Florida Probate Litigation, Will Contest Lawyer & Attorney : Juan C. Antúnez : Serving Miami, Jacksonville, Tampa Saint Petersburg, Orlando, Fort Lauderdale

Understanding how to conceptually "frame" a case, both factually and legally, is half the battle in litigation.  So even if an appellate decision from another state isn't binding precedent in Florida, the way in which the case is framed by the appellate court can be instructive for Florida lawyers.  Which is all a long-winded way of saying Florida probate lawyers should take note of an interesting LAW.COM article entitled Appeals Court: Relatives Who Assist in Suicide Can Inherit Estate, reporting on a Wisconsin case where the appellate court ruled that even if a decedent's wife and daughter helped him commit suicide, which is illegal in Wisconsin, they weren't barred from inheriting his estate by Wisconsin's slayer statute.

Click here for a copy of the Wisconsin appellate decision.

The Facts:

The following excerpt from the linked-to article provides a solid summary of the key facts:

Edward Schunk, 63, shot himself in 2006 in a cabin on his property while he was terminally ill with non-Hodgkin's lymphoma, a form of cancer. He left an estate valued at nearly $500,000.

The court ruled in favor of his wife, Linda, and youngest child, Megan Schunk, now 20, who were granted most of the estate under Schunk's will.

Schunk's six older children received little or nothing, according to court records. Five of them challenged the will, arguing that Linda and Megan Schunk took Schunk to the cabin, gave him a loaded shotgun and left even though they knew he was suicidal.

The two acknowledged they took him home from the hospital on a one-day pass but denied assisting his death. They said he had told them he wanted to go turkey hunting.

For the purposes of deciding the dispute, the court assumed the other children's allegations were true but still ruled in favor of the wife and younger daughter.

Under Wisconsin law, assisting in a suicide is punishable by up to six years in prison. Thursday's ruling did not address that law, and no one has been charged in Schunk's death.

Slayer Statute Analysis:

The Wisconsin opinion turned on whether the bold text of the following sentence, which is found in both the Wisconsin and Florida slayer statute, includes assisting someone to commit suicide:

A surviving person who unlawfully and intentionally kills or participates in procuring the death of the decedent is not entitled to any benefits under the will or under the Florida Probate Code, and the estate of the decedent passes as if the killer had predeceased the decedent.

The Wisconsin appellate court held that "unlawful and intentional killing" within the meaning of its slayer statute did not include assisting another to commit suicide. 

Assisted Suicide Statute Analysis:

It's interesting to note that the Wisconsin court ruled as it did even though Wisconsin, like Florida [F.S. 782.08], makes it a crime to help someone commit suicide. Here's how the Wisconsin court distinguished its assisted-suicide statute from its slayer statute:

The objectors point out that WIS. STAT. § 940.12 makes it a felony to “with intent that another take his or her own life assist[] such person to commit suicide....” Thus, they assert, Linda and Megan acted unlawfully and the facts show they intended to help Edward commit suicide. However, “unlawful” and “intentional” modify “killing” by limiting its meaning. If, as we have concluded, assisting another to commit suicide is not “killing” another, it does not become so because the conduct is unlawful and intentional.

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According to a WSJ article entitled Trusts Require Attention During Market Turmoil, there's no need to worry if you open the paper one day and read your trust company's going down in a ball of flames.

The good news is that trust assets managed by a corporate fiduciary such as Merrill Lynch & Co. don't go on the company's balance sheet. So, if the company is acquired, in the case of Merrill Lynch -- or files for bankruptcy protection, as in the case of Lehman Brothers Holdings Inc. -- trust assets the company manages aren't in danger.

Bruce Stone, a trust expert and shareholder at Goldman Felcoski & Stone PA, a law firm in Coral Gables, Fla., said, "Nobody is going to take your trust assets and liquidate them to pay off a bankruptcy, because the bankrupt entity doesn't own your trust assets."

Feeling better?

Blogging credit:

Credit goes to the Death & Taxes Blog for bringing the linked-to article to my attention in the blog post entitled Trusts, Corporate Fiduciaries, and the Bailout.

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Probate litigation has a way of spawning jurisdictional disputes that make your toughest law-school exam seem like a walk in the park.  Click here, here and here for recent examples.  These jurisdictional battles rarely become mano-a-mano contests between competing judges, but that's what seems to be happening in a case reported on in a San Francisco Chronicle article entitled Inheritance fight imperils de Young tribal art.

Since 2005 Palm Beach County, FL probate Judge John Phillips has been presiding over an inheritance battle between heirs of the Annenberg publishing fortune that is currently centered on an art collection valued for insurance purposes at over $90 million.  Known as the Jolika Collection, it's housed in a specially built wing of the M.H. de Young Memorial Museum, which is owned and operated by the City of San Francisco, CA.

As you can imagine, San Francisco's citizenry wasn't about to let some small-town Florida probate judge to take control of this very valuable public asset without a fight.  So when San Francisco City Attorney Dennis Herrera got wind of the case, he asked Judge Phillips for permission to intervene in the Florida case.  Judge Phillips said no.  Undeterred, and presumably fully aware that possession is nine-tenths of the law, Mr. Herrera then turned to an apparently much friendlier venue - San Francisco state court Judge Peter Busch - and (surprise!) got a restraining order effectively giving him the win he was denied in Florida. The Florida parties and Judge Phillips can stomp their feet in righteous indignation all they want, but as long as the Jolika Collection's in San Francisco, nothing's going anywhere until San Francisco Judge Busch says so.

Here's an excerpt from the linked-to article:

Three brothers - John Friede, Robert Friede and Thomas Jaffe - have been feuding since 2005 over the estate of their mother, Evelyn A.J. Hall, a sister of the late publishing tycoon Walter Annenberg. Under a settlement reached on Oct. 18, 2007, John and Marcia Friede agreed to pay his brothers $30 million - $20 million of which was secured by the couple's art collection, according to figures in the case.

The problem was that a week earlier, John Friede had finalized paperwork donating the entire 4,000 piece collection to the city-owned de Young, according to documents from the city attorney.

Last week, a probate judge in Florida ruled that John and Marcia Friede had breached the settlement agreement by its deal with the de Young and by granting a lien on the art in exchange for a $670,000 advance, court documents show.

Judge John Phillips ordered the couple to turn over "all collateral described in the security agreement, which is in their care, custody or control" to the two other brothers. The balance of the Jolika Collection is at the couple's home outside New York City, according to court filings. Those pieces had been donated to the museum even if they had not been moved, according to the city.

