Wills, Trusts & Estates Prof Blog

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

Tuesday, January 21, 2020

Article on Can a Choice-of-Court Agreement Included in a Marriage Contract Meet the Requirements of Both EU Succession and Matrimonial Property Regulations?

MarriageIryna Dikovska recently published an Article entitled, Can a Choice-of-Court Agreement Included in a Marriage Contract Meet the Requirements of Both EU Succession and Matrimonial Property Regulations?, Wills, Trusts, & Estates Law e Journal (2019). Provided below is an abstract of the Article.

Due to the fact that matrimonial property and inheritance issues are closely intertwined, in some situations the determination of rules which should be applicable to particular relationships seems problematic. This fully applies to marriage contracts which cover both types of issues. The presence of a cross-border element in such contracts raises the question of the delineation of the legal regimes of the Matrimonial Property Regulation and the Succession Regulation applicable to matrimonial property and succession issues respectively. This paper analyses the rules which should be applicable to choice-of-court agreements for matters arising out of marriage contracts which cover both matrimonial property and inheritance issues and include a cross-border element. For this reason, the paper reveals the interaction between the regimes of the Matrimonial Property Regulation and the Succession Regulation, and the requirements of choice-of-court agreements under both regulations. Some of the requirements of these regulations of choice-of-court agreements coincide (eg formal requirements), while others differ. The main differences include: the precondition for the conclusion of a choice-of-court agreement under the Succession Regulation, which is not required under the Matrimonial Property Regulation; the courts which may be chosen; and the circle of matters which can be resolved by the courts on the basis of the choice-of-court agreement. It is concluded that a choice-of-court agreement, included in the marriage contract, can meet the requirements of both the Succession Regulation and the Matrimonial Property Regulation if: the dispositions upon the death of a spouse, included in the marriage contract, are an ‘agreement as to succession’ in the meaning of Article 3(1)(b) of the Succession Regulation; the marriage contract includes a choice-of-law agreement in favour of the law of the Member State whose nationality a deceased spouse possessed when the choice-of-law agreement was concluded; this choice of law agreement covers the succession of the deceased spouse ‘as a whole’; the choice-of-court agreement grants jurisdiction to the courts of the Member State whose nationality a deceased spouse possessed at the time of the conclusion of the choice-of-law agreement; it provides the jurisdiction of ‘the courts’ of a Member State (not ‘a court’).

January 21, 2020 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Travel | Permalink | Comments (0)

Tuesday, January 14, 2020

Article on Victoria Meets Confucius in Singapore: Implied Trusts of Residential Property

ConfuciusKelvin F.K. Low recently published an Article entitled, Victoria Meets Confucius in Singapore: Implied Trusts of Residential Property, Wills, Trusts & Estates Law eJournal (2019). Provided below is an abstract of the Article.

Co-ownership of residential property is commonplace in Singapore. This is the result both of necessity (as private property is expensive) and incentives (generous subsidies are made available to family units purchasing public property). Yet the rules on implied trusts (both resulting and constructive) governing such ownership have resisted developments seen in other common law jurisdictions such as England and Australia or even Hong Kong. This has led to criticisms that the rules perpetrate gender inequality. This may strike observers as odd given the progressive views on gender of the Singapore government, as can be seen in in its enactment of the Women’s Charter as early as in 1961. It is less odd, however, when viewed from the conservative Confucian perspective of the family as the basic unit of society. The cases therefore demonstrate not so much an objective of marginalising women but of preserving the especial place of the family, conceived of as a man and a woman in a formal State-recognised marriage, values conveniently found in some of the Victorian laws inherited by Singapore as a former British colony. Developments in trust law that threaten the hallowed status of the formally State-recognised family unit are viewed by the courts with suspicion and trepidation. This paper considers if this apprehension continues to be viable in the face of a changing society.

