Wills, Trusts & Estates Prof Blog

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

Friday, July 23, 2021

Wife’s Fraudulent Transfer Claim Against Husband For Transferring Business Interests To Trust Failed Due To The Statute Of Repose

Estate planningIn Austin v. Mitchell, "a wife filed suit alleging her ex-husband fraudulently transferred a portion of his limited partnership interest in a family limited partnership to a trust for the benefit of his children." No. 05-19-01359-CV, 2021 Tex. App. LEXIS 4536 (Tex. App.—Dallas June 8, 2021, no pet. history). 

The trial court granted summary judgment in favor of the husband and the wife appealed. The court of appeals first addressed the husband's statute of repose defense. The wife claimed that the husband's transfer was fraudulent because it was made:

without fair consideration and the husband was left insolvent as a result; with actual intent to hinder, delay, or defraud the wife; or without receiving reasonably equivalent value at a time when the husband believed or should have believed his debt to the wife was beyond his ability to pay as payments became due.

The court affirmed the summary judgment after it found that the evidence showed that the wife should have known of the transfer more than four years before the suit due to the husband's testimony in a deposition, in which the Wife's attorney was present. 

Although the wife argued that she had standing, the court disagreed stating that the wife did not have sufficient connection to the trust. 

See David Fowler Johnson, Wife’s Fraudulent Transfer Claim Against Husband For Transferring Business Interests To Trust Failed Due To The Statute Of Repose, Texas Fiduciary Litigator: The Intersection of Texas Courts and the Fiduciary Field, June 29, 2021. 

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

July 23, 2021 in Estate Administration, Estate Planning - Generally, New Cases, Trusts | Permalink | Comments (0)

Thursday, July 22, 2021

Allen Weisselberg resigned from the top of the Trump Organization. So who’s running the company now?

AW"Allen Weisselberg—the Trump Organization's most powerful employee not named 'Trump'—resigned his post in the company's leadership." 

Weisselberg was one of two trustees at the trust that owns and controls Trump's company. Weisselberg resigned from Trump's company as well as "dozens of others at Trump subsidiaries" after he was charged with running a tax-fraud scheme inside the company. 

Although Weisselberg gave up his post as trustee, he still works at the company. The company is currently facing a slew of financial and legal problems. 

Due to Weisselberg's resignation and the other problems the Company is facing, there are some things that may be changing. As of now, Donald Trump Jr. is the most powerful officer of the Company. 

The Trump Organization is controlled by the Donald J. Trump Revocable Trust—"a legal entity to which Trump transferred his hundreds of companies when he took office in 2017." 

Trump's business was originally run by a trust so that he could "relinquish management" in order to avoid conflicts of interest as president. Although it is not clear why, Trump never changed the arrangement after leaving the White House. 

As it turns out, Trump never really gave up his power considering he used a revocable trust to hold his business assets. 

It will be interesting to see how the power shifts due to the problems the Company has endured and continues to face. 

See David A. Fahrenthold, Josh Dawsey, & Jonathan O'Connell, Allen Weisselberg resigned from the top of the Trump Organization. So who’s running the company now?, Washington Post, July 21, 2021. 

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

July 22, 2021 in Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Tuesday, July 20, 2021

DELAWARE TRUSTS Safeguarding Personal Wealth

Estate planningThe Northern Trust institute recently released white papers on Delaware trusts. 

Provided below is an excerpt discussing the contents of the paper. 

Many families and their advisers have found the State of Delaware to be a trust- friendly jurisdiction that promotes modern laws and enjoys attractive income tax advantages. This paper highlights the most significant legal and tax benefits for nonresidents, and their professional advisers, who may be considering whether to establish a trust in Delaware.

The Northern Trust Institute brings the breadth and depth of the firm to address the increasingly complex and sophisticated wealth management needs of our clients and their advisers. Informed by the latest insights and continually vetted through feedback, our advice is grounded in real-world outcomes and backed by proven credibility.

We believe you will find this information helpful as you work to create meaningful legacies.

See DELAWARE TRUSTS Safeguarding Personal Wealth, The Northern Trust Institute (2021). 