Herrera's office tried to intervene in the Florida case this week, but Phillips would not allow it, prompting Herrera to file a case in San Francisco Superior Court. There, Judge Peter Busch issued a temporary restraining order prohibiting the artwork from being removed from the museum or the house. A hearing on the issue is scheduled for Oct. 6.

The main question is: Who really owns the artwork?

"That's a murky area," Deputy City Attorney Donald Margolis said. "We're taking the position that entirety of the Jolika Collection has been transferred to the museum."

Lesson learned?

In the real world, bare-knuckles politics trumps the legal niceties of civil procedure any day of the week.  The City of San Francisco may not have had legal standing to intervene in the Florida probate case, but it's now firmly ensconced at the negotiating table.  The parties can spend the next few years litigating this turn of events or simply accept the realities of life and cut the best deal possible with Mr. Herrera.  If the collection's worth over $90 million, and the amount in dispute in Florida is $30 million, there's probably a deal to be had that works for all concerned.

Blogging credit:

Credit goes to the Wills, Trusts & Estates Prof Blog for bringing the linked-to article to my attention in the blog post entitled Estate of Evelyn A.J. Hall.

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Florida recently adopted it's own version of a "directed trusts" statute [click here].  And if you take a look at the agenda for the upcoming Florida Bar Trust Law Committee meeting [click here], you'll see we're not done tinkering with that statute just yet.

Is this amount of focus on directed trusts by Florida's Bar and Banking Industry really worth it?  Well, according to a Wall Street Journal article by Arden Dale entitled Estate Plans With Reins (Wall St. J., Sept. 13, 2008), there's a lot of really smart folks out there who think the answer is a resounding YES! 

Hint: If you're a Florida trusts-and-estates lawyer or bank trust officer, you may want to take a quick look at this new statute.

The WSJ piece is short and it's full of Florida references, so here's all of it:

People near retirement age are turning to directed trusts as part of their estate-planning strategy.

Directed trusts are designed for those who want to put most of their estate into a trust but wish to hold the reins on one of the assets in it -- say, a company. A bank or trust company manages the trust overall, but the client picks an outsider to handle a particular asset.

Florida recently changed its rules to make it more attractive for people to use directed trusts; some 30 states now have such statutes. The push for the change came from banks and trust companies with clients who own businesses and real-estate developments.

An entrepreneur nearing retirement, for example, might choose a directed trust to safeguard his company along with the rest of his estate, but also give family members the power to buy, sell and have voting rights on the company stock.
Putting a business into a larger trust is for those who "think the long-term economic interest of the family is to not sell the business, to let it go on generating money," said Bruce Stone, a shareholder at Goldman Felcoski & Stone PA, a law firm in Coral Gables, Fla.

Banks often don't want to administer a closely held company. On the other hand, a business owner is likely to have family or other associates who can take on the job as co-trustee.

In Florida, the proliferation of troubled real-estate developments is giving people another reason to choose directed trusts. Clients holding such assets tend not to want a trust company to manage them, said Mr. Stone.

Joan Crain, senior director of wealth-management strategies at BNY Mellon Wealth Management in Fort Lauderdale, Fla., said she has heard of wealthy people using directed trusts to keep specialized investments, such as hedge funds, in the hands of a longstanding money manager. Another common reason to use a directed trust is to put a relative or family lawyer in charge of doling out money from the trust to beneficiaries.

Directed trusts don't have dollar-amount requirements, but some advisers said $1 million is the minimum to make the strategy worthwhile. BNY Mellon generally handles directed trusts of about $25 million and up in total assets, but also works with some smaller ones depending on the client's long-term estate plan, said Ms. Crain.

Banks and trust companies like directed trusts because they don't have to worry about managing assets in which they have no expertise.

A good trustee recognizes there are categories of assets he or she isn't as good at managing, said Richard W. Nenno, managing director and trust counsel at Wilmington Trust Co. Mr. Nenno is chairman of the committee of the Delaware State Bar Association that works on updating Delaware trust law.

Anyone thinking about setting up a directed trust should tread carefully when choosing the outside manager, called a co-trustee or special trustee, protector or adviser, depending on the state where the trust is created.

The main trustee may not be responsible for that piece of the estate, and so the directed trustee "better be someone good and trustworthy who can be held accountable if something goes amiss," Mr. Nenno said.

It also is important to realize that all directed trusts aren't created equal. States hold trustees to different standards of liability, and one should get to know the rules that apply in any specific case. In several states, one could theoretically draft the trust so that no one is responsible should something go wrong, said Mr. Nenno.

However, he said, "an attorney drafting one of these is going to want to make someone responsible for the performance of the asset."

Fees can be a sticking point with directed trusts; the bank or trust company typically charges a fee for the special asset, even though someone else is managing it. One reason is that the bank will end up performing some basic administrative work on the asset. The fee could be a flat fee or a percentage of the value of the asset in question.

Work to negotiate the lowest fee possible if you set up a directed trust. The result will depend on your relationship.

Blogging credit:

Credit goes to the Wills, Trusts & Estates Prof Blog for bringing the linked-to WSJ article to my attention in the blog post entitled "Directed Trusts" gain in popularity.

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If you practice in South Florida you've probably heard about the the indictment of Ben Kuehne, a former president of the Dade County Bar Association, former president of the Miami chapter of the Florida Association of Criminal Defense Lawyers and member of the Florida Bar Board of Governors.  As explained here, Kuehne is being charged with money laundering for allegedly taking tainted funds for fees.

What's scary for lawyers about the Kuehne indictment is that even if you apparently do everything right, you may end of getting arrested for simply doing your job.  Sure, you may ultimately prevail, but you'll have to live through the personal nightmare of being arrested and charged with a crime.

I thought of the Kuehne indictment when I read Lawyers Accused Of Stealing From Murder Victim's Estate; reporting on two Georgia lawyers who were arrested and apparently spent at least one night in jail after their client was forced to forfeit estate assets under Georgia's Slayer Statute.  Here's the report:

Two Carroll County lawyers were indicted Thursday by a Douglas County Grand Jury on charges related to theft from the estate of a murder victim.

Candice Rader and Valerie Cooke, attorneys for Debra Post, were each indicted on 6 counts of Theft by Taking and one count of Theft by Receiving.

Post was charged in September of 2002 with murdering her husband Jerry Post.

This is the first known Georgia criminal case where charges were based upon Georgia's "Slayer's Statute", O.C.G.A. 53-1-5, which prohibits a person who kills another from inheriting assets from the murder victim.

The GBI investigation determined that Rader and Cooke knowingly took assets which belonged to the estate of Jerry Post as payment for their legal fees associated with their representation of Debra Post. The assets included life insurance proceeds to Post and real property deeded over to Rader and Cooke by Post. The total value of these assets is over $320,000.

The case was presented to the grand jury by Special Prosecutor Brown Mosely who will handle the prosecution of the two lawyers.

On September 12, 2003, six months after Jerry Post's assets were turned over to Rader and Cooke, Post pled guilty to felony murder and is now serving a life sentence without parole.

Cooke and Rader were arrested late yesterday in Carrollton by GBI agents and taken to the Douglas County Jail. They were scheduled to appear in Douglas County Magistrate Court at 10 a.m. Friday morning.

Lesson learned?

When it comes to staying out of trouble, spotting your risk exposures is half the battle (it's the "unknown unknowns" that will get you).  The Georgia case gives probate attorneys something else to worry about (as if we didn't have enough already). If your fees could in any way be characterized as tainted by criminal conduct, you need to assume the worst and take appropriate precautions.  As the Georgia lawyers learned, just because you're the friendly neighborhood probate attorney (and not some high profile criminal defense attorney), doesn't mean you can't get put in jail for doing your job.

Blogging credit:

Credit goes to the Wills, Trusts & Estates Prof Blog for bringing the linked-to Georgia article to my attention in the blog post entitled Attorneys for murderer charged under slayer statute.

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I've been a fan of the "directed trusts" idea from the time it was first talked up in the press [click here], through to its recent adoption here in Florida [click here].

Whether you make a living drafting trusts as a lawyer or administering them as a trustee, you should get to know this important new statute, and a great way to do that is to read Directed Trusts: The Statutory Approaches to Authority and Liability, written by two of Miami's very own trusts-and-estates stars, Greenberg Traurig associate Mary Clarke and shareholder Diana S.C. Zeydel.  Their article does a good job of zeroing in on the key issues drafters/trustees need to know about by using a compare-and-contrast approach among the various jurisdictions that have adopted a form of the directed-trusts statute, with a special focus on Florida and Delaware.

Here's what the linked-to article had to say about Florida's directed-trusts statute:

The Florida legislature recently passed an amendment to Florida Statutes §736.0703 intended to relieve the directed trustee of liability for acts done in reliance on the direction of a co-trustee having the authority to direct it in the trust document. Florida's approach differs from the Delaware approach and the approach in the UTC in that it permits a directed trust only if the person giving the direction is also a trustee. The bill revises Florida Statutes §736.0703 by adding a new subparagraph (9) as follows. 

Amendment to Fla. Stat. §736.0703. Cotrustees. 

(9) If the terms of a trust instrument provide for the appointment of more than one trustee but confer upon one or more of the trustees, to the exclusion of the others, the power to direct or prevent certain actions of the trustees, then the excluded trustees shall act in accordance with the exercise of the power. Except in cases of willful misconduct on the part of the directed 3 trustee of which the excluded trustee has actual knowledge, an excluded trustee shall not be liable, individually or as a fiduciary, for any consequence that results from compliance with the exercise of the power, regardless of the information available to the excluded trustees. The excluded trustees shall be relieved from any obligation to review, inquire, investigate or make recommendations or evaluations with respect to the exercise of the power. The trustee or trustees having the power to direct or prevent actions of the trustees shall be liable to the beneficiaries with respect to the exercise of the power as if the excluded trustees were not in office, and shall have the exclusive obligation to account to and to defend any action brought by the beneficiaries with respect to the exercise of the power. 

The significant difference between the approach in the amendment to the Florida statute and the approach of other states is that only a co-trustee may act as a “director,” thus subjecting the co-trustee with the power to direct to full liability as a fiduciary. Presumably, the governing instrument could, however, relieve the trustee with authority to direct from liability for breach of trust except for bad faith and reckless indifference to the purposes of the trust or the interests of the beneficiaries consistent with Florida Statutes §736.1011(1)(a). This should be distinguished from the authority contained in Florida Statutes §736.0808 where the power to direct the trustee does not completely exonerate the directed trustee from liability for following the direction, but the person giving the direction is limited to a fiduciary standard of “good faith,” rather than being subject to liability as a trustee.

The original bill did not include the language, “Except in cases of willful misconduct on the part of the direct[ed] trustee of which the excluded trustee has actual knowledge, ....” Surprisingly, it is not the directed trustee that is held liable for his or her own “willful misconduct” as in Delaware. Instead, the directed trustee must test the malfeasance of the directing trustee. This may present an interesting challenge for the directed trustee because the directed trustee must in effect test the state of mind of the directing trustee to determine if intentional misconduct has taken place. One wonders how the directed trustee will make such a determination. The “actual knowledge” requirement might mean that the directing trustee would have to articulate an intention to commit malfeasance regarding the trust before the directed trustee could be held liable. On the other hand, in its practical application the two tests may yield the same result. If the direction is a blatant violation of the terms of the trust, the directed trustee would likely be deemed to have engaged in willful misconduct upon following the direction, and the directing trustee would likely be deemed to have engaged in willful misconduct by giving such a direction. 

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As I've written before, under Florida law you don't need to actually produce a dead body to have someone declared dead [click here].  If someone's missing for over 5 years or there's direct or circumstantial evidence of death, under F.S. 731.103 a court can enter an order declaring that person dead.

According to a CNN article entitled Son of wanted Nazi wants him declared dead, the son of notorious Nazi doctor Aribert Heim is apparently relying on a similar statute to have his father declared legally dead so he can take control of a bank account with $1.78 million and other investments in his father's name and donate some of it to help document the suffering that occurred at a former concentration camp.  Here's an excerpt from the linked-to story:

Ruediger Heim told the Bild am Sonntag newspaper that his father -- dubbed "Dr. Death" and atop the Simon Wiesenthal Center's list of most-wanted suspected Nazi war criminals -- should officially be declared missing and then dead.

He reiterated he has not had any contact with his father since he fled Germany in 1962, save two short notes in his family's mailbox.

"Between 1962 and 1967, two notes appeared in our mailbox. There was a single sentence written on them, 'I am doing fine.' But if those letters were really from my father, I do not know," the paper quoted him as saying.

Heim also said that he has no idea if his father, who would be 94, is alive or dead.

He told the paper he is working with a lawyer to see how he can have his wanted father declared missing and then dead so as to get control of the man's bank account. [Watch the video].

He said he, his brother and sister only discovered in 1997 that a bank account in his father's name existed. If he could get control of the money, he told the newspaper he would donate to help document suffering in the Mauthausen concentration camp near Linz, Austria, where his father worked as camp doctor in October and November 1941.

So far, Heim's children have made no claim to a bank account with $1.78 million and other investments in his name. To do that, they would have to produce proof that their father is dead.

