Wills, Trusts & Estates Prof Blog

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

Tuesday, July 13, 2021

Electronic-Will Legislation -- Good, Bad, or Ugly?

Prof. Adam J. Hirsch (University of San Diego) has recently posted on SSRN an undated version of his extensive article about e-will legislation entitled Models of Electronic-Will Legislation. Here is the abstract of the article:

This Article examines alternative ways lawmakers could structure legislation validating electronic wills. The Article identifies four essential models, each of which is currently reflected in acts or drafts of acts found either in the United States or abroad. These are: (1) acts validating electronic wills that meet formal requirements, (2) acts giving effect only to specialized variants of electronic wills (or none at all), (3) acts allowing electronic wills only when made under emergency conditions, and (4) acts allowing electronic records intended as wills on a case-by-case basis, without establishing formalities for their validation. In the course of the analysis, the Article performs the first-ever empirical survey of popular assumptions concerning the revocation of electronic wills. The Article ultimately concludes that, given the novelty of electronic wills, we are best off if states experiment with alternative legislative models until lawmakers have enough evidence to assess their relative merits. For this reason, the Uniform Electronic Wills Act of 2019 is premature.

July 13, 2021 in Articles, New Legislation, Technology, Wills | Permalink | Comments (0)

Saturday, June 26, 2021

Article: Impossibility Results about Inheritance and Order of Death

Due Wang recently published an article entitled, Impossibility Results about Inheritance and Order of Death, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article: Estate planning

If several relatives died with no will, the order of their deaths could affect the inheritance result. When the order of death is unknown, there are three approaches to determine the inheritance result: apply an inheritance method that is not affected by the order of death; artificially assign the order of death; regulate that persons with unknown orders do not inherit each other. The last approach is adopted by the current French Civil Code (denoted as the French Approach). We prove that under some basic requirements, the French Approach is the only valid solution to the order of death problem. Therefore, we propose that every country should adopt the French Approach. In the appendix, we study the existence and uniqueness of inheritance methods that are invariant for different orders of death and only violate one requirement, such as gender equality.

June 26, 2021 in Articles, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Thursday, June 17, 2021

Barry Sherman’s will divided his estate among Barry and Honey’s four kids when they reach 35 years of age

Though Honey Sherman did not have a will, Barry Sherman had two. Documents that were unsealed by a court last week list assets of $124 million, which are outside of the majority of Sherman's estate that is wrapped up in his private companies. 

Barry Sherman was the founder and owner of Apotex, "a generic pharmaceutical giant." Barry and his wife Honey were well known Philanthropists. 

According to the estate papers, the Shermans' four children were left equal shares of a fortune that has been estimated to be around $10 billion. Though, the kids are not to receive their quarter shares until they reach age 35. 

According to The Star, this is only one of a few intriguing details "in a box of documents that has been sealed since shortly after the Shermans were murdered." Apparently, the Shermans who were one of the most generous couples in Canadian history did not have a provision for money to go to charity. 

When the Shermans were murdered in 2017, their kids were aged 43, 34, 32, and 27. Barry's will states that "until the child reaches 35 years of age, the trustees of his estate have the 'unfettered discretion' to make payments to the child for the 'maintenance, education, advancement in life' of the child. 

See Kevin Donovan, Barry Sherman’s will divided his estate among Barry and Honey’s four kids when they reach 35 years of age, The Star, June 11, 2021. 

Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention.  

June 17, 2021 in Current Events, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)

Thursday, June 10, 2021

Article: Incremental Change in Wills Adjudication

Mark Glover recently published an article entitled, Incremental Change in Wills Adjudication, Wills, Trusts, & Estates Law journal (2021). Provided below is the abstract to the Article. Estate planning

Probate courts must decide which wills are valid and which are not. The traditional law provides courts a straightforward process to make these decisions. If the court determines that a will complies with certain formalities, then the will is valid, but if the court determines that a will does not comply, then it is invalid. This decision-making process has been criticized for being overly formalistic. While the traditional law is relatively easy to apply, it places greater importance on the process by which a testator executes a will than on the substance of the testator’s intent. Consequently, the traditional wills adjudication process invalidates noncompliant wills that are authentic expressions of testators’ intended estate plans.

