Law Commons^™

A Good Death: End-Of-Life Lawyering Through A Relational Autonomy Lens, Genevieve Mann

Washington Law Review

Death is difficult—even for lawyers who counsel clients on end-of-life planning. The predominant approach to counseling clients about death relies too heavily on traditional notions of personal autonomy and a nearly impenetrable right to be free from interference by others. Rooted in these notions, contracts called “advance directives” emerged as the primary tool for choosing one’s final destiny. Nevertheless, advance directives are underutilized and ineffective because many people are mired in death anxiety, indecision, and the weight of planning for a hypothetical illness. In the end, many do not get the death they choose: to trust in others and share …

How Should Inheritance Law Remediate Inequality?, Felix B. Chang

Washington Law Review

This Article argues that trusts and estates (“T&E”) should prioritize intergenerational economic mobility—the ability of children to move beyond the economic stations of their parents—above all other goals. The field’s traditional emphasis on testamentary freedom, or the freedom to distribute property in a will as one sees fit, fosters the stickiness of inequality. For wealthy settlors, dynasty trusts sequester assets from the nation’s system of taxation and stream of commerce. For low-income decedents, intestacy (i.e., the system of property distribution for a person who dies without a will) splinters property rights and inhibits their transfer, especially to nontraditional heirs.

Holistically, …

Inheritance Crimes, David Horton, Reid Kress Weisbord

Washington Law Review

The civil justice system has long struggled to resolve disputes over end-of-life transfers. The two most common grounds for challenging the validity of a gift, will, or trust— mental incapacity and undue influence—are vague, hinge on the state of mind of a dead person, and allow factfinders to substitute their own norms and preferences for the donor’s intent. In addition, the slayer doctrine—which prohibits killers from inheriting from their victims—has generated decades of constitutional challenges.

But recently, these controversial rules have migrated into an area where the stakes are significantly higher: the criminal justice system. For example, states have criminalized …

Legal Complications Of Repatriation At The British Museum, Hannah R. Godwin

Washington International Law Journal

The British Museum has been the target of criticism around the world for its failure to repatriate controversial cultural property to their respective countries of origin. In 1753, a private collector left his collection to Great Britain if it agreed to build a public museum and designate a Board of Trustees whose duty was to protect the collection for the public. Statutorily incorporating the collector’s intent, Parliament passed legislation binding the Board of Trustees to abide by certain principles, including preserving the collection and prohibiting disposal of objects, except in very few circumstances. As such, the Museum is administrated through …

Parens Patriae And The Disinherited Child, Michael J. Higdon

Washington Law Review

Most countries have safeguards in place to protect children from disinheritance. The United States is not one of them. Since its founding, America has clung tightly to the ideal of testamentary freedom, refusing to erect any barriers to a testator’s ability to disinherit his or her children—regardless of the child’s age or financial needs. Over the years, however, disinheritance has become more common given the evolving American family, specifically the increased incidences of divorce, remarriage, and cohabitation. Critics of the American approach have offered up reforms based largely on the two models currently employed by other countries: (1) the forced …

Janus As A Client: Ethical Obligations When Your Client Plays Two Roles In One Fiduciary Estate, Karen Boxx, Philip N. Jones

Articles

Is it possible for an attorney to have a conflict of interest when the attorney represents a trustee who is also a beneficiary of the trust? Is that situation similar to having two clients? What if the trustee is not only a beneficiary, but also a claimant against the trust? Since the trustee has three roles to play, is that situation similar to an attorney having three clients? The issue presented by these potential conflicts was one of the most vexing for the drafters of the Fifth Edition of the ACTEC Commentaries. The range of possible approaches goes from a …

The Class Action As Trust, Sergio J. Campos

Washington Law Review

The class action is controversial because the class attorney can litigate or settle the claims of the class members without their consent. Many scholars have turned to corporate law to address the potentially disloyal behavior of the class attorney. These scholars have used analogies to corporate law to support (1) the use of opt-out rights and (2) restrictions on class conflicts to constrain class attorneys, and the law has generally mirrored both requirements. In practice, however, both of these requirements have undermined the efficacy of the class action and prevented the class action from being used in many appropriate settings. …

