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Full-Text Articles in Law

International Implications Of The Will As An Implied Unilateral Arbitration Contract, S. I. Strong Jan 2016

International Implications Of The Will As An Implied Unilateral Arbitration Contract, S. I. Strong

Faculty Publications

In his article, The Will As An Implied Unilateral Arbitration Contract, Professor Gary Spitko offers an intriguing and innovative argument about how arbitration provisions in wills can be enforced even over the objection of a beneficiary and even in cases where the beneficiary seeks to set aside the will in its entirety. While I do not agree with all of the assertions in that Article (for example, the conclusion that "a consensus is developing that a testator may not compel arbitration of contests to her will"' appears somewhat premature, given a number of probate cases not discussed by Professor Spitko …


The Home: Where Our Heart Resides, David M. English Jul 2014

The Home: Where Our Heart Resides, David M. English

Faculty Publications

Helping a client maximize the use of his or her home for these purposes is no simple task. It requires knowledge of options and resources across many domains. But stepping back and taking a broader look at these strategic opportunities and pitfalls is useful in appreciating the knowledge and skill set needed to competently counsel and represent aging clients. This article looks first at a variety of consumer protection issues, examines the interrelationship between the home and a variety of government benefits, and concludes with a discussion of technology that may enable an elderly person to remain in the place …


Impact Of Uniform Laws On The Teaching Of Trusts And Estates, David M. English Apr 2014

Impact Of Uniform Laws On The Teaching Of Trusts And Estates, David M. English

Faculty Publications

Beginning in 1969 with the approval of the Uniform Probate Code (UPC), uniform laws have had a major impact on the teaching of the basic Trusts and Estates course. This is not the place to list the close to thirty uniform acts relating to Trusts and Estates that have been approved. Rather, this Article will focus on the impact that uniform laws have had on the content of what is taught in the Trusts and Estates course. Uniform laws are not written in a vacuum. Like other legislative enactments, they are the product of societal changes and changes in legal …


Empowering Settlors: How Proper Language Can Increase The Enforceability Of A Mandatory Arbitration Provision In A Trust, S. I. Strong Oct 2012

Empowering Settlors: How Proper Language Can Increase The Enforceability Of A Mandatory Arbitration Provision In A Trust, S. I. Strong

Faculty Publications

With hostile trust litigation reaching epidemic proportions, many people within the trust industry are interested in identifying new and less expensive ways to resolve trust-related disputes. Arbitration is often proposed as a possible alternative, although questions exist about whether and to what extent a mandatory arbitration provision found in a trust will be considered enforceable by a court. Up until now, most commentary in this area of law has focused on purely jurisprudential issues, with little attention being paid to the practical efforts that settlors can make to increase the enforceability of arbitration provisions found in trusts. This Article takes …


Disclose - Disclose - Disclose - Longmeyer Distorts The Trustee's Duty To Inform Trust Beneficiaries, David M. English, Berry T. Turney, Dana G. Fitzsimons Jr. Jul 2010

Disclose - Disclose - Disclose - Longmeyer Distorts The Trustee's Duty To Inform Trust Beneficiaries, David M. English, Berry T. Turney, Dana G. Fitzsimons Jr.

Faculty Publications

The evolution of the law concerning the trustee's duty to disclose information to the trust beneficiaries, through cases like Longmeyer, creates new risks for trustees who are unaware of their obligations. Trustees will also face an increasing number of difficult situations as in Longmeyer as a result of an aging and increasingly infirm population. Although it can be a difficult decision to make under pressure, a trustee should give strong consideration to policies that favor prompt and complete disclosure even in difficult circumstances. Also, trustees should remember that the courts are available for their protection when confronted with genuine doubt …


Longmeyer Exposes Or Creates Uncertainty About The Duty To Inform Remainder Beneficiaries Of A Revocable Trust, David M. English, Turney P. Berry, Dana G. Fitzsimons Jr. Oct 2009

Longmeyer Exposes Or Creates Uncertainty About The Duty To Inform Remainder Beneficiaries Of A Revocable Trust, David M. English, Turney P. Berry, Dana G. Fitzsimons Jr.

Faculty Publications

This article discusses the surprising Longmeyer decision, handed down by the Supreme Court of Kentucky earlier this year in which a predecessor trustee was held to have a duty to give certain notifications to former remainder beneficiaries of a revocable trust. The authors then examine how Longmeyer might have been decided in other states and under other statutory schemes. The article concludes with observations concerning when certain notices to trust beneficiaries may be conducive to effective trust administration and suggestions to those who administer trusts on how best to comply with beneficiary notice requirements.