Blogging credit:

Credit goes to the estate lawyers of Hull & Hull at the firm's Toronto Estate Law Blog for bringing the CNN article to my attention in this blog post.

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Tampa probate litigator Russell R. Winer was kind enough to point me to an interesting will-contest story in the St. Petersburg Times by staff writer Chris Tisch entitled A will casts a shadow on a prominent lawyer who stands to gain millions. 

When I read the linked-to story two points jumped out at me.  First, the decedent's attorney wrote himself into the will, which is a clear ethics violation.  Fla. Bar Rule 4-1.8(c) prohibits an attorney from preparing an instrument giving the attorney or a person related to the attorney any substantial gift from a client, including a testamentary gift, unless the client is related to the proposed donee.  Second, bad facts can kill you at trial, even if these facts are arguably irrelevant as a matter of law.  On this second point read the following excerpt from the linked-to story:

But one piece of evidence convinced the judge the most that something improper was occurring. In her order, Laughlin calls it "The Agreement."

It was signed in 2002 by Carey, DuBois and Tornwall and their spouses. It says that no breach of fiduciary duty had occurred in regard to Murphy and that "should any of the parties have a mind to upset the grand plan, they should first check with the other two parties," Laughlin wrote.

"This document wreaks of a consciousness of fraud, and the court finds it to be persuasive evidence of undue influence," Laughlin wrote. "The Agreement is also compelling evidence that the perpetrators knew all of the elements of undue influence were present."

*     *     *

As for "The Agreement," Fleece said it doesn't reflect what should be most important in the case: Murphy's intent.

"Does it look good? No. Did it really matter? No. It didn't really deal with her intent," Fleece said.

Murphy's $7.2-million residuary estate remains in the hands of a curator until all appeals are exhausted.

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As a self confessed trusts-and-estates “law geek”, I obviously believe courts (and thus litigants) are guided by the rule of law.  But I’ve also been around long enough to have a healthy respect for the “legal realism” school of thought: all law is made by human beings and, thus, is subject to human foibles, frailties and imperfections.

So thinking about what makes a particular group of human beings (judge, lawyers, clients) involved in a particular case “tick” is just as important as figuring out the law.  With that background in mind, I found a recent article by Arthur D. Burger of the New Jersey Law Journal entitled Why Do Lawyers Lie? One Word: Narcissism particularly interesting.

Next time your judge, opposing counsel or one of the clients does something baffling, take a step back and think about that person as a human being who may be under a lot of pressure and is just having a bad day.  If the particular person going crazy on you is opposing counsel, consider the following excerpt from the linked-to article:

Richard Ratner, a board-certified psychiatrist since 1973, has many lawyers as patients in his clinical work and also serves as a forensic psychiatrist in bar disciplinary cases and other types of litigation. He says a lot of "psychopathology" takes place in litigation, for a variety of reasons.

First, he notes that lawyers, generally, and litigators, in particular, tend to "have generous helpings of narcissism," which he says can be both good and bad. Narcissistic people, he states, "want to go out of their way to shine and make themselves look terrific." This is a good thing to the extent it motivates them to work hard and be prepared.

The problem, he says, comes when you put such people in the crucible of litigation, which after all is a competition with winners and losers. He says that this competition aspect creates a polarization of issues and, for narcissistic people, places their fragile egos directly onto center stage.

Ratner explains that extremely narcissistic people are so "needy for the affirmation of success," that the idea of losing is seen as unbearable. They will therefore use the psychological defenses of "rationalization" and "denial" to enable themselves to intentionally mislead -- and even lie -- if they believe that is the only way to win.

Ratner states that as a result of this rationalization and denial, they do not see themselves as having done anything wrong. Instead, they see themselves as justified , because they were acting for a "higher purpose." He explains that the power of rationalization can be enormous. It can even be seen in such horribly extreme examples as when the killing of innocent civilians by terrorists is seen as "heroic."

It is useful to understand this dynamic in our adversaries so we know what we are up against , and see the element of insecurity and desperation driving such behavior. It is also useful, however, to examine ourselves and look for similar symptoms.

None of us likes to lose, and nearly all of us, at times, get carried away in litigation by a certain "bunker mentality," through which we see our side as "good" and the other side as "bad." Ratner says that it's important to take one's own temperature during the course of a contentious case to assess whether you have maintained perspective. One good way to do this, he says, is to discuss the case with a colleague or at least to take time to calmly review the record and look at the facts.

. . .

Being aware of Ratner's observations provides a tool for us to periodically look at ourselves, which should work to our benefit by allowing us to avoid court sanctions, see the strengths of an opponent's case or simply avoid looking silly.

Our clients want us to fight hard -- and to win. But we can do that best if we keep our wits and see reality. If that requires putting our egos in check, so be it. After all, it's doctor's orders.

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I've written before about the upswing in trusts-and-estates litigation in this country [click here]. Now it's the U.K.'s turn.  An article in the Telegraph entitled Inheritance disputes: where there's a will there's a war, reported on factors fueling increased probate litigation in the U.K. If you take a look at the U.S. article linked-to above and the linked-to U.K. piece it's amazing how the same demographic and societal trends in both countries are playing themselves out in a similar fashion through probate litigation.  Here's an excerpt from the U.K. article:

But it should not be surprising that inheritance disputes are so common: three-quarters of British citizens do not have a will, and 24 per cent of people anticipate that their inheritance could cause arguments among relatives, according to new research from Friends Provident. Lawyers from across Britain have told the Telegraph that they are handling ever-increasing numbers of will contentions. One northern firm, Brabners Chaffe Street, has reported a 200 per cent rise in the number of contested wills in the past three years alone.

While some solicitors cite high property prices, which make an estate well worth fighting over, others put the trend down to our newly litigious society and the fractured nature of modern families.

"Remarriages and children from previous relationships complicate an estate," says Simon Rylatt, head of contentious trusts and probate at law firm Boodle Hatfield. "There are more people who might be expecting to get a share ­- and more to feel resentment."

Blogging credit:

Credit goes to Prof. Gerry Beyer's Wills, Trusts & Estates Prof Blog for bringing the U.K. article to my attention in this blog post.

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In Florida the law is clear: you can't contest a will until after the testator dies. F.S. 732.518. But that doesn't necessarily mean you can't preempt a will contest before the testator dies.

For example, suppose you're working with an older client with diminishing capacity whose will is sure to be contested.  What if you initiated a voluntary guardianship proceeding and obtained a final judgment specifically approving the ward's will and specifically finding that the ward's will is NOT the product of undue influence, fraud, etc?  Unlike in a will contest, you'd have the actual testator in front of the judge testifying as to the validity of his will.  This judgment should collaterally estopp re-litigation of these same issues in a will contest after the testator/ward dies if all interested persons in this estate were given notice of the guardianship proceeding and an opportunity to be heard.  Presto! Will contest has been preempted.

