Intentional Interference With Inheritance Rights: Adequate remedy in probate prevents intentional interference claim. In Vondrasek v. Heiss, 249 N.E.3d 412 (Ohio Ct. App. 2024), the court affirmed the trial court’s dismissal of the plaintiff’s claim on the ground that it was not ripe because the plaintiff had not exhausted the remedies available in the probate proceeding relating to the will that was the alleged product of interference.
Malpractice: Maryland affirms strict privity requirement for suits by beneficiaries. In Bennett v. Gentile, 321 A.3d 34 (Md. 2024), the Maryland Supreme Court reaffirmed its holding that the strict privity rule prevents disappointed beneficiaries of wills and trusts from seeking to hold the drafting attorney liable in tort for malpractice. The court notes that the harshness of the rule may be mitigated by the newly enacted reformation provisions of the Maryland version of the UTC. The court also turned away the beneficiary’s contractual claim, finding that any benefit to the plaintiff was incidental to the revision of the trust intended to disinherit another child of the settlor.
Malpractice: New Mexico Rules of Professional Conduct do not create duty to non-client. In its opinion in Waterbury v. Nelson, 557 P.3d 96 (N.M. 2024), the New Mexico Supreme Court held that an attorney owes no duty to a non-client under the statutory or common law of the state. In addition, the court held that the Rules of Professional Conduct do not establish a duty but may be used to establish a standard of care once a duty has been found.
No-Contest Clauses: Non-party witness not subject to forfeiture. A will beneficiary made an affidavit at the request of a non-beneficiary who had moved for permission to file a late objection to probate. The motion was denied, and other beneficiaries sought to enforce the will’s no-contest clause against the affiant. In Matter of Estate of McLaughlin, 104 Mass. App. Ct. 752 (2024), the Massachusetts appellate court reversed the trial court’s grant of summary judgment for the other beneficiaries, holding that the required strict construction of the clause means that it cannot be enforced against a witness, even if the witness has not received a subpoena.
Power of Appointment: Power of appointment makes trust interest revocable for purposes of property division on divorce. Spouse 1 is the beneficiary of a discretionary trust which terminates on the death of Spouse 1’s parent. The parent is the donee of a power of appointment over the trust property; the taker in default is a trust for Spouse 1 and Spouse 1’s issue. In the divorce proceeding between Spouse 1 and Spouse 2, the district court held that Spouse 1 did not have a property interest in a discretionary trust and that the trust was not an “economic circumstance” because the power of appointment makes Spouse 1’s interest revocable within the meaning of the Colorado statute governing property division on divorce, Colo. Rev. Stat. Ann. § 14-1-113(7)(b). Spouse 2 appealed, and the Court of Appeals affirmed in In re Marriage of Smith and Butterworth, 559 P.3d 662 (Colo. App. 2024). The court held the meaning of “revocable” to be ambiguous and then consulted the legislative history and concluded that the term included the possible exercise of the power of appointment by the parent.
Pretermitted Child: Child unknown to the testator at time of execution of will is not omitted child. Under California Probate Code § 21622, a child born before the execution of the relevant testamentary instrument is presumed to have been intentionally omitted. Under case law, the presumption can be overcome if the child can show that the only reason for the omission was the testator’s or settlor’s lack of awareness of the birth and that no provision was made solely because of that lack of awareness. In Estate of Williams, 324 Cal. Rptr. 3d 406 (Cal. Ct. App. 2024), the intermediate appellate court affirmed denial of a petition to be declared an omitted child because, although at the time the decedent’s revocable trust was executed the decedent did not know of the child’s birth, the deliberate omission of four other children who were known to the decedent and the disposition of the trust property to the only two children of the decedent’s marriage show the decedent’s intent that only the two marital children receive any part of the estate.
Reformation: Reformation requires evidence of intent of all settlors. In Connary v. Shea, 320 A.3d 429 (Me. 2024), a case of first impression, the Maine Supreme Judicial Court held that under Maine’s version of UTC § 415, Me. Stat. tit. 18-B § 415, reformation is possible only if it can be shown to be necessary to conform the trust terms to the intention of all of the settlors of the trust. In the instant case, the proffered evidence related to only one of the two spouses who created the trust.