The Class Action As Trust, Sergio J. Campos

Washington Law Review

The class action is controversial because the class attorney can litigate or settle the claims of the class members without their consent. Many scholars have turned to corporate law to address the potentially disloyal behavior of the class attorney. These scholars have used analogies to corporate law to support (1) the use of opt-out rights and (2) restrictions on class conflicts to constrain class attorneys, and the law has generally mirrored both requirements. In practice, however, both of these requirements have undermined the efficacy of the class action and prevented the class action from being used in many appropriate settings. …

Put Privity In The Past: A Modern Approach To Determining When Washington Attorneys Are Liable To Nonclients For Estate Planning Malpractice, Kaitlyn C. Kelly

Washington Law Review

Even in the best of circumstances, an estate plan may leave intended beneficiaries frustrated. Occasionally, an attorney’s alleged mistake in the execution of a will or administration of a trust sparks the beneficiaries’ anger. Under Washington law, it is unclear whether intended beneficiaries may sue an estate planning attorney for malpractice. Generally, an estate planning attorney’s client is a testator, not a testator’s intended beneficiaries; thus, the intended beneficiaries are not in privity of contract with the attorney. Rather, the only individual in privity with the accused attorney is usually deceased at the time of a malpractice lawsuit. If a …

Commentaries On The Model Rules Of Professional Conduct, Thomas Andrews, Karen Boxx

Books

This Fifth Edition of the ACTEC Commentaries continues the tradition of providing guidance on the Model Rules of Professional Conduct particular to estate and trust practitioners. The Fifth Edition update to the Commentaries takes account of amendments to the Model Rules adopted since the 2005 Fourth Edition, including those proposed by the American Bar Association Commission on Ethics 20/20 as adopted by the ABA in 2012 and 2013. It is current through August 31, 2015 as there have been no amendments to the Model Rules since 2013.

In addition to these updates, we have added Commentary and Annotations to four …

Shakespeare In The Classroom: How An Annual Student Production Of King Lear Adds Dimension To Teaching Trusts And Estates, Karen E. Boxx

Articles

I always begin the first day of my Trusts and Estates course by discussing the reasons for taking the class. While I note that some students may take the class to help in passing the bar exam or because family members have already asked them to draft wills, my list of reasons instead include: (1) exposure to the fiduciary relationship; (2) the real life ethical dilemmas faced by the lawyers; (3) learning to read and interpret state statutes; and (4) consideration of how law responds to societal changes and governs human relationships. This last reason is critical: Trusts and Estates …

Washington Trust Laws' Extreme Makeover: Blending With The Uniform Trust Code And Taking Reform Further With Innovations In Notice, Situs, And Representation, Karen E. Boxx, Katie S. Groblewski

Washington Law Review

Washington trust laws were comprehensively revised in 2011 and 2013, resulting in the integration of concepts from the Uniform Trust Code and the addition of some novel provisions. This article discusses in depth the evolution of Washington law regarding the duties to inform and report, the situs of a trust, and representation of interested parties. In addition, this article discusses other UTC provisions that were integrated into Washington statutes and gives an explanation of any departures from UTC language and prior Washington law.

Washington Trust Law's Extreme Makeover: Blending With The Uniform Trust Code And Taking Reform Further With Innovations In Notice, Situs, And Representation, Karen E. Boxx, Katie S. Groblewski

Articles

Washington trust laws were comprehensively revised in 2011 and 2013, resulting in the integration of concepts from the Uniform Trust Code and the addition of some novel provisions. This article discusses in depth the evolution of Washington law regarding the duties to inform and report, the situs of a trust, and representation of interested parties. In addition, this article discusses other UTC provisions that were integrated into Washington statutes and gives an explanation of any departures from UTC language and prior Washington law.

Slayers And Soldiers: The Validity And Scope Of The Slayer's Rule Under The Family Servicemembers' Group Life Insurance Act, Rebecca Blasco

Washington Law Review

The "slayer's rule"—a common law doctrine—precludes a murderer from financially benefiting from the victim's death by denying him or her the right to proceeds from the victim's life insurance policy. Some jurisdictions have extended this rule to disqualify the slayer's exclusive family members from receiving the victim's insurance proceeds as beneficiaries. Exclusive family members are those either not related to the victim or related to the victim only by marriage. The slayer's rule applies to federal group life insurance policies, such as the Servicemembers' Group Life Insurance Act (SGLI), which provides life insurance to servicemembers. Spouses and dependent children of …

Pro Se Executors—Unauthorized Practice Of Law, Or Not?, Michael Hatfield

Articles

This Article clarifies why under Texas law an individual named as executor in a will has the right to offer the will for probate and otherwise appear in a probate court without hiring a lawyer. This Article first provides an overview of the independent administration provisions of the Texas probate code before reviewing the unauthorized practice of law prohibition and the pro se exception. After establishing that executors qualify for the pro se exception in Texas because executors appearing in court are exercising their own management rights—rather than the rights of "the estate" or the beneficiaries—the Article explores suggestions of …

Distinguishing Trustees And Protecting Beneficiaries: A Response To Professor Leslie, Karen E. Boxx

Articles

No abstract provided.

