Estates and Trusts Commons^™

The Holy Grail? Designing And Teaching An Integrated Doctrine And Drafting Course, Claire C. Robinson May

Law Faculty Articles and Essays

I’ve long considered teaching doctrine and skills together in a single course to be the holy grail of legal education. If we could do so successfully, we might make significant strides in providing a legal education that better prepares our students to be practicing lawyers. In spring 2016, my colleague Professor April Cherry and I took the plunge and collaboratively offered a course titled Estates and Trusts: Doctrine and Drafting at our institution, Cleveland-Marshall College of Law. This essay describes our experience and lessons learned pursuing the holy grail.

Law Of Wills, Browne C. Lewis

Law Faculty Books

This casebook is designed to train law students to think and act like probate attorneys. It is meant to be used in conjunction with the author's book The Law of Trusts. This book's focus is problem-solving and legal application. It includes numerous problems so law students can learn to apply the law they learn from reading the cases. It also contains collaborative learning exercises to encourage students to engage in group problem-solving. The book is divided into three parts to reflect the main types of issues that students will encounter if they practice probate law; its organization mirrors the …

One Fund Solution And The Pension Crisis, Gordon Butler

Cleveland State Law Review

The next forty years of economic life will be dominated by one underlying theme: dealing with the retirement income security of a growing, aging and longer-lived global population. This is a "can’t run, can’t hide" problem that will affect the lives of almost every human being on the planet . . . Whether you are light in your pension account, whether you have more money than Croesus, whether you live in the well-funded Netherlands, or whether you are a put-upon unambitious young male in Japan who sees no future for himself, you cannot escape this problem.

Before you read very …

Review: Compassionate Care For The Living And The Dying, Browne C. Lewis

Law Faculty Articles and Essays

This is a review of "The End of End-of Life Law" (92 N.C.L. Rev. 1693 (2014), by Lois L. Shepard. In light of medical advances and increasing health care costs, conversations about end-of-life care will continue to occur. A significant portion of the discussion will focus on ways to handle surrogate decision-making. The practical suggestions Professor Shepherd includes in her article could be a valuable part of that dialogue.

Review: Linking The Certainty Of Death And Taxes, Browne C. Lewis

Law Faculty Articles and Essays

This is a review of "Wills for Everyone: Helping Individuals Opt Out of Intestacy" (53 B.C.L. Rev. 877 (2012)), by Reid Kress Weisbord. Lewis praises Weisbord’s attempt to simplify the testamentary process. She agrees with his assertion that in failing to execute a will, most people are not fearing their own mortality and instead are just not willing or able to navigate a complicated testamentary process. She supports his suggestion to make executing a will more like filing a simple tax return, when possible. In sum, she praises his efforts to reduce the rate of intestacy by simplifying the testamentary …

"I'M Not Quite Dead Yet!": Rethinking The Anti-Lapse Redistribution Of A Dead Beneficiary's Gift, Eloisa C. Rodriguez-Dod

Cleveland State Law Review

A persistent challenge in law is how to achieve the necessary balance between individual decision-making and societal goals. This struggle of autonomy versus societal goals manifests itself in the context of anti-lapse law for wills and trusts. This article highlights how the current rules of construction regarding anti-lapse statutes fail both the goal of implementing intent and ensuring societal goals. An examination of the current statutes demonstrates that they are flawed, controversial, and, at times, result in inconsistent application. The current statutory scheme leads to unanswered questions: Should statutes presuppose distributions when an instrument does not explicitly address the specific …

The Good, The Bad, And A New Kind Of Prenup: An Analysis Of The Ohio Legacy Trust Act And What Asset Protection Trusts Will Mean For Ohio, Kevin R. Mckinnis

Cleveland State Law Review

It is human nature to want to protect what one has worked hard to earn or accomplish. It is this very nature that entices individuals to search for creative methods by which to protect one’s assets, whether from high tax rates or creditors. As laws continually change, individuals strive to protect their assets in the most effective and secure manner possible. As a result, the protection of one’s assets has evolved from the use of offshore Asset Protection Trusts (APTs) to the use of domestic APTs (DAPT). The Ohio Legacy Trust Act is an attempt to modernize Ohio’s wealth management …