January 14, 2020 in Articles, Estate Administration, Estate Planning - Generally, Travel, Trusts | Permalink | Comments (0)

Tuesday, December 10, 2019

Article on Constitutionalizing the Registered Charity Regime: Reflections on Canada Without Poverty v Canada (AG)

CanadaKathryn Chan recently published an Article entitled, Constitutionalizing the Registered Charity Regime: Reflections on Canada Without Poverty v Canada (AG), Wills, Trusts, & Estates Law eJournal (2019). Provided below is the abstract of the Article.

In Canada Without Poverty v Canada (AG), the Ontario Superior Court of Justice struck down provisions of the federal Income Tax Act that limited the political activities of charitable organizations, on the ground that the provisions violated the freedom of expression of the registered charity before the court. This paper addresses the decision's complex legacy, reflecting on the promise and the perils of charity law’s increasing encounters with public law. I address some of the difficult questions raised by the decision: (1) What types of associations are rights-holders under the Canadian Charter of Rights and Freedoms? (2) What are the constitutional limitations on the government’s ability to set the outer bounds of the registered charity regime? (3) What is the rationale for limiting the political advocacy of charities? While Canada Without Poverty has generated significant improvements to the registered charity regime, I argue, the Ontario Superior Court of Justice missed an important opportunity to draw constitutional law and charity law into closer conversation.

December 10, 2019 in Articles, Current Events, Estate Administration, Estate Planning - Generally, New Cases, Travel | Permalink | Comments (0)

Monday, December 9, 2019

Indians Must Set Aside Fears of Death — and Write Wills

IndiafuneralIndia has a majestic and colorful culture, and with 80% of the country's population belonging to Hinduism, they generally believe in reincarnation. They also believe that there are not the owners to any wealth that they have acquired, but rather more akin to caretakers of those assets. When a member of the family passes away, a place at the dinner table can be set for them for months and even be included in annual reports. So when a person dies intestate in India, a mission of ownership of assets for that individual begins.

Many Hindu families use a unique tax system called the Hindu undivided family (HUF), mentioned in the 1961 Income Tax Act. A HUF is a group of persons lineally descended from a common ancestor and would be considered a single "person" for assessment purposes, and thus would only need to file one tax return. It can wrongly create the impression that all the property belonged to the family collectively, and thus perpetrate the belief that a will is not needed for these assets

A 2018 report from wealth advisory firm BAF Consultants said 97% of Indian families with significant businesses had no succession plan in place. Through the courts the succession process has evolved with the Hindu Succession (Amendment) Act 2005, which among many things the Act provided that daughters would inherit the same as sons. But these new regulations are no substitute for a thorough and detailed will.

See Shruti Advani, Indians Must Set Aside Fears of Death — and Write Wills, Financial Times, December 3, 2019.

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

December 9, 2019 in Current Events, Estate Administration, Estate Planning - Generally, Travel, Wills | Permalink | Comments (1)

Friday, November 29, 2019

The Statutory Liberalization of Trust Law Across 152 Jurisdictions: Leaders, Laggards and the Market for Fiduciary Services

ScalegavelAdam S. Hofri-Winogradow recently published an Article entitled, The Statutory Liberalization of Trust Law Across 152 Jurisdictions: Leaders, Laggards and the Market for Fiduciary Services, Wills, Trusts, & Estates Law eJournal (2019). Provided below is the abstract of the Article.

This article reports the findings of the first systematic overview of the statutory liberalization of trust law worldwide. Using a groundbreaking, manually collected, database of the trust legislation of every jurisdiction which has a trust regime respecting 22 trust law variables, I hand coded each jurisdiction’s treatments of each variable since 1925 for their relative liberality. Aggregating all jurisdictions’ scores regarding all variables, I produced a “trust liberality score” for each jurisdiction/year, expressing the extent to which trust law has been liberalized by each jurisdiction by each year.

Results show the United States to be the global leader in trust law liberality: 17 of the 20 jurisdictions which have the most liberal trust laws are American states. Trust law liberalization in the U.S. is a result of the widespread adoption of the Uniform Trust Code, which includes many highly liberal positions, among the states, as well as of many states having followed an offshore dynamic in adopting highly permissive positions in order to draw users from out of state to resident service providers. The trust laws of many American states are more liberal than those of small offshore island jurisdictions. Even the laws of such relatively conservative American states, on trust matters, as New York and California are quite liberal by global standards. Much of the recent global increase in trust law liberality occurred between 1988-2016.

