The Faculty Lounge

Jeffrey Epstein's Will Filed for Probate In Virgin Islands

And the New York Post has a copy here. Turns out Mr. Epstein executed a will in jail two days before he committed suicide. 

New Book Announcement: David Joulfaian's "The Federal Estate Tax"

David Joulfaian (Financial Economist at the U.S. Department of the Treasury and Adjunct Professor of Economics at Georgetown University) has published with MIT Press a new book called The Federal Estate Tax.  It is an in-depth look at the history and operation of the tax, with lots of good wealth data, too.  Here is the publisher's description:

Governments have been levying some form of inheritance tax since the ancient Egyptians did so in the seventh century BC. In the United States, the federal government experimented with various forms of inheritance taxes, settling on an estate tax in 1916 and a gift tax in 1932. Despite this long history, there are few empirical studies of the federal estate tax. This book offers the first comprehensive look at U.S. estate and inheritance taxes, examining their history and evolution, structure and inner workings, and economic consequences. Written by David Joulfaian, a veteran economist at the U.S. Department of the Treasury, the book provides accessible accounts of such topics as changes in tax laws, issues of equity, the fiscal contribution of the estate tax, and its behavioral effects.

Joulfaian traces the evolution of U.S. inheritance taxes from 1797 to the present, noting that the estate tax rate and base expanded through 1976, then began to decline. He describes the tax itself, explaining that it currently applies to estates and gifts in excess of $11.18 million, and outlines applicable deductions and credits. He sketches a profile of taxpayers and their beneficiaries; surveys the revenues from estate and gift taxes; and discusses the effect of estate taxation on labor decisions, saving and wealth accumulation, charitable giving, life insurance ownership, and other economic activities. Finally, he addresses criticisms of the estate tax and analyzes its shortcomings. Accompanying tables present a wealth of data gathered by Joulfaian in his research and not available elsewhere.

Gulati on Horton and Weisbord

Mitu Gulati has a new post over Credit Slips on David Horton and Reid Weisbord "Boilerplates No Contracts Clauses."

SCOTUS Takes on State Income Taxation of Trusts

Tomorrow the Supreme Court hears oral arguments in the case of North Carolina Dep't of Revenue v. Kaestner Family Trust (No. 18-457).  The question presented is whether the Due Process Clause prohibits states from taxing trusts based on trust beneficiaries' in-state residency. Michelle Simon (Pace) and I think the answer is yes, the Due Process Clause does prohibit taxation, where the state's only connection to the trust is the residence of a discretionary trust beneficiary (i.e., someone who is eligible but not entitled to receive distributions of trust income and/or principal), and where the discretionary trust beneficiary has not in fact received any distributions from the trust.

We have a short essay in the UCLA Law Review Discourse that explains the background to the Kaestner Family Trust case and argues why taxation is unconstitutional in this case.  Here is the abstract to our essay, The Supreme Court, Due Process and the State Income Taxation of Trusts:

What are the constitutional limits on a state’s power to tax a trust with no connection to the state, other than the accident that a potential beneficiary lives there? The Supreme Court of the United States will take up this question this term in the context of North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust. The case involves North Carolina’s income taxation of a trust with a contingent beneficiary, meaning someone who is eligible, but not certain, to receive a distribution or benefit from the trust, who resides in that state. Part I of this Article explains the background of Kaestner Trust and frames the constitutional questions that will be before the Court at oral arguments on April 16, 2019. Part II examines how and why due process applies in the state income taxation context, with a particular emphasis on how familiar concepts of general and specific jurisdiction apply uneasily to donative trusts. Part III articulates the reasons that the Court should hold that a state has no constitutional authority to impose a tax on trust income where the trust’s only connection with the forum state is the residence of a contingent beneficiary. Kaestner Trust is the most important due process case involving trusts that the Court has decided in over sixty years; it bears directly on the fundamental meaning of due process.

The full essay is here.

Image : Arthur Rothstein, The Supreme Court Building, Washington, D.C., 1936, Farm Security Administration and Picture Collection, NYPL Digital Collections (here)

"Draft Day - Wills Edition"

Four creative students in my Wills, Trusts & Estates class at Pace Law School made this very funny video:

This is a "Back Row Boyz Production" because -- you guessed it -- the four students who made the video all sat in the very back row of a large 100-person lecture hall.  But I know they were involved and paying attention!  Kudos to the creative team of Joe Saputo, David Fair, Richard Gullo and Anthony Balbo! (posted with students' permission)

Davidson on Hirsch: Inheritance Rights for Committed Unmarried Couples and Uncommitted Married Couples

The following is a guest post by Camille Davidson (Wake Forest):

Going to the Chapel and We’re Gonna Get Married, With This Ring I Promise I’ll Always Love You, andThis Will be an Everlasting Love are all songs about two individuals falling in love and committing to a long-term relationship. In each of the songs, it doesn’t appear that an actual wedding ceremony has taken place, but the couple is in the planning stages for the big day—presentation of an engagement ring, and perhaps the rental and reservation of a chapel have occurred.  There is no doubt that the couple is in love and plans to spend a lifetime together in a loving committed relationship. However, if one of the individuals passes away before the wedding ceremony, the surviving individual is not a surviving spouse and does not have rights associated with being surviving spouse.

