Wills, Trusts & Estates Prof Blog

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

Thursday, March 14, 2019

A Dying Man, a Typo and the Bitter Dispute Pitting 2 Nashville Religious Institutions Against 3 Children

Error4 non-profits, two of which are Nashville institutions, are fighting against three young children, claiming that they are the righting beneficiaries to land that has belonged in the family for more than 200 years. The acres were deeded to a Blackburn ancestor by President Andrew Jackson, prior to the War of 1812. But the lack of two words in a will of a Blackburn that passed away in 2014 has caused the organizations to believe that they deserve hundreds of acres now worth millions of dollars.

When Barry Blackburn, Sr., died at the age of 48 in 2014, his will left all of the land to his son Christopher in a lifetime trust, and then would pass to Christopher's children. If his son predeceased him, the land would go to his sister's three young children, aged 3, 8, and 13. If there were no surviving beneficiaries, the land would be divided equally among the Nashville Christian School, Harpeth Presbyterian Church (which was founded by Gideon Blackburn in 1811), the University of Mississippi law school and Boykin Spaniel Rescue. Christopher died a year after his father without begetting any children.

A Mississippi judged determined that the missing words, "or dies," amounted to a scrivener's error, and that the testator's intent had been to leave the land in the family. Evidence from Blackburn's assistants were introduced, including notes of conversations among them that showed his intent was for the charities to receive the land as a "last resort." The assistants claimed responsibility for the clerical error.

See Anita Wadhwani, A Dying Man, a Typo and the Bitter Dispute Pitting 2 Nashville Religious Institutions Against 3 Children, Tennessean, March 14, 2019.

Special thanks to Turney Berry (Wyatt, Tarrant, & Combs, LLP, Louisville, Kentucky) for bringing this article to my attention.

March 14, 2019 in Current Events, Estate Administration, Estate Planning - Generally, New Cases, Religion, Trusts, Wills | Permalink | Comments (1)

Wednesday, March 13, 2019

This Japanese Way of Healthy Eating Might Help You Live to 100

MisoOkinawa, Japan may just have the fountain of youth. People living in Okinawa have especially low rates of obesity and chronic diseases, such as heart disease, diabetes, and cancer, and no place on Earth has a more of a concentration of people 100 or older. The secret? Experts believe it is the local diet.

Luiza Petre, MD, a weight management specialist and assistant clinical professor of cardiology at The Mount Sinai School of Medicine in New York, says that though there are many variables that can contribute to a longer lifespan, "the key is their particularly healthy diet."

The traditional Okinawa diet emphasizes eating plenty of vegetables and seafood and limiting processed foods, and the residents also eat moderate portions at mealtime and treat food as a source of medicine. Okinawans focus on high-fiber carbohydrates such as sweet potatoes, root vegetables, and buckwheat soba, but also include green vegetables, soyfoods, seafood and seaweed, limited amounts of red meat, Shiitake mushrooms, bitter melon, and Jasmine tea. Also, Okinawans tend to enjoy sugary treats only on special occasions, and the majority of their fats come from omega-3 rich fish.

Many Okinawans eat in accordance with a Confucian teaching called hara hachi bu-eating until one is satisfied, not full. They do not weigh or measure their portions, but focus on thoughtfulness. The foods they eat are rich in anti-inflammatory phytochemicals that may help lower the risk for many chronic diseases and even dementia. 

See Marygrace Taylor, This Japanese Way of Healthy Eating Might Help You Live to 100, MSN, March 4, 2019.

March 13, 2019 in Current Affairs, Elder Law, Estate Planning - Generally, Religion, Travel | Permalink | Comments (0)

Friday, March 8, 2019

Book on Estate Planning for the Muslim Client

MuslimbookYaser Ali and Ahmed Shaikh recently published a book entitled, Estate Planning for the Muslim Client, (1st ed. 2019). Provided below is a summary of the book.

Islamic law provides a non-discretionary system of rules that governs the distribution of a Muslim's estate. Designing an estate plan based upon these rules presents unique challenges and opportunities. As the demand for faith-based planning increases, there is a growing need for culturally competent advisors who understand how these complex rules interplay with state and federal law. This first-of-its-kind practice guide serves as an authoritative resource for practitioners on how to ethically and effectively draft and administer estate plans for Muslim clients seeking to comply with their faith.

