Sunday, May 2, 2021
David Horton and Reid K. Weisbord recently published an article entitled, Probate Litigation, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:
The field of wills is obsessed with deterring litigation. Supposedly, will contests—challenges to the validity of a testamentary instrument—are time-consuming, expensive, expose the testator’s eccentricities, and tear families apart. In turn, these factors give contestants the leverage to file “strike suits”: baseless allegations that are designed to obtain a shakedown settlement. This gloomy view drives policy on several fronts. First, it has stunted the growth of the harmless error rule: a doctrine that empowers courts to enforce documents that do not comply with the statutory formalities for executing a will. Second, estate planning lawyers use the specter of conflict to contain the spread of homemade testamentary instruments—especially the nascent market for online wills. Third, the desire to minimize the damage caused by lawsuits has rekindled interest in antemortem probate: a regime that resolves will contests during the testator’s lifetime. But although these debates rely on assumptions about probate litigation, we know little about the phenomenon. Indeed, our understanding of the issue comes largely from folklore, war stories, and the sliver of disputes that become reported appellate opinions. Thus, we can only speculate about the catalysts of these lawsuits, the harm they cause, or the terms of their confidential settlements.
This Article offers a glimpse inside the black box. Its centerpiece is an empirical study of 443 recent probate administrations from San Francisco, California. It follows these cases from the drafting of the will to the order for final distribution. In addition, it capitalizes on a state law that requires litigants to file settlement agreements in the record. Thus, it sheds new light on the causes and consequences of probate litigation. Some of the Article’s findings confirm that disputes over wills are an evil to be avoided. But others defy the conventional wisdom. For example, the Article discovers that the harmless error rule facilitates testamentary intent without making cases last longer or cost more, that online wills do not seem to be linked to litigation, that will contests often settle for a high percentage of the claim value, and that disputes over attorneys who appoint themselves executor are surprisingly common. Finally, the Article explains how these insights inform existing debates and highlight topics that deserve more attention.
Saturday, May 1, 2021
Ying Khai Liew recently published an article entitled, Justifying Anglo-American Trusts Law, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:
Is the existence of trusts law within Anglo-American law justified? The literature to date does not provide a satisfactory answer. Situating the doctrinal features of trusts law within the liberal tradition of political morality, this paper suggests that trusts law is justified because it enhances personal autonomy in a unique way. It is comprehensively autonomy-enhancing, with express, constructive, and resulting trusts each playing a unique role in achieving this aim. Thus, the law provides a facility for property owners to unilaterally deal with their own property (express trusts), allows individuals the freedom to enlist others in their pursuit of their goals (some constructive trusts), and ensures that only conclusive choices have long-lasting legal effects (other constructive trusts and resulting trusts).
Thursday, April 29, 2021
In the most recent development, Britney Spears has asked to address the court "to talk about the conservatorship that has controlled her life and finances for 13 years. . ."
Spears' court-appointed attorney, Samuel Ingham III, said that Spears asked to speak to the court "soon" and agreed with Judge Brenda Penny on a date, June 23.
Neither Spears nor Ingham III have stated what Spears plans to say or would like to say.
Spears has not spoked in court in over two years, the last time being on May 10, 2019. What Spears said in the court in 2019 has not been made public.
It is not clear whether the hearing in June will be open to the media or the public, but the Judge has the discretion to close the hearing to both.
However, Spears and Ingham III have been pushing for more transparency in the proceedings, although Spears rarely attends the hearings.
As has been the norm, more news regarding the June 23 hearing will likely reach the surface as the hearing gets closer.
See Britney Spears Set to Speak in Court on Her Conservatorship, NewsMax, April 27, 2021.
David Horton recently published an article entitled, Revoking Wills, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:
No issue in inheritance law has sparked as much debate as the requirements for making a valid will. For centuries, Anglo-American courts have insisted that decedents obey rigid formalities, such as signing or acknowledging their wills before two witnesses. These rituals preserve proof of the testator’s wishes, reinforce the gravity of estate planning, prevent fraud and duress, and distinguish wills from other instruments. But they also have a dark side. In scores of cases, judges have cited minor errors during the execution process to invalidate documents that a decedent intended to be effective. Accordingly, generations of scholars have critiqued will creation doctrine. Recently, these discussions have intensified, as several jurisdictions have embraced the harmless error rule, which excuses trivial departures from the execution formalities, or adopted statutes that validate electronic wills.
However, the well-canvased topic of creating a will has a little-noticed flip side. Testators do not merely need to follow formalities to make a will; rather, they also must jump through hoops to un-make a will. Since the British Parliament passed the Statute of Frauds in 1677, there have only been two ways to annul a testamentary instrument: by burning, tearing, canceling, or obliterating the document or by signing another will. In sharp contrast to the extensive commentary on executing wills, revocation doctrine has never received sustained attention.
This Article fills that vacuum. First, it reveals that the revocation formalities defeat testamentary intent far more often than is commonly believed. Indeed, testators fail to achieve their goals when they destroy a photocopy, deface the margins of their will, leave the room while a third party revokes the instrument, or express their wishes in a writing that is not a full-fledged will. Thus, even more than the execution formalities, revocation doctrine consists of tripwires and traps for the unwary. Second, the Article demonstrates that the benefits of these merciless rules are minimal. Although some serve the same evidentiary, ritual, protective, and channeling functions as the execution formalities, others further no discernable goal. Third, the Article critiques potential solutions to these problems. It explains that a handful of lawmakers and courts have moved in the right direction by relaxing the revocation formalities, extending harmless error into this sphere, and achieving justice in particular cases through the imposition of a constructive trust. Nevertheless, the Article also contends that these curative measures do not go far enough. Accordingly, the Article proposes a novel path forward: importing the revocation formalities from trust law. In sharp contrast to the straitjacket of wills doctrine, trust law both permits settlors to revoke their trusts by any reasonable means and to create their own private revocatory rules. Thus, extending this lenient approach into the realm of wills would minimize intent-defeating outcomes, dovetail with broader trends in the field, and bring revocation law into the twenty-first century.