This criticism has led to major reforms being incorporated into the Uniform Probate Code that are designed to make the wills adjudication process more accurate in distinguishing authentic wills from inauthentic wills. Although no state has fully adopted the UPC’s comprehensive reform package, few states still cling wholeheartedly to the traditional law. Instead, policymakers in many states have implemented changes that take incremental steps away from the traditional law’s formalistic approach to wills adjudication.

While the preference of state policymakers for incremental change, rather than for comprehensive reform, is clear, questions remain regarding the merits of these more modest approaches to reform. This Article seeks to better understand why state policymakers might favor partial rather than wholesale change to the wills adjudication process. More importantly, it analyzes whether some incremental changes are preferable to others. Ultimately, by providing a better understanding of the merits and possibilities of incremental change, this Article provides guidance to state policymakers who are wary of comprehensive reform.

June 10, 2021 in Articles, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)

Tuesday, June 8, 2021

Law Professor from Poland releases book on will formalities

Mariusz Załucki, Professor of Law at AFM Kraków University (Poland), recently released his treatise entitled Wills Formalities versus Testator’s Intention (2021).

His "main objective is to demonstrate that it is possible, justified by the needs of the practice of drawing up wills, to give the provisions on the form of a will a wording which makes them technologically independent, allowing the testator's declaration of last intent, made in any manner whatsoever, recorded by means of any method enabling the testator's last intent to be reflected after his death, to produce legal effects mortis causa. For it is not in all the current formalities and methods of testation indicated by individual legislators, but in the reflection of the testator's intentions that the most important value underpinning modern succession law lies."

June 8, 2021 in Books, Wills | Permalink | Comments (0)

Friday, May 28, 2021

Ruth Bader Ginsburg leaves estate to children and housekeeper, report says

RuthRuth Bader Ginsburg left most of her estate to her children, but she also named her housekeeper in her will. 

Through RBG's estate, her children received her possessions and personal property and her longtime helper, Elizabeth Salas, received a generous bequest. 

RBG's estate was valued at just under $6 million, out of which a portion ($40,000) was set aside for Ms. Salas who worked for her for 22 years. 

RBG and Ms. Salas were said to have a very close relationship. Ms. Salas even sat next to Joe Biden when Justice Ginsburg "lay in state at the US Capitol last year." 

RBG was appointed by President Bill Clinton and served on the U.S. Supreme Court from 1993 until her death last year at the age of 87. 

See Ruth Bader Ginsburg leaves estate to children and housekeeper, report says, Yahoo Finance, May 25, 2021. 

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

May 28, 2021 in Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)

Monday, May 24, 2021

Article: Models of Electronic-Will Legislation

Adam J. Hirsch recently published an article entitled, Models of Electronic-Will Legislation, Wills, Trusts, & Estates Law ejouranl (2021). Provided below is the abstract to the Article: Estate planning

This Article examines alternative ways lawmakers could structure legislation validating electronic wills. The Article identifies four essential models, each of which is currently reflected in acts or drafts of acts found either in the United States or abroad. These are: (1) acts validating electronic wills that meet formal requirements, (2) acts giving effect only to specialized variants of electronic wills (or none at all), (3) acts allowing electronic wills only when made under emergency conditions, and (4) acts allowing electronic records intended as wills on a case-by-case basis, without establishing formalities for their validation. In the course of the analysis, the Article performs the first-ever empirical survey of popular assumptions concerning the revocation of electronic wills. The Article ultimately concludes that, given the novelty of electronic wills, we are best off if states experiment with alternative legislative models until lawmakers have enough evidence to assess their relative merits. For this reason, the Uniform Electronic Wills Act of 2019 is premature.

May 24, 2021 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Saturday, May 15, 2021

Review of Naomi Cahn's What’s Wrong About the Elective Share “Right”? Article Released

Solangel Maldonado's review of Naomi Cahn's What’s Wrong About the Elective Share “Right”? article was recently released on Jotwell. Here is the introduction to the review:

I have long been perplexed by the inconsistency between the rights of divorcing spouses which are governed by family law rules and the rights of surviving spouses which are governed by trusts and estates law. While the rules governing the distribution of property at divorce and the elective share right both claim to reflect a partnership theory of marriage, Naomi Cahn’s article, What’s Wrong About the Elective Share “Right”?, demonstrates that the elective share does not further a partnership theory, at least not in cases involving subsequent marriages, and further fails to recognize and adequately balance the interests of multiple families.

