Wills, Trusts & Estates Prof Blog

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

Saturday, December 15, 2018

Index Groups Face Fight Over Controversial Weapons

Church englandIndex providers face pressure from a global coalition of investors that is demanding they strip out controversial weapons manufacturers from mainstream benchmarks. Candriam, the European asset manager, ING, the Dutch financial services group, and the Church of England are among the latest to sign up for the coalition.

According to the group of investors that have more than $3 trillion in assets, Companies involved in cluster munitions, anti-personnel mines and chemical, biological and nuclear weapons should be excluded from main benchmarks. No specific companies have been named, but there are several companies worldwide that are already sidelined. Many active managers screen out weapon makers, but passive investors, whose strategies replicate traditional indices, typically cannot.

Eric Borremans at Pictet Asset Management said the index providers and Index Industry Association, the trade body, would be formally contacted in coming weeks to make the changes.“ Index providers need to reflect investor practices and expectations,” he said. “We are not talking about environmental, social and governance indices but mainstream indices.”

“Responsible asset owners do not want their passive investments forced to hold companies operating in violation of international treaties nor for such companies to be included in benchmarks and index-based derivatives,” said Edward Mason, head of responsible investment at the Church Commissioners of England.

See Peter Smith, Index Groups Face Fight Over Controversial Weapons, Financial Times, December 8, 2018.

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

December 15, 2018 in Current Affairs, Current Events, Estate Administration, Estate Planning - Generally, Travel | Permalink | Comments (0)

Sunday, December 9, 2018

Travel Company Apologizes for Creating Dummy of Family's Dead Son in Tribute Gone Wrong

JamaicaFaye and Andrew Stephens of Willesden, England, have a tradition of celebrating their son's birthday, even though he had been dead for 4 years. Alex Stephens passed away at the age of 22 when he fell of a balcony in Spain.

Karen Baker, Alex's godmother, was on vacation with the couple in Jamaica when she decided that she would give them surprise for the son's birthday. She arranged for the staff to put up balloons and decorations in their hotel room as a tribute, but the staff took it further. They stuff clothing into a dummy of Alex, holding a beer and a birthday cake, complete with tears on the dummy's face. "I was absolutely horrified," Baker said. "I have truly never seen anything like it. I still look at photographs now and can't believe somebody thought to do that."

TUI UK, apologized to the family and refunded their vacation. "We're following up with the hotel and believe it was a misunderstanding with no intention to cause upset," the statement read. "We are in direct contact with the group to apologize and offer a gesture of goodwill."

See Kathleen Joyce, Travel Company Apologizes for Creating Dummy of Family's Dead Son in Tribute Gone Wrong, Fox News, December 8, 2018.

December 9, 2018 in Current Events, Estate Planning - Generally, Travel | Permalink | Comments (0)

Thursday, December 6, 2018

Assisted Suicide for Alzheimer’s Patients Raises Incredibly Difficult Issues

HippocraticPhysician assisted suicide was thrust into the public eye when a 104-year-old Australian scientist David Goodall decided to end his life medically. He did not have any serious or terminal illnesses. He just believed he was old, and did not want to have his abilities continue to diminish and end up in a nursing home. Because assisted suicide is not legal in Australia, he had to travel to Switzerland. He adamantly told the press that he "wanted to die."

Seven jurisdictions in the United States provide for physician assisted suicide: California, Colorado, the District of Columbia, Hawaii, Montana (with a court decision), Vermont and Washington state. Put there are built in stipulations and limits on the procedure, including: a condition that is terminal, meaning the patient has six months or less to live, restrictions on what type of doctor can write the prescription, waiting periods, different levels and forms of consent by the patient, and a showing that the patient is mentally competent.

Patients with Alzheimer's have issues with many of the restrictions. The disease can take years to kill someone, so when a person is diagnosed with Alzheimer's it is not considered a terminal illness. But the disease breaks down a person's identity to the point where they are a shadow of who they were, and many people want to end their lives before the deterioration is a burden. But by the time the erosion and disease is considered terminal, Alzheimer's patients will have lost their mental capacity to reason and thus will be barred from requesting assisted suicide. They will no longer be of sound mind.

An advanced directive may be a solution to this problem, stating the individual’s wishes before the person is stricken with Alzheimer’s disease. This would similar to a DNR or refusal of aggressive medical interventions. Also known as a living will, it is a  written statement of a person’s desires regarding medical treatment in cases where he or she is unable to give informed consent.

See Josh Bloom & Henry I. Miller, Assisted Suicide for Alzheimer’s Patients Raises Incredibly Difficult Issues, Fox News, December 2, 2018.