Lingering Questions Regarding The Devise Of Black's Acre: How Many Witnesses Are Required To Prove The Execution Of A Lost Will?, Sarah Shirey

Washington Law Review

Prior to the 1994 revisions to Washington's lost will statute, courts required that execution of a lost will be proved by a preponderance of the evidence. In In re Estate of Black, the Washington State Supreme Court announced that under the revised lost will statute, execution of a lost will must be shown by clear, cogent, and convincing evidence. However, the Black court did not clearly define the quantum of proof necessary to meet this new burden. The dissent in Black read the majority opinion as creating a "two witness requirement," necessitating testimony from both attesting witnesses to meet …

Of Punctilios And Paybacks: The Duty Of Loyalty Under The Uniform Trust Code, Karen E. Boxx

Articles

Loyalty has been cited as the most desired of traits from those who serve others. One reason that loyalty is so highly valued is that it is impossible to guarantee and impossible to buy. The trust law concept of the duty of loyalty acknowledges that human nature will cause any person to favor his or her personal interests over the interests of another, and it is this assumption of disloyalty that gives rise to the strict prohibitions of trustee conflicts of interest required under the label of "duty of loyalty."

The duty of loyalty has been called "the essence of …

Fighting The Probate Mafia: A Dissection Of The Probate Exception To Federal Court Jurisdiction, Peter Nicolas

Articles

Despite the complexity and confusion surrounding the probate exception to federal court jurisdiction-or perhaps because of it-it has been given scant attention in the literature. This Article seeks to fill the gap. Part II of this Article sets forth the current application of the probate exception in the lower federal courts. Part III of this Article examines the statutory and constitutional constraints on the federal courts' exercise of subject matter jurisdiction over probate and probate related matters. Part III concludes that the probate exception is a mere gloss on the statutory grants of subject matter jurisdiction to the federal courts …

The Durable Power Of Attorney's Place In The Family Of Fiduciary Relationships, Karen E. Boxx

Articles

The durable power of attorney is a deceptively simple document that allows one person to handle the affairs of an incapacitated person without court supervision. It is merely an agency relationship, established by a written document, that continues during the principal's incapacity. The durable power of attorney has been in widespread use only for about twenty-five years. It is very easy to draft, and its use escapes most court proceedings or even much need for legal assistance.

The durable power of attorney has therefore kept a low profile until now, and any attention it is now receiving focuses primarily on …

Long Live The Dead Hand: A Case For Repeal Of The Rule Against Perpetuities In Washington, Keith L. Butler

Washington Law Review

The common law rule against perpetuities has had a storied career spanning several centuries and two legal systems. The rule developed to curb the concentration of wealth in the hands of a few, and to limit the control of property by those no longer alive to use it. Legendary for its complexity, the rule has undergone statutory reform in many states; some states have gone so fara s to repeal the rule outright. Washington has embraced two of the major reforms of the rule and is considering repeal. This Comment argues that the rule, even with reform, no longer serves …

Gray's Ghost—A Conversation About The Onshore Trust, Karen E. Boxx

Articles

A trust is an arrangement whereby one person (the trustor) transfers property to another person (the trustee) and directs the trustee to hold the property for the benefit of another person (the beneficiary). Multiple persons may fill each role; for example, there can be several beneficiaries or co-trustees. One person may play several of these roles; for example, the trustor may also serve as trustee or may be a beneficiary of the trust. However, if the same person plays all three roles alone, then no trust is created.

