Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Friday, July 23, 2021

Wife’s Fraudulent Transfer Claim Against Husband For Transferring Business Interests To Trust Failed Due To The Statute Of Repose

Estate planningIn Austin v. Mitchell, "a wife filed suit alleging her ex-husband fraudulently transferred a portion of his limited partnership interest in a family limited partnership to a trust for the benefit of his children." No. 05-19-01359-CV, 2021 Tex. App. LEXIS 4536 (Tex. App.—Dallas June 8, 2021, no pet. history). 

The trial court granted summary judgment in favor of the husband and the wife appealed. The court of appeals first addressed the husband's statute of repose defense. The wife claimed that the husband's transfer was fraudulent because it was made:

without fair consideration and the husband was left insolvent as a result; with actual intent to hinder, delay, or defraud the wife; or without receiving reasonably equivalent value at a time when the husband believed or should have believed his debt to the wife was beyond his ability to pay as payments became due.

The court affirmed the summary judgment after it found that the evidence showed that the wife should have known of the transfer more than four years before the suit due to the husband's testimony in a deposition, in which the Wife's attorney was present. 

Although the wife argued that she had standing, the court disagreed stating that the wife did not have sufficient connection to the trust. 

See David Fowler Johnson, Wife’s Fraudulent Transfer Claim Against Husband For Transferring Business Interests To Trust Failed Due To The Statute Of Repose, Texas Fiduciary Litigator: The Intersection of Texas Courts and the Fiduciary Field, June 29, 2021. 

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

July 23, 2021 in Estate Administration, Estate Planning - Generally, New Cases, Trusts | Permalink | Comments (0)

Sunday, July 11, 2021

Elizabeth Hurley reacts to son Damian 'callously' being cut out of family fortune due to being born out of wedlock

Hurley"Elizabeth Hurley says a court decision to cut off her son Damian from a share of his grandfather's fortune is 'callous' and goes against what his late father would have wanted." 

Hurley stated that her former partner Steve Bing believed that "both of his children were financially secure before his death by suicide in 2020."

Damian obtained a judgment to ensure they would receive money held in trust, but the decision was successfully appealed by Dr. Peter Bing.

According to Hurley, "When Stephen took his own life, he died thinking his children were going to be taken care of. . .[w]hat Stephen wanted has now been callously reversed. I know Stephen would have been devastated."

Pursuant to Dr. Peter Bing's successful appeal, Damian and his half-sister Kira will not receive any money since they were both born out of wedlock.

Instead, "their grandfather's fortune will be shared between the two children of Bing's sister Mary, who were born within a marriage." 

Hurley claimed that although Bing initially refused to acknowledge Damian and Kira, he later reconnected with them and "fought very hard in his final year to ensure that his children were recognized." 

Hurley added, "I am just relieved that Stephen will never know that Damian's relatives—Stephen's father and the family of his sister Mary—were ultimately successful in their appeal against the original trial verdict." 

See Tom Beasley, Elizabeth Hurley reacts to son Damian 'callously' being cut out of family fortune due to being born out of wedlock, Yahoo Entertainment, July 4, 2021. 

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

July 11, 2021 in Estate Administration, Estate Planning - Generally, New Cases, Television, Trusts | Permalink | Comments (0)

Wednesday, July 7, 2021

Oklahoma Supreme Court Weighs In On Who Controls the Disposition Of a Decedent’s Remains

Estate planningIn In the Matter of The Estate of Downing, "the Oklahoma Supreme Court considered a dispute over the control of the disposition of a decedent's remains, and what constitutes sufficient evidence of a written document instructing the method and manner of handling the remains under Oklahoma law." 

The Decedent, Vandell Downing, and Maxine Bailey lived together for 36 years and had six children together. The couple lived together until Decedent's death in 2018. At some point in the relationship, Decedent gave Bailey a ring to symbolize their marital status.

After Decedent's death, Bailey filed a petition seeking appointment as administrator of the estate, claiming she was Decedent's common-law wife. Three of the Decedent's children "filed an application requesting an ex party emergency temporary restraining order against Bailey and Pollard Funeral Home to prevent disposal of the body." 

