Sunday, January 26, 2020
The Arizona Court of Appeals in Pima County on Thursday upheld a lower court's order that a man can be cremated. The court cited testimony from the man's father and girlfriend that he wanted to be cremated. His mother objected, stating that her religious beliefs dictated that her son should be buried.
The ruling said the conflict between the man's parents as decision-makers identified under state law left it up to the probate judge to resolve the dispute. The court also said state law does not compel the probate judge to put the mother's religious preferences over her son's wishes.
See Ruling Upholds Judge’s Cremation Order Over Mother’s Wishes, KVOA.com, January 25, 2020.
Wednesday, January 22, 2020
Gerry W. Beyer recently published an article entitled, Texas Estate Planning Judicial Update: End of 2019 Edition, Wills, Trusts, & Estates Law eJournal (2019). Provided below is the abstract to the article.
This article discusses recent judicial developments (last half of 2019) 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.
Tuesday, January 21, 2020
Court Holds that a Husband had no Interest in his Deceased’s Wife’s Real Estate that was Obtained Via a Gift Deed
Property acquired by a married person in Texas is presumed to be community property, unless it is proven through clear and convincing that the property is separate property. This determination is made at the time of acquisition, or inception of title. To be separate property obtained during the marriage, the property must be acquired through gift, devise, or descent.
In Leland House v. Webb, a husband claimed that tracts of land his deceased wife acquired from her aunt through a deed was a conveyance that fell within the community property presumption. The executor argued that the transfer was not a sale of property, but was a gift. The trial court agreed that the executor beat the presumption, and the husband appealed.
The appellate court stated it was undisputed that the tracts of land was transferred to the wife during her marriage. The husband's argument focused on the fact that the word "gift" never appeared in the deed. The executor conceded that issue, but argued that the consideration for the property was merely "love and affection" that the aunt had for the wife. The court found that "Leland’s interpretation of the deed unreasonable because the deed plainly states that the only consideration for the transfer was love and affection for a family member." Because of this, the aunt's "intent to give the Property to Dianne can be ascertained from the language of the deed." Therefore, the acquisition rebutted the community property presumption, and the husband held no interest in the tracts of land.
See David Fowler Johnson, Court Holds that a Husband had no Interest in his Deceased’s Wife’s Real Estate that was Obtained Via a Gift Deed, Texas Fiduciary Litigator, January 15, 2020.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Monday, January 20, 2020
Kurt Pilgeram says that the company Alcor Life Extension Firm was to preserve his late father's body cryogenically, but instead only froze the man's head, and sent Kurt the rest of his ashes. He sued the company for a million dollars, claiming the event caused him extreme mental distress. Now Alcor is countersuing the son, claiming fraud by way of hiding documents from the probate court.
Diane Cafferata, the attorney who represents the company, says that "After [Laurence] Pilgeram died in 2015, his son hid the codicil and all his father's testamentary documents from the probate court and falsely claimed his father died intestate," thus causing Kurt and his brother to inherit their father's $16 million fortune. Cafferata also claims that the son blocked the company from received an $80,000 life insurance policy that was to pay for the preservation. Within the alleged codicil is a provision that states if a beneficiary challenged his father's wish to be preserved, they were to receive merely a dollar.
Laurence Pilgeram was a scientist that worked for several decades in the field of cryogenics and entered into an agreement with Alcor back in 1990 at the age of 67 to be preserved upon his death. When he died in 2015 of cardiac arrest he was 90. The program requires the person's body to be brought to the company as soon as possible after death, but Alcor was not notified until three days after Pilgeram's passing. Because of this, they were forced to do a "neuro-isolation," where only the head is preserved and the rest of the body is cremated because the future may hold the ability to regrow a healthy body around a functioning brain, according to the company's website.
Pilgeram is the company's 125th person to be preserved.
See James Gordon, Son's Legal Fight for Dead Dad's Frozen Head Against Cryogenics Firm, Daily Mail, January 18, 2020.
Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.
Monday, January 13, 2020
California’s second appellate district recently ruled in Sachs v. Sachs that lifetime transfers of property to a person can be treated as an at death transfer, and therefore as an advance on any inheritance. The transferor kept a record of when he periodically certain amounts to his children, and the court found that the writing satisfied California Probate Code section 21135.
David Sachs created a trust in 1980 and named his two children, Benita and Avram, as the main beneficiaries. He began to keep a written log of distributions under what he labeled "The Permanent Record" in 1989 and told the children about it. After a stroke that triggered cognitive issues, David had a bookkeeper maintain logging the distributions. The bookkeeper said David had mentioned "keeping the list was important so that payments made to his children could be deducted from their respective inheritances.”
David's care became expensive, and Benita became trustee. Avram was adamant about continuing distribution and that he was fine with it being put on "The Permanent Record." After David’s death, Benita filed a Petition for instructions to equalize the distribution of assets from the trust, claiming that the disparity in lifetime distributions and transfers in favor of the other beneficiary should be deducted from their distributive share of the Trust and considered an advance on his inheritance. The trial court agreed with Benita, and Avram appealed. The appellate court held that the permanent record was a writing that satisfied the requirements of section 21135 because:
- It was in the testator's hand.
- It was contemporaneous.
- Had no other purpose other than to equalize distributions between the children.
See Lifetime Transfers Considered an Advance on Inheritance, Probate Stars, January 8, 2020.
Friday, January 10, 2020
Kevin J. Rosenberg, a Navy veteran, borrowed $116,500 of student loans between 1993 and 2004 to earn a bachelor’s degree from the University of Arizona and a law degree from Cardozo Law School at Yeshiva University. The loan had increased to $221,400 by the time he filed for Chapter 7 bankruptcy in 2018. Judge Cecilia G. Morris, a US bankruptcy judge in New York ruled that he will not have to repay his student loan debt because it will impose an undue financial hardship, even though he is not unemployable, not disabled nor was he defrauded.
Student loans are not usually dischargeable in a bankruptcy filing, though there are exceptions, including if certain conditions regarding financial hardship are met. These conditions are set under the Brunner test, which is used by all circuit courts, except the 8th circuit and 1st circuit. The Brunner test has 3 provisions to meet: the borrower has extenuating circumstances creating a hardship; those circumstances are likely to continue for a term of the loan; and the borrower has made good faith attempts to repay the loan.
It is unclear if this will become the standard for student loans as this is a single legal ruling. But there may be a beacon of hope for many: federal judges and Democrat and Republican members of Congress are open to changing the law to make it easier for borrowers to discharge their student loans in bankruptcy. There are also other avenues if a person is struggling to repay their student loans, including income-driven repayment plans, refinancing, and paying off higher interest debts first.
See Zack Friedman, This Man Got $221,000 of Student Loans Discharged in Bankruptcy, Forbes, December 10, 2020.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Thursday, January 9, 2020
Montana adopted the Uniform Probate Code in 1974 and under the state's provisions a contract to make a will is enforceable. The suit must be brought before a court of general jurisdiction, however, instead of in a probate court.
In Estate of Cooney, 2019 MT 293, the Supreme Court of Montana ruled that though the statute was within the probate code, a district court does not have jurisdiction to hear a case pertaining to a succession contract - a valid contract to dispose of his property by will. The case involved a man that left all of his property to one of his four children, though him and his ex-wife entered into a marital property settlement agreement which provided that he was required to leave his real property to his children, in equal shares. Two of his children moved to invalidate the portion of the will leaving the real property to only one child, arguing breach of the agreement and fraud on the court.
"If a party to a succession contract fails to carry out the promise to make a valid will, courts of equity will grant relief in the nature of specific performance by compelling the personal representative, the heirs, devisees, or legatees to hold the property as trustees for the benefit of the promisee." The Court continued, :The equitable remedy of specific performance thus must be sought in a court of equity; it may not be administered by the probate court in a direct proceeding for that purpose. "
See How to Enforce a Contract to Make Will in Montana, Probate Stars, January 8, 2020.
