Wills, Trusts & Estates Prof Blog

Article: An Historical and Empirical Analysis of the Cy-Près Doctrine

CJ Ryan (Associate Professor of Law at the University of Louisville Brandeis School of Law) recently published an article entitled, An Historical and Empirical Analysis of the Cy-Près Doctrine, ACTEC L.J., 2022. Provided below is an abstract of the Article:

Cy près is a pivotal doctrine in estate law and indeed American jurisprudence. It places courts in the shoes of settlors of charitable trusts to discern not only their original intent but also affords the possibility of continuing the material purpose for which settlors created enduring legacies of philanthropy benefitting society. For this reason, it may well be that no other legal doctrine is as closely tied to the interests of the individual and the collective as cy près. And my first-of-its kind study puts the cy-près doctrine front and center, while providing three major contributions to the field.

First, through deliberative historical analysis, I offer an in-depth look at the types of cases American courts have heard involving the use of cy près. This historical categorization and explication is itself unique and provides significant insight into the controversies that allowed the doctrine to evolve. Second, the application of empirical methods to examine the doctrine is groundbreaking. By holistically examining the data I collected, I have been able to discern three major themes. The passage of time yields a gradual but greater adoption of the use of the cy-près doctrine. The presence of reversionary, gift-over, or private interests renders the use of the cy-près doctrine less practicable. And finally, courts are overwhelmingly more likely to apply cy près in cases involving public charitable trusts, educational purpose trusts, and medical purpose trusts, even when controlling for other independent variables and typologies of charitable trusts. Last, fifty-state surveys are commonplace; yet, none exists for the doctrine of cy près. I was able to assemble such a survey that not only assisted me in conducting this research but will undoubtedly aid other researchers for years to come, which I have addended to this Article in the Appendix.

Article: Texas Estate Planning Judicial Update: Summer 2022 Edition

Gerry W. Beyer (Governor Preston E. Smith Regents Professor of Law at Texas Tech University School of Law) recently published an article entitled, Texas Estate Planning Judicial Update: Summer 2022 Edition. Provided below is an abstract of the Article:

This article discusses recent judicial developments (first half of 2022) relating to the Texas law of intestacy, wills, estate administration, trusts, and other estate planning matters. The discussion of each case concludes with a moral, i.e., the important lesson to be learned from the case. By recognizing situations that have led to time consuming and costly litigation in the past, estate planners can reduce the likelihood of the same situations arising with their clients.

Billionaire Dynasty of Only Men Turns to Women to Handle Fortune

For 345, the Grosvenor dynasty has maintained their $11.6 billion fortune within their male lineage. Now, women are now playing an increasing role in managing the family’s London-based namesake investment firm.

The Grosvenor’s have holdings in urban property, country estates, and agricultural technology and have appointed Henrietta Gourlay to manage most of the external funds, Cindy MacMillan as Vice President of the North American investment team, and Emily Petrila as Vice President for legal counsel in North America. The Grosvenor’s people directed said in a statement, “We are focused on building a diverse and inclusive workforce which reflects the communities in which we operate… Part of this approach means increasing the number of women at the senior end of our organisation.”

The Grosvenor lineage can be traced back nearly 1,000 years, and the main source of wealth can be attributed to a 17th century marriage when Sir Thomas Grosvenor received a dowry containing 121 hectares of swamp and orchard from his bride’s family. She was 12 years old at the time of the marriage. The fortune is structured to operate as a male primogeniture, giving sons the ability to displace daughters in the line of succession. In the 1950s, the Grosvenor family placed their main assets in a series of trusts to protect the estate from spendthrift heirs, divorce and other threats, leaving the family to receive the benefits but having no ‘absolute right’ to the assets. 

For more information:

See Benjamin Stupples “Billionaire Dynasty of Only Men Turns to Women to Handle Fortune” Bloomberg Wealth, August 1, 2022.

Special thanks to David S. Luber (Florida Probate Attorney) for bringing this article to my attention.

National Make-A-Will Month

August is National Make-A-Will Month, which is a great reminder to start thinking about your estate plan to ensure your final wishes are executed as you intended. 