A self-settled trust is a trust that a person settles, or establishes, …

Superwill To The Rescue? How Washington's Statute Falls Short Of Being A Hero In The Field Of Trust And Probate Law, Cynthia J. Artura

Washington Law Review

During the 1998 session, the Washington legislature added a provision to Title 11 of the Revised Code of Washington that allows for testamentary disposition of certain nonprobate assets. Although Washington's superwill provision is a pioneer in the field of probate and trust law, it is too limited in its scope to achieve filly its stated purpose. One of the statute's stated purposes is to enhance the testator's control over the disposition of nonprobate property. However, the provision limits the definition of "nonprobate asset" to include only joint tenant bank accounts with right of survivorship and revocable living trusts. This Comment …

Abusive Discretion: Discretionary And Supplemental Trusts Created In Settlement Of Personal Injury Claims, Brad Jones Berkness

Washington Law Review

Discretionary and supplemental trusts are often created in settlement of personal injury lawsuits to shield the settlement proceeds from the beneficiary's care-provider's claims. Washington courts provide no clear direction on creditor access to such trusts. This Comment argues for a legislative provision in Washington that makes these trusts accessible to creditors who provide necessities to an injured party. This Comment argues for allowing access regardless of any discretion or supplemental support language in the trust, because these trusts are self-settled and violate public policy.

Property Of The Estate After Confirmation Of A Chapter 13 Repayment Plan: Balancing Competing Interests, Vickie L. Vaska

Washington Law Review

Under Chapter 13 of the Bankruptcy Code, it is unclear whether property of the estate and protection of the automatic stay continue after confirmation of debtor's repayment plan. Courts use diverse approaches to determine whether property of the estate exists after confirmation, resulting in confusion for trustees, debtors, and creditors. This Comment proposes that bankruptcy courts use their equitable powers and adopt a test that balances the competing interests of debtor and creditor

Perpetuities: A Father's Reply, Robert L. Fletcher

Washington Law Review

Susan has persuasively argued for adoption of a method that would look at the various chains of events—the resolving sequences—thus to separate those that fail from those that pass. We differ in only one important respect. In some instances she would use a life or portion of a life that is extraneous to the vesting reached in a particular sequence. I would not. In doing so, she in effect adopts Professor Dukeminier's "affecting lives" approach. To put this in my terms, she uses any life or portion of a life that is pertinent to vesting of any sequence within the …

Perpetuities: Three Essays In Honor Of My Father, Susan F. French

Washington Law Review

The Rule Against Perpetuities is afrequent source offrustration and puzzlement for property students, professors, and practitioners In this Article, the Author presents three essays; her method of analyzing perpetuities problems, a proposalf or refinement of the common law rule, and an examination of the possible benefits of dead hand control. Although the Author has followed in her father's footsteps, becoming a property professor, some of her views on perpetuities diverge from his. Because scholarly discussion of perpetuities historically has taken the form of "Article and Reply" in various Law Reviews, Professor Robert L Fletcher's response follows his daughter's essays.

Creditors' Rights Against Nonprobate Assets In Washington: Time For Reform, Thomas R. Andrews

Washington Law Review

The increasing popularity of nonprobate transfers of property at death has created a "revolution" in family wealth transmission. Yet the law on creditors' rights to reach such transfers is badly confused. In some cases, exemptions from creditors' claims are far broader than can be justified. In others, existing creditors' rights are protected but undefined. In still others, it is unclear whether creditors can reach the property at all. There is no procedure for the enforcement of such rights as creditors may have no specified time limit within which claims may be brought. This lack of system invites abuse and is …

Compressing Testamentary Intent Into Inter Vivos Delivery: What Makes A Conveyance Effective?—In Re Estate Of O'Brien, 109 Wash. 2d 913, 749 P.2d 154 (1988), Susan Tracey Stearns

Washington Law Review

In In re Estate of O'Brien, the Supreme Court of Washington held that intent to pass a deed title at death fulfills the inter vivos delivery requirement and that the will substitute statute removes ineffective conveyances from the will statute requirement. This Note concludes that the O'Brien interpretations of delivery and the will substitute statute are misguided, and recommends judicial reversal of the delivery ruling and a legislative rewording of the statute.

Perpetuities: Basic Clarity, Muddled Reform, Robert L. Fletcher

Washington Law Review

This piece is intended to present the Rule Against Perpetuities, including its recent modifications, simply and understandably. Because the Rule's mechanics, even in their neatest and purest form, have seemed beyond average comprehension, the explanation given here largely brushes over minor variants in the common law expression of the Rule and its operation. The goal is to ensure that the real core of the Rule is clearly portrayed.