Saturday, November 27, 2021
The JRR Token, which rolled out in August, has just been blocked by the estate of English fantasy writer J.R.R. Tolkien.
The "JRR Token" referenced the late fantasy writer as well as the author's iconic fantasy trilogy "The Lord of the Rings." The token was released with the tagline, "The One Token That Rules Them All" on its website. The tagline was in reference to the iconic "One Ring that ruled the other magical 'Rings of Power' in the tale's mythology."
However, when the Tolkien estate became aware of the new crypto currency token, the response was essentially "you shall not pass" and eventually turned to the World Intellectual Property Organization's arbitration procedure and is arguing that the "token infringed on trademark right's to Tolkien's name."
The "JRR Token" developer responded arguing that the token was actually not referencing the English fantasy author and that the name "just happened to bring J.R.R. Tolkien to mind, then it was parody, and not copyright infringement."
Despite the Developer's contentions, the WIPO's arbitrator ruled in favor of the Tolkien estate, writing, "the respondent does not specify why the disputed domain name is humorous, funny, or nail-biting, and not just a domain name chosen due to its similarities with the [Tolkien estate's] trademarks to take commercial advantage of its evocation."
See Nicole Lyn Pesce, J.R.R. Tolkien estate to ‘JRR Token’ cryptocurrency: You shall not pass, Market Watch, November 23, 2021.
Special thanks to David S. Luber (Florida Probate Attorney) for bringing this article to my attention.
Monday, November 22, 2021
A debate is taking place in the U.K. following an announcement from the Guardian newspaper in which it stated that it (the Guardian) was "taking legal action over the media's exclusion from a hearing on Prince Philip's will earlier this year."
Andrew McFarlane, president of the High Court's Family Division, ruled in September that Philip's will would be sealed for 90 years. Although representatives of the duke's estate were present, the media was not told about the hearing and were not allowed to attend. Instead, the public interest was represented by the attorney general.
According to a Guardian News & Media spokesperson, the High Court's decision to ban the media from the court hearing without informing outlets or allowing them to make representations "is a clear threat to the principles of open justice."
The spokesperson further stated:
It is also concerning that the court appears to believe that only the attorney general can speak to the public interest," the spokesperson continued. "We are seeking permission to argue that the behaviour of the high court in this instance constitutes a failure of open justice and that the case should be reheard.
Under British Law, "if a person prepares a will prior to their death, it becomes a public document after being admitted to probate, and anyone can obtain a copy from the Probate Registry for a fee."
However, a person can request that the court seal a will and keep it private if that person can prove to the court that it would be undesirable or otherwise inappropriate to make the will public.
According to Judge McFarlane, it is traditional practice to submit an application to seal a will of a senior member of the Royal Family and that those applications have "always been heard in private and invariably have been granted."
See Max Foster & Lauren Said-Moorhouse, A court battle is brewing over Prince Philip's will, CNN, November 29, 2021.
Sunday, October 24, 2021
In Matter of Falkowsky, the New York Supreme Court, Appellate Division, Second Department, "affirmed a decree made after a nonjury trial which in effect granted objections alleging lack of testamentary capacity and undue influence, and denied the admission of the will to probate."
The Court affirmed the Surrogate's Court decision in which it found a lack of testamentary capacity alone, focusing on the evidence presented which "effectively demonstrated that the decedent did not understand the nature and extent of his property."
Harold Falkowsky was hospitalized on December 1, 2014. Two weeks later, Harold apparently executed a last will and testament "in which he devised $20,000 to each of his sons, Ira and Jeffrey, 50% of the residue of his estate to charities, and the other 50% of his residue to his sister, Alice Sobel. Harold, the decedent, died on January 14, 2015, just a month after he executed the Will.
In March 2015, Alice petitioned for probate of the will and letters testamentary. Jeffrey, Harold's son, filed objections to the probate of the will, alleging lack of testamentary capacity and undue influence.
After examining the evidence, the Court ultimately found that Alice failed to prove that the decedent possessed the requisite testamentary capacity under New York Law, "as she failed to establish that the decedent knew the nature and extent of the property of which he was disposing."
See New York Court Conducts In Depth Analysis Of Lack of Testamentary Capacity Will Contest, Probate Stars, October 19, 2021.
Wednesday, October 20, 2021
However, the US District Court recently decided that injunctive relief was necessary to preserve monetary assets pending the resolution of the matter. Though it is rare to see estate litigation before a US District Courts the Court applied New Jersey law to reach its holding that injunctive relief was appropriate.