May 15, 2021 in Articles, Wills | Permalink | Comments (0)

Thursday, May 13, 2021

Article: Dead Men (and Women) Should Tell Tales: Narrative, Intent, and the Construction of Wills

Karen J. Sneddon recently published an article entitled, Dead Men (and Women) Should Tell Tales: Narrative, Intent, and the Construction of Wills, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article: Estate planning

Intent is a foundational principle that is referenced in many varied aspects of succession. This article will focus on the role of intent in will construction proceedings where intent is referred to as the “touchstone” and “pole star.” When an issue arises as to the meaning of a provision in a will admitted to probate, the probate court must undertake a construction proceeding. This article posits that a will naturally forms a narrative that courts use when interpreting and construing the language of the will. This natural narrative form and tendency for courts to reference narrative during construction proceedings can be more effectively leveraged by the will-drafter in a manner that is consistent with succession’s intent-serving policies. When the drafter approaches the will as a narrative and uses narrative techniques to inform the customization of what may be one of the oldest-forms of legal documents, the resulting document becomes more meaningful for the testator, the beneficiaries, the personal representative, and, if needed, the court. To illustrate, this article presents standard will construction cases and revises the problematic testamentary language using narrative-based drafting techniques.

This intent-effectuating approach to drafting promotes the ultimate implementation of the testator’s intent, especially when a construction proceeding is initiated by an interested person. The construction proceeding, after all, seek to determine and give effect to the testator’s intent. The narrative-based approach to drafting will support the court’s inquiry by providing more context and more meaning to the language of the will. This customization refers to the deliberate sequencing of provisions, accurately enhancing the description of the relationships and property, and even including a statement of purpose. This article acknowledges the potential dangers raised by using narrative-based drafting techniques. But, as this article stresses, narrative-based drafting does not refer to the inclusion of language that injects uncertainty and confusion in testamentary instruments. Instead, narrative-based drafting brings the person, the personality, and the personal into wills. Testators should tell tales.

May 13, 2021 in Articles, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)

Sunday, May 2, 2021

Article: Probate Litigation

David Horton and Reid K. Weisbord recently published an article entitled, Probate Litigation, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article: Estate planning

The field of wills is obsessed with deterring litigation. Supposedly, will contests—challenges to the validity of a testamentary instrument—are time-consuming, expensive, expose the testator’s eccentricities, and tear families apart. In turn, these factors give contestants the leverage to file “strike suits”: baseless allegations that are designed to obtain a shakedown settlement. This gloomy view drives policy on several fronts. First, it has stunted the growth of the harmless error rule: a doctrine that empowers courts to enforce documents that do not comply with the statutory formalities for executing a will. Second, estate planning lawyers use the specter of conflict to contain the spread of homemade testamentary instruments—especially the nascent market for online wills. Third, the desire to minimize the damage caused by lawsuits has rekindled interest in antemortem probate: a regime that resolves will contests during the testator’s lifetime. But although these debates rely on assumptions about probate litigation, we know little about the phenomenon. Indeed, our understanding of the issue comes largely from folklore, war stories, and the sliver of disputes that become reported appellate opinions. Thus, we can only speculate about the catalysts of these lawsuits, the harm they cause, or the terms of their confidential settlements.

This Article offers a glimpse inside the black box. Its centerpiece is an empirical study of 443 recent probate administrations from San Francisco, California. It follows these cases from the drafting of the will to the order for final distribution. In addition, it capitalizes on a state law that requires litigants to file settlement agreements in the record. Thus, it sheds new light on the causes and consequences of probate litigation. Some of the Article’s findings confirm that disputes over wills are an evil to be avoided. But others defy the conventional wisdom. For example, the Article discovers that the harmless error rule facilitates testamentary intent without making cases last longer or cost more, that online wills do not seem to be linked to litigation, that will contests often settle for a high percentage of the claim value, and that disputes over attorneys who appoint themselves executor are surprisingly common. Finally, the Article explains how these insights inform existing debates and highlight topics that deserve more attention.

May 2, 2021 in Articles, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)