Planning a client's estate can involve more than just the transfer of wealth from one generation to the next. To draft a customized plan that achieves a client's unique goals, an estate-planning practitioner must understand the client's values and convictions and, in many cases, his or her religious beliefs. For many clients, passing on these beliefs and traditions is just as important as, if not more important than, the distribution of assets.

Estate Planning for the Muslim Client provides insights, information, and practical planning solutions for clients who wish to adhere to a set of classical religious obligations while recognizing the practicalities of daily life in America. The authors highlight various planning opportunities and identify the most common issues that arise when planning for a Muslim client. Topics include:

    • Meeting the Muslim client and understanding the pillars of their faith
    • Ethical, legal, and public policy issues
    • Estate planning during life
    • Planning for incapacity and death
    • Disposition of property at death
    • Drafting estate planning documents, with sample forms
    • Planning for individuals and assets abroad, and more

March 8, 2019 in Books, Books - For Practitioners, Estate Administration, Estate Planning - Generally, Religion | Permalink | Comments (0)

Monday, March 4, 2019

Note on Do You Tru$t Your Children: A Parent's Final Dilemma

CornellJ. Sam Rodgers recently publish a Note entitled, Do You Tru$t Your Children: A Parent's Final Dilemma, 28 Cornell J.L. & Pub. Pol'y 93-125 (2018). Provided below is an abstract of the Note.

If you knew you would inherit millions of dollars as long as you married someone Jewish, would you scour the Synagogue next Friday night?

This was the situation Daniel Shapira faced. Daniel was a twenty-one-year-old undergraduate at Youngstown State University when his father, Mr. Shapira, died. Mr. Shapira conditioned a portion of his large fortune to Daniel: the document read either be “married at the time of my death to a Jewish girl whose both parents were Jewish . . .” or the inheritance will go to “the State of Israel.” In the United States, unlike in other countries, a decedent has almost full control over the distribution of his assets upon death. Mr. Shapira used his power to incentivize his son to adhere to family values and marry within the Jewish faith.

Many parents view the distribution of their assets at death as the final impact they have on their children. Historically, most parents took this opportunity to provide future financial security for their heirs. Today, parents are confronting a recently developed fear of their children inheriting too much. This fear leads to a controlling dynamic between parents’ fortunes and their children’s lives. Scholars relate the situation to the “carrot and the stick” analogy, by which parents incentivize their children—many times adult children—to make wise choices by dangling a “carrot” in front of their children, then string them along like a masterful puppeteer.

Courtesy of American inheritance law, children can be disinherited by their parents. The harsh consequences of complete disinheritance have led to the development of conditional bequests—parents will give inheritances to their children so long as their children behave properly. The most prevalent form of a conditioned inheritance is the “incentive trust.” An incentive trust allows parents to condition distributions of trust property. These conditions are “as unlimited as our imagination,” so long as they do not contradict public policy or call for beneficiaries to break the law. Theoretically, this solves a “parent’s final dilemma”—whether to pass wealth on to children and possibly stunt motivation and character, or leave children less inheritance, but instead, helpful principles and inspiration. Incentive trusts allow parents to do both by separating the benefits of bequeathing property to children from the risks of bequeathing too much property. This is done by passing fortunes only after children align their lives with criteria enumerated in the trust.

However, incentive trusts are not a perfect solution and should be used with caution in estate planning. Incentive trust shortcomings are fourfold. First, incentive trusts are inflexible, making them difficult to draft and leaving them exposed to litigation. Second, the law confers a public policy limitation that produces inconsistent enforcement of incentive trusts. Third, incentive trusts promote idolizing money, thus potentially diluting the initial incentivized behavior. Fourth, rewarding children with money often has a negative impact on their motivation.

Part I of this Note discusses both the development of the law regarding inheritance and the growing attraction to incentive trusts. Part II details the four traps of incentive trusts—inflexibility, public policy limitations, unintended consequences, decreased motivation—and opens the door for a new solution to a parent’s final dilemma. Part III examines four principles for crafting a better solution to the parent’s final dilemma by looking at those who have successfully inspired children without incentive trusts. Part IV proposes the new solution, termed a Hidden Bonus Trust, that avoids the identified traps of incentive trusts and incorporates the lessons from experts.

March 4, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Religion, Trusts, Wills | Permalink | Comments (0)

Monday, February 18, 2019

Britain’s Burial Crisis – and How to Solve it

Cemetery140,000 people that die per year in the United Kingdom choose to be buried, and with a country that is so weathered with a finite amount of land, the cemeteries are getting crowded. Many towns are cramming, meaning that they are removing benches and trees to make room for more burial plots, as well as reclaiming, there a grave is reopened to bury a person on top of the previous resident - "like a bunkbed." But this may not be enough.

