution began at the level of the children of the grantor, such that each child was the head of each stirpe." 

See A Per Stirpes Primer From The Connecticut Supreme Court, Probate Stars, October 20, 2020.