The Children refuted the fact that Bailey was Decedent's common-law wife and claimed that they were entitled to statutory control over Decedent's body.

The trial court found that "[Downing] and the Decedent were parties to a common law marriage, and that by the authority just mentioned, the Petitioner is the Decedent's surviving widow." The court further ruled that "Decedent executed a written document which indicated his desire [to be buried], the contract bu whereby he purchased his burial plot." The court then granted a final restraining order and instructed Bailey to carry out the burial of Decedent's remains. 

In Oklahoma, a decedent preference concerning the handling of their remains must be in writing. 

The Oklahoma Supreme Court held that there was no evidence in the record of any executed written document assigning responsibility for or "directing the manner/method of disposing of Decedent's remains. . ." and the Oklahoma trial court erred by directing burial over the surviving widow's objection. 

See Oklahoma Supreme Court Weighs In On Who Controls the Disposition Of a Decedent’s Remains, Probate Stars, July 6, 2021. 

July 7, 2021 in Death Event Planning, Estate Administration, Estate Planning - Generally, New Cases | Permalink | Comments (0)

Tuesday, July 6, 2021

Britney Spears’ co-conservator of estate Bessemer exits over Jamie issues

SpearsBessemer Trust, the firm hired to oversee Britney Spears' financial affairs, has decided to step away from her conservatorship and will no longer serve alongside her father, Jamie Spears. 

The private company filed a court document on Thursday, just a day after a Judge's ruling denying Britney Spears' petition to remove her father as a conservator. The document states that it wanted to resign as a "result of the information its team learned from Britney's 24-minute testimony on June 23. 

The firm also stated that it was under the impression that the conservatorship was voluntary. However, Britney Spears "made it clear in court that she wanted it terminated following serious allegations of 'abuse' by her conservators." 

In court documents Bessemer Trust further stated, “As a result of the conservatee’s testimony at the June 23 hearing, however, Petitioner has become aware that the Conservatee objects to the continuance of her Conservatorship and desires to terminate the conservatorship. . .Petitioner has heard the Conservatee and respects her wishes.”

Sources have also alleged that the firm has had issue with Jamie Spears and Britney's court appointed attorney, Samuel D. Ingham III. 

See Eileen Reslen, Britney Spears’ co-conservator of estate Bessemer exits over Jamie issues, Page Six, July 1, 2021. 

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

July 6, 2021 in Estate Administration, Estate Planning - Generally, Guardianship, New Cases | Permalink | Comments (0)

Monday, July 5, 2021

Britney Spears' petition to remove father from conservatorship denied by judge

SpearsA Judge signed a formal order denying Britney Spears' petition to remove her father from her conservatorship. 

The request was filed in November 2020 when Britney Spears' lawyer, Samuel D. Ingham III, "said that the pop star was afraid of her father and she would not perform again if he was involved in the conservatorship."

In the ruling last week, the Judge approved Bessemer Trust as co-conservator but rejected the request to remove her father, Jamie Spears, from involvement. 

According to the papers signed by Los Angeles Superior Court Judge Brenda J. Penney, "The conservatee’s request to suspend JAMES P. SPEARS immediately upon the appointment of BESSEMER TRUST COMPANY OF CALIFORNIA, N.A. as sole conservator of estate is denied without prejudice."

The ruling was signed a week after Britney Spears' shocking and compelling testimony about the trauma she has experienced over the years, allegedly at the hands of her father. 

See Andrea Dresdale & Lesley Messer, Britney Spears' petition to remove father from conservatorship denied by judge, Good Morning America: Culture, June 30, 2021. 

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

July 5, 2021 in Current Events, Estate Administration, Estate Planning - Generally, Guardianship, New Cases | Permalink | Comments (0)

Monday, June 28, 2021

Britney Spears Conservatorship Testimony Inspires Californians in Same Boat

SpearsLast week Britney Spears decided to speak out against her conservatorship. That decision has inspired others in California that feel trapped in similar situations to take action. 

