Wills, Trusts & Estates Prof Blog

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

Thursday, December 3, 2020

How Ancestry Kits Upend Estate Plans and Create Estate & Trust Litigation

Estate planningThe blog post discussed below is best enjoyed if preceded by Family History of the Smiths and Alexanders.

Randall, son of Johnny, gave his sister Twyla a 23 and Me ancestry kit as a gift in order to learn more about their genes. The gift came after their father (Johnny) became sick with Alzheimer's. After Twyla took the test, Stevie Jenkins appeared after her results revealed that she was Twyla's half sister. Stevie happened to show up at the time Johnny's estate was being probated. 

Since Stevie's existence was unknown to the Personal Representative, she was not given notice of the estate being probated. If the estate is still open (it appears to be) Stevie would need to prove that she is Johnny's daughter, which could be done using a DNA test. If Stevie is Johnny's daughter, she could argue that she is entitled to a portion of Johnny's estate as an "omitted heir." 

In order to be successful, Stevie would need to show, "Stevie would need to prove either (1) she was born (or adopted) after Johnny executed his Will in April 2013 (making Stevie about seven years old, which is unrealistic); or (2) Johnny believed Stevie to be dead. It is unclear on the facts provided whether Johnny knew of Stevie’s existence, but Stevie would need to try to prove that Johnny believed she was dead." 

Stevie could also look for broad language that would allow her to fit herself into the Will. 

As crazy as this situation appears, it is not uncommon. Ancestry kits have allowed people search their family history, bringing up siblings and other family members that they may have never known about. Thus, family secrets have come to light which may often lead in litigation and family battles over estate shares. 

See Ann Hetherwick Cahill, How Ancestry Kits Upend Estate Plans and Create Estate & Trust Litigation, Burns & Levinson: Beyond the Will Blog, November 26, 2020. 

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

December 3, 2020 in Estate Administration, Estate Planning - Generally, Science | Permalink | Comments (0)

Sunday, November 8, 2020

Two Sisters Took a DNA Test. It Revealed Their Dad Had Been a Missing Person for Decades.

Gh-kidnapping2-1604691343Audrey Bell, a mother of triplets from Long Island, purchased a 23andMe DNA testing kit to find out which of the triplets were identical siblings and which was the fraternal sibling. Unbeknownst to Bell, she would find out a lot more. 

The results of the test did not specifically discuss any Italian history or ancestry, which the family found weird since their father was very proud of his Italian ancestry. At the time, Bell and her siblings did not think much of it. 

Since their father had passed away, they went to his closest living relative, a first cousin, and asked him to take a DNA test, which he agreed. The results revealed that the siblings were actually not related to the Palmadesso family. 

After doing more research into their history, they found that they were related to a man named Tom Martin. The siblings reached out Tom who revealed that he wanted his DNA tested because he was searching for his younger brother, Jerry Martin who had been missing for decades. Jerry had been kidnapped when he was 4 and Tom had not seen him since. 

Although it would seem unlikely that a child who was kidnapped would survive long enough to become a parent, it is actually not uncommon. Most kidnappings are not done by strangers, which only make up 1% of kidnappings. Further, when this kidnapping happened (in 1945), it was much easier to get away with such a crime given the lax standards of the Baby Boom era. 

The siblings began to suspect that their father, Richard Palmadesso, was actually the missing Jerry Martin. The siblings began making connections and even compared photos of Tom and their father, finding that they looked very much alike. 

The girls are not exactly sure what the history of their father is or if he had known he was kidnapped. However, the siblings have kept in continuous contact with Tom who could very well be their uncle.

See Rachael Rifkin, Two Sisters Took a DNA Test. It Revealed Their Dad Had Been a Missing Person for Decades., Good Housekeeping, November 6, 2020.

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

November 8, 2020 in Estate Planning - Generally, Science, Technology | Permalink | Comments (0)

Friday, September 18, 2020

Warren G. Harding’s Grandson, Lover Want President’s Body Exhumed

Harding"The grandson of U.S. President Warren G. Harding and his lover, Nan Britton, went to court in an effort to get the Republican's remains exhumed from the presidential memorial where they have lain since 1927." 

James Blaesing stated that he wants Hardin's remains so he can "establish with scientific certainty"  that he is blood related to Harding. 

Benefactors are preparing to celebrate the centennial of Hardin's 1920 election with "site upgrades and a new presidential center in Marion, the Ohio city near which he was born in 1865." James Blaesing claims that he deserves to have his story included "within the hallowed halls and museums in this town." 

"A branch of the Harding family has pushed back against the suit filed in May — not because they dispute Blaesing’s ancestry, but because they don’t."

The family agues that they have accepted as "fact DNA evidence that Blaesing's mother", Elizabeth Ann Blaesing was Harding and Britton's daughter. They also stated that she is set to be acknowledged in the museum. 

“Sadly, widespread, public recognition and acceptance by the descendants, historians, and biographers (and Mr. Blaesing himself) that Mr. Blaesing is President Harding’s grandson is not enough for him,” relatives said in a court filing.

See Julie Carr Smyth, Warren G. Harding’s Grandson, Lover Want President’s Body Exhumed, AP News, September 13, 2020.

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

September 18, 2020 in Estate Administration, Estate Planning - Generally, Science, Web/Tech | Permalink | Comments (0)

Wednesday, August 5, 2020

‘Amazing, Isn’t It?’ Long-Sought Blood Test for Alzheimer’s in Reach

Alz"Scientists say that such tests could be available in a few years, speeding research for treatments and providing a diagnosis for dementia patients who want to know if they have Alzheimer's disease."

It is possible that a simple blood test could be just as effective in diagnosing Alzheimer's as costly PET scans of the brain. 

This newly developed blood test has diagnosed the disease "as accurately as methods that are far more expensive or invasive..." This test could potentially make diagnosis simpler, and better yet, more affordable and available. 

"The test determined whether people with dementia had Alzheimer's instead of another condition." and it identified signs of the degenerative, deadly disease 20 years before memory and thinking problems were expected in people with a genetic mutation that causes Alzheimer's" according to research published in JAMA. 

Researchers predict that the test could be available for clinical use in as little as tow to three years. 

“This blood test very, very accurately predicts who’s got Alzheimer’s disease in their brain, including people who seem to be normal,” said Dr. Michael Weiner, an Alzheimer’s disease researcher at the University of California, San Francisco, who was not involved in the study. “It’s not a cure, it’s not a treatment, but you can’t treat the disease without being able to diagnose it. And accurate, low-cost diagnosis is really exciting, so it’s a breakthrough.”

Nearly six million people in the United States have Alzheimer's. Further, roughly 30 million people worldwide suffer from the disease. A new test like this one could potentially lower this numbers, or at the very least, slow them down.

See Pam Belluck, ‘Amazing, Isn’t It?’ Long-Sought Blood Test for Alzheimer’s in Reach, N.Y. Times Magazine, July 28, 2020.

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

August 5, 2020 in Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Science, Technology | Permalink | Comments (0)

Tuesday, August 4, 2020

Connie Culp, 1st US partial face transplant recipient, dies

CcConnie Culp, the recipient of the first partial face transplant in the U.S., has died at 57, almost a dozen years after the groundbreaking operation. 

Her surgery was performed in 2008 by The Cleveland Clinic. The Cleveland Clinic said Saturday that Culp died Wednesday at the Ohio clinic of complications from an infection unrelated to her transplant.

Dr. Frank Papay, who was part of Culp's surgical team, referred to Culp as "an incredibly brace, vibrant woman and an inspiration to many." Papay went on to say, "Her strength was evident in the fact that she had been the longer-living face transplant patient to date . . . She was a great pioneer and her decision to undergo a sometimes-daunting procedure is an enduring gift for all of humanity."

In 2004, Culp's husband shot her in the face in a failed murder-suicide attempt. The gunshot destroyed her nose, shattered her cheeks, and practically destroyed her vision. The Associated Press previously reported that her face was so mangled that children would run away from her and call her a monster. 

Culp went through 30 different operations to try to fix her face, all unsuccessful. In December 2008, Dr. Maria Siemionow led a team of doctors in a 22-hour operation to replace 80% of Culp's face with bone, muscle, nerves, skin and blood vessels from a donor, Anna Kasper. 

Following the operation, Culp went on to make television appearances and became an advocate for organ donation. 

Kasper's daughter said that she could see part of her mother in Culp, especially in the nose. She went on to say, "I know she's smiling down on this, that she's very happy."

See, Ron Todt, Connie Culp, 1st US partial face transplant recipient, dies, Associated Press, August 1, 2020. 

August 4, 2020 in Estate Planning - Generally, Science, Technology | Permalink | Comments (0)

Wednesday, May 13, 2020

California Appeals Court: Deceased Husband’s Sperm has no Value if it Cannot Actually be Used

IVFAfter her husband fell into an irreversible coma, a woman had his sperm extracted and stored at a tissue bank in hopes that she could one day conceive a child biologically related to him. 10 years after he died, the woman requested the sperm. The tissue bank could not find it, and the woman sued them, asserting contract and tort claims under California law. The trial court found in Robertson v. Saadat that the woman suffered no injury because she had no right to use the sperm to conceive a child. The woman appealed.

