Friday, July 3, 2020
On Thursday, the Supreme Court agreed to hear a case involving the descendants of a group of Jewish art dealers from Germany who say their ancestors were forced to sell a collection of religious art to the Nazi government in 1935.
The justices will decide whether the dispute involving foreign citizens suing a foreign government belongs in U.S. courts. A lower court allowed the case to go forward, but Germany asked the Supreme Court to weigh in.
Justices also took a case involving Hungarian nationals suing Hungary over property taken from them during World War II.
In the case involving Germany, the group of people who sued are descendant of art dealers who in 1929 together bought a collection of religious artwork from the 11th to 15th centuries known as the Guelph Treasure. In Germany, the collection is known as the Welfenschatz. An appeals court in Washington allowed the case to go forward in 2018.
The Justices are expected to hear both cases sometime after their summer break. It is not clear whether the justices will hear the cases in their courtroom or by telephone because of the Coronavirus pandemic.
Nicholas O'Donnell, who represents the heirs of the art dealers, said that: "Germany seeks to eliminate recourse for Nazi-looted art and the Court will have the chance to answer this question of critical importance for Holocaust victims."
While Jonathan Freiman, one of Germany's lawyers said, "We're glad that the Supreme Court will hear the case and look forward to explaining why this dispute doesn't belong in a U.S. court."
See, Supreme Court agrees to hear Nazi art case, The Associated Press, July 2, 2020.
Sunday, June 21, 2020
Following Mr. Indiana's passing, there was an event at the Farnsworth Museum in Rockland, Maine, that was somewhat of a memorial. However, the artist's caretaker, Jamie L. Thomas, was conspicuously absent from the event. Mr. Indiana had picked Thomas to help guide his artistic legacy.
In fact, in recent months, the man who came to control most aspects of Mr. Indiana’s life — his meals, his home, his email account, even what new works of art were marketed under the artist’s name — has largely disappeared from his affairs. According to the event's director, Mr. Thomas was not invited to the event because he had no connection to the Farnsworth.
Further, Mr. Thomas will no longer direct the new museum that Mr. Indiana wanted created and is also no longer on the board of the Star of Hope Foundation, the new nonprofit that Mr. Indiana established to operate the museum.
It is a remarkable turn of events for a man whose roles as museum leader and keeper of the Indiana legacy were designated in the artist’s will.
See Graham Bowley, The Artist’s Caretaker: Once He Controlled Everything. No More., N.Y. Times, June 14, 2020.
Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.
Sunday, March 8, 2020
The American Law Institute is holding a webcast entitled, Nonresident Investment in U.S. Real Estate: Tax Traps to Avoid, Thursday, March 19, 2020 from 12:00 pm to 1:30 pm. Provided below is a description of the event.
Why You Should Attend
With financial centers around the world in turmoil, inbound investment into the United States continues, often into U.S. real estate. When foreigners invest in U.S. real property, however, there are a number of “tax traps” that can take away the benefit of an investment intended to be a safe haven.
In just 90 minutes, this webcast will cover some critical points in order to understand how to plan effectively for foreign investment into U.S. real estate, and provide guidance on how nonresident aliens can structure their investments to minimize income, gift, and estate tax exposure.
What You Will Learn
Two estate planners with extensive experience in cross-border tax planning and Fellows of ACTEC will discuss:
- Income, gift, and estate taxation of NRAs as compared to U.S. citizens and residents
- Challenges of the Foreign Investment in Real Property Tax Act (FIRPTA) and how to handle them
- Comparison of different tax structures available to nonresident Aliens to hold U.S. real property
- How 2017 tax reform has impacted real estate holding structures
All registrants will receive a set of downloadable course materials to accompany the program.
Who Should Attend
Estate planners, tax advisors, and other related professionals will benefit from this CLE jointly offered by ALI CLE and ACTEC.
Saturday, February 29, 2020
If you purchase a piece of art that bears an ALR (Art Loss Register) certificate, you can be assured that your purchase is not listed as looted, stolen, or otherwise dubious. The organization has no legislative power, but the members do works alongside law enforcement, insurers, auction houses, dealers, museums and many other organizations.