In Inheritance on the Fringes of Marriage, 2018 U. Ill. L. Rev. 235, Professor Adam J. Hirsch discusses fringe relationships. Such relationships include committed relationships like the one described above where individuals are engaged but not yet married. They also include individuals who have been in long term committed relationships, but never formally married—think Ryan O’Neal and Farrah Fawcett. In each of these committed relationships, the survivor among these couples is not entitled to an intestate spousal share if the partner dies without a will, and cannot petition as a pretermitted spouse, if the partner dies with a previously executed will that omits him or her. In short, they are out of luck if their lover passes intestate, or testate.  In contrast, fringe relationships also include individuals who are still legally married, but the divorce is not final.  Although these individuals have decided that they no longer want to be in a loving committed relationship, if a partner passes away before the final divorce decree, the surviving partner is still the surviving spouse. This means he or she is entitled to an intestate share if there is no will and can petition for a forced share, if there is a will that does not include him or her as a beneficiary. James Brown’s estranged wife fell into this category.

For better or worse, marriage provides spouses with rights---during life and at death. But Professor Hirsch reminds us that “matrimony is a process not an event”. He recognizes that in general, lawmakers have determined that an individual’s donative intent changes with the beginning of a marriage and with the end of a marriage. However, Professor Hirsch questions whether other events should also affect donative intent such as engagement, separation, or the initiation of divorce proceedings. He conducts empirical studies with respect to each of these circumstances.

CFP: New Trusts & Estates Collaborative Research Network of Law and Society Association

Trusts & Estates Collaborative Research Network

Law and Society Association

Call for Participation – Deadline October 8, 2018

Organizers of the newly-formed Trusts & Estates Collaborative Research seek proposals that explore any aspect of the law, practice or effects of trusts and estates, broadly defined. Successful proposals likely will bear in some way on succession (also referred to as inheritance) and/or wealth transfers (whether at death or during lifetime, outright or in trust). Subjects of inquiry may involve any aspect of government or social policy with respect to trusts, estates, inheritance, wealth transfer, equity or courts with jurisdiction over these issues.

If you would like to present a paper as part of a Trusts and Estates CRN panel, please  submit a 500-word abstract by Monday, October 8, 2018 at 5:00 p.m. GMT to the CRN chairs, Professor Bridget Crawford (bcrawford at law dot pace dot edu) and Professor Kate Galloway (kgallowa at bond dot edu dot au). The CRN chairs will then attempt to organize the papers into panels with cohesive themes.

Our goal is to stimulate focused discussion of papers on which scholars are currently working.  We welcome participation from scholars working in any discipline, language, or country.  Although you may submit a proposal to present a paper that is closer to publication, we are especially interested in receiving proposals for works-in-progress that will benefit from discussion that the panels will provide. We welcome participation of junior scholars, those who are untenured or in non-tenure positions, and advanced graduate students, as well as more experienced scholars.

Participants are encouraged to apply multi-disciplinary and interdisciplinary approaches in their scholarship. Possible areas in inquiry might include issues related to transfer of wealth between spouses or family members; preferences created for certain types of transfers or transfers to particular classes of individuals; the transfer of wealth to charities or non-profit organizations; generational equity; issues of social and economic inequality; comparative aspects of the law of succession and the law of trusts more broadly; the relationship between/among gender, race, sexual orientation, socioeconomic class, immigration, language status, disability and the law of succession and the law of trusts; the socio-linguistics of testation and wealth transfer; access to estate planning justice for low- and middle-income individuals; questions of cultural or group inheritance rights; and similar issues.

If you would like to submit a pre-formed panel, with a chair already named, and affiliate your panel with the Trusts and Estates CRN, please also email the CRN chairs. 

In addition to individual paper presentations (to be organized into panels) and pre-formed panels, we also welcome programs that fit other formats permitted by Law and Society such as author-meets-reader sessions, salon sessions, and roundtable session.  If you have an idea that you think would work, we welcome hearing from you with a 500-word proposