Saturday, March 20, 2021
In In Re Guardianship and Conservatorship of Radda, the Iowa Supreme Court addressed "whether a prospective heir can bring an action to determine the validity of a will before the death of the testator."
Vernon Radda suffers from schizoaffective disorder and severe autism spectrum disorder. in 1989, Vernon agreed for his sister to be appointed as his guardian, and Washington State Bank to be appointed as his conservator. After Julie's death, her husband and son became Vernon's guardians.
In 2017, Vernon's sister, Barbara, discovered that Vernon had executed a will in 1992 and another will in 2015. However, Vernon told Barbara he was not sure whether or not he signed a will, even though he remembered signing some documents.
Barbara and her husband subsequently filed a petition for declaratory judgement to determine whether Vernon had testamentary capacity to execute either will.
Vernon's conservator argued that the motion should be dismissed because the claim was ripe since Vernon was still alive. The conservator also argued that Barbara and her husband lacked standing because no interest had vested.
Under the Iowa Probate Code, "[p]roceedings to determine the validity of a will and will contests must await a testator's death. . ."
The Iowa Supreme Court stated, “we see nothing in the text of this statute that creates rights in a putative beneficiary or other third party to challenge the validity of a ward’s will before the ward dies, and we have never construed this statute to allow such a challenge.”
See Iowa Supreme Court: You Can’t Adjudicate Validity Of a Will Before a Testator’s Death, Probate Stars, March 2, 2021.
Thursday, March 11, 2021
Since Aretha Franklin's death in 2018, there has been a looming debt ganging over her estate. After three years, Franklin's estate is moving toward an agreement with the Internal Revenue Service (IRS) to repay this debt which is comprised of "thousands and thousands of [dollars] in federal revenue taxes that the singer owed throughout her life. . ."
The settlement requires the estate to put aside 45% of all income it receives to repay the tax responsibility that Franklin accrued from 2010 to 2017. Also, $800,000 is to be paid to the IRS within 5 days of the deal's approval.
A document submitted in court on February 19, states that the IRS has declared that the state owes $7.8 million, but apparently, this determination did not include about $3 million that the estate alleged it paid at the end of 2018.
Under the deal, 40% of the estate's revenues will be put toward ongoing taxes and funds to Franklin's heirs. This 40% will be generated by music royalties and licensing and is allowed to be held in escrow.
If a deal is reached, the estate will have room to breathe and bring in revenue.
The worth of Franklin's estate has not been fully determined but it has been estimated to be around $80 million.
There were also multiple wills found, which has lead to a stark divide between Franklin's alleged heirs as members of Franklin's family have been battling to prove which documents should be probated.
See Ben Sisario, Aretha Franklin’s Estate Signs Tentative Deal Over Back Taxes Owed, N.Y. Times, March 2, 2021.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Wednesday, March 10, 2021
Although much has changed, given the pandemic, recently election, and other things, will and trust contests are still a common occurrence. These contests often are brought by a child who feels they were treated differently than their siblings or other beneficiaries. A child may bring suit even if they were estranged from their deceased parent, even if it were for years before their parent's death.
A child may contest the will based on allegations of lack of capacity and undue influence, which typically has the effect of tying the estate up for years and the build up of attorney fees and court costs—not to mention the detriment to family relationships.
The sad truth is that the most important person in the matter, the decedent, will not be their to testify to their intent and wishes. In turn, the court will have to rely on testimony from witnesses and experts who very well may not know what was going on in the decedent's head when executing the will. Further, even if some of them do know, they may not tell the truth or be believed.
One possible solution to avoid all of the litigation is Pre-Mortem Validation. Pre-Mortem Validation allows the maker of the estate planning document to to validate said document during their lifetime. So far, nine states have enacted legislation to allow Pre-Mortem Validation procedures, so that the voice of the most important person is heard. The list of states are provided below:
- Alaska, Arkansas, Delaware, North Carolina, New Hampshire, North Dakota, Nevada, Ohio, and South Dakota.