Because of this diligence, the ALR now has what they consider their secret weapon: the world's largest database of stolen and missing art, numbering over 700,000 and being constantly updated. Recent thefts can be logged, and items with questionable provenance or uncertain legal title cross-checked. Individuals or museums pay £70 to submit photos and details of the piece they want to verify and the database is then searched, with 400,000 queries submitted annually.
Major art fairs such as the Tefaf are also utilizing the database. Will Korner, the ALR’s Art Fairs Manager, says that issues do arise, though rarely. “At Tefaf in 2004, we found a still life by [the Dutch painter] Balthasar van der Ast that had gone missing from the Suermondt Ludwig Museum in Aachen in 1945. It took a lot of research to find the rightful owner.” The piece finally made its way back to the museum in 2017.
See Andrew Dickson, Art Loss Register: The World’s Largest Database of Stolen and Missing Art, Financial Times, February 27, 2020.
Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.
Wednesday, February 26, 2020
In 2015, Germany passed a law that allowed assisted suicide for "altruistic motives," but forbade people from offering it to someone else "on business terms." For those that crossed the line the punishment was up to three years in prison. The law was meant to curtail assisted suicide and it immediately raised questions as to whether doctors prescribing medication to assist in an ill patient's suicide was in a business fashion.
Germany's highest court ruled Wednesday that the law banning assisted suicide when being conducted on a "business basis" is unconstitutional. Active assistance is banned in Germany, but passive help, such as providing deadly medication for them to take themselves has been a legal gray area. This hesitance stems from that fact that the last time euthanasia was part of public policy it was used by the Nazis to kill more than 200,000 people with physical and mental disabilities.
The 2015 law sought to narrow the regulations with middle-of-the-road proposal that received cross-party support. The four proposals discussed at that time ranged from fully permitting the practice so long as it is not for profit to a near-complete ban.
See, Associated Press, Germany High Court Rules Assisted Suicide Ban Unconstitutional, Fox News, February 26, 2020.
Saturday, February 22, 2020
Portugal’s parliament voted last week in favor of allowing euthanasia and physician-assisted suicide for terminally ill people by passing 5 bills similar to each other, priming the country to be one of the few in the world that would allow the procedure. But the Portuguese president could still attempt to block the legislation.
Before the 230 member Republican Assembly, the name of Portugal's parliament, hundreds of protesters met outside, brandishing banners and religious effigies. The Assembly recognized the monumental vote they were embarking on, so instead of utilizing the electronic voting system, each lawmaker was called in alphabetical order to state their vote on each bill. Such a lengthy voting method is usually used only for landmark votes, such as a declaration of war or impeachment. All five bills were passed with significant margins, between 28 and 41 votes.
President Marcelo Rebelo de Sousa is known to be reluctant when it comes to euthanasia and may veto the vote, making it revert back to the Assembly for a second vote to bypass the veto. The president also could ask the Constitutional Court to review the legislation as Portugal’s Constitution states that human life is “sacrosanct,” though abortion has been legal in the country since 2007.
The legislation, presented by the governing Socialist Party, is similar the ones passed in other countries, covers patients over 18 years of age who are “in a situation of extreme suffering, with an untreatable injury or a fatal and incurable disease.” Two doctors, at least one of them a specialist in the relevant ailment, and a psychiatrist would need to sign off on the patient’s request to die. The case would then go to a Verification and Evaluation Committee, which would have to approve or turn the procedure. The process will be postponed if it is legally challenged, or if the patient loses consciousness, and health practitioners can refuse to perform the procedure on moral grounds.
See Barry Hatton, Amid Protests, Portugal Lawmakers Vote to Allow Euthanasia, Associated Press, February 20, 2020.
Wednesday, February 19, 2020
Article on Scottish Law on Intestacy and Probate: Borrowing from the United States and Canada to Bring Scottish Law out of Flux
Zia Akhtar recently published an Article entitled, Scottish Law on Intestacy and Probate: Borrowing from the United States and Canada to Bring Scottish Law out of Flux, Est. Plan. & Cmty. Prop. L.J., Vol. 12 Book 1 (Fall 2019). Provided below is the introduction to the Article.