December 6, 2018 in Death Event Planning, Estate Planning - Generally, Science, Travel, Wills | Permalink | Comments (0)

Wednesday, December 5, 2018

Tax Amnesty Act: Senate vs. House Versions [Philippines]

PhilippinesIn the Philippines, House Bill (HB) 8554, the proposed "Tax Amnesty Act of 2018," was passed in the House of Representatives on November 20, while the Senate approved their own version of the bill as Senate Bill (S)B 2059 on November 19. The House's version was sponsored by House Ways and Means Committee Chairman Estrellita B. Suansing of the second district of Nueva Ecija, and the Senate's version was sponsored by Sen. Juan Edgardo "Sonny" Angara.

Both bills comprise three separate tax amnesty programs: an estate tax amnesty, a general tax amnesty and a tax amnesty on delinquencies. Taxpayers who avail themselves to any of the program protect themselves from the payment of taxes as well as any additional civil, criminal and administrative penalties under the National Internal Revenue Code (NIRC). Both bills provide under the estate tax amnesty program for an amnesty tax of 6% of the decedent's estate at the time of death for those that died in 2017 or earlier.

The bills differ in complexity on how they deal with the general tax amnesty. The House’s version is simpler, providing for an amnesty tax of 2% based on the taxpayer’s total assets as of December 31, 2017. In the Senate's version, the type of taxpayer becomes relevant to the amount of tax paid. For individuals, trusts and estates, the amnesty tax is 5% or P100,000, whichever is greater. For corporations, the amnesty tax is a flat rate of 5% as well as graduated amounts of minimum amnesty tax payments.

As for the tax amnesty on delinquencies, the House version provides that withholding agents are given the opportunity to settle their withholding tax obligations by paying 100% of the basic withholding tax deficiencies. This privilege is not available under the Senate version.

See Peaches Martinez-Aranas, Tax Amnesty Act: Senate vs. House versions, AtinitoNew.com, November 25, 2018.

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

December 5, 2018 in Current Affairs, Estate Administration, Estate Planning - Generally, Estate Tax, Income Tax, New Legislation, Travel, Wills | Permalink | Comments (0)

Monday, December 3, 2018

Article on Constructive Trusteeship: The Perils of Statutory Formulae

MarshallDarryn Jensen published an Article entitled, Constructive Trusteeship: The Perils of Statutory Formulae, Wills, Trusts, & Estates Law eJournal (2016). Provided below is an abstract of the Article.

This paper evaluates the provisions concerning constructive trusteeship in Trusts Act 1994 (Marshall Islands) and makes more general observations about the roles of constructive trusts in litigation involving trustees' breaches of duty, the roles of statute law and the risk inherent in attempts to express complex and multi-faceted private law concepts in statutory formulae.


December 3, 2018 in Articles, Estate Administration, Estate Planning - Generally, Travel, Trusts | Permalink | Comments (0)

Thursday, November 29, 2018

Belgium Investigates Doctors Who Euthanized Autistic Woman

AP_euthanasiaThree doctors in East Flanders, are being investigated after a 38 year old woman died in 2010, Tine Nys, in an apparent legal killing that she had requested, only two months after being diagnosed with Asperger's, a mild form of Autism. This is the first criminal investigation in a euthanasia case since the practice was legalized in 2002 in the European nation.

Belgium is one of two countries with legal euthanasia that allow the procedure for psychiatric reasons if they can prove they have "unbearable and untreatable" suffering. Netherlands is the other country. Among the most common mental reasons for doctor assisted suicide, Asperger's is in the top three.

The Nys family filed a criminal complaint after the procedure and Tine's death, citing several "irregularities" in her death, and then her doctors attempted to block the investigation. They will now face trial "due to poisoning," said Francis Clarysse, a Ghent prosecutor. There have also been concerns that Dr. Lieve Thienpoint, Tine Nys' therapist, too easily approved euthanasia requests from patients with mental illnesses.

In the 15 years since doctors were granted the right to legally kill patients, more than 10,000 people have been euthanized. Only one case has previously been referred to prosecutors; that case was later dropped.

See Belgium Investigates Doctors Who Euthanized Autistic Woman, Fox News, November 27, 2018.

November 29, 2018 in Estate Planning - Generally, New Cases, Travel | Permalink | Comments (0)

Simplify Inheritance Tax process for Bereaved Families, Says OTS [UK]

UnionChancellor Phillip Hammond ordered a review of the Office of Tax Simplification (OST), and in doing such the Office recommended reducing or removing the requirement to submit inheritance tax (IHT) forms for smaller or simpler estates.

As it stands now, probate is not granted until an IHT has been filed and if a tax is due it must be paid prior to the granting. For small estates that are not liable for an inheritance tax it is a needless step in a time of grief. The OTS recommends that the government implement a fully integrated digital system for the filings of the forms and paying the taxes so that the process is completely simplified and smoother. The report also includes a recommendation that Her Majesty's Revenue and Customs (HRMC) introduce a very short form for the simplest estates, while for other estates the burden should potentially be removed entirely. 