Multivariate regression analysis of U.S. data shows that the statutory liberalization of trust law has had no effect on several indicia for the success of service provision to trusts as a commercial enterprise. It is especially clear that reforms seen as pandering to trust users’ interests at great social cost, such as self-settled spendthrift trusts and perpetual trusts, all in order to create or sustain demand for professional services in the trust context, have had no impact on any of these indicia. As an exception to the general finding of a null result, some findings with marginal statistical significance may show that law reforms which reduced trustees’ exposure to liability and entrenched their entitlement to remuneration led to a decline in their earnings per trust. Those reforms are also weakly associated with an increase in trust income. It is therefore possible that reforms widely seen as preferring trustees over their clients have resulted in trustees providing a better service at lower cost.

November 29, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Travel, Trusts | Permalink | Comments (0)

Wednesday, November 20, 2019

Article on The Concept of Inheritance by Right of Representation: A Comparative Analysis of Civil Law in Russia and France

FranceNatalia Rostovtseva recently published an Article entitled, The Concept of Inheritance by Right of Representation: A Comparative Analysis of Civil Law in Russia and France, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

This paper examines one of the most important concepts of intestate succession – inheritance by right of representation. The following analysis is based on civil law in Russia and France.

The paper provides an overview of the meaning and the role of the right of representation, determines those who can inherit by right of representation under the Russian and French civil codes as well as the grounds for succession; examines the limitations on inheritance by right of representation under civil law in both states; identifies the legal nature of the rights of the representing heirs. Specific attention is paid to the issue of representation of the parent who is the commorient of the decedent.

As a result of the comparative study, the author makes proposals on the improvement of the concept of inheritance by right of representation in Russia and France.

November 20, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Travel, Wills | Permalink | Comments (0)

Tuesday, November 19, 2019

Inventor of 'Sourtoe Cocktail' Passes Away at 89, Leaves his Toes to the Bar

SourtoeDick Stevenson, the man behind the infamous drink the "Sourtoe Cocktail," passed away at the age of 89. His will stipulated that all 10 of his toes are to be left to the Dawson City Downtown Hotel's bar in Canada's Yukon Territory. Stevenson's daughter, Dixie, said “It brought him the most fame of anything he’s ever done.”

Stevenson, or Captain Dick, came up with the odd drink in 1973: a shot of whiskey garnished with an amputated, mummified human toe. The idea occurred to him after buying a cabin and finding that the previous owners had left behind a jar containing a preserved toe. The toe garnishment is not to be consumed, or the patron will have to cough up $500. When the toes are not in use on the rim of drinks, they are kept packed in salt behind the bar. So far, the bar has served the cocktail to over $93,000 customers.

A representative for the hotel released a statement, saying "The Downtown Hotel mourns the loss and celebrates the life of Captain Dick Stevenson, the originator of the Sourtoe Cocktail. He certainly was one of the Yukon’s most colourful characters and a tremendous ambassador for Dawson City. His passion, creativity and energy will be missed and we are grateful for the legacy he left behind. The Sourtoe Cocktail continues to make headlines around the world and puts Dawson City on the map. Rest in Peace Captain Dick!"

His ashes will also be on display at the hotel in a toe-shaped urn that he commissioned before his death.

See Michael Bartiromo, Inventor of 'Sourtoe Cocktail' Passes Away at 89, Leaves his Toes to the Bar, Fox News, November 18, 2019.

November 19, 2019 in Current Events, Estate Planning - Generally, Humor, Travel | Permalink | Comments (0)

Saturday, November 16, 2019

Egyptian Woman Uses Christian Doctrine to Fight Unequal Islamic Inheritance Laws

Huda-Nasrallah1Huda Nasrallah, a 40-year-old human rights lawyer in Egypt who is also a Coptic Christian, has faced three judges to tackle the Islamic law of the country that dictates that women only inherit half of what males inherit. She is arguing that she should be entitled to the exact same share of her father's estate as her brothers (all of which are on her side), and she is using Christian doctrine to do so. Two prior judges have ruled against her, citing Islamic law that favor men and using it as their justification in their decisions.

