Wills, Trusts & Estates Prof Blog

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

Sunday, October 24, 2021

New York Court Conducts In Depth Analysis Of Lack of Testamentary Capacity Will Contest

Estate planningIn Matter of Falkowsky, the New York Supreme Court, Appellate Division, Second Department, "affirmed a decree made after a nonjury trial which in effect granted objections alleging lack of testamentary capacity and undue influence, and denied the admission of the will to probate." 

The Court affirmed the Surrogate's Court decision in which it found a lack of testamentary capacity alone, focusing on the evidence presented which "effectively demonstrated that the decedent did not understand the nature and extent of his property." 

Harold Falkowsky was hospitalized on December 1, 2014. Two weeks later, Harold apparently executed a last will and testament "in which he devised $20,000 to each of his sons, Ira and Jeffrey, 50% of the residue of his estate to charities, and the other 50% of his residue to his sister, Alice Sobel. Harold, the decedent, died on January 14, 2015, just a month after he executed the Will. 

In March 2015, Alice petitioned for probate of the will and letters testamentary. Jeffrey, Harold's son, filed objections to the probate of the will, alleging lack of testamentary capacity and undue influence.

After examining the evidence, the Court ultimately found that Alice failed to prove that the decedent possessed the requisite testamentary capacity under New York Law, "as she failed to establish that the decedent knew the nature and extent of the property of which he was disposing." 

See New York Court Conducts In Depth Analysis Of Lack of Testamentary Capacity Will Contest, Probate Stars, October 19, 2021. 

October 24, 2021 in Estate Administration, Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0)

Wednesday, October 13, 2021

Article: Incentivizing Wills Through Tax

Margaret Ryznar recently published an article entitled, Incentivizing Wills Through Tax, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article. Estate planning

There have been recent calls to loosen will formalities in order to allow more people to execute wills, the importance of which has been highlighted by the COVID-19 pandemic. The reduction of necessary will formalities can be successful in expanding the use of wills, as can potential tax incentives for creation of wills, such as a tax credit. However, there are numerous advantages to using tax to initiate change, as considered in this Article.

October 13, 2021 in Articles, Estate Administration, Estate Planning - Generally, Estate Tax, Gift Tax, Income Tax, Wills | Permalink | Comments (0)

Saturday, September 25, 2021

Nearly 70% of millionaires are worried about leaving ‘too much’ money to their kids, survey finds

Estate planningMillionaires are increasingly worried about leaving too much money to their children. Wealthy celebrities have expressed their concern and are worried about how much of their fortunes they should leave to their kids. 

"According to a survey conducted by the Motley Fool, which asked 2,000 high net worth individuals — classified as people with a net worth over $ 1 million — about their attitudes toward inheritances." 

Among the top concerns was the possibility of leaving too much money to their heirs and what the effects will be. Further, wealthy individuals were concerned that the wealth would be "used irresponsibly" or that it "would cause beneficiaries to be lazy." 

According to Motley Fool research analyst Jack Caporal, "What's clear is that high net worth individuals are concerned about the effects of leaving too large an inheritance. . .They are aware of and actively considering leaving inheritances with conditions that incentivize their heirs to pick up on values that they think are important, such as hard work, doing well in school and finding a good career track." 

See Nicolas Vega, Nearly 70% of millionaires are worried about leaving ‘too much’ money to their kids, survey finds, CNBC, September 19, 2021. 

September 25, 2021 in Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Wednesday, September 22, 2021

Article: Where There’s a Will, There’s a Way: A Guide to Setting Up a Will and Managing a Loved One’s Estate (Foreword)

Vincent Ooi recently published an article entitled, Where There’s a Will, There’s a Way: A Guide to Setting Up a Will and Managing a Loved One’s Estate (Foreword), Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article: Estate planning

For some of us, death remains a subject that we would rather avoid discussing. We may believe that there is no hurry to consider the issue and that we have plenty of time left. However, the general reluctance in our society to engage with end-of-life matters can unfortunately result in us delaying the issue until it is too late.