Slayers: Federal common law disqualifies slayer as beneficiary of ERISA plan. A son feloniously murdered his parent, who was a participant in a benefit plan covered by ERISA. In a case of first impression, the Seventh Circuit held in Standard Insurance Company v. Guy, 115 F.4th 518 (7th Cir. 2024), that the son is disqualified as a beneficiary under federal common law and that the question of preemption of the relevant state’s slayer statute by ERISA need not be addressed.
Trustee Fees: An attorney who also serves as a trustee is entitled to reasonable legal fees. A trustee who is an attorney petitioned for the payment of fees for legal work related to the trust. The trial court denied the petition holding that the self-hiring created a conflict of interest. On appeal, the Maryland intermediate appellate court reversed in Matter of Trust Under Will of Lanier, 319 A.3d 1142 (Md. Ct. App. 2024). The court held that the common law of the state does not prohibit the payment and that Estates & Trusts Code § 14.5-802, the Maryland version of UTC § 802, does not completely supplant the common law, citing the statutory provision to that effect, Estates & Trusts Code § 14.5-106 (UTC § 106). Reasonable compensation, therefore, can be paid.
Undue Influence: Presumption of undue influence must be rebutted by preponderance of the evidence. The Supreme Court of New Hampshire held in In re Estate of Colanton, 324 A.3d 967 (N.H. 2024), that once the objectant presents substantial evidence of undue influence, including when that evidence constitutes an inference drawn from a confidential or fiduciary relationship between the testator and the person alleged to have procured the will through undue influence, the proponent of the will needs to prove the absence of undue influence by a preponderance of the evidence, expressly declining to require clear and convincing evidence.
Wrongful Death: Claim for loss of material services by surviving spouse does not terminate on remarriage. Overruling three intermediate appellate court decisions, the Illinois Supreme Court in Passafiume v. Jurak, 248 N.E.3d 1042 (Ill. 2024), held that a surviving spouse’s claim under the Illinois wrongful death statute (760 Ill. Comp. Stat. § 180/0.01 et seq.) for loss of material services, unlike a claim for loss of consortium, does not terminate on the surviving spouse’s remarriage.
Estate Tax: Transferred assets included in the decedent’s estate. The decedent suffered from Alzheimer’s and had given her great-nephew power of attorney before losing capacity. Shortly before she died, the great-nephew transferred approximately $17 million of her assets to a limited partnership. The great-nephew served as the manager of the partnership and signed on her behalf as a limited and general partner. The partnership assets were used to pay the estate tax. In exchange for the assets, the decedent received a .0095% general partnership interest and a 99.9941% limited partnership interest. The nephew did not keep enough cash outside of the partnership to account for normal living expenses, and all living expenses were paid from the partnership. When valuing the majority interest of the partnership included on the estate tax return, the executor included a discount of 15% for lack of control and a 25% discount for lack of marketability. The IRS audited the estate tax return, attacked the discount, and issued a notice of deficiency. The Tax Court in Estate of Fields v. Comm’r, T.C. Memo. 2024-90, observed that the requirements for including the property in the gross estate under § 2036(a) were met. First, the decedent made an inter vivos transfer of property. Second, the decedent retained an interest or right in the property until death. Third, the transfer was not a bona fide sale for adequate and full consideration. The court surmised that any non-tax business purposes were post-hoc justifications, given that there had been no discussion of transferring her assets into any partnership until her health started declining rapidly. It noted that the decedent also had the right as both the limited partner and the general partner acting together to dissolve the partnership. The court found a 20 percent negligence penalty on the underpayment of tax, holding the great-nephew did not have reasonable cause to believe a significant discount was warranted.
Art: In Artful Imbalance: How the US Tax Code and State Trust Laws Enable the Growth of Inequality through High-Value Art Collections, 89 Brook. L. Rev. 681 (2024), Mimi Strauss explores how the 2021 Pandora Papers revealed the United States as a global haven for those who wished to shelter enormous wealth while paying minimal taxes on high-value art and NFTs. This “onshore” tax crisis results from money laundering, the securitization of art and NFTs, and the state-by-state trust system. These legal and illegal forms of tax-dodging exacerbate wealth inequality and strain public resources. Strauss proposes a multipronged solution to address the issue, including national trust registration and tax, elimination of Domestic Asset Protection Trusts, and re-engagement with UNESCO.