The Inappropriate Imposition Of Court-Ordered Mediation In Will Contests , Victoria J. Haneman

Cleveland State Law Review

Mediation settlements that are shaped or driven by non-legal considerations are not problematic, unless and until the process of mediation is designed and imposed upon the parties through state action (namely, the judicial system). Because the approach taken in mediation ineradicably strains against the legal rules applied by the courts adjudicating those same cases, a legitimate question arises as to whether or not instituting court-ordered mediation programs that mandate mediation in will contest cases is appropriate. The contention of this Article is not that mediation is inappropriately used by the parties to a will contest case, but instead that court-ordered …

Graveside Birthday Parties: The Legal Consequences Of Forming Families Posthumously, Browne C. Lewis

Law Faculty Articles and Essays

This essay highlights some of the legal consequences resulting from the widespread availability and use of reproductive technology. The Essay is divided into three parts. Part I examines the steps that must be taken to identify the legal parents of the posthumously conceived children. Part II discussed the reproductive rights of the deceased gamete providers. Since most posthumous reproduction is done using the sperm of dead men, the discussion centers on male reproductive rights. Finally, Part III focuses on the inheritance rights of posthumously conceived children.

Outdated Form Of Evidentiary Law: A Survey Of Dead Man's Statutes And A Proposal For Change, Ed Wallis

Cleveland State Law Review

In order to understand why Dead Man's statutes should be amended by state legislatures, it is important to look at the historical context of Dead Man's statutes and how they have been handled, interpreted and applied in different states. Consequently, Part II of this paper presents an historical outline of Dead Man's statutes; Part III surveys nine states that currently have a common law Dead Man's statute; Part IV analyzes the weaknesses behind the Dead Man's statute; Part V presents three separate alternatives that states should consider adopting in lieu of their current Dead Man's statutes. Finally, part VI concludes …

Ghosts From The Grave-Inheriting Through The Predeceased Under Ohio Law , Kevin Purcell

Cleveland State Law Review

This Article seeks to advise the estate-planning attorney that Ohio's laws concerning inheriting through predeceased persons is a labyrinth of arbitrary rules, the majority of which serve no apparent public policy. Specifically, very different sets of rules apply to inheriting through a predeceased person via intestacy, a will, a living trust, or a "beneficiary designation" type account, such as a "payable on death" account (hereinafter P.O.D.). Additionally, Ohio law contains surprisingly high doses of ambiguity in some of the most basic principles of law relating to inheriting through predeceased next of kin or predeceased named-beneficiaries in a dispositive-planning instrument. Rather …

A Primer On Organ Donation , Louis J. Sirico Jr.

Journal of Law and Health

As organ donation gains increasing attention in our society, attorneys have an obligation to stay current on the issues so that they can properly advise two groups of clients: those who may need transplants and those who, if given reliable information, might consider becoming organ donors. A client in need of a transplant may wish advice about putting his or her affairs in order, and a client who retains an attorney to draft a will may be interested in learning about organ donation. Attorneys should know what a potential organ recipient should consider, how donated organs are allocated, how to …

The Death Of The "Death Tax"?: An Introduction, Deborah A. Geier

Cleveland State Law Review

I would like to consider the question: What brings us together today to consider the possible repeal of the estate tax? We would not likely be here today if the repeal of the estate tax were not a serious political possibility, and it would not likely be a serious political possibility if many middle-class taxpayers earning the median household income of about $40,000 to $50,000 per year did not support outright repeal, rather than much needed reform. The article then explains why taxpayers support outright repeal today when they would not have done so even ten years ago. The article …

Death Taxes: A Critique From The Margin, Patricia A. Cain

Cleveland State Law Review

The proper taxation of the family under both the income tax and the estate tax has been debated for ages. It is an old issue. My purpose, however, is to consider the issue from a perspective somewhat different from that of those who have debated the issue over the years. My perspective is the perspective of the marginalized taxpayer. I critique from this perspective to see if it can tell us anything new about the old debate and to ensure that the ultimate tax treatment is just as to all taxpayers. The estate tax is supposed to be a tax …