The US District Court found that "the decedent had improperly taken a large sum of money from the party who had brought the litigation" after the plaintiff discovered that the decedent's estate was going to sell a parcel of property. The plaintiff moved for an injunction requiring the proceeds from the sale to be held in escrow. The District Court found that injunctive relief was necessary to "preserve the status quo and prevent the dissipation of these assets prior to a ruling on the merits."
The Court further concluded that the plaintiff would suffer irreparable harm should the assets be distributed before the conclusion of the lawsuit.
The District Court's decision indicates that courts may impose injunctive relief in order to protect monetary assets.
Van Horn, Metz & Co., Inc. v. Crisafulli, No. 21-01128 (FLW), 2021 WL 4317186 (D. N.J. Sept. 23, 2021).
See Paul W. Norris, Injunctive Relief to Prevent Monetary Damages in Estate Litigation, Stark & Stark Attorneys at Law: New Jersey Law Blog, October 12, 2021.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Friday, October 15, 2021
The Court held that the provision "is not an unlawful restraint on marriage." The provision was part of a revocable trust that "resulted in the estate of Marcille Borcherding to her son, daughter and four stepchildren after her death."
The trust stated that Marcille's son, Roger Rotert, would get his share of the estate outright if he was unmarried at the time of her death. If Rotert was to be married, the assets would remain in a subtrust.
Rotert's third wife filed for divorce before Marcille Borcherding executed the trust, but the couple reconciled and were still married when Marcille died in 2016. Marcille's daughter Connie Stiles, who served as a trustee for the subtrust, came to an agreement with Rotert in which Rotert agreed to receive the subtrust's cash assets and agreed to keep the real property in the trust. Rotert later brought suit.
Indiana law voids will provisions that condition a spouse's inheritance on remaining unmarried, but the Indiana Supreme Court stated that the rule does not apply to trusts, which can set marriage conditions on spouses and others.
See Debra Cassens Weiss, Top state court upholds trust provision requiring beneficiary to be unmarried, ABA Journal, October 13, 2021.
Thursday, September 30, 2021
Judge Brenda Penny has granted the request of Britney Spears' attorney, Mathew S. Rosengart, to remove Jamie Spears as conservator. The Judge's decision marks the first time since 2008 that Britney Spears will be without her father's oversight.
According to Rosengart, Britney had been pleading for Jamie Spears' removal and stated, "[t]his man does not belong in her life, your honor, for another day. . .Please hear the plea of my client."
After hearing both sides, Judge Penny agreed that suspending Jamie Spears was in the best interest of Britney Spears. Judge Penny stated, "[t]he current situation is not tenable."
The decision by Judge Penny brought a significant ending to what has been a chaotic summer—in which Britney Spears broke her public silence at a hearing in June to plead her case and speak her truth.
Although an attorney for Jamie Spears, Vivian Lee Thoreen, argued to end the conservatorship right away instead of suspend Mr. Spears, Rosengart asked the Judge to wait so that he could further investigate Mr. Spears's conduct.
Rosengart asked for a termination hearing to be set for 30 to 45 days so that Ms. Spears could have an orderly transition. The next hearing is set for November 12.
See Joe Coscarelli, Julia Jacobs, & Liz Day, Britney Spears Is Released From Her Father’s Oversight, The New York Times, September 29, 2021.
Saturday, August 14, 2021
Pennsylvania lawyer William Krtzon has been suspended for six months for giving a trusted employee another chance "after she stole from his aunt's estate. . ." Krtzon was suspended for "failing to supervise the employee, who stole additional money from seven estates represented by the lawyer."
Krtzon testified that he was surprised about the employee's thefts. Krtzon also testified that he put a lot of trust in the employee, Joy Hale and thought that she was the "perfect secretary."
Krtzon hired Hale in 2008 to handle estate accounting and perform other duties. Krtzon learned that Hale had stolen $3,300 from his aunt's estate by writing a check and forging his signature. Krtzon required Hale to repay the estate through a reduction in pay. Even after learning of Hale's theft, Krtzon gave Hale another chance.
Despite the second chance, Hale continued to steal money from Krtzon's clients' estates. In May 2016, one of Krtzon's clients informed him that Hale was misrepresenting account balances. Krtzon actually told the client that she was mistaken, but the client pushed forward with an investigation.
Although Krtzon was aware of the investigation, he continued to imply Hale for two more months. Hale later plead guilty to criminal charges of theft and forgery.