Exculpatory Clauses: In Too Cozy? The Ethical Case Against Allowing Attorney-Trustees to Shield Themselves from Personal Liability Through Blanket Exculpatory Clauses, 59 Real Prop. Tr. & Est. L. J. 67 (2024), Rebecca O’Neill examines how lawyers acting as attorney-trustees can add broad exculpatory clauses to trusts that shield them from liability for negligence or recklessness in trust administration. She argues that this protection allows attorney-trustees to operate under a lower ethical standard and advocates for reforms in the law governing attorney-trustees.
James Brown's Estate: In The Curious Case of the James Brown Estate, 92 Geo. Wash. L. Rev. 753 (2024), Lee-ford Tritt explores the world of iconic musicians such as Michael Jackson, Aretha Franklin, Prince, and James Brown. Despite their legacies, their estates encounter legal difficulties tied to copyright laws, which can interfere with their intended estate plans, a situation referred to as “estate bumping.” This article uses James Brown’s estate as a case study to illustrate the challenges of estate bumping and provides estate planning recommendations for artists.
Seizure of Inherited Property: In Estate to State: Pay-to-Stay Statutes and the Problematic Seizure of Inherited Property, 95 U. Colo. L. Rev 839 (2024), Brittany Deitch examines how pay-to-stay laws enable states to recover incarceration costs from current or former inmates, including through the seizure of inherited property. This article critiques pay-to-stay statutes, particularly for their use of seizing inherited property, which infringes on the rights of both the decedent and the beneficiaries. Deitch advocates for the abolition of pay-to-stay statutes, asserting that states should not have the power to intercept inheritances.
South Africa: In In Search of an Intent Doctrine in the Law of Wills: A South African Perspective, 33 Tul. Eur. & Civ. L. F. 38 (2024), James Faber discusses the critical idea of the testator’s intent, building upon previous American scholars’ work in this area. Faber argues for an “act-based” approach that focuses on the act of making a will as a legal action, arguing that this method effectively captures the complex nature of the testator’s intent. Using this approach, the article aims to create a stronger foundation for developing a clear doctrine of intent in the law of wills.
Undue Influence: In The New Undue Influence, 2 Utah L. Rev. 231 (2024), Reid Weisbord and David Horton explore how the doctrine of undue influence has long been controversial as relationships are complex, the challenges to donative transfer are litigated after the owner dies, and the vagueness of “undue influence” often results in protecting a decedent’s family at the expense of non-traditional relationships. Recently, some jurisdictions have adapted the concept and created a “new undue influence” to combat elder abuse. This article analyzes the trend in California and finds that the new approach has led to higher success rates for litigants but also has raised issues of duplicative lawsuits between the probate and the civil litigation systems.
Will Vs. Intestacy: In Is a Will Better than Intestacy? 98 U. Cin. L. Rev. 631 (2024), Kristine Knaplund examines how scholars have advocated for relaxed formal requirements for wills to increase their prevalence and reduce legal disputes during probate. Knaplund provides an empirical study, focusing on David Horton’s survey of the 2007 probate files from Alameda County, California, and compares them to the probate files from 1870 St. Louis, Missouri, when formalism reigned. The article examines whether these reforms have produced the expected benefits, such as more wills being created, less litigation, fewer abandoned cases, and a quicker probate process than intestate estates.
California completes a full adoption of the Revised Uniform Fiduciary Access to Digital Assets Act. 2024 Cal. Legis. Serv. Ch. 799.
California passes the Kasem-Nichols-Rooney Law to require the conservator to provide notice if the conservator proposes to remove the conservatee from his or her current residence. 2024 Cal. Legis. Serv. Ch. 455.
Delaware adopts the Uniform Special Deposits Act. 2024 Del. Laws Ch. 465.
Delaware enacts the Uniform Health Care Decisions Act. 2024 Del. Laws Ch. 467.