The Cy Pres Doctrine In The United States: From Extreme Reluctance To Affirmative Action, Frances Howell Rudko

Cleveland State Law Review

Perhaps no legal principle illustrates the use of Fourteenth Amendment equal protection jurisprudence more poignantly than the relatively obscure cy pres doctrine. The ancient doctrine which allowed both courts and the Crown in England to change trust purposes when the original trust purposes proved no longer viable was adopted belatedly, sporadically and partially by jurisdictions in the United States. In Part I, the author illustrates how the United States jurisdictions differ from England in the requirement for charitable intent. Earlier cases reveal the United States, unlike England, has resisted relaxation of the requirement. In Part II, the author uses the …

An Overview Of Fair Housing, Kenneth J. Kowalski

Law Faculty Articles and Essays

The purpose of this article is to give an overview of federal fair housing laws and their impact on the real estate industry. This article limits its review to three principle federal statutes affecting equal-housing opportunities: Title VIII of the Civil Rights Act of 1968, 42 U.S.C. §3601 et seq. (hereinafter cited as the "Act" or "Title VIII") and the 1866 and 1870 Civil Rights Act, 42 U.S.C. §§1981, 1982 (respectively "section 1981" and "section 1982"). A review of the substantive provisions of the statutes, methods of enforcement, and judicial interpretations are included. The article also discusses specific evidentiary issues, …

Erisa: Punitive Damages For Breach Of Fiduciary Duty, Deborah A. Geier

Law Faculty Articles and Essays

Fiduciary duty principles are central to the protection provided by the Employee Retirement Income Security Act (ERISA or Act). The law is unsettled, however, about whether Congress intended to extend punitive damages, a typical remedy for breach offiduciary duty under the common law, to the applicable ERISA provision. This Note argues that the plain meaning of the ERISA fiduciary duty provision, the legislative history underlying the purposes and policies of the Act, and the availability of punitive damages under analogous law, taken together, support the recovery of punitive damages for a breach of ERISA's fiduciary duty provision.

Reflections On Estate Of Rothko: The Role Of The Legal Advisor In Relation To The Artist, Gustave Harrow

Cleveland State Law Review

Estate of Rothko reveals the type of responsibility a legal advisor to an artist ought to assume if he is to render a service designed to advance not only his client's monetary interests, but the integrity of his art and his artistic aspirations as well.

Racial And Religious Discrimination In Charitable Trusts: A Current Analysis Of Constitutional And Trust Law Solutions, Roy M. Adams

Cleveland State Law Review

It is the purpose of this article to chronicle and analyze the process by which constitutional and trust law have blended together in the charitable trust field. The questions to be posed and answered are essentially these: Can a settlor expect racial and religious restrictions in a charitable trust to be allowed to operate? If such restrictions may operate, under what conditions and circumstances? If not, why not, and what will happen to the trust property thereafter?

Community Property Considerations In Ohio Estate Planning: Expecting The Unexpected, Frank J. Cumberland Jr.

Cleveland State Law Review

For the lawyer in the community property state, the laws peculiar to community property are familiar ground, having in all probability made up at least a part of the law school curriculum. For the lawyer in the common law state, community property laws are generally something to be read about in the newspaper when the husband or wife of a movie star lands a huge divorce settlement due to the operation of the community property laws in California. But it is quite realistic to state that whether the attorneys in the common law states know it or not, they are …

Legal Implications Of Cryonics, Daniel R. Spector

Cleveland State Law Review

Cryogenics is the science that deals with the production of very low temperatures and their effect on the properties of matter. The visual aspects of experiments in this field are fascinating. The practical aspects seem, at first glance, to be of considerably less consequence. However, this feeling of indifference does not arise as we ponder the ramifications of freezing one class of inanimate objects: dead human bodies. This is the realm of a more specific and indeed very new branch of cryogenics, namely, cryonics.