The California Court of Appeal, Second District, affirmed the trial court’s decision. Sperm is not governed by the rules that apply to gifts or personal property, and as gametic material, it must be specifically mentioned in testamentary documents. “In other words, the fact that plaintiff as Aaron’s spouse may be his legal next of kin has no bearing on whether she may use his sperm for posthumous conception.” Furthermore, the husband had no knowledge of the sperm extraction before his death, and therefore had no “‘decisionmaking authority as to the use of [the gametes] for reproduction.'”

The court also rejected the woman's argument that the sperm fell under the Uniform Anatomical Gift Act (UAGA) as the sperm would be "transplanted" into her. The legislative history of the UAGA indicates that “transplantation” under the UAGA refers to taking organs and tissue from a donor and placing them in recipients whose equivalent organs or tissue are damaged, not to conceive a child.

Because the woman could not prove that she was entitled to use the deceased husband's sperm as his surviving spouse, she had to show that it had been his intent to allow her to conceive with the extracted sperm. There must be an express indication in writing of an intent to allow the use of decedent’s genetic material for posthumous conception. The husband did not leave such writing, so there was no express intent.

With no intent nor entitlement to use the sperm, there was no value to the sperm, and the woman could not claim emotional distress caused by the inability to conceive the husband's child.

See California Appeals Court: Deceased Husband’s Sperm has no Value if it Cannot Actually be Used, Probate Stars, May 11, 2020.

May 13, 2020 in Current Events, Estate Administration, Estate Planning - Generally, Science, Technology, Wills | Permalink | Comments (0)

Friday, March 27, 2020

Can You Sue Someone If You Get Coronavirus?

Covid2History has shown us that many cases have been successfully brought concerning transmission of viruses or infectious disease, including during a pandemic. These past lawsuits pertaining to Ebola, H1N1 (swine flu), and HIV/AIDS, and can serve as an indication of whether you can sue a person or entity if you contract the novel coronavirus - COVID-19.

Several courts have ruled that a person has a claim against someone who passes on the HIV/Aids virus. The California Supreme Court in John B. v. Superior Court ruled that suits regarding the negligent transmission of sexual diseases, such as the HIV/AIDS virus, can proceed based on constructive knowledge. Indeed, because of the nature of the virus, some states have criminalized the transmission of HIV/AIDS.

The Supreme Court of Texas, in a February 2020 opinion, Coming Attractions Bridal and Formal, Inc. v. Texas Health Resources, addressed exposure to Ebola in a claim brought under the Texas Medical Liability Act. A nurse of a Dallas hospital helped care for a patient infected with Ebola, then went to Ohio to shop at a bridal shop. Once she returned to Dallas, she became ill and later diagnosed with Ebola herself. The bridal shop claimed the hospital where the nurse worked was negligent for failure to prevent transmission of the Ebola virus to the nurse and alleging that the hospital’s negligence caused the shop to close due to health concerns and adverse publicity because of the virus. The case was dismissed due to failure to file an expert report, not due to failure to state a claim. Another Ebola case in Texas was remanded for further proceedings.

In Ebaseh Onofa v. McAllen Hospitals, a 2015 Texas Court of Appeals case, husband alleged that his wife returned from her shift at the hospital not feeling well. The hospital had confirmed cases of H1N1 virus (swine flu) in the hospital. She admitted to the emergency room a few days later and died just two days after that. The husband sued for wrongful death because the wife was not offered an N95 mask and the court granted the hospital summary judgement. The appellate court affirmed, concluding that the husband  "produced nothing more than speculation on the element of causation" because there were no positive H1N1 patients in the wife's unit. Therefore, although it was possible that the husband could sue for his wife’s contraction of the virus, he had to present some evidence of causation to survive summary judgment.

See Can You Sue Someone If You Get Coronavirus?, Probate Stars, March 26, 2020.

March 27, 2020 in Current Affairs, Estate Planning - Generally, New Cases, Science | Permalink | Comments (0)

Monday, March 16, 2020

Loving Our Elderly Neighbor During the Coronavirus

WindowEarlier this month in response to the COVID-19 pandemic, the Centers for Disease Control and Prevention (CDC) advised that those older than 65, and those with serious chronic medical conditions, such as heart or lung disease and diabetes, have a higher risk of complications from the virus and thus should practice social distancing. This was no idle advice; 80% of the deaths in China were attributed to those 60 years and older. Those are do not fall into the category of being high risk or elderly can still infect those that are, so social distancing is a critical prevention strategy.