A Uniform Probate Code For Indian Country At Last, David M. English Mar 2006

A Uniform Probate Code For Indian Country At Last, David M. English

Faculty Publications

AIPRA makes major reforms to the Indian probate system. Federal law long provided that trust or restricted lands and IlM accounts owned by an Indian intestate are to be distributed to the heirs as determined under state law. AIPRA replaces this with one uniform intestacy scheme for the distribution of trust lands and IJIM accounts in lieu of the 30-plus state systems that now apply. AIPRA also fills out the federal law on wills, enacting numerous provisions on the interpretation of wills, most adapted from the Uniform Probate Code. In addition to providing Indian country with a uniform and more …


The New Mexico Uniform Trust Code, David M. English Jan 2004

The New Mexico Uniform Trust Code, David M. English

Faculty Publications

This article provides an overview of the New Mexico UTC, focusing on how its enactment either changes or clarifies existing New Mexico law.


The Kansas Uniform Trust Code, David M. English Jan 2003

The Kansas Uniform Trust Code, David M. English

Faculty Publications

Senate Bill 297, which was enacted by the Kansas legislature in 2002 and which became effective on January 1, 2003, is a substantial adoption of the Uniform Trust Code (2000) (“UTC”). The Kansas UTC is codified in a new chapter, Kansas Statutes Annotated chapter 58a. The UTC is the Uniform Law Commissioners' first effort to provide the states with a comprehensive model for codifying their law on trusts.


Analyzing The Trust Code, David M. English Apr 2002

Analyzing The Trust Code, David M. English

Faculty Publications

Uniform Acts have played a significant role in the development of the law on trusts and estates. While the Uniform Probate Code is perhaps the best known of such Acts, there are many others. The Uniform Trust Code (2000) ( “UTC”) continues in this tradition. Like the Uniform Probate Code, it provides the states with a comprehensive model for codifying their laws. It provides the states with an opportunity to update, fill out, and systematize their law on trusts.


The Uniform Trust Code (2000): Significant Provisions And Policy Issues, David M. English Apr 2002

The Uniform Trust Code (2000): Significant Provisions And Policy Issues, David M. English

Faculty Publications

This Article provides an overview of the UTC, describes how it responds to recent developments in American trust practice, and describes how its enactment would change the trust law prevailing in most American states.


The Uniform Trust Code (2000) And Its Application To Ohio, David M. English Jan 2002

The Uniform Trust Code (2000) And Its Application To Ohio, David M. English

Faculty Publications

This article provides an overview of the U.T.C., focusing on how its enactment would change existing Ohio law. The drafting of the U.T.C. was prompted by the much greater use of trusts in recent years. This greater use of the trust and consequent rise in the number of day-to-day questions involving trusts led to a recognition by the Commissioners that the trust law in most states is thin, leaving many gaps between the often few statutes and reported cases


The Uniform Health-Care Decisions Act And Its Progress In The States, David M. English May 2001

The Uniform Health-Care Decisions Act And Its Progress In The States, David M. English

Faculty Publications

Over the past decade, planning for health care decision making through the making of an advance directive has become a routine part of personal counseling. Public interest in the subject has been fueled by well-publicized cases such as Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990). In response to this interest, most states authorize their citizens to make at least one form of advance directive: all states statutorily authorize powers of attorney for health care, and all but Massachusetts, Michigan and New York authorize living wills. State legislation has been a mixed blessing. Although intended to facilitate …


Is There A Uniform Trust Act In Your Future, David M. English Jan 2000

Is There A Uniform Trust Act In Your Future, David M. English

Faculty Publications

The National Conference of Commissioners on Uniform State Laws (NCCUSL) is close to completing the first comprehensive attempt at the national level to codify the law of trusts-the Uniform Trust Act (Act). This article describes the reasons for the Act and many of its provisions. The Act is scheduled for final reading and approval by NCCUSL during the summer of 2000, meaning that states may begin enacting the Act in its final form in their 2001 legislative sessions. This article is based on the draft discussed at NCCUSL's 1999 annual meeting.


Survey Results: Use Of Durable Powers, David M. English Jan 1996

Survey Results: Use Of Durable Powers, David M. English

Faculty Publications

The use of durable powers of attorney (DPA) has developed rapidly over the last decade. This growth reflects the public's desire for a simple and effective method of planning for possible incapacity. Although there are other planning tools, individuals frequently prefer the DPA. It is more comprehensive and provides greater certainty of result than does a joint bank account. A DPA is much easier to create than a revocable trust. By using a DPA, one can avoid an intrusive and possibly cumbersome guardianship or conservatorship proceeding.


The Upc And The New Durable Powers, David M. English Jul 1992

The Upc And The New Durable Powers, David M. English

Faculty Publications

This article thoroughly explores the escalation of interest in durable powers of attorney, with particular emphasis on health care powers and advance directives. The author focuses on durable power legislation influenced by the Unifomi Probate Code and health care power and advance directive statutes enacted in response to recent decisions dealing with the withholding or withdrawal of life-sustaining treatment.