Britney Spears' "impassioned court testimony" produced an influx of action. According to a California lawmaker "spearheading legislation to change the way conservatorships operate" told TMZ that his office was flooded with calls from people that have been and continue to be burdened by their own conservatorship issues. 

These people were energized by Spears' powerful testimony. Many people have relayed the message that they were afraid to speak out about their conservatorship issues until Britney Spears made the courageous decision to do so. They feel that Spears' testimony helps "legitimize their claims and concerns." 

One of these people includes a 60-year-old woman and her husband that want to end the woman's mother's conservatorship. The couple has spent about $3 million fighting in court with no result. 

One woman committed suicide after her conservatorship "allegedly put her in isolation and started draining her finances." 

Apparently, conservatorships affect a lot of people, and thanks to Britney Spears, those people are becoming more comfortable speaking out on their own conservatorship issues.

See Britney Spears Conservatorship Testimony Inspires Californians in Same Boat, TMZ, June 25, 2021. 

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

June 28, 2021 in Estate Administration, Estate Planning - Generally, Guardianship, New Cases | Permalink | Comments (0)

Thursday, June 24, 2021

Britney Spears: ‘I Just Want My Life Back’

SpearsBritney Spears opened up to a Los Angeles Judge on Wednesday. She told the judge that "she had been drugged compelled to work against her will and prevented from removing her birth control device over the past 13 years. . ." 

Britney Spears further plead, “I’ve been in denial. I’ve been in shock. I am traumatized. . . .I just want my life back.”

Wednesday was the first time Britney Spears had addressed the Court and the World in such a detailed manner, outlining the struggles she has faced for years. Britney Spears asked for the conservatorship arrangement with her father, Jamie Spears, to end without her having to be evaluated. “I shouldn’t be in a conservatorship if I can work. The laws need to change,” she added. “I truly believe this conservatorship is abusive. I don’t feel like I can live a full life.”

The "Free Britney" Movement has continued to gain traction and has imploded following Britney Spears' statements in court on Wednesday.

Britney Spears also said, “It’s embarrassing and demoralizing what I’ve been through, and that’s the main reason I didn’t say it openly,” Ms. Spears said. “I didn’t think anybody would believe me.” Ms. Spears said she had been previously unaware that she could petition to end the arrangement. “I’m sorry for my ignorance,” she said, “but I didn’t know that.”

See Joe Coscarelli, Britney Spears: ‘I Just Want My Life Back’, N.Y. Times, June 24, 2021. 

June 24, 2021 in Current Events, Estate Administration, Estate Planning - Generally, Guardianship, Music, New Cases | Permalink | Comments (0)

Tuesday, June 22, 2021

Iowa Supreme Court: Tortious Interference With an Inheritance Requires Defendant To Have Knowledge of Plaintiff’s Expectancy Of an Inheritance

Estate planningIn Buboltz v. Birusingh, the Iowa Supreme Court addressed the question of "whether a cause of action for tortious interference with inheritance requires the plaintiff to prove that the defendant had knowledge of the plaintiff's expectation to receive an inheritance from the decedent." 

Cletis Ireland died was an only child, had never married nor had children when she died at the age of 92. Her estate was mostly consumed of by her family's century farm "where she hahaha lived most of her adult life." 

In 2001, Ireland executed a will in which she would have split her farm into two equal shares and given them to David Buboltz, a cash rent farmer who had been leasing a portion of the farm for a number of years, and her cousin Edith Mae Maertens. 

In 2015, Ireland executed a new will in Iowa, in which she removed Maertens who had passed away, and Buboltz. The new will included Kumari Durick, the daughter of a family friend, as the beneficiary and Kumari's mother, Patricia Birusingh as the executor of her estate. 

Birusingh was married to Ireland's doctor. When Ireland could no longer perform daily tasks due to her age, Birusingh and Kumari began running errands for her and taking care of her. 

