Estates and Trusts Commons^™

In Re Connell Living Trust, 134 Nev. Adv. Op. 73 (Sep. 13, 2018) (En Banc), Pengxiang Tian

Nevada Supreme Court Summaries

The Court determined that a no-contest clause in a trust does not foreclose a beneficiary’s interest if the beneficiary, acting as the trustee, breaches his or her fiduciary duty.

Equitable Relief For Erisa Benefit Plan Designation Mistakes, Raymond C. O'Brien

Catholic University Law Review

Since its enactment in 1974, the Employee Retirement Income Security Act (ERISA) and related insurance and disability programs provided retirement security for employees and employers, amassing more than $9 trillion in protected assets. Congress preempted conflicting state laws so as to promote certainty of distribution and ease of administration, two hallmarks of ERISA-governed plans. Nonetheless, since 1974, American society embraced spousal equality, an increased number of marriages end in divorce, and wealth most often passes through nonprobate transfers such as insurance contracts and pension policy plans. To accommodate these societal and wealth changes, states enacted statutes to provide elective share …

The Rise Of Fiduciary Law, Tamar Frankel

Faculty Scholarship

The law that defines and regulates fiduciary relationships appears in many legal areas, such as family law, surrogate decision-making, international law, agency law, employment law, pension law, remedies rules, banking law, financial institutions' regulation, corporate law, charities law not for profit organizations law, and the law concerning medical services.

Fiduciary relationships, and the concepts on which they are grounded, appear not only in the law. They appear in other areas of knowledge: economics, psychology; moral norms and pluralism. Fiduciary law has a very long history. It was recognized in Roman law and the British common law and appeared decades ago …

Is Marriage A Proxy For Wealth?, Phyllis C. Taite

Other Faculty Publications

No abstract provided.

From Waqf, Ancestor Worship To The Rise Of The Global Trust: A History Of The Use Of The Trust As A Vehicle For Wealth Transfer In Singapore, Hang Wu Tang

Research Collection Yong Pung How School Of Law

This Article focuses on the migration of English trust law to Singapore and its past and present uses in relation to wealth transfer through the ages. In Singapore, trust law arrived together with the corpus of English law. Unlike criminal law, which was influenced by Indian codes promulgated by the English in British India, trust law was received into Singapore directly from England.

Keep Suing All The Lawyers: Recent Developments In Claims Against Lawyers For Aiding & Abetting A Client’S Breach Of Fiduciary Duty, Katerina P. Lewinbuk

St. Mary's Journal on Legal Malpractice & Ethics

Lawyers have increasingly become subject to liability under various legal theories, ranging from traditional legal malpractice or negligence liability claims to various third-party actions. Most recently, state and federal courts across the country have recognized attorney liability for aiding and abetting a client’s breach of fiduciary duty. This Article will address the current status of the cause of action for a lawyer’s aiding and abetting her client’s breach of fiduciary duty, explain the commonalities and distinguish nuances as outlined by particular states, examine recent decisions by federal courts that have recognized the cause of action, and culminate in its conclusion …

The Limited Duties Of Lawyers To Protect The Funds And Property Of Nonclients, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

Issues arise daily in law practice about the duties owed by lawyers to nonclients with respect to funds or property entrusted to them. In resolving those issues, care must be exercised when interpreting state versions of Model Rule 1.15, the American Bar Association’s pattern ethics rule on safekeeping of funds and property. Otherwise, a lawyer’s duties to third persons may too readily encroach on the performance of obligations owed to clients, as well as on the legitimate interests of lawyers themselves.

As numerous authorities have recognized, lawyers are obliged to protect the property interests of third persons only if they …

Borrowing In The Shadow Of Death: Another Look At Probate Lending, David Horton

William & Mary Law Review

“Fringe” lending has long been controversial. Three decades ago, demand for subprime credit soared, and businesses started to offer high-interest rate cash advances, such as tax refund anticipation loans, payday loans, and pension loans. These products have sparked intense debate and are subject to a maze of rules.

However, in Probate Lending, published in the Yale Law Journal, a coauthor and I examined a form of fringe lending that has gone largely unnoticed: firms that pay lump sums in return for an heir or beneficiary’s interest in a pending decedent’s estate. Capitalizing on a California law that requires …

Facilitating The Intent Of Deceased Social Media Users, Yael Mandel

Cardozo Law Review

This Note will proceed in four parts. Part I will discuss the background of general testamentary principles of trusts and estates law. Part II will address the existing post-life policies of Facebook, Instagram, LinkedIn, and Twitter and the implications of the recently drafted acts addressing the disposition of digital assets. Part III will propose adding some type of testamentary formalities for the distribution of access to a deceased user's social media accounts, such as adding an electronic signature line and requiring the user to re-enter their password before saving their selections. In addition, Part III proposes the application of certain …

A Social Welfare Theory Of Inheritance Regulation, Mark Glover

Utah Law Review

The law of succession grants donors broad freedom to decide how to distribute their property upon death. It does so in hopes of increasing social welfare in two general ways. First, freedom of disposition generates socially beneficial estate planning decisions. In particular, donors are in the best position to evaluate their own specific circumstances and to make decisions that, on the whole, produce the greatest utility from the transfer of their estates. Second, the donor’s autonomy over estate planning decisions incentivizes socially beneficial behavior, such as productivity during the life of the donor. Because the law views freedom of disposition …

Navajo Nation V. Department Of The Interior, Jaclyn R. Van Natta

Public Land & Resources Law Review

In Navajo Nation v. Department of the Interior, the Navajo Nation challenged the Department of the Interior’s 2001 and 2008 water allocation guidelines and asserted that under NEPA and the APA the guidelines violated the Navajo Nation’s water rights. The Navajo Nation also asserted a breach of trust claim against the United States. After nearly a decade of attempted settlement negotiations, the Navajo Nation reasserted its complaints. The District Court for the District of Arizona denied the Navajo Nation’s motions, and the Navajo Nation appealed to the Ninth Circuit Court of Appeals, which determined the Navajo Nation lacked standing, …

Dispensing (With) Electronic Wills, Thomas Simmons

Faculty Publications

No abstract provided.

The Texas Constructive Trust And Its Peculiar Requirements, David Dittfurth

Faculty Articles

Consider two cases. In the first case, you represent the children of a woman who was intentionally and wrongfully killed by her husband. After having pled guilty to negligent homicide, the husband probates his wife's will in which he is the sole beneficiary. In the second case, your client attempts an online transfer of her savings to another of her accounts but enters the account number erroneously and sends her life's savings to a stranger's account. The recipient of this windfall has withdrawn the money in cashier's checks and refuses to return them to her.

Your clients want a court …

Using Empirical Studies As A Basis For Updating Intestacy Laws, Sergio Pareja

Faculty Scholarship

The principal goal of any intestacy statute is to determine the probable intent of individuals who die without a will. Professor Wright and Ms. Sterner analyze 493 wills that were probated in Escambia and Alachua Counties, Florida, in 2013. This blog post reviews their study as well as Wright and Sterner's final analysis. Pareja adds, new statutes, if properly considered, should pay attention to gender, race, and class differences that surfaced in the authors’ study

My Response To Beyer And Bove, Richard C. Ausness

ACTEC Law Journal

No abstract provided.

A Brief Review Of Professor F. Philip Manns, Jr., Powers Of Attorney Under The Uniform Power Of Attorney Act Including Reference To Virginia Law, Howard M. Zaritsky

ACTEC Law Journal

No abstract provided.

Reactions To Discretionary Trusts: An Update By Richard C. Ausness, Gerry W. Beyer

ACTEC Law Journal

No abstract provided.

Front Matter

ACTEC Law Journal

No abstract provided.

Commentary On Discretionary Trusts: An Update By Richard C. Ausness, Alexander A. Bove Jr.

ACTEC Law Journal

No abstract provided.

Undue Influence: The Gap Between Current Law And Scientific Approaches To Decision-Making And Persuasion, Dominic J. Campisi, Evan D. Winet, Jake Calvert

ACTEC Law Journal

No abstract provided.