A Will is not merely a legal document. It is an expression of our wishes, and a way for us to continue providing for the needs of our loved ones even after we are gone. It is true that even without a Will, the default rules of intestate succession will apply to distribute our estate. However, these rules are blunt and inflexible, and may not take into account the specific needs and circumstances of our chosen beneficiaries. Our care and love for our families should not stop with death, and a Will is an easy way to ensure that they continue to be looked after when we are no longer around to do so.

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

Tuesday, September 21, 2021

Former Miss Turkey’s inheritance to be distributed to firefighters

An Istanbul court has finally made a decision in an 18-year lawsuit involving the inheritance of Birsen Sakaoglu, who was named Miss Turkey in 1936. The court's decision confirmed that "the savings of 25 million Liras ($2.96 million) belonging to her will be left to the Fire Department and its personnel in the Fatih district. 

Following the Miss Turkey beauty contest in 1936, Sakaoglu settled in the United States with her husband, but eventually returned to Istanbul and started a new life in the Fatih district. 

Sakaoglu was no stranger to the Fatih Fire Department. The Fire Department saved Sakaoglu from a fire when she was child and again in 1999 when she was trapped in the flames at her home.

Sakaoglu passed away in 2003 at the age of 94, leaving a will which expressed her intention on donating her savings to the Fatih Fire Department that saved her as a "debt of loyalty." 

See Former Miss Turkey’s inheritance to be distributed to firefighters, The Hurriyet Daily News, September 14, 2021. 

September 21, 2021 in Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)

Friday, September 17, 2021

Article: A Tax Credit for Wills

Margaret Ryznar recently published an article entitled, A Tax Credit for WillsWills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article. Wills

In this article, Ryznar suggests using tax law to encourage people to execute wills, arguing that the coronavirus pandemic revealed the importance of estate planning.

September 17, 2021 in Articles, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)

Wednesday, September 1, 2021

Article: Interpretation of Wills – Does the Endumeni Case Apply?

Fareed Moosa recently published an article entitled, Interpretation of Wills – Does the Endumeni Case Apply?, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article: Wills

This article argues that the general approach to documentary interpretation articulated in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 4 SA 593 (SCA) (Endumeni) applies also to the interpretation of wills, subject to adaptation for context. It is argued that interpretation of wills and the application of an interpretation to a particular factual setting are coequal tasks. Each case must be decided on its own facts. The cardinal rule is the ascertainment of a testator's intention and giving effect thereto, provided that this will not bring about a violation of the law. It is argued that a court must put itself in the armchair of the testator and, after determining where the probabilities lie, it must infer or presume what the testator had in mind at the time that the will was created. Although intention is subjective, the interpretive process to determine a testator's intention is objective in form. It is argued that a court must, in every instance, understand the purpose for which it seeks to determine a testator's intention. This is so that it can undertake the correct enquiry. If the aim is to determine the meaning of a testamentary provision, then a testator's intention must be ascertained as memorialised in the written text of the will read as a whole, taking into account also the purpose of the text and its context. If, on the other hand, the aim is to determine whether a document is a testator's intended last will and testament, as is the case when section 2(3) of the Wills Act 7 of 1953 is invoked, then a testator's intention must be ascertained with reference to the document's purpose, taking also into account all legally relevant and admissible internal and external contextual factors. It is argued that all this is, as confirmed in Endumeni, consistent with the modern trend favouring an objective, purposive, contextual cum teleological mode of documentary interpretation.

September 1, 2021 in Articles, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)

What Celebrities Who Have Died Without A Will Have Taught Us

Estate planningOver the last few years, there has been an influx of athletes, musicians, and other celebrities who have died without an effective estate plan. The news stories covering the family battles over these estates, although entertaining, can be quite terrifying. 