Tuesday, December 31, 2019
Many states in the US are community property states but Florida is not one of them. But community property rights acquired in community property states can be enforced in Florida. In a recent case, Johnson v Townsend, the court determined that community property rights are a claim that must be pursued, not an automatic right in Florida.
The case involved a married couple that moved from Texas (a community property state) to Florida. The husband died and was survived by his wife and his children from a prior marriage. The husband's will was admitted to probate and the wife was appointed personal representative, in which she published a notice to all creditors against the estate that same month. 2 and a half years later, she filed a claim under the Florida Uniform Disposition of Community Property Rights at Death Act. The wife sought to confirm and effectuate her vested 50% community property interest in an investment asset acquired and titled in the decedent’s name while the decedent and the wife were domiciled in Texas. The children objected.
The Act does not contain a deadline to file a community property claim against an estate, but creditor claims do have deadline depending on the type. The wife argued the deadlines did not apply because as community property, the assets were never the husband's, while the children argue the deadlines did apply as the assets were within the decedent's estate. The court agreed with the children and ordered that the deadline for community property claims were 3 months after the personal representative (the wife) published the notice to creditors.
See Community Property Rights In Florida: File a Creditor Claim, Probate Stars, December 4, 2019.
Tuesday, December 24, 2019
Pop icon Britney Spears has been under a conservatorship since 2008, managed by her father, Jamie Spears. In April of this year, however, fans questioned why the star was going into a wellness facility and whether she was going of her own volition, leading many to protest outside of West Hollywood City Hall. The #FreeBritney movement reached a peak when Jamie received death threats and the police took these seriously.
Absolute Britney blogger Anthony Elia fanned the flames for the passionate fans, claiming that Jamie manipulated Britney's social media to make it appear that she desperately needed help. He said that Britney's father would delete positive comments and highlight negative ones. Jamie's lawyer argued that the claims were defamation, and a judge agreed, ordering that Elia is no longer allowed to comment negatively on the conservatorship.
See Glenn Gardner, Britney Spears' Dad Jamie Wins Injunction Against #FreeBritney Blogger who Accused him of 'Human Rights Violation' with Conservatorship, Daily Mail, December 21, 2019.
Sunday, December 22, 2019
Mother 'Stole $1.6 Million From a Trust for her Special Needs Daughter' and Spent it on Luxury Items
Apryll Sardinha of El Paso, Texas has been charged with theft from an at-risk person after allegedly stealing hundreds of thousands of dollars from a trust set up for her daughter. Sardinha was brought to the attention of Adult Protective Services after she was charged with misdemeanor neglect in 2017 when she left her daughter at home without heat so she could travel out of state.
The daughter, 20, was struck by a car in 2005 and has since been unable to communicate and has the mental functionality of a toddler. The settlement of $1.6 million from the accident was placed in a trust, designated to be used solely for the daughter, with Sardinha as the only person with access to the trust. Investigators found that not only was the trust now completely empty, the mother had overdrawn the account by $60.
According to the affidavit presented in court, Sardinha not only used the funds to pay utility bills over the years - totaling nearly $14,000 to DirectTv and over $20,000 to Mountain View Electric, but used the money meant for her special needs to the tune of: $99,000 at a Land Rover dealership, $19,200 at a Mercedes Benz dealership, $18,400 at a Cabo San Lucas resort, $5,000 at a liquor store, and $1,200 at Victoria Secret. The affidavit also alleges that she paid for a breast enhancement out of the trust.
Sardinha was removed as trustee in 2018 and is out on bond and has since moved back to Massachuesettes.
See Matthew Wright, Mother 'Stole $1.6 Million From a Trust for her Special Needs Daughter' and Spent it on Luxury Mexican Holidays, Lingerie from Victoria Secret and a Breast Enlargement, Daily Mail, December 19, 2019.