That's basically what happened in a recent California case that received some national attention in a short piece by Pamela A. MacLean of the The National Law Journal entitled In Appellate First, Attacks on Wills Barred After Estate Owner Dies. Here's an excerpt:

For the first time, a California appellate court has said that when a conservator seeks court approval of an estate plan, while the subject is living, any challenge to the will must be raised at that hearing -- not when the person dies. [Murphy v. Murphy, No. A115177.]

The appellate decision is the first in the country to say attacks on wills would be barred after the estate owner dies, if there has been a court-approved substituted judgment, according to David Baer, attorney at Hanson Bridgett Marcus Vlahos & Rudy in San Francisco. Baer represented the daughter of William J. Murphy in an estate battle with her brother.

The opinion essentially bulletproofs the will of a person found incompetent and placed under the protection of a conservator, if the court OKs a revised estate plan, according to Baer. He added that the court made clear that notice to potential objectors is required to protect due process.

"You essentially can't contest an estate plan that has been approved in by a substituted judgment order," Baer said. "A substituted judgment is an opportunity to get a court order for the conservator to sign various instruments," he said.

The 1st District Court of Appeal in San Francisco held in the June 26 decision that an attack on such a court order, after the conservatee dies, is barred by collateral estoppel rules. Murphy v. Murphy, No. A115177.

Lesson learned?

One of the most challenging attorney-client scenarios is the older client with diminishing capacity. There are lots of solid articles/resources out there addressing this scenario from an estate-planning perspective [click here for Older Clients With Diminishing Capacity And Their Advance Directives (by A. Frank Johns)], but I haven't seen any that points to guardianship proceedings as a tool for heading off future will contests. The linked-to California case could provide a template for that strategy.

Blog Post Update:

As an update to this post, in this post the Pennsylvania Fiduciary Litigation Blog pointed me to an article published in "Trusts and Estate Fiduciary Litigation Update," August 20, 2008, by Samantha E. Weissbluth, senior counsel, and John P. Mounce, summer associate, Foley & Lardner LLP, Chicago, entitled Barred by Lunatics Law.  The article discusses the implications of the California case linked-to above and concludes with the following observations:

The lesson here is that court approval of an individual’s estate plan when that individual is under a conservatorship will protect the plan against any posthumous contest to it (assuming, of course, that interested parties receive notice of the conservator’s petition to approve the plan).

Those of you with clients in dicey family situations in which you worry about a posthumous contest might want to weigh the risks, costs and public nature of a conservatorship proceeding (or some kind of declaratory judgment action if permitted in your state) to try and bulletproof your client’s plan.

And, attorneys representing clients disgruntled by a now incapacitated relative’s estate plan should certainly come armed and ready for battle upon receiving notice of an action for court approval of that plan.

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Dynasty trusts are a huge growth industry [click here], and one of the main selling points for these trusts are their creditor-protection properties.  When Florida adopted its version of the Uniform Trust Code in 2007 some questioned whether Florida's existing spendthrift-trust protections had been watered down.  To me the answer was always an obvious "NO".  But this point is important enough to reiterate again . . . and again . . . and again.  Which brings me to a recently published article entitled UNIFORM TRUST CODE SECTION 503: APPLYING HAMILTON ORDERS TO SPENDTHRIFT INTERESTS, that summarizes the point nicely:

Florida’s enactment of the UTC was merely a codification of the state’s existing case law. In Bacardi v. White, 463 So.2d 218 (Fla. 1985), after a beneficiary with a substantial interest in a spendthrift trust refused to pay court ordered child support and alimony, the Florida Supreme Court held that the beneficiary’s interest in the spendthrift trust could be reached to satisfy the beneficiary’s child support and alimony creditors. The Florida Trust Code preserves the Bacardi requirement that child support and alimony creditors reach a beneficiary’s spendthrift interest “only as a last resort.”[FN]

[FN]  Compare FLA. STAT. § 736.0503(3) (West 2005 & Supp. 2008) (“[T]he remedies provided . . . apply to a claim . . . in paragraph (2)(a). . . . only as a last resort upon . . . showing that traditional methods of enforcing the claim are insufficient.”), with Bacardi, 463 So. 2d at 222 (allowing garnishment “only as a last resort”).

The linked-to article also does a good job of providing a plain-English explanation of the general public policy rationale underlying exceptions to spendthrift-trust protections.  If you're ever litigating this point, understanding the "why" of the rule will be just as important as understanding what the statute actually says.

The primary policy justifications for allowing a settlor to prevent beneficiaries from losing their interests in a spendthrift trust are that (1) a settlor should have the right to dispose of his property as he chooses, and (2) as part of that right, the settlor should have the opportunity to protect beneficiaries from creditors taking advantage of the beneficiaries’ misfortune or improvidence.

Most states provide exceptions that allow certain creditors to reach a beneficiary’s interest in a spendthrift trust. The two most common exceptions are for child support and alimony creditors. The primary justifications for allowing child support and alimony creditors to reach a beneficiary’s interest in a spendthrift trust are that (1) unlike ordinary creditors, child support and alimony creditors are unable to protect themselves from the debtor’s irresponsibility, and (2) while a settlor should be able to protect a beneficiary from personal pauperism, a beneficiary should not be able to enjoy an interest in a spendthrift trust while neglecting to support those dependent on him.

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Jonathan Klick of the Florida State University College of Law and Robert H. Sitkoff of Harvard Law School just published an outstanding article entitled Agency Costs, Charitable Trusts, and Corporate Control: Evidence from Hershey's Kiss-Off.  What this article does well is "crunch the numbers" to answer the sort of open-ended question trusts-and-estates litigators face all the time:

Is a particular investment strategy in the "best interests" of the trust's beneficiaries?

Crunching the Numbers:

Being non-math types, lawyers and judges often shy away from the type of quantitative, objectively-verifiable, empirical analyses employed in this article. Whether you agree or disagree with the findings, the value of this approach to any contested trust proceeding should be self evident.  Rather than relying on the judge's gut to figure out if a "prudent investor" would invest trust assets in a certain way under the terms of a specific trust agreement within the context of a specific class of trust beneficiaries, hire a finance whiz to crunch the numbers and demonstrate, in an objectively-verifiable and quantitative manner, which option results in the best overall economic benefit for the trust's beneficiaries. Once the legal wrangling over how to define the operative terms is done, everyone should step back and let the finance gurus quantitatively fill in the blanks.