Wednesday, April 28, 2021
Alec J. Morris recently published an article entitled, Private Purpose Trusts and the Re Denley Trust 50 Years On, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:
This article will set out the law of private purpose trusts within England and Wales, and provide a critique on the current state of the law. Concomitantly, it will re-examine Re Denley in light of these considerations to establish to what extent, if any, its ostensible departure from the orthodoxy can be justified. Finally, the article will go on to consider possible recognised, alternate methods which could have been employed in Re Denley to achieve the same ends, thus avoiding the creation of this novel, controversial type of trust.
In one of two class-action suits against Apple, the lead plaintiff David Andino argues that Apple's definition of the words "rent" and "buy" are deceptive "since the company can terminate people's Apple IDs and, along with them, access to content they purchased using the 'buy' button."
Andino is arguing that consumers aren't allowed to buy content at all, but are only allowed to rent content, meaning consumers never own any content outright. Andino further claims that, had he known that his access could be cut off at any time, he would not have spent as much money on iTunes content.
The suit further states, “[j]ust like Best Buy cannot come into a person’s home to repossess the movie DVD that such person purchased from it, [Apple] should not be able to remove digital content from its customers’ Purchased folders."
In response to the allegations, Apple argued that "no reasonable consumer would believe that content purchased through iTunes would be available on the platform indefinitely."
Fortunately for Andino, US District Court Judge John Mendez did not buy Apple's argument and rejected Apple's motion to dismiss the suit.
The other class-action suit is brought by Matthew Price who claims he lost $24,590.05 in iTunes, the App Store, and in-app purchases, which "became inaccessible when Apple terminated his account."
See Tim De Chant, Apple sued for terminating account with $25,000 worth of apps and videos, Ars Technica, April 23, 2021.
Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.
Tuesday, April 27, 2021
John Picton recently published an article entitled, Lëhtimaki v Cooper: Duty and Jurisdiction in Charity Law, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:
Lëhtimaki v Cooper is a significant Supreme Court decision which establishes that the members of charitable companies are in a fiduciary relationship with respect to the purposes of their organisation. Its core principles have the potential to impact on a very large number of people in the voluntary sector. This note critically assesses the nature and scope of the new fiduciary relationship. In the light of the fact that the majority of new charities are founded as charitable incorporated organisations, the note also criticises the narrow focus on charitable companies taken in the case. Finally, it analyses the expansion in jurisdiction in the decision. The case is notable for bringing companies within the courts’ traditional, and powerful, jurisdiction over trusts.
Monday, April 26, 2021
A Vermont company named Cremation Solutions has created a creative new way to memorialize your loved one. Cremation Solutions has begun creating 3D-printed head shaped urns that imitate the likeness of your loved ones.
The Urns are created by photos and allow a very unique personalization characteristic that his heads above your classic urn.
The full-sized urn is around 28cm high—big enough to hold the ashes of an adult. There is also a smaller option that is 15cm, referred to as the "keepsake" option, meant to hold just a portion of the ashes.
The 3D-printed Urns do not come with hair, but hair can be added digitally or in the form of a wig.
The smaller urn option is priced at $600 and the larger option is priced at $2600.
It gets even better. You do not have to use the likeness of your loved ones for the urns. You can actually have one made using the likeness of your favorite hero, even President Barack Obama.
See Deborah Corn, 3D-Printed Head Shaped Urns Coming To Mantle Near You. UM CREEPY!, Prime Media Center, (last visited April 26, 2021).
Special thanks to David S. Luber (Florida Probate Attorney) for bringing this article to my attention.
Jay A. Soled recently published an article entitled, The Federal Estate Tax Exemption and the Need for Its Reduction, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:
One of the central components of the nation’s transfer tax system is the federal estate tax exemption. This is the amount that taxpayers can pass free of transfer tax imposition. While over the last 100 years the size of this exemption has fluctuated, Congress most recently increased it exponentially, jeopardizing the vitality of the entire transfer tax regime and potentially sapping it of its strength. To enhance the nation’s fiscal solvency and to reduce wealth inequality, this analysis contends that Congress must reduce the estate tax exemption (and, along with it, the gift and generation-skipping transfer tax exemptions). Furthermore, it proposes ways for Congress to efficiently and equitably accomplish this goal. As a practical matter, the failure to take action will relegate the nation’s transfer tax system to obscurity.
Sunday, April 25, 2021
Ying Khai Liew recently published an article entitled, Constructive Trusts and Discretion in Australia: Taking Stock, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:
In Australia, it is often thought that the decision whether to impose a constructive trust invariably attracts the exercise of remedial discretion. This paper argues that, in reality, the exercise of discretion is highly circumscribed. Further, where such discretion is exercised, it is useful further to distinguish between cases where judges take into account factors affecting justice inter partes, and those where judges also take third party considerations into account. The latter sort of discretion has, to date, only been exercised systemically in one factual scenario. This revelation provides reason to reflect on the status of certain High Court dicta, the relevance of the ‘institutional’/ ‘remedial’ constructive trust dichotomy, and the relationship between rights and remedies.