The Pennsylvania disciplinary board said Krtzon "violated ethics rules requiring lawyers to act with reasonable diligence, to keep clients reasonably informed, to keep accurate accounting records, and to supervise non lawyers to ensure that their conduct is compatible with a lawyer's professional obligations."
See Debra Cassens Weiss, Lawyer who gave 'perfect' secretary a second chance after theft is suspended after misjudging her, ABA Journal, August 12, 2021.
Special thanks to Adam J. Hirsch (Professor of Law at the University of San Diego School of Law) for bringing this article to my attention.
Thursday, August 12, 2021
The court documents, which were filed in Los Angeles County Superior Court on Thursday, come after a long battle between the pop star and her father who has governed the pop star's "personal life and roughly $60 million estate for the last 13 years."
James Spears' decision to step comes weeks after Britney Spears' asked a judge to remove her father as the conservator after characterizing the estate as "abusive."
Britney Spears was also recently allowed to hire a new lawyer, Mathew Rosengart, who has pushed "aggressively" to remove or suspend James Spears as conservator of the estate. Although Mr. Rosengart conceded that "there are no actual grounds for suspending or removing [Mr. Spears], he does not believe a public battle with his daughter over his continuing services as her conservator would be in her best interest."
Mr. Spears said that he would work with the court and Mr. Rosengart to "prepare for an orderly transition to a new conservator." Mr. Rosengart stated that Mr. Spears decision to step down is "vindication for Britney."
See Neil Shah, Britney Spears’s Father to Exit Conservatorship, The Wall Street Journal, August 12, 2021.
Special thanks to David S. Luber (Florida Probate Attorney) for bringing this article to my attention.
Tuesday, August 10, 2021
In Estate of Evans v. Dept. of Rev., the Oregon Supreme Court upheld the the estate taxation of intangible QTIP upon the death of a surviving spouse, solely on the basis of her Oregon residence, as consistent with the federal Due Process Clause. (Decedent spouse had died a resident of Montana. The trust was testamentary and established under Montana law. (The trustee was Montana resident.)
Review the entire case here.
Special thanks to Paul M. Cathcart (Hemenway & Barnes, LLP, Boston, MA) for bringing this case to my attention.
Monday, August 9, 2021
Louisiana Supreme Court Reverses Itself And Abandons Overly Strict Construction Of Standards For Creating Valid Notarial Will
In Succession of James Conway Liner III, the Louisiana Supreme Court vacated its original opinion and "clarified the analytical framework for determining whether a notarial will is in substantial compliance with the provisions of the Louisiana Civil Code."
James executed two notarial instruments, one in 2013 and one in 2015. The 2015 testament was invalidated by the district court on the basis that the provisions of the attestation clause were not "substantially similar to those set forth in La. C.C. art. 1579(2), which governs the requirement of the attestation clause for a notarial will and testament when a testator is unable to read." The appellate court reversed the decision.
The Louisiana Supreme Court reversed the Court of Appeal's decision in a January 2021 Opinion and reinstated the trial court's judgment invalidating the 2015 testament. The Louisiana Supreme Court then granted a Motion for Rehearing and issued a new opinion.
Generally, the intention of the testator as expressed in the will must govern. However, the Supreme Court noted that, "the formalities of a notarial will provide a protective function of guarding the testator against the risk of fraud."
The Louisiana Supreme Court established a clarified standard:
Courts must determine if a notarial will, with all formalities and evidence taken into consideration, reflects the testator was sufficiently protected against the risk of fraud. Holmes, supra, at 541. This involves a contextual analysis of the protective function of a will’s formalities in light of the document itself.
If the court’s analysis reveals an increased likelihood that fraud may have been perpetrated, the deviations are material and cause to nullify the will exists. If not, the deviations are slight and should be disregarded. Guezuraga, 512 So.2d at 368. Whether the deviating language sufficiently protects against the risk of fraud is construed liberally in favor of maintaining the validity of the will. Id.; Holbrook, 13-1181, p. 11, 144 So.3d at 853. Mere allegations of fraud are not outcome determinative.
The Louisiana Supreme Court ultimately found that the attestation clause of James' 2015 testament was executed in substantial compliance with La. C.C. art. 1579(2), emphasizing the importance of substantial compliance as the governing standard as opposed to strict compliance.
See Louisiana Supreme Court Reverses Itself And Abandons Overly Strict Construction Of Standards For Creating Valid Notarial Will, Probate Stars, July 14, 2021.