Social distancing can be negative for all of us, but older persons are more at risks for the side effects of shutting themselves off from the rest of the world. A 2019 study found that when older adults interacted with people outside of normal friendship and family circles, they “were more likely to have higher levels of physical activity, greater positive moods, and fewer negative feelings.” The effects of social distancing - loneliness and isolation - can have the opposite effect, and for older Americans whose families are distant, or who live alone, social distancing can feel especially isolating.

Here are a few suggestions for keeping our elderly family and friends safe during this time:

  • At the individual level, elders and those in their kinship circles can create schedules to help them stay in contact with family, friends, and community.
  • Encourage older Americans who must stay home to stay active if possible.
  • Take an inventory of the older adults in your web of relationships and identify their needs.
  • Recognize the importance of faith and religious practice to the well-being of older Americans.
  • Remember that elderly Americans may need help utilizing digital tools and navigating the online world.
  • As they move out of the public eye, we must be intentional about moving closer to older Americans through other means that do not necessarily involve physical contact.

See Naomi Cahn & Amy Ziettlow, Loving Our Elderly Neighbor During the Coronavirus, Institute for Family Studies, March 16, 2020.

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

March 16, 2020 in Current Affairs, Estate Planning - Generally, Science | Permalink | Comments (0)

Wednesday, March 11, 2020

The Limits of Dementia Treatment in Primary Care

DementiaA survey conducted through Alzheimer’s Association showed that Half of primary care physicians say their field is not prepared to handle the increasing number of people with dementia they expect to be treating in the next five years. Currently 40% of primary care physicians say they are “never” or only “sometimes comfortable” diagnosing dementia, which does not bode well as the population with dementia grows.

Also, 27% of the physicians that participated in the survey said that they are uncomfortable answering questions from patients pertaining to dementia, but in fact, most of the physicians said they received only “very little” training on dementia in their residencies.

See Shraddha Chakradhar, Flattening the Covid-19 Curve, Primary Care Physicians on Dementia, & the Pulsating Brain, STAT Morning Rounds, March 11, 2020.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.

March 11, 2020 in Current Events, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Science | Permalink | Comments (0)

Tuesday, March 10, 2020

Article on Tax Incentives for Green Burial

Forest2Virginia J. Haneman recently published an Article entitled, Tax Incentives for Green Burial, Wills, Trusts, & Estates Law eJournal (2020). Provided below is an abstract of the Article.

Every living being is doomed to decay and die and decay some more. Death is inevitable, and the disposal of our dead is a fundamental global activity with the potential to have significant environmental impact. In the United States, the environmental toxicity of “traditional” modern burial is stark. A cosmeticized body is pumped with three gallons of embalming fluid (containing chemicals such as formaldehyde) that eventually leaches through metal and wood and into the ground. An estimated 5.3 million gallons of embalming chemicals are buried annually in what are essentially luxury landfill-slash-golf-courses, with landscaping and grass to maintain and mow, in coffins that are typically constructed of nonbiodegradable chipboard. And while cremation is a more environmentally friendly alternative, incineration cremation falls short of being labeled “green.” Fire-based cremation utilizes significant resources and energy, attributable to the substantial quantity of fossil fuel required to burn human remains at 1,562° F (850° C) to reduce a corpse to ash. Pollutants are generated in doing so, including an average of 250,000 tons per year of carbon emissions and an estimated 320 to 6,000 pounds of mercury (from incineration of dental fillings) per year.

This tradition-steeped industry has projected domestic annual revenues of $68 billion (by 2023) and, interestingly, the industry has slowly started to “go green.” Changing the way in which one is buried will not solve the problem of climate change, but it does respect the notion that one’s last act on earth should not be to harm it. Industry norms are on the brink of disruption: the alt-death or death positive movement seeks to infuse the human experience back into death; there is capital investment into new innovative death service technologies, e.g. Funeralocity, WeCroak; and green death care tech startups are dramatically broadening available options for reintegrating human remains back into the environment in an eco-friendly manner. Unfortunately, a myriad of market failures and obstacles are impeding that disruption. This Article explores our modern disconnection from death, the transitioning of human remains in an environmentally friendly manner, the importance of pre-need or pre-death planning and prepayment to protect the grieving consumer, and the way in which tax incentives may be utilized to weave these ideas together in a cohesive plan for a green tax credit. A Pigouvian subsidy is proposed in the form of a refundable tax credit for qualified expenditures related to the nonrefundable prepayment of expenses arising from “sustainable disposition or transition of human remains.”

March 10, 2020 in Articles, Current Affairs, Death Event Planning, Estate Planning - Generally, Income Tax, Science | Permalink | Comments (0)