Over half a million people die in the United Kingdom each year, and half of them are required to fill out the IHT forms, though only 5% of them are liable for paying the death tax. “The recommendations will make it easier for the majority, and would mean that in future, many may not have to do the forms at all. Improving the administration of this tax in these ways is important, as having to deal with the current process can seem overwhelming to people at a time when they are both preoccupied and distressed," says Angela Knight, chairman of OTS.

See Kyle Caldwell, Simplify Inheritance Tax process for Bereaved Families, Says OTS, Money Observer, November 23, 2018.

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

November 29, 2018 in Current Affairs, Estate Administration, Estate Planning - Generally, Estate Tax, Travel, Wills | Permalink | Comments (0)

Tuesday, November 20, 2018

Why HNWs Should be Worried About the Probate Fee Hike

UnionBritain has announced a substantial increase in the probate fee, which grants access to the control of a person's estate. The increase is slated to take effect in April of 2019, and is disguised as a tax for the wealthier estates of the country.

The claim is that it is intended to pay for court reform and will be applied on a sliding scale of estate value. Estates worth less than £50,000 will be exempt from the probate fee. The new tariff represents a dramatic increase on the current fees, which peak at £215 for a personal application, to secure the necessary documentation. An estate worth an estimated £2 million will be expected to pay £6,000 in the future, though it is not quite as large of a jump as the proposed £20,000 fee for an estate that size that was put forth just a few years ago.

This change will leave many estates struggling to pay the fee up-front when assets are tied up in frozen bank accounts or property, which in turn will make it mandatory for banks to open up accounts to pay these fees. It may also make people distance themselves from using wills and instead gift assets during their lifetime. Others may attempt to mitigate the probate fee by using the survivorship rules of joint property and joint bank accounts. But automatic inheritances may create inequalities between siblings and other family members.

See James Ward, Why HNWs Should be Worried About the Probate Fee Hike, Spear's, November 13, 2018.

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

November 20, 2018 in Current Affairs, Estate Administration, Estate Planning - Generally, New Legislation, Travel, Wills | Permalink | Comments (0)

Friday, November 16, 2018

Mom's Shocking Diary Secret Triggers Legal Challenge by Daughter

FranceParents are meant to provide, care, nurture their children and do everything in their power to allow their children become the greatest adults they could be. But what if a parent withholds an incredible opportunity from their child, supposedly out of love? Also, what if the child finds out about that betrayal years down the road, after the beloved parent has passed away?

That's what happened to Celeste, a student in high school from California with a knack for speaking France. A knack so great, in fact, that she won a local foundation's contest to spend a month in France. Upon her return, the president of the foundation was so impressed that he wrote a letter addressed to both Celeste's mother and Celeste herself, offering her a scholarship to the university of her choice in France, paying all expenses and tuition. But the mother did not pass on the message; instead she replied back that she could not stand for her daughter so be so far away for so long, and that Celeste would remain in her hometown and pursue cosmetology.  The mother signed the letter "Leave us alone!"

Celeste never left home, had three adult children with French names, and never lost her love for the French language. It was not until she was going through her mother's diary 2 weeks after her passage that she discovered the letter and the selfish intent behind its refusal. She now wants to know what she can do against her mother's estate, which is giving a sizable amount to charity and grandchildren. She would first have to file a claim against the estate, as creditors are paid first, then if that is denied she would file a lawsuit against the estate, claiming her mother breached her duty to her by wrongfully withholding the offer.

Secondly, she would have to send post cards from France.

See H. Dennis Beaver, Esq., Mom's Shocking Diary Secret Triggers Legal Challenge by Daughter, Kilpinger, November 14, 2018.

Special thanks to Lorri Carpenter (CPA, Florida) for bringing this article to my attention.  

November 16, 2018 in Current Events, Estate Administration, Estate Planning - Generally, Travel, Wills | Permalink | Comments (2)

Japanese Use Robot Animals to Comfort Elderly

NatgeoPhoto by @dguttenfelder | Mrs. Kotajima, age 100, Mrs. Uehara, 84, and Mrs. Shimizu, 92 share their elder care home with companion puppy and baby seal robots. The popular science fiction of many cultures depicts the rise of robots as an ominous threat. But the Japanese have long portrayed robots as friends and heroes and embrace humanoid robot technology. Increasingly, the Japanese are looking to robotic solutions for society's needs. On assignment for @natgeo in Tokyo.

See National Geographic, Instagram, November 11, 2018.

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


November 16, 2018 in Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Humor, Travel | Permalink | Comments (0)