After Ireland's death Donna Reece, one of Maerten's daughters, and Buboltz filed a petition to have the 2015 will removed, alleging undue influence and tortious interference. 

The Iowa Supreme Court held that in order to establish that the defendants purpose was to interfere with the plaintiff's expectancy, the defendant must know of the plaintiff's expected inheritance "since a defendant ignorant of a plaintiff's expectancy could never have as her purpose an intention to interfere with it."

The Iowa Supreme Court ultimately dismissed the tortious interference claim due to the lack of evidence for the knowledge requirement. 

See Iowa Supreme Court: Tortious Interference With an Inheritance Requires Defendant To Have Knowledge of Plaintiff’s Expectancy Of an Inheritance, Probate Stars, June 19, 2021. 

June 22, 2021 in Estate Administration, Estate Planning - Generally, New Cases | Permalink | Comments (0)

Wednesday, June 16, 2021

Wyoming Supreme Court: Beneficiaries Cannot Intervene In Wrongful Death Action

Estate planningIn Archer v. Mills, the Wyoming Supreme Court addressed "whether heirs of a decedent can intervene in a wrongful death action brought by the wrongful death representative." 

According to the Wyoming Supreme Court, the answer is no. 

Carrie Linn died shortly after undergoing elective surgery. Kallista Mills, the decedent's niece, was appointed decedent's wrongful death representative. Mills alleged that Charles Linn, decedent's surviving spouse, negligently caused decedent's death. On those grounds, Mills brought a wrongful death action against Charles Linn. 

A year later, Mills signed a "Release of All Claims" and filed a stipulation motion to dismiss the wrongful death action with prejudice. 

After the motion was signed, but before it was filed, Carrie Linn's daughters (Lacie Archer and Emily Farley) decided to intervene int he wrongful death action. 

The district court dismissed the action with prejudice after Ms. Archer and Ms. Farley failed to serve opposing counsel with the motion to intervene within ten days of the hearing. Ms. Archer and Ms. Farley appealed. 

In Wyoming, "only the appointed wrongful death representative can bring a wrongful death action. . ." Further, the wrongful death representative represents the interests of the beneficiaries according to a Wyoming statute. 

The Wyoming Supreme Court found that wrongful death actions "shall be brought by" (emphasis added) the wrongful death representative. The Court emphasized that the word "shall" in statutes has always been considered mandatory. 

See Wyoming Supreme Court: Beneficiaries Cannot Intervene In Wrongful Death Action, Probate Stars, June 14, 2021. 

June 16, 2021 in Estate Administration, Estate Planning - Generally, New Cases | Permalink | Comments (0)

Friday, June 11, 2021

New Case: Potter v. Potter

In Potter v. Potter, James Potter owned an interest in a Maryland limited liability company. The members of the company agreed to who should receive each member's ownership interest upon death of a member. After Mr. Potter passed away, there was a dispute over whether his interest would pass to the person named in the LLC agreement or to his estate. 

The Circuit Court found that the operating agreement was enforceable and that the designee was the rightful owner of the interest. 

However, the Court of Special Appeals of Maryland reversed and found that a membership in a Maryland Limited Liability Company is an interest in property that is subject to the provisions of Maryland's testamentary and probate laws. Md. Code, Est. & Trusts § 1-102(r). 

The Court also found: 

A provision in the operating agreement of a Maryland limited liability company that purports to "automatically and immediately" transfer a member's interest to a designated successor upon the member's death is not effective unless the operating agreement was executed in accordance with the provisions of Maryland's statute of wills, which is codified as Md. Code, Est. & Trusts § 4-102.

See Stuart Levine, Denise Potter et al. v. Ruby Potter, Case No. 671, 2018 Term Opinion by Kehoe, J., SL News, May 26, 2021. 

Special thanks to Linda Couch, a recent law school graduate from the Mitchell Hamline School of Law, for bringing this Article to my attention. 

 

June 11, 2021 in Estate Administration, Estate Planning - Generally, New Cases | Permalink | Comments (0)