According to a survey published by Caring.com, more than 50% of Americans think having a will is important, but many Americans have not gotten around to it. Some have reported they do not like the idea of planning for their death, and 1 out of 3 survey takers stated that they don’t believe they have enough assets to leave behind. Estate Planning goes beyond just wealth, it is important to have a plan in place to make your passing less complicated for your loved ones.

The COVID-19 pandemic increased interest in estate planning, and the number of 18-34 year olds with estate planning documents in place has increased by nearly 50%. However, 2 out of 3 American adults still do not have a will.

For more information:

See “National Make a Will Month” NFCR Blog, August 18, 2020.

Jeffrey Epstein aides reportedly accused of pocketing $13M from estate

Two advisors to billionaire Jeffrey Epstein, and executors of his estate, have been accused of hiding millions of assets in an investment trust. Attorney Darren Induce and accountant Richard Kahn have been accused of hiding nearly $13 million.

Butterfly Trust was registered by Epstein in 2013, and the alleged transfer occurred nearly a year ofter Epstein took his own life in 2019. 

The attorney general of the US Virgin Islands, Denise George, has requested that the Epstein estate submit to discovery to ensure that other assets have not been transferred to his executors. An attorney for the estate categorically rejects the assertions of wrongdoings.

For more information:

See Isabel Vincent “Jeffrey Epstein aides reportedly accused of pocketing $13M from estate” New York Post, July 23, 2022.

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

Critique of the Restatements of Trust

Naomi Cahn (University of Virginia School of Law), Deborah S. Gordon (Drexel University Thomas R. Kline School of Law), and Allison Anna Tait (University of Richmond School of Law) have recently posted on SSRN their article The Restatements of Trust -- Revisited, The ALI at 100: Essays on Its Centennial (Andrew S. Gold & Robert W. Gordon, eds., 2023 forthcoming) Virginia Public Law and Legal Theory Research Paper No. 2022-45. Here is the abstract of their article:

As part of a volume commemorating the American Law Institute on its centennial, this Essay reflects on the Restatement of Trusts, which was one of the first of the ALI’s projects. The Restatement of Trusts, along with its two successors, has profoundly influenced both the common law and statutes in the field. As this chapter traces, the three trust Restatements reflect the development of the “modern trust,” whether private or charitable, which holds a variety of financial interests just as they reflect economic, social, and cultural changes that have occurred over the last century.

After providing a brief history of the trust Restatements, this chapter then turns to trace three throughlines: first, it threads together how the three Restatements address the question of shifting social and legal norms, including how diverse populations across the wealth spectrum engage with wealth transfer through trusts; second, the chapter focuses on the “public policy” provision in each of the three trust Restatements and tracks that provision’s focus on gender roles, marriage, religion, and “detriment to community”; third, it traces provisions relating to trustees’ fiduciary responsibilities to beneficiaries, including decisions about distributions and investments. As this chapter celebrates the positive impact of the Restatements of Trusts on the development of trust law, the chapter also provides suggestions for a Restatement (Fourth) of Trusts that, as has been true of the previous Restatements, would reflect contemporary developments in trust law itself and in society. In so doing, this chapter also steps back to provide a tempered critique of the role of trusts in perpetuating inequality, albeit with an understanding that the goal of the Restatement is not to transform the law but rather to reflect its development.

Why You Need to Update Your Will Now

Due to changes in tax law and shifts in your personal life, it is likely time to update your will. According to John T. Midgett, an estate planning attorney from Virginia, it is important to consider when you drew up the will (there have been major changes since 2001,) whether your relationship status has changed, the age of your children, and if your wishes have changed regarding beneficiaries, medical care, etc.

Here are four documents to consider updating:

1. Will or trust
2. Durable Power of Attorney
3. Healthcare Proxy
4. Advanced Directive (Living Will)

Once all documents are updated, remember to keep the documents safe and to share copies with your executor, your designees, and anyone you have given HIPPAA authorization. You may also consider giving a copy of the plan to an additional person as a backup in case of emergency.