Trustees Lose PR Battle:

The controversy surrounding the Hershey School Trust's decision to diversify its trust holdings by attempting to sell its controlling stake in the Hershey Company (thus potentially putting a lot of people in Hershey, Pennsylvania out of work) and subsequently backing out of the deal (thus depriving the trust's beneficiaries of a control-premium windfall profit estimated to be as high as $1 billion) is often cited as a terrible example of "politics" trumping sound sound fiduciary decision making.  For more on the political back-story of this case read The Hershey Power Play in Trusts & Estates Magazine by Pennsylvania attorney Christopher H. Gadsden, and Daniel Gross's piece in Slate entitled Hershey Barred, whose subtitle says it all: How Pennsylvania officials screwed poor kids out of $1 billion by stopping the sale of the candy-maker.

However, blaming the politicians is way too easy. They were (not surprisingly) simply responding to legitimate concerns raised by their constituents. The board of directors of the Hershey School Trust deserves equal blame.  The general public holds non-profit entities to a higher civic standard than for-profit companies, which means trustees of high-profile charitable trusts need to address any potential contested proceeding with two sets of professionals: lawyers and litigation-public-relations experts [click here, here].  It's obvious the board of directors of the Hershey School Trust was blindsided by the "politics" of this deal, and bungled it terribly  .  .  .  to the detriment of the poor children they have a fiduciary duty to serve.

If someone from the trust's board of directors had reached out to the key political players from the start, involved local civic groups in the decision-making process, and preempted any local bad press with a smart PR campaign using quantitatively-verifiable facts developed using the analytical tools employed in the linked-to law review article, the end result might have been very different.  For example, if the Hershey School Trust's upside from the deal was going to be around $1 billion, its board of directors could have easily set aside $100 million (or some other mind boggling large figure) for worker retraining, community redevelopment, generous termination packages for all fired employees (not just the top brass), etc. The trustees would have come out looking like heroes, and still vastly improved the economic well-being of trust's beneficiaries. That would have been a good deal for everyone.

Blogging credit:

Credit goes to the Wills, Trusts & Estates Prof Blog for bringing the linked-to law review article to my attention in this blog post.

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If you're representing a plaintiff in an undue-influence or testamentary-capacity case, one of your first challenges is mapping out the questions you'll be asking when you depose the lawyer who drafted the will or trust being challenged.  If you're representing the estate defending against this challenge, you'll want to know how best to build a deposition record that dissuades the challenger from proceeding with his or her case, or encourages an early settlement on favorable terms.  Why is the deposition so important? Because the vast majority of contested probate proceedings settle before trial, so your depositions may be the only "trial" you'll ever have, and will certainly tilt the negotiating leverage to one side or the other in any settlement negotiations.

And lest we forget our estate-planning brethren, if you're an estate planner and for some reason you believe the estate planning documents you're working on are likely to end up being challenged, then you'll want to be especially sure that [a] your client is competent and not the victim of undue influence and [b] that you build a record documenting your conclusions.

In all of these circumstances a good checklist of questions is worth its weight in gold.  And a good starting point for building this kind of checklist is a recent article in the American Journal of Psychiatry entitled Assessment of Testamentary Capacity and Vulnerability to Undue Influence, by Kenneth I. Shulman, M.D., F.R.C.P.C., Carole A. Cohen, M.D., F.R.C.P.C., Felice C. Kirsh, LL.B., Ian M. Hull, B.A., LL.B., and Pamela R. Champine, J.D., LL.M.  Here's an excerpt:

Documentation for Assessment of Testamentary Capacity and Undue Influence

In the absence of a validated assessment instrument, we propose that in addition to the traditional Banks v. Goodfellow criteria, the following issues should be addressed and documented in a forensic assessment, whether it is contemporaneous or retrospective:

1. Rationale for any dramatic changes or significant deviations from the pattern identified in prior wills or previous consistently expressed wishes regarding disposition of assets.
2. The appreciation of the consequences and impact of a particular distribution, especially if it deviates from or excludes "natural" beneficiaries, such as close family members or spouses.
3. Clarification of concerns about potential beneficiaries who are excluded from the will or bequeathed lower amounts than might have been expected—that is, ruling out the presence of a specific delusion or overvalued idea that influences the distribution.
4. Evidence of the presence of a specific neurologic or mental disorder that may affect cognition, judgment, or impulse control.
5. Evidence of behavioral disturbances or psychiatric symptoms at the time of the execution of a will, for example, behavioral and psychological symptoms of dementia such as agitation, impulsiveness, disinhibition, aggression, hallucination, and delusions.
6. The emotional/psychological milieu in which the testator lives, with specific reference to conflicts or tensions within the family, documenting the complexity and conflictual level of situation-specific factors.
7. The testator’s understanding and appreciation of any conflicts or tensions in his or her environment.
8. Evidence of a pathological or dependent relationship with a formal or informal caregiver, such as a younger woman who offers comfort and reassurance or plants seeds of suspiciousness toward family or friends.
9. Evidence of inconsistency in expressed wishes or an inability to communicate a clear, consistent wish with respect to the distribution of assets; for example, frequent will changes are sometimes made in a desperate attempt to garner care, support, or comfort at a time when the testator feels increasingly vulnerable or threatened.
10. Any of the indications of undue influence.

Specific questions posed to the testator may help in elucidating and probing the relationship between task-specific and situation-specific factors:

1. Can you tell me the reason(s) that you decided to make changes in your will?
2. Why did you decide to divide the estate in this particular fashion?
3. Do you understand how individual A might feel, having been excluded from the will or having been given a significantly less amount than previously expected or promised?
4. Do you understand the economic implications for individual B of this particular distribution in your will?
5. Can you tell me about the important relationships in your family and others close to you?
6. Can you describe the nature of any family or personal disputes or tensions that may have influenced your distribution of assets?

When a retrospective assessment is being conducted, assiduous review of medical records, examinations for discovery, and selective interviews of informants are needed to cast light on these issues.

Another excellent resource for those brave souls willing to delve into the murky waters of a testamentary-capacity lawsuit is a piece in the Journal of the American Academy of Psychiatry and the Law entitled Common Pitfalls in the Evaluation of Testamentary Capacity by Harvard Medical School Professor of Psychiatry Thomas G. Gutheil, MD.

Blogging credit:

Credit goes to Pennsylvania trusts and estates lawyer and expert witness Patti S. Spencer for bringing the linked-to articles to my attention in this post on her Pennsylvania Fiduciary Litigation Blog.

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I've written before about the jurisdictional competition for trust funds, both within the U.S. among various states and internationally [click here].  Internationally, Switzerland has long relied on its reputation for banking secrecy (dating back to the Middle Ages) as a competitive advantage in this market [click here].