Although the states may differ in their standards and the requirements for Pre-Mortem Validation, they all have implemented the statutory procedure for a similar purpose.
See Michael Sneeringer et al., Mom Liked Me Better, and She Will Prove It: Pre-Mortem Validation—Permanent Solution or Fad? , American Bar Association: Probate & Property, March/April 2021.
Thursday, March 4, 2021
Gerry W. Beyer, recently published an article entitled, Texas Estate Planning Judicial Update: End of 2020 Edition, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article.
This article discusses recent judicial developments (last half of 2020) 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.
Monday, March 1, 2021
In order to avoid conflict, many parents and/or grandparents decide to leave their children the same inheritance, although equal may not always be equitable. With the pandemic bringing the drafting and execution of more wills, this issue is coming up more frequently.
One example of this situation occurred with clients of Elizabeth Candido Petite, an estate planning lawyer in N.J. Her clients wanted to give one of their children more than the other two because she "needed it more."
This child in particular had been laid off due to the pandemic and her parents had a feeling she would continue to need extra help. Meanwhile, the other two children still had their jobs and those jobs were in "higher-paying careers."
Luckily, in this instance the other two children agreed and everyone was on the same page.
According to a survey by Merrill Lynch Wealth Management and the consultant Age Wave, "two-thirds of Americans 55 and older said a child who provided them care should get a bigger inheritance than children who did not."
Different families might approach these issues based on what their personal definition is of "fair" and "equity." Equal is not always fair and fair is not always equitable.
See Susan B. Garland, The Unequal Inheritance: It Can Work, or It Can ‘Destroy Relationships’, N.Y. Times, February 19, 2021.
Special thanks to Matthew Bogin, (Esq., Bogin Law) for bringing this article to my attention.
Tuesday, February 23, 2021
Two Louisiana Supreme Court Cases Examine When Attestation Clauses In A Notarial Will Substantially Comply With The Law, and When They Don’t
"In the January 2021 cases of Succession of James Conway Liner III and Succession of Peggy Blackwell Bruce, the Louisiana Supreme Court examined the attestation clauses in two notarial testaments (wills) and determined that one substantially complied with the requirements for executing a valid will, and one did not."
Requirements for a notarial testament under Louisiana law include (1) must be in writing, (2) must be dated, and (3) executed by the testator in the presence of a notary and two competent witnesses.
The Louisiana Supreme Court took a look at attestation clauses in the cases Liner and Bruce.
In Liner, the testator executed two notarial testaments, which apparently revoked any prior testaments. The 2013 testament divided testator's property equally between his three children. The 2015 testament was executed under La. C.C. art 1579, which covers testators that are unable to read whether or not they are able to sign their name. This testament divided the property between only two of the children and excluded the third.
The 2015 testament was invalidated by the district court after they found that the provisions of the attestation clause were different than those under La. C.C. art. 1579.
The appellate court reversed the decision, finding La. C.C. art. 1579(2) governs when a testator is unable to read, despite whether or not the are able to sign their name.
The Louisiana Supreme Court reversed the Court of Appeal and invalidated the 2015 testament.
In Bruce, the Louisiana Supreme Court held that La C.C. art. 1577(2) applies when the testator is able to read and sign their name.
The main takeaway from this cases is to comply with the requirements laid out in the code so that you can avoid litigation.
See Two Louisiana Supreme Court Cases Examine When Attestation Clauses In A Notarial Will Substantially Comply With The Law, and When They Don’t, Probate Stars, February 16, 2021.
Wednesday, February 17, 2021
Tennessee businessman Bill Dorris died last year at the age 84 and left $5 million to his 8-year-old collie, LuLu. Bill's friend, Martha Burton, had already been well acquainted with LuLu as she would watch after her when Bill travel; an arrangement that had occurred for several years before Bill's passing.
"I don’t really know what to think about it, to tell you the truth," Burton told WTVF. "He just really loved the dog."
According to the will, $5 million is to be placed in a trust for LuLu's care. The will also specifies that LuLu stay with Burton, for which Burton will be reimbursed for normal monthly expenses.
Yes, LuLu the dog is a millionaire. The most interesting thing is that she is not the only animal that has come into a large sum of money, as it is far more common than you think for pet owners to leave a portion (and sometimes the entirety) of their estate to their animals.
See James Leggate, Tennessee man leaves $5 million to dog in his will: 'She’s a good girl', Fox News, February 12, 2021.
Monday, February 15, 2021
Larry King left a 'hand-written will' in 2019 seeking equal split of his $50M fortune to his five children... and leaves out ex-wife Shawn
Legendary journalist Larry King died of sepsis on January 23rd at the age of 87. King reportedly left behind a hand-written will "advising for an even split of his fortune to his five children in the event of his death." Larry King was reportedly worth around $50 million at the time of his death.
The will was reportedly written on October 17, 2019, coming just two months after he filed for divorce. His seventh wife (whom he intended on divorcing), Shawn Southwick, was left out of the note entirely.
The document stated, "This is my Last Will & Testament. It should replace all previous writings." The will stated that King wanted "100 percent of his funds to be divided equally among my children Andy, Chaia, Larry Jr., Chance, and Cannon." King's son Andy passed away of a heart attack in July 2020 and his daughter Chaia, died in August after being diagnosed with lung cancer.
"Shawn revealed that Larry was 'ready to go' as he fought off an infection in the hospital after beating the coronavirus." Shawn also stated that King's last words to her were, "I love you, take care of the boys."
'You know, he never wanted to go but his sweet little body was just, it had just been hit so many times with so many things and once we heard the word Covid, all of our hearts just sank. But he beat it, you know, he beat it, but it did take its toll and then the unrelated infection finally is what took him, but boy, he was not gonna go down easily.'
Luckily, King was able to share a moment with Shawn and his sons on a video call shortly before he passed.
See Tracy Wright, Larry King left a 'hand-written will' in 2019 seeking equal split of his $50M fortune to his five children... and leaves out ex-wife Shawn, Daily Mail (U.K.), February 11, 2021.
Special thanks to Deborah Matthews (Virginia Estate Planning Attorney) for bringing this article to my attention.
Friday, February 12, 2021
Gerry W. Beyer recently published an article entitled, An Estate Planner's Guide to Specific Testamentary Gifts, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article.
Clients are excited to make specific gifts in their wills. For some, the goal is to pass treasured family heirlooms and other property with significant emotional attachment to the appropriate family members. Others seek instead to transfer assets of value to family members, friends, and charities so the recipients may keep or, more likely, sell the property to gain funds they desire for their needs.
This article discusses the variety of issues that arise with specific gifts with the aim of making it easier for an estate planner to structure them to effectuate their clients’ intentions.
Thursday, February 11, 2021
The COVID-19 pandemic has incited some changes in the realms of estate and post-death planning. With the pandemic taking so many lives, many were forced to thinking about planning for their death, and they had nothing but time to do it.
Many are required to self-isolate as to not risk their health or the health of loved ones. This has placed a burden on those that want to have wills executed, given the witness requirements and other things unattainable during the pandemic.
S.9 Wills Act 1837 sets out the requirements for executing and witnessing a will. Changes to current legislation may make it a bit easier to make a will during the global crisis. The "Physical presence" has been expanded to include virtual presence by means of videoconference or other visual transmission.
The temporary change applies to all wills and codicils made between January 31, 2020 and January 31, 2022. After that, the revision will expire and things will go back to the way they once were. "It is important to note that, similar to other COVID-19 measures, the Government has the authority to shorten or extend this two-year period, should it be deemed appropriate to do so."
In regard to "virtual presence" the most important element of virtual witnessing is that all parties have a "clear line of sight." Also, pre-recorded videos are not allowed.
The Government also sets out other helpful rules, regulations, and guidelines to help out.
See Simon Goldring & Elysa Jacobs, Remote Witnessing of Wills: A Step in the Right Direction, McDermott, Will, & Emery, February 10, 2021.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.