Error In Omitting "Or Die" After A Testamentary Gift Of Income To Widow, Anthony A. Morano

Cleveland State Law Review

The purpose of this essay is to consider the problems posed by a hypothetical omission of the words "or dies" from a typical testamentary gift of income to a surviving spouse during widowhood. While it is sincerely hoped that no one will have need of it, the writer wishes to record the products of his research and analysis just in case it may assist some blushing brother's future search for the consequences of that most painful of errors-the rare, unique mistake that no one before has made.

The Attorney General And The Charitable Trust Act - Wills, Contest And Construction, Dale R. Martin

Cleveland State Law Review

In Ohio the Attorney General shall appear in any court or tribunal in which the state is interested. The common law interpretation of the duties of the Attorney General regarding charitable trusts in the state of Ohio has been supplanted by statutory law which is enumerated in Sections 109.23-109.33 of the Ohio Revised Code, often referred to as the Charitable Trusts Act.

State Attorney General - Guardian Of Public Charities, Robert L. Gray

Cleveland State Law Review

In 1954, the National Conference of Commissioners of Uniform State Laws, having recognized the need for legislation in this area, published the Uniform Supervision of Trustees for Charitable Purposes Act, which was similar to the New Hampshire law. As has been stated, California soon passed the uniform act. Iowa (1959), Michigan (1961), Illinois (1961), and Oregon (1963) have since passed the uniform act. There are slight variations in the versions passed by the above states, but the general effect of their laws is the same. While the legislatures of these states have provided the law,they have not always provided the …

Common Problem In Administration Of Decedents' Estates, Daniel F. Carmack

Cleveland State Law Review

Probably the worst pitfall in the administration of decedent's estates is the fact that the law relating to it has so few pitfalls. As opposed to workmen's compensation practice, for example, the statutes covering administration and the devolution of decedent's property are relatively all-inclusive. There is a statute to cover most situations, and if the lawyer will read them, he will probably do a creditable job in most situations. This encourages the average practitioner to think of probate practice as an opportunity to shoot fish in a barrel, and get well paid for doing it. As we shall see, there …

The Senile Testator: Medicolegal Aspects Of Competency, Robert Gene Smith, Laurence M. Hager

Cleveland State Law Review

The law has failed to recognize recent advances in geriatric psychiatry. Moreover, where medical language has been used, the terminology is either outdated or misapplied. What follows is an attempt to describe the nature and policy of the legal standard for testamentary competency, to set forth the current medical approach to senility and mental disease, and to suggest practical ways for the lawyer to use geriatric psychiatry in behalf of the senile testator.

The Pour-Over Trust, Elliott H. Kajan

Cleveland State Law Review

One of the most important features of the inter vivos trust is its function as the receptacle of a pour-over provision in a will. The pour-over device is utilized when a disposition by a will provides, often in the residuary clause, for the devise or bequest of additional property to a previously created inter vivos trust This avoids the necessity of repeating in the will all the terms of the trust, and the estate conveyed to the trust is not thereafter involved in probate proceedings. The grantor of an amendable inter vivos trust can thus create and remodel an estate …

Drafting Of The Simple Will, Ellis V. Rippner

Cleveland State Law Review

The so-called "simple" will is by far the most common type of will drafted by the attorney. In jest it has been said to be that legal instrument requested by the newly retired business man who wishes to "place his house in order" prior to an extended vacation. Double-parked in front of his attorney's office, he wants the will drafted "instanter" so that he can start his trip with "peace of mind." In fact, seldom does a client suggest that his estate problem requires anything more than a "simple will." In truth, however, no properly drafted will can properly be …

Book Review, Andrew R. Field

Cleveland State Law Review

Reviewing Harold Klorfein, Estates in Expectancy, Simmons Boardman Publishing Corporation, 1958

Wills Can Be Made Unbreakable, Ellis V. Rippner

Cleveland State Law Review

So many will contest cases have been filed in the courts in recent years that it almost seems that whenever a will provides for distribution other than in the manner in which the property would descend in the event of intestacy, the probability of a will contest is present. This article will suggest methods by which a client can be given added assurance that his desires will be fulfilled. There are two aspects to consider: first, those methods which we can employ prior to the death of the testator; and second, the precautions we should use in preparing the will.