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Articles 1 - 23 of 23
Full-Text Articles in Law
International Implications Of The Will As An Implied Unilateral Arbitration Contract, S. I. Strong
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
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
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
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.
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.
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
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
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
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
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
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
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
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
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
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
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.
Can An Estate Tail Be Docked During Life Of First Taker?, Ben Ely Jr.
Can An Estate Tail Be Docked During Life Of First Taker?, Ben Ely Jr.
University of Missouri Bulletin Law Series
It frequently happens that, where land has been granted to one and the heirs of his body, thus creating an estate tail which the Missouri statute turns into a life estate in the first taker with remainder to those persons who would next have taken the estate tail "according to the course of the common law", it is desired to convey the entire fee during the life of the first tenant. Thus where entailed lands are desired for the erection of some public work, or in the consummation of some other enterprise of general importance, it is necessary that the …
Some Problems Involved In Conditional Deliveries Of Deeds, Glenn A. Mccleary
Some Problems Involved In Conditional Deliveries Of Deeds, Glenn A. Mccleary
University of Missouri Bulletin Law Series
While early law drew the line of finality of the legal act for deeds at the stage known technically as "delivery", modern jurisprudence has progressed from such strict formalism to a "liberal and flexible practicality" in which internal standard compete with the external, and the subjective with the objective. Whether an instrument has been delivered is in modern law a question of intention. It is generally agreed today that delivery does not necessarily involve a manual transfer of the deed, provided the grantor indicates an intention otherwise that the deed shall take effect, though perhaps the manual act, or the …
Partition Where Life Estates And Remainders Are Involved, Earl F. Nelson
Partition Where Life Estates And Remainders Are Involved, Earl F. Nelson
University of Missouri Bulletin Law Series
In the University of Missouri Bulletin (Law Series No. 14) Professor Manly Hudson considered the decided cases and very clearly and concisely summarized the law as then declared by the Supreme Court. Professor Hudson expressly states that "the last word" has not been spoken concerning the partition of remainders and it is believed that subsequent decisions require some modifying and supplementing of the conclusions stated by Professor Hudson in his article, and it is now endeavored to group all the cases for citation and discussion under what are deemed the applicable propositions of law.
Attempted Acceptance Of A Deceased Offeror's Offer, James L. Parks
Attempted Acceptance Of A Deceased Offeror's Offer, James L. Parks
University of Missouri Bulletin Law Series
Occasionally an offeree will attempt to accept an offer within its life as originally stated, but the act which he regards as an acceptance, and which usually would have been effective as such, is done after the death of his offeror. On this state of facts courts in the past have generally held that no contract could result from the offerce's efforts. The rule was to the effect that the offeror's death terminated his offer and his offeree's legal power to bind his estate to the bargain originally proffered. The reasons assigned to support this proposition are that every contract …
Operative Facts In Surrenders - Part 1, Merrill I. Schnebly
Operative Facts In Surrenders - Part 1, Merrill I. Schnebly
University of Missouri Bulletin Law Series
A discussion of surrenders is likely to begin with the oft repeated definition of Lord Coke:" 'SURRENDER' sursum redditio, properly is a yeelding up of an estate for life or yeares to him that hath an immediate estate in reversion or remainder, wherein the estate for life or yeares may drowne by mutuall agreement betweene them."' In the passages which follow Coke classifies surrenders in two different ways: first, into surrenders "in deed, or by express words", and surrenders "in law"; secondly, into surrenders "by deed" and surrenders "without deed". There is an obvious shift in the meaning of the …
Payment Of Debt To Foreign Representatives Or Heirs, Robert B. Fizzell
Payment Of Debt To Foreign Representatives Or Heirs, Robert B. Fizzell
University of Missouri Bulletin Law Series
At common law an executor or administrator has no authority to administer upon any property of the deceased the situs of which is without the state of his appointment. "Every grant of administration is strictly confined in its authority and operation to the limits of the territory of the government which grants it. and does not de jure extend to other countries." It is, therefore, uniformly held that the domiciliary representative cannot proceed to a foreign state and in his official capacity maintain an action to collect the assets of the deceased located there.
The Rule Against Perpetuities In Missouri, Manley O. Hudson
The Rule Against Perpetuities In Missouri, Manley O. Hudson
University of Missouri Bulletin Law Series
It is the purpose of this study to determine the present position of the rule against perpetuities in Missouri law, and to anticipate some of the cases to which the bar may expect it to be applied.