Changes to 5 th Edition. We have made three significant organizational changes:

Transcription

1 To assist adopters in preparing for class, we include this accounting of the substantive changes we have made to the 5 th edition. We have made three significant organizational changes: 1. We have moved the tax chapter back in the book. We did this to enable teachers to (a) treat all of the tax material together while (b) assuring that students understand trusts and powers before exploring their tax implications. 2. We have introduced fiduciary duties material earlier in the book, in what is now chapter 7, because these issues especially the duties of care and loyalty are fundamental to understanding the nature of the trust. 3. We have removed the revocable trust material from the trust chapter, and introduced a new chapter 8 incorporating treatment of all will substitutes, including revocable trusts and retirement accounts. We think this will make it easier for students to see the unique issues arising from the hybrid nature of revocable trusts part trust, part will substitute. As always, the materials are designed to make it easy for teachers who prefer to teach them in a different order. Within the chapters, here are the most significant changes: Chapter 1: Introduction Case deleted: Replaced Estate of Feinberg with notes summarizing three Illinois cases. Chapter 2: Intestate Distribution: II. Share of Spouse (page 63). We have removed UPC from this section and moved it to Section IV, dealing with the share of ancestors and collateral heirs. That s where most of the issues surrounding arise. IV. The Share of Ancestors and Collateral Heirs (page 79). We have moved UPC to this section. 2

2 VI. Defining the Modern Family: Halfbloods, Adoptees, and Non-Marital Children B. Adoption. We have removed Estate of Brittin, and added Kummer v. Donak, a Virginia Supreme Court case holding that an adult adoption divested the adoptee s children of the right to inherit from the adoptee s biological sister. D. Reproductive Technology We have added Astrue v. Capato, a U.S. Supreme Court case holding that state inheritance law governs the right of a child conceived after their father s death.\ We have added two newspaper articles (pages ) to test student understanding of the UPC scheme. Chapter 3: Protection of the Family II. Traditional Elective Share Statutes We ve deleted references to the Missouri statutes in the notes after Sullivan v. Burkin. III. Modern Elective Share Statutes We ve added a simpler UPC problem (Problem 1 on p.179) before the more complex problem that we have retained from the prior edition. Chapter 4: Wills I. Execution of Wills. We have replaced Morris v West with Whitacre v. Crowe, an Ohio case in which the court had to decide whether the conscious presence requirement was met when the witnesses viewed the signing in another room in testator s house by way of avideo monitor, but testator could not see the witnesses subscribe the will. We added a new section (G, on p ) dealing with will software and electronic wills. II. What Constitutes the Will On page 269, we have added two problems (inspired by recent cases) on negative disinheritance. III. Construction Problems Created by the Time Gap Between Will Execution and Death C. Lapse 3

3 We have substituted the Florida antilapse statute for the Virginia statute in the 4 th edition, because Virginia has amended its statute and the Florida statute is applicable in the Lorenzo v. Medina case we have added. We deleted Estate of Rehwinkel. V. Revocation of Wills We deleted Gushwa v. Hunt, which some users found too complex, and added Brown v. Brown, 21 So.3d 1 Chapter 5: Contesting the Will IV. Tortious Interference with Inheritance Case Deleted: Estate of Ellis Added: Beckwith v. Dahl, 141 Cal.Rptr.3d 142 (2012). VI. Alternatives to Will Contests We have expanded treatment of mediation and arbitration, covering both postmortem decisions by beneficiaries, and testator-directed mediation and arbitration VII. Special Problems Affecting Some Gay, Lesbian, and Transgendered Testators Case reduced to a long note: Estate of Kaufmann. Chapter 6: Trusts (formerly chapter 7) I. Creation of Trusts We have reorganized this section as follows: A. Trust Basics B. Capacity C. Intent to Create a Trust D. Trust Beneficiaries E. The Trustee Must Have Duties F. The Merger Doctrine G. Trust Formalities In the text, we have expanded treatment of the Uniform Trust Code on every relevant issue. We have neither added nor deleted cases. II. Using Trusts as an Estate Planning Tool We have removed three of the six subsections that used to be in this section. We have moved the section on avoiding probate to new chapter 8. We have moved the section on planning for incapacity to chapter 13 (which deals more generally with 4

4 incapacity issues), and we have moved the material on tax planning to the new, integrated, tax chapter, chapter 10. We have increased treatment of the Uniform Trust Code, but have not made any changes in the cases included (other than in the cases that have been removed to other chapters). III. Trust Modification and Termination The most significant change in this section is the new treatment of Trust Decanting, an issue of growing significance among trust lawyers. Matter of Kroll has been added to illustrate the decanting issue. Cases deleted: Connecticut General Life Insurance v. First National Bank Walker v. Walker Cases added: Gassman Revocable Living Trust v. Reichert, 802 N.W.2d 889 (2011) Matter of Kroll, 971 N.Y.S.2d 863 (2013). Chapter 7: Fiduciary Duties This material was all in former chapter 13 (Estate Administration). For teachers who want to defer treatment of fiduciary duties until the end of the course, it is certainly possible to do that. It s also possible to focus only on the duties of loyalty and care (pages ) which can be covered in 3 hours of class time. Chapter 8: Revocable Trusts and Other Non-Probate Assets This chapter combines the revocable trust material that used to be in the Trusts chapter with the co-ordination material in former Chapter 12. We think that organizing the material this way enables students to focus on some of the construction problems raised by all will substitutes. Chapter 9: Powers of Appointment (formerly Chapter 8) We have eliminated the tax planning material and moved it into Chapter 10, the new estate tax section. II. Creation and Exercise Cases deleted: Estate of Hamilton Estate of Block Case added: Cessac v. Stevens, 127 So.3d 675 (2013) III. Scope of the Power We have reorganized this section to provide students with more basic information before confronting them with the Problem that used to be at the beginning of the section. We have also tried to streamline the discussion by eliminating the Carroll case. Case deleted: Will of Carroll Case added: Aoki v. Aoki, 985 N.Y.S.2d 523 (2014). Chapter 10: The Government s Share: A Brief Introduction to Estate Taxation This chapter integrates material that was formerly in 3 separate chapters. 5

5 Chapter 11: Classification and Construction of Future Interests The primary change in this chapter is the addition of the First National Bank of Bar Harbor case, which raises an important question: should interests created in revocable trusts be treated under the rubric governing wills or the somewhat different rubric that applies to irrevocable trusts. Chapter 12: The Rule Against Perpetuities No major changes Chapter 13: Planning for Incapacity We have added the Gist and Cohen cases, formerly included in the Trusts chapter, to this chapter. Otherwise, no major changes. Chapter 14: Estate Administration We have moved the fiduciary duty material to Chapter 7. Other than that, the primary change in this chapter is the addition of Wilson v. Dallas (involving the James Brown estate), which raises questions about the responsibilities of an executor to settle (or not to settle) will contest cases. 6