Most nations that developed a legal system under the English Common Law have adopted laws for wills and succession by intestacy that suit the needs of their nationals. They adapt laws when necessary, like when the dynamics of a typical family change, which has been prominent issue in the modern era. The legal framework governing wills has been established in the United Kingdom, but in Scotland there is an ongoing debate on developing laws of intestacy. Scottish legislators are reviewing potential legal schema to adopt.
This article will consider the rules of intestacy and the grounds upon which legal reform is being proposed to amend the law in Scotland. The intention is to compare the benefits of adopting legal provisions from other jurisdictions in common law countries that can serve as a framework for possible legislation. This article will evaluate the jurisdictions that can serve as models for adoption, defining their laws, and evaluating the community property bases for the distribution of property.
First, the laws in England and Wales will be compared to Scottish Law, showing the relative issues Scottish nationals may face. Instead of simply adopting English laws, this article will explore the possibility of adopting succession legal approaches from North America, namely the community property system in some if the United States and the threshold approach from British Columbia, Canada.
Next, this article will address how Scotland could address conflicts of law when applying successions laws. It will show that there are current methods available to Scottish nationals through the already-existing Brussels IV law, as part of the European Union, even though the United Kingdom has opted out. It will then show how the United States and Canada have addressed their own conflict of law issues, and how Scotland could consider borrowing from those approaches.
Tuesday, February 11, 2020
Though it failed twice, the new Socialist-led Spanish government has crossed the first hurdle of passing a law to legalize euthanasia and doctor-assisted suicide. The parliament voted in favor by a count of 201 to 140 to accept the bill for consideration. The bill will now go to a parliamentary health committee for discussion and then head to the Senate before returning to the lower house for a final vote.
If it becomes a law, Spain will become just the fourth country in the European Union to allow euthanasia, following in the footsteps of Belgium, Luxembourg and the Netherlands in allowing a physician to humanely kill a patient upon the patient's request. Spain will also join Switzerland and a handful of states in the U.S. in allowing physician assisted suicide, in which the patient is prescribed the death-inducing drug by a physician but administers it themselves.
Recent opinion polls in Spain have indicated broad public support for the left-of-center coalition government’s plans. The issue of euthanasia and physician assisted suicide has met resistance from conservative politicians and the Catholic church. Doctors unwilling to be involved in the procedure can opt out as conscientious objectors, but a replacement doctor must be found.
Portugal will also debate a similar proposal next month.
See Barry Hatton, Spanish Government Passes 1st Hurdle to Legalize Euthanasia, Everything Lubbock, February 11, 2020.
Friday, February 7, 2020
After Jeffrey Epstein became a convicted sex offender, he closed his money management and pursued other business endeavors. The Virgin Island approved a license for him in 2014 to run one of the territory’s first international banking entities, a specialized bank that can do business only with offshore clients. Epstein was able to get a license because the Virgin Islands did not require a background check at the time of the application. The bank, Southern Country International, renewed its license for each of the next five years, but it is unclear whether it conducted any business, and a lawyer for Epstein in 2018 said it had yet to commence operations.
But after Mr. Epstein’s death, his estate transferred more than $12 million to Southern Country, according to court documents. A magistrate judge in the Virgin Island, Carolyn Hermon-Purcell, questioned the estate’s lawyers about the transfers to Southern Country, saying the disclosure was not satisfactory. She requested that the lawyers provided a fuller accounting.
Records filed by the estate indicate that Southern Country had $693,157 in assets when Mr. Epstein died in August. Then, in mid-December, the estate transferred $15.5 million to Southern Country in two checks. Southern Country sent back $2.6 million, leaving the total it received at $12.9 million, and the documents filed by the estate do not give a reason for the transfers. But the estate did say that it does not intend to renew the bank's license.
See Matthew Goldstein and Steve Eder, Jeffrey Epstein’s Mystery Bank Came Alive After His Death, New York Times, February 4, 2020.
Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.
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?
Iryna 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’).