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

July 20, 2021 in Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Sunday, July 11, 2021

Elizabeth Hurley reacts to son Damian 'callously' being cut out of family fortune due to being born out of wedlock

Hurley"Elizabeth Hurley says a court decision to cut off her son Damian from a share of his grandfather's fortune is 'callous' and goes against what his late father would have wanted." 

Hurley stated that her former partner Steve Bing believed that "both of his children were financially secure before his death by suicide in 2020."

Damian obtained a judgment to ensure they would receive money held in trust, but the decision was successfully appealed by Dr. Peter Bing.

According to Hurley, "When Stephen took his own life, he died thinking his children were going to be taken care of. . .[w]hat Stephen wanted has now been callously reversed. I know Stephen would have been devastated."

Pursuant to Dr. Peter Bing's successful appeal, Damian and his half-sister Kira will not receive any money since they were both born out of wedlock.

Instead, "their grandfather's fortune will be shared between the two children of Bing's sister Mary, who were born within a marriage." 

Hurley claimed that although Bing initially refused to acknowledge Damian and Kira, he later reconnected with them and "fought very hard in his final year to ensure that his children were recognized." 

Hurley added, "I am just relieved that Stephen will never know that Damian's relatives—Stephen's father and the family of his sister Mary—were ultimately successful in their appeal against the original trial verdict." 

See Tom Beasley, Elizabeth Hurley reacts to son Damian 'callously' being cut out of family fortune due to being born out of wedlock, Yahoo Entertainment, July 4, 2021. 

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

July 11, 2021 in Estate Administration, Estate Planning - Generally, New Cases, Television, Trusts | Permalink | Comments (0)

Monday, July 5, 2021

Enactment of FUDTA and CPTA Change the Rules on Florida Trusts

TrustOn June 29, 2021, Florida enacted the Florida Uniform Directed Trust Act (FUDTA) and the Community Property Trust Act (CPTA). 

According to Bilzin Sumberg: 

Florida will now have a more robust law whereby “trust directors” can be granted powers in a Florida governed law trust to direct the trustee as to certain management functions of such trust. With the CPTA, Florida has become the fourth state to enact Community Property Trust legislation to enable married couples living in non-community property states such as Florida to have the ability to take advantage of a full stepped-up income tax basis upon the death of either spouse. Both of the Acts will be effective July 1, 2021.

See Jennifer J. Wioncek & Osvaldo Garcia, Enactment of FUDTA and CPTA Change the Rules on Florida Trusts, Bilzin Sumberg, July 1, 2021. 

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

July 5, 2021 in Estate Administration, Estate Planning - Generally, New Legislation, Trusts | Permalink | Comments (0)

Tuesday, June 22, 2021

Article: Trusts as Vehicles for Tax Evasion and Tax Avoidance: a Critical Study

Mohammad Habibur Rahman recently published an article entitled, Trusts as Vehicles for Tax Evasion and Tax Avoidance: a Critical Study, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article: Wealth tax

The legal arrangements related to the trusts are proved to be cumbersome and many also abuse this mechanism as a vehicle of tax evasion and avoidance. The secrecy is one of the disadvantages of the trusts which do not allow tax officials and other crime-fighting agencies to discover the existence of the trusts. This is also a case for the offshore trusts where foreign jurisdiction usually does not share the information with a third-party. This particular feature mainly popularized the notion of the offshore tax shelter. Undeniably, the trusts also have some positive implications which cannot be fulfilled by any other principle of law e.g. asset protection cases, commercial purpose, charitable trusts etc. Thus, this article intends to critically evaluate how trusts are often used as a vehicle for the tax evasion and avoidance particularly taking into account the political, social and moral contexts in which trusts operate.