For more information:

See Carla Fried “Why You Need to Update Your Will Now,” Consumer Reports, July 1, 2022.

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

Article: The ‘Pallant v Morgan Equity’ in Australia: Substantive or Superfluous?

Ying Khai Liew and Cristina Poon recently published an article entitled, The ‘Gallant v Morgan Equity’ in Australia: Substantive or Superfluous, Australian Property Law Journal, 2002. Provided below is an abstract of the Article:

The ‘Pallant v Morgan equity’ is a relatively new but well-entrenched constructive trust doctrine in English law. However, its precise status in Australia is uncertain. This paper asks whether the Pallant v Morgan equity is a superfluous or substantive doctrine in Australia. It explores four different equitable doctrines which judges have at one point or other suggested can account for that doctrine, and comes to the conclusion that it is not simply a manifestation of those established doctrines and therefore superfluous in Australian law, but a substantive doctrine with a distinct sphere of application. The paper then discusses the justificatory rationale of the Pallant v Morgan equity, and observes how that justification provides normative ground for understanding the equity as a distinct doctrine.

Article: Freedom of Testamentary Disposition

Paul B. Miller recently published an article entitled, Freedom of Testamentary Disposition, Oxford University Press, Philosophical Foundations of the Law of Trusts, Forthcoming. Provided below is an abstract of the Article:

American law is notoriously solicitous of property owners’ testamentary freedom. Interpretive theorists cannot but acknowledge its centrality to enabling law. Yet freedom of testamentary disposition has attracted criticism on normative grounds for centuries. Indeed, it is widely viewed as one of the most tenuous of incidents of private ownership.

This chapter examines leading arguments offered in defense of wide testamentary freedom of the sort found in American trust law. Viewed, as it has been, within conventional frames of the morality of property – its central preoccupations with autonomy, need, scarcity, and equality – testamentary freedom is widely considered morally suspect. And, indeed, as I explain, arguments from property conventions, autonomy, social utility, and obligations of provision each fail to show that laws enabling wide testamentary freedom are morally defensible.

In the chapter I suggest that testamentary freedom can be defended more robustly on the footing of the morality of gift relationships, with particular attention to the value of testamentary benefaction in enabling the expression of moral motivation, the practice of virtue, and realization of goods essential to the flourishing of a testator’s intended beneficiaries. An advantage of this approach is that it recognizes moral complexity, allowing one to appreciate the value of dispositions that track the focal moral and legal sense of benefactions as gifts, while at the same time pinpointing ways in which some dispositions prove morally defective as gifts despite their legal validity (e.g., spiteful or malicious disinheritance, wasteful or harmful inheritance) and accommodating side constraints responsive to concerns surfaced within the morality of property (e.g., regarding the interests of future generations, and the impact of inheritance on distributive justice). 

Article: When Beneficiaries Predecease: An Empirical Analysis

Adam J. Hirsch recently published an article entitled, When Beneficiaries Predecease: An Empirical Analysis, Emory Law Journal, 2022. Provided below is an abstract of the Article:

Under current law, bequests to beneficiaries who predecease the testator “lapse” to the beneficiary of the residuary, unless they are preserved for the descendants of predeceased beneficiaries under an “antilapse” statute. The beneficiaries covered by antilapse statutes vary from state to state, but in most states today the statutes apply only to blood relatives of the testator as distant as first cousins. This Article examines the public policy of antilapse statutes, assessing them by undertaking the first-ever survey of popular preferences concerning the matter. Harvesting evidence for five types of beneficiaries, the study finds that the prevailing structure of antilapse statutes is both over- and under-inclusive. On one hand, among beneficiaries who comprise blood relatives, most respondents prefer to create substitute bequests only for descendants of predeceased children. Lawmakers should strike other relatives from the statutes’ coverage. On the other hand, most respondents would create substitute bequests for their descendants if their spouse predeceased them. Lawmakers should extend the range of the statutes accordingly. Finally, the Article advocates enhancing courts’ power to deviate from mechanical rules of lapse in situations where testamentary intent is less predictable.