A BBC study in 2013 found that a quarter of England’s local authorities that oversee the majority of cemeteries expected those they managed to be full by 2023. Two London boroughs are no longer providing burials within their boroughs. Burials have increased in price by 70% from 2008 to 2018, and for numerous people have become unaffordable. In Highgate Cemetery in London, the most expensive (and private) cemetery in the country, it costs £19,940 just for the right to dig a grave and another £2,035 for it to be machine-dug.

As many of the living rarely think about cemeteries and their own mortality these problems have escalated to this point. This lack of burial space requires weighing the rights of the dead, as well as those that they leave behind, and asking how far society should go to accommodate the  people who still want to be buried. Many religions such as Islam and Judaism strictly forbid cremation so burial is a must.

A solution may be found in grave reuse, where the grave is reopened like reclamation but the remains are redistributed. This is possible only after several decades have passed and the deceased has thoroughly decomposed. But many municipal and private cemeteries do not allow the practice, London does.

See Daniel Cohen, Britain’s Burial Crisis – and How to Solve it, Financial Times, February 8, 2019.

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

February 18, 2019 in Current Affairs, Death Event Planning, Estate Planning - Generally, Religion, Science | Permalink | Comments (0)

Saturday, January 5, 2019

Article on Gender Equality: Islamic Law and Legal Validity

MuslimIslam Abdel Magid recently published an Article entitled, Gender Equality: Islamic Law and Legal Validity, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article. 

The regularly heated debate on personal status issues, especially for its connection, with a broader discussion about Shari’a or Islamic law, and its relation to positive laws and legal practice usually run in a vicious cycle between two conflicting tendencies, the first sees Shari’a as a major impediment to modernizing family laws, according to the stander of gender equality, while the other rejects the reform of these laws under any consideration except in the context of maintaining the legal and moral particularism, which is reflected in the principles of Shari’a, or at least its peremptory provisions. Certainly, the committee of “Individual Freedoms and Equality Report ”(IFER), sponsored by the Republic of Tunisia President, where is charged with examining the legal reforms related to the most controversial issue, the equality of inheritance between women and men opens a broad horizon for readdressing the issue of gender equality in Arab countries, particular Tunisia and Egypt. Indeed, the conflicting two tendencies on the content and the border of legal reforms, ignore together the importance of social facts in determining the validity of laws, in favor of focusing on the one hand, stander of natural rights and the insistence on the relationship between ethics and Islamic law, from another hand. This trend in western academic circles represented by e.g. Wael Hallaq and Talal Asad. On the contrary, I attempt to reconsider the relationship between the Islamic Law and the legal positivism i.e. the thesis that law existence and content reflect in one way or another the social facts. And discuss the evolution of the contemporary Arab laws between attempts to revive Islamic law and receive Western/European laws. Finally, defend the basic hypothesis in this paper; that the validity of the laws, regardless of their moral sources, are linked to their suitability to the degree of development of social facts, noting that this relationship between laws and facts is not a compatible, but rather a matter of dialectic and emancipation.

January 5, 2019 in Articles, Current Affairs, Current Events, Estate Administration, Estate Planning - Generally, New Legislation, Religion, Wills | Permalink | Comments (0)

Tuesday, December 25, 2018

Greece Should not Have Applied Sharia Law in Will Contest

MuslimIn a recent case in the European Court of Human Rights, the court found that Greece should not have allowed the two sisters a deceased Muslim man apply Sharia law to contesting the validity of their brothers will.

In Molla Sali v Greece, a Grand Chamber judgment held that Greece had violated Article 14 of the European Convention on Human Rights, which prohibits religious discrimination, when the country applied Sharia law to the inheritance of a wife's estate. The husband had a will written up and notarized 5 years before his death, bequeathing his wife all of his property. However, his two sisters contested the will. They claimed that their brother was part of the Thrace Muslim community and that any question of inheritance should be governed by Sharia law instead of Greek Civil Code. Under Sharia law, there is no testacy - inheritance is simply provided by intestacy rules, and wills are only meant to compliment those rules. Under the intestacy guidelines, the sisters were entitled to three-quarters of their brother's estate because they were close relatives.