June 22, 2021 in Articles, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Friday, June 18, 2021

Article: Trusts: Modern Taxonomy And Autonomy

Ying Khai Liew recently published an article entitled, Trusts: Modern Taxonomy And Autonomy, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article. Provided below is the abstract to the Article. Estate planning

It is unfortunate that judges and commentators do not all agree on what express, resulting, and constructive trusts are. This paper develops a vigorous taxonomy of these trusts by identifying the key distinctive event(s) which trigger(s) each type of trust, which establishes their respective conceptual space. Thus, express trusts respond to a unilateral, proper manifestation of positive intention to create a trust; resulting trusts respond to a unilateral, negative intention; and while constructive trusts do not bear a unitary definition, they occupy a unique conceptual space, with different groups of constructive trusts responding to events which differ from those to which express and resulting trusts respond. The paper then reflects on one significant advantage of the proposed taxonomy — that it allows us to understand and appreciate trusts law as comprehensively autonomy-enhancing.

June 18, 2021 in Articles, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Wednesday, June 9, 2021

Article: Trusts and Choice of Law in South Korea: The Case for Adopting the Hague Trusts Convention Trusts and Choice of Law in South Korea: The Case for Adopting the Hague Trusts Convention

Ying Khai Liew recently published an article entitled, Trusts and Choice of Law in South Korea: The Case for Adopting the Hague Trusts Convention Trusts and Choice of Law in South Korea: The Case for Adopting the Hague Trusts Convention, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article: Estate planning

Despite having recognised the trust for 60 years now, South Korean law does not contain specific choice of law rules applicable to trusts. This is a regrettable state of affairs in our increasingly globalised world, where incidences of cross-border trust disputes will only be on the rise. This paper argues that the lack of a dedicated set of choice of law rules relating to trusts causes much confusion and uncertainty, not only as to how South Korean courts would characterise a trust dispute and the inconsistent connecting factors which would apply, but also in relation to the scope of the applicable choice of law rules (whichever they may be) and the special difficulties raised by a breach of trust claim. All these difficulties derogate from a proper recognition of the trust as a distinctive legal device, and fail properly to protect the autonomy and legitimate expectations of the parties. The paper suggests that these problems would easily fall away if the South Korean legislature adopts the Hague Trusts Convention.

June 9, 2021 in Articles, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Wednesday, June 2, 2021

Texas Legislature Extends The Rule Against Perpetuities To 300 Years For Trusts

TrustThe Texas Legislature has just passed a bill that extends the rule against perpetuities to 300 years for trusts. The Bill will take affect on September 1, 2021. 

The Bill (HB 654) was sent to the governor from the Legislature on May 20, 2021, but he has not yet signed the bill into law. Unless the governor vetoes the bill, it will become law after 10 days. 

Under the Texas Constitution: "Perpetuities and monopolies are contrary to the genius if a free government, and shall never be allowed. . . ." According to ConocoPhillips Co. v. Koopmann "[a] perpetuity is a restriction on the power of alienation that lasts longer than a prescribed period." 

The rule against perpetuities is not so simple to understand. The rule against perpetuities considers invalid any will or trust that "attempts to create any estate or future interest which by any possibility may not become vested within a life or lives in being at the time of the testator's death and twenty-one years thereafter, and when necessary the period of gestation.

This rule applies to wills and non-charitable trusts. 

Due to the recent amendment to Texas Trust Code Section 112.036, the interest in a trust must vest, if at all "not later than 300 years after the effective date of the trust, if the effective date of the trust is on or after September 1, 2021. 

See David Fowler Johnson, Texas Legislature Extends The Rule Against Perpetuities To 300 Years For Trusts, Winstead: Texas Fiduciary Litigator, May 27, 2021. 

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

June 2, 2021 in Estate Administration, Estate Planning - Generally, New Legislation, Trusts | Permalink | Comments (0)

Thursday, May 27, 2021

Article: Parent Fiduciary Breach

Robert Flannigan recently published an article entitled, Parent Fiduciary Breach , Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article. Estate planning

Parents who serve as trustees, and solicitors who draft trusts that involve family relations, may need to address whether parents are free to entertain conflicts and benefits that may be attributable to parent status. I discuss in broad terms the kinds of conflicts and benefits that normally should not be objectionable. The definitive consideration is the social definition of when parent access is a limited access.

May 27, 2021 in Articles, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)