However, in a post 9/11 world financial transparency has become a national security issue [click here].  Which means jurisdictions like Switzerland, that sell their services in part on the assumption that government authorities in home-country jurisdictions will NOT be able to crack their veil of secrecy, are facing enormous pressure to open up.  The latest battle on this front was reported on today by the WSJ Law Blog in a post entitled: A Falling Shelter? DOJ Playing Hardball with UBS, Swiss Regulators.  Here's an excerpt from the WSJ Law Blog post with links to underlying source materials:

.  .  .  In an unprecedented move against a foreign bank, the DOJ is seeking to force UBS AG to turn over the names of wealthy U.S. clients who allegedly used the giant Swiss bank to avoid taxes [click here]. Here are stories from the WSJ’s Evan Perez and the NYT’s Lynnley Browning. [Click here, here, here for a copy of the government’s ex parte petition, a supporting memo of law, and exhibits, all seeking disclosure UBS bank records in Switzerland.]

In seeking a federal court order Monday, the Justice Department ratchets up the pressure in its high-profile case, which has spawned federal criminal and civil probes into the alleged tax evasion. The matter places UBS in a bind between U.S. tax authorities and a Swiss law that prevents banks from disclosing confidential information without client approval.

.     .     .     .     .

The Justice and Internal Revenue Service investigation has been aided by information from a former UBS banker, Bradley Birkenfeld, who pleaded guilty June 19 to helping his U.S. clients evade taxes. Birkenfeld told U.S. prosecutors that UBS holds an estimated $20 billion in assets for U.S. clients in undeclared accounts. These accounts generated $200 million a year in revenues for the bank, prosecutors said.

Switzerland's loss is Florida's gain:

Florida trust companies cannot compete with off-shore jurisdictions willing to protect banking clients from legitimate investigations by home-country authorities.  To the extent jurisdictions such as Switzerland are compelled to open up their banking records to legitimate investigations by government authorities - or face pariah status in world financial markets if they don't - that can only be a good thing for Florida trust companies.

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Bud Newman of the Daily Business Review reported here on the details of a settlement deal ending the high-profile battle over the multi-million dollar estate of Seth Tobias, a wealthy hedge fund manager who died last Labor Day weekend with cocaine, the prescription sleep aid Ambien and alcohol in his system. His brothers claimed in court papers that he was killed by his wife. An autopsy concluded he drowned, and Palm Beach prosecutors filed no criminal charges. I've written about this case before, click here.

The value of the estate was not disclosed but was estimated in several news reports to be $25 million to $35 million.

Settlement Terms:

As best as I could make out from the linked-to news report, here are the specific settlement deal terms:

1. The Tobias brothers will withdraw the claim in their court filing that Filomena Tobias killed her husband.
2. Filomena Tobias will become the administrator of the estate after a temporary curator is discharged.
3. Each side agrees to place $400,000 into an escrow account pending final resolution of a claim involving an unresolved lawsuit against the estate.
4. Seth Tobias' brothers, Sam and Spence Tobias, will receive all of the estate's stock and interest in Tobias Brothers Inc., in which Seth Tobias was a partner. The value of this stock was not disclosed.
5. The estate will set aside a $3.6 million fund to be split among Seth Tobias' relatives, friends, charities and their attorneys in the following order of priority:
   1. First a Pennsylvania high school scholarship fund and a Philadelphia rehabilitation center will split $400,000.  The remaining $3.2 million (3.6 - .4 = 3.2) is split as follows:
   2. Attorneys are next in line for an unspecified amount "equal to the reasonable attorneys' fees of counsel for the Tobias brothers."  In other words, the parties agreed to set aside a fund for attorney's fees and allow the court to make the final call on who gets what.  According to the linked-to news report, the brothers were represented by West Palm Beach attorney Jamie Pressly of Pressly & Pressly, who declined to say what he will charge in attorney fees.
   3. After paying attorney's fees, whatever's left over will be split as follows: 11% to Seth Tobias' mother, Esther Chakov, 11% to Seth Tobias' father, Sidney Tobias, 18% to each of Seth Tobias' four brothers (Scott Tobias, Sam and Spence Tobias, and Joshua Goldberg), 3% to Seth Tobias' friend, Patrick Bransome, and 3% to Seth Tobias' friend, Anthony Parker.

Lesson learned? Manage Expectations

What is striking about this settlement is the apparently low figure the brothers settled for.  Out of an estate worth from $25 million to $35 million, the widow basically gave up only $3.6 million (14.4% to 10.3% of the estate), and the $3.6 million share of the estate she is giving up will have to be split among a slew of parties - net of attorney's fees.  That is not to say that this was a bad deal for the brothers.  In fact, this was probably a great deal for the brothers (if they'd gone to trial and lost, which is likely, they would have got NOTHING).

This case provides a reality check for future litigants (and their attorneys).  Managing expectations is 99% of the game when working with families in contested probate matters (the other 1% is probably all the stuff they teach you in 3 years of law school).  One of Florida's most experienced and best known probate litigators, Jamie Pressly, advised his clients to settle for between 14.4% to 10.3% of the estate vs. rolling the dice on a winner-take-all trial.  If at the very beginning of the engagement someone sat down with the Tobias brothers and told them to assume their chances of winning at trial were not good (say less than 10%), then a last-minute deal in the 14.4% to 10.3% range was a big "win" and every penny in legal fees paid was well worth it.  If no one ever had this conversation with them or, even worse, if someone told them their case was a "slam dunk," then a last-minute deal in the 14.4% to 10.3% range probably felt like a dumbfounding "loss" to these clients.  Win or lose, big case or small case, wild facts (gay murder conspiracy) or mundane facts (who gets dad's WWII lighter), managing expectations is the key to happy clients.

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A last-minute settlement deal means the widow of drowned hedge fund millionaire Seth Tobias will avoid a trial.  As reported here, here, lawyers for Filomena Tobias and Seth Tobias' brothers Friday night made a confidential deal avoiding a week-long trial expected to receive national attention and provide an inside look into a life of money, sex and drugs.  The Tobias brothers were battling Filomena Tobias over the former CNBC commentator’s estate, worth $25 million.

As I previously wrote here, this case boiled down to a battle between two little known inheritance legal doctrines that can have a huge impact on who gets what from an estate: Florida's slayer statute vs. it's pretermitted spouse statute (both statutes are explained at length in my prior blog post on this case).  Fortunately for the parties involved the costs and uncertainties of a trial were avoided.  I once heard a friend say: "Your best outcome at trial is almost always second best to a negotiated settlement deal."  I think that's generally good advice.  On the other hand, for Florida probate attorneys this would have been a fascinating case to follow.