Their father, a former state clerk, passed away in December of last year, leaving a 4-story apartment in a lower income neighborhood of Cairo as well as a bank deposit. The siblings filed a request for inheritance at a local court, and Nasrallah invoked a church-sanctioned Coptic bylaw that calls for equal distribution of inheritance. A final verdict is expected to be handed down later this month.

A 2016 ruling from a Cairo court favored a Coptic woman who also challenged Islamic inheritance laws, but recent cases and the sentiment in the nation does not bode well for the minority believer. Egypt's Al-Azhar, the highest Sunni religious institution in the Muslim world, vehemently dismissed the proposal that called for equal inheritance rights. He claimed that it was contradictory to Islamic law and destabilizing to Muslim societies, fearing that if the state offers equal property rights to Christian women that Muslim women will demand the same.

See Caleb Parke, Egyptian Woman Uses Christian Doctrine to Fight Unequal Islamic Inheritance Laws, Fox News, November 15, 2019.

November 16, 2019 in Current Events, Estate Administration, Estate Planning - Generally, Intestate Succession, New Cases, Travel | Permalink | Comments (0)

Wednesday, November 13, 2019

American-Born Countess Leaves $41M Fortune to Interior Designers, Not Husband's Son

ParkGloria Clary was the second wife of the eighth Earl Bathurst, and after his death became the Dowager Countess Bathurst. She decided to forgo her American citizenship in 2008, allegedly to get out of paying U.S. taxes, and reportedly had a sour relationship with her late husband's son, Lord Allen Bathurst. But recent news still came to a shock to the estate: Dowager Countess Bathurst completely wrote her step-son out of her will, opting instead to give her $41 million fortune to two interior designers. She had passed away in 2018 at the age of 90.

After the Earl "Barmy Bathurst" died in 2011, his son inherited a tony 15,000-acre estate in Gloucestershire called "Cirencester Park," where the Countess and the late Earl had lived. Allen said that there were legal battles recently over whether or not she would have access to the sprawling home for the "use and enjoyment" of the family's collection of heirlooms, which was worth £13 million, or approximately $16.7 million.

"Having married into the family, she was happy to use the family name," the Lord added. "It was just disappointing that she could not follow in the manners, standards and loyalty of the family of the past."

See Stephanie Pagones, American-Born Countess Leaves $41M Fortune to Interior Designers, Not Husband's Son, Fox Business, November 13, 2019.

November 13, 2019 in Current Events, Estate Planning - Generally, Travel, Wills | Permalink | Comments (0)

Wednesday, October 16, 2019

In France, Elder Cares Comes With the Mail

MailFrance has given a new responsibility to their mail carriers: to check on the elderly. Through a program called Veiller Sur Mes Parents ("Watch Over My Parents), subscribers pay €37.90 for a month's worth of weekly visits as well as an emergency call button. The subscribers can be family members of the elderly person and the mail carrier can notify them through an app that their loved one is "well" or if they require assistance with outings or house repairs.

The program was initiated in 2017, a total of 21,000 elderly singles have been enrolled in the program across France. The visits usually last between six and fifteen minutes, and at the end the senior signs the mail carrier's tablet as a sign of life - similar to signing to accept a package.

One of the reasons La Poste has been able to fill this void for the country's aging generation is due to economic changes. The number of letters being mailed has dropped dramatically compared to a year ago, and despite the stamp prices going up, delivering mail is not supportive enough. So the definition of "postal work" has expanded to include picking up prescriptions, delivering flowers, and now providing conversations and social visits to seniors. Last year alone, only 28% of La Poste's revenue came from delivering mail.

See Zoey Poll, In France, Elder Cares Comes With the Mail, The New Yorker, October 9, 2019.

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

October 16, 2019 in Current Affairs, Elder Law, Estate Planning - Generally, Travel | Permalink | Comments (0)