After several layers of appeals, the European Court found for the wife, stating that she had been discriminated against because of her husband's religion. Because the husband went to a notary and had a will drawn up and publicly notarized, he was subjecting himself to the Greek Civil Code, just like a non-Muslim Greek national. "The fact is that if her husband, the testator, had not been of Muslim faith, Ms Molla Sali would have inherited the whole estate."

See Howard Friedman, European Court: Greece Should not Have Applied Sharia Law in Will Contest, Religion Clause Blog Spot, December 21, 2018; see also Molla Sali v Greece.

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.

December 25, 2018 in Current Events, Estate Administration, Estate Planning - Generally, Intestate Succession, Religion, Travel, Wills | Permalink | Comments (0)

Thursday, December 20, 2018

Article on Latest Trends in Succession among Hindus

HinduG. V. Mahesh Nath recently published an Article entitled, Latest Trends in Succession among Hindus, Wlls, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article. 

The presence of separate provisions for succession in case of Hindu men and Hindu women dying intestate is viewed as complicated feature of the Hindu Succession Act,1956 showing discrimination on basis of gender. The property of Hindu males devolves upon his heirs irrespective of the source of the income but the property of Hindu females devolves according to the source of the income. This provision under Section 15 of the Act dealing with rules of Succession of Hindu Female dilutes the effect of gender progressive provisions like Section 14 and show that the woman is a temporary occupier of the property and that the property must be reverted back from where it was inherited leaving that woman has no identity of her own. The 2005 Amendment Act is required to be seen as a step in the direction of reducing the existing gender inequalities, however the change in Indian societal perception on gender equity is still lacking.

December 20, 2018 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Intestate Succession, Religion, Wills | Permalink | Comments (0)

Thursday, September 27, 2018

Arab Women Left in Inheritance Trap by Delayed Reforms

TunTunisia’s president, Beji Caid Sebsi, has backed culturally controversial legislation that would allow Arab women to have equal inheritance rights, completely eroding Islamic law in the area. The Koran is very specific, stating that daughters are only allowed to inherit half of what their brothers receive. If the law passed it would be the first of its kind in the Arab world.

Muslim clerics decry the proposed legislation as an attack on Islam, and they are backed by the country's conservative party, Nahda. “No political party can make this gamble, particularly with elections next year.” The debate now has engulfed other Arab countries and has underlined the difficulty of upending a centuries-old status quo that shapes the contours of power and wealth across the Arab world.

But for millions of Arab women from Saudi Arabia to Morocco, there is a more modest goal: getting the limited assets to which they are currently entitled. Many women, many of them from rural areas, are denied their legal share of inherited assets, especially land. Male relatives can make it expensive and troublesome for daughters and sisters to receive any portion of their inheritances.

Inheritance laws are part of a broader web of legal and social barriers that perpetuate gender inequality in the Arab world. In many Arab countries only 1 in 4 women are employed or looking for work, and close to that number of Middle Eastern women have bank accounts.

See Heba Saleh, Arab Women Left in Inheritance Trap by Delayed Reforms, Financial Times, September 27, 2018.

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

September 27, 2018 in Current Affairs, Estate Administration, Estate Planning - Generally, Intestate Succession, Religion, Travel | Permalink | Comments (0)

Thursday, July 12, 2018

Sixth Municipality in Massachusetts to Call for Death with Dignity Legislation

CapecodOn Monday Falmouth in Massachusetts became the sixth municipality in the state to agree to pass a resolution to request the legislature to legalize allowing terminally ill patients to receive life-ending medication from their medical practitioner. Commonly known as physician-assisted suicide or Death with Dignity, the practice is legal in several United State jurisdictions including Washington, Vermont, and Colorado.

It may be an uphill battle, however. In 2012 voters narrowly defeated a referendum that would have allowed the practice, and in 2017 a medical aid in dying bill did not make it past the public health committee. Right-to-life groups and the Catholic Church are also strongly opposed to the legalization of physician-assisted suicide, fearing it will be used to contain expenditures of costly medical treatments.

There is support for Death with Dignity laws by the medical world, as the American Medical Society declined to reaffirm its opposition to the practice and the Massachusetts Medical Society officially dropped its stance against it.

See Cynthia McCormick, Falmouth Backs Death with Dignity, Cape Cod Times, July 10, 2018.

 

July 12, 2018 in Death Event Planning, Estate Planning - Generally, Religion, Science | Permalink | Comments (0)