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File this under business development for all you trusts-and-estates planners out there.  A new study sponsored by U.S. Trust, Bank of America Private Wealth Management finds that the majority of owners of ultra-high-net-worth family businesses are leaving their professional and personal interests vulnerable through inadequate business succession, asset protection and estate planning. Click here for a link to the full press release. 

Although the full study is not available on line (you have to buy it), the following bullet points caught my attention (again, think business development):

Succession Plans Collecting Dust

• While over three quarters (76%) of owners have succession plans, only 38 percent implement them, inadequately addressing issues of succession
• Most individuals with succession plans in place are not focusing on tax-mitigation issues (73%), even though nearly all participants (93%) report a desire to lower the tax burden associated with transferring the business

 Asset Protection Strategies Missing

• Almost nine out of 10 (89%) business owners were "very" or "extremely concerned" about protecting the family's wealth
• However, nearly three quarters (73%) of them do not have asset protection plans in place

Estate Plans Outdated

• Over three quarters (78%) of owners have personal estate plans; however, 89 percent have not updated them after a life-changing event such as marriage, birth or death rendering the plan obsolete
• More than half (54%) of participants lacking estate plans reported difficulty dealing with their own mortality, and one quarter (25%) cited a lack of time as reasons for not creating a plan

Blogging credit:

Credit goes to the WSJ Wealth Report Blog for bringing the U.S. Trust study to my attention in this blog post.

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Slate recently reported here on Bill Murray's brewing divorce. From a practitioner's standpoint I was especially interested to find excerpts of original source documents - including Murray's prenuptial agreement - reproduced in the Slate post. Here's an excerpt:

Days before their 1997 wedding ceremony, comedian Bill Murray and his wife, Jennifer Butler Murray, entered into a 26-page antenuptial agreement (excerpted below and on the following four pages). "Jennifer … is aware that Bill is a person of very substantial means and income," the document said (Page 2). The agreement stipulated that Murray would "continue to retain all right title and interest … to all separate property he may now own or hereafter acquire" (Page 3). As a wedding present, Bill agreed to buy his bride a modest house ("not exceeding one million dollars") of her own ("title … taken in Jennifer's sole name"—Page 5). In the "event of marital discord," Jennifer would relinquish her rights to alimony (Page 4) and instead receive within 60 days of the marriage's dissolution a lump-sum "marital award" of $7 million (Page 5).

I don't do divorce litigation, but I do draft marital agreements as part of my practice. The Murray piece underscored for me how high the stakes can be when you work on a pre-nup. Fortunately, Florida recently adopted the Uniform Premarital Agreement Act (UPAA) at F.S. 61.079 (like that segway from celebrity divorce to Florida statutory reference?).  In a recent Florida Bar Journal article entitled The Uniform Premarital Agreement Act: Taking Casto to a New Level for Prenuptial Agreements, Florida divorce attorney Doreen Inkeles described the likely impact of this new legislation on the enforceability of pre-nuptial agreements as follows:

Ultimately, it would appear that prenuptial agreements will be harder to set aside under the act. If one cannot establish fraud, duress, or overreaching, which are hard enough to prove, the need to prove unconscionability catapults what had previously been an “unfair or unreasonable” standard into the stratosphere where the circumstances must be “shockingly unfair” and “excessively unreasonable.” And the elements of lack of financial disclosure/lack of knowledge must also accompany the unconscionability claim. The act reflects Florida’s policy which does not prohibit persons from making hard bargains or entering into unfair agreements, as long as they do it voluntarily, of their own free will, and with at least an approximate knowledge of what they are giving up.

.  .  .  .  .

Combined with the apparently more stringent standards set forth in the UPAA, parties will have second thoughts about testing the enforceability of their agreements now that the Florida Supreme Court has recognized the enforceability of prevailing party attorneys’ fee provisions contained in prenuptial agreements which would place liability on the impecunious spouse for the already dominant spouse’s attorneys’ fees should the agreement be upheld.

Blogging credit:

Credit goes to Chicago probate attorney Joel A. Schoenmeyer for bringing the Slate piece to my attention in this post on his Death & Taxes Blog.

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The Florida Bar Real Property Probate and Trust Law Section has developed a new Fellowship program aimed at encouraging junior attorneys (i.e., under age 36) and newly-minted attorneys (i.e., admitted to the bar for fewer than 10 years) to become involved in the Section. Breaking into this niche ain't easy, so anything the Section can do along these lines is a good thing.

Here's a copy of the memo explaining the Fellowship program and a copy of the Fellowship application. The deadline for this year's application is July 21, 2008. If you have any questions contact Tae Bronner, co-chair of the RPPTL Fellowship committee at tae@estatelaw.com or 813-907-6643. The Fellowship memo and application can also be found on the section website; www.rpptl.org.

Good luck!

CORRECTION:

I originally reported that the RPPTL Section's Fellowship program was only open to attorneys under age 36. That was incorrect. As explained in the linked-to Section memo the Fellowship Program is in fact open to all lawyers who (a) are members of the RPPTL Section and (b) have been admitted to the bar for fewer than 10 years or (c) are younger than 36 years of age. I've revised this blog post accordingly.

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Law professors Joanna Grossman and Mitchell Gans, both of Hofstra University, published an interesting two-part article dissecting the outcome of Heath Ledger's untimely death from a probate point of view. Entitled Heath Ledger's Estate: Why Daughter Matilda, Who Was Left Nothing in Her Father's Will, Might Have a Claim to Everything, the article is worthwhile reading for all probate practitioners because it provides a useful outline for thinking about any estate involving a pretermitted child. The following excerpts are from part one of the series.

1.  The Few, but Potentially Important, Rights of a Disinherited Child

Under American law, children have no right to inherit from their parents, but they do have the right not to be disinherited by accident – at least, in most states. At a minimum, most jurisdictions protect children who are born after the execution of a parent's will – so-called "afterborn" children – from unintentional disinheritance. Under omitted child statutes (also called "pretermitted" child statutes), the forgotten child is entitled to some share of the parent's estate on the assumption that the parent simply forgot to amend the will after the child's birth.

Let's assume that New York law applies to the distribution of Ledger's estate, because New York is the place he resided and then died. (The conflict-of-law issues will be considered in detail in Part II of this column.) Under Section 5-3.2 of the New York Estates, Powers and Trusts Law (EPTL), a child born after the execution of a parent's last will is entitled to a portion of the estate as long as she is neither provided for nor mentioned in the will. Matilda was born in 2005, clearly after execution of his will in 2003, and there is