Whether you are a famous celebrity or an "regular" person, here are some good reasons to complete an estate plan and avoid dying testate. 

  1. It will be easier for family members to help you in a crisis 
  2. It saves family members from playing detective
  3. It can save you—and your family members—time and money
  4. It can ensure that your assets are disposed of the way YOU choose
  5. It can help minimize, or even eliminate, certain taxes 

"A good estate plan is a lot like flood insurance—if you don't have it when you need it, it's too late. . ."

See Cheryl A. Jones, Esquire, What Celebrities Who Have Died Without a Will Have Taught Us , Pessin Katz Law Firm, August 25, 2021. 

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

September 1, 2021 in Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Monday, August 30, 2021

Article: The Last Sharīʿa Court in Europe: On Molla Sali v. Greece (ECHR 2018)

Maurits S. Berger recently published an article entitled, The Last Sharīʿa Court in Europe: On Molla Sali v. Greece (ECHR 2018), Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article: Estate planning

On its face, the ruling in Molla Sali v. Greece (European Court of Human Rights 2018) was about choice of forum: in an inheritance dispute, could heirs choose to apply Islamic inheritance law or did a will drawn up in accordance with Greek inheritance law govern a Muslim decedent's estate? The case is significant not so much for its outcome, but because it involved features of two legal systems that are relatively unknown among European and American jurists: interpersonal law and Islamic law in the autonomous region of Greece. The Court's reasoning provides detailed insight into how features of these systems may clash with systems of European civil and common law, particularly in the framework of human rights.

August 30, 2021 in Articles, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)

Monday, August 9, 2021

Louisiana Supreme Court Reverses Itself And Abandons Overly Strict Construction Of Standards For Creating Valid Notarial Will

Estate planningIn Succession of James Conway Liner III, the Louisiana Supreme Court vacated its original opinion and "clarified the analytical framework for determining whether a notarial will is in substantial compliance with the provisions of the Louisiana Civil Code." 

James executed two notarial instruments, one in 2013 and one in 2015. The 2015 testament was invalidated by the district court on the basis that the provisions of the attestation clause were not "substantially similar to those set forth in La. C.C. art. 1579(2), which governs the requirement of the attestation clause for a notarial will and testament when a testator is unable to read." The appellate court reversed the decision. 

The Louisiana Supreme Court reversed the Court of Appeal's decision in a January 2021 Opinion and reinstated the trial court's judgment invalidating the 2015 testament. The Louisiana Supreme Court then granted a Motion for Rehearing and issued a new opinion. 

Generally, the intention of the testator as expressed in the will must govern. However, the Supreme Court noted that, "the formalities of a notarial will provide a protective function of guarding the testator against the risk of fraud." 

The Louisiana Supreme Court established a clarified standard: 

Courts must determine if a notarial will, with all formalities and evidence taken into consideration, reflects the testator was sufficiently protected against the risk of fraud. Holmes, supra, at 541. This involves a contextual analysis of the protective function of a will’s formalities in light of the document itself.

If the court’s analysis reveals an increased likelihood that fraud may have been perpetrated, the deviations are material and cause to nullify the will exists. If not, the deviations are slight and should be disregarded. Guezuraga, 512 So.2d at 368. Whether the deviating language sufficiently protects against the risk of fraud is construed liberally in favor of maintaining the validity of the will. Id.; Holbrook, 13-1181, p. 11, 144 So.3d at 853. Mere allegations of fraud are not outcome determinative.

The Louisiana Supreme Court ultimately found that the attestation clause of James' 2015 testament was executed in substantial compliance with La. C.C. art. 1579(2), emphasizing the importance of substantial compliance as the governing standard as opposed to strict compliance. 

See Louisiana Supreme Court Reverses Itself And Abandons Overly Strict Construction Of Standards For Creating Valid Notarial Will, Probate Stars, July 14, 2021. 

August 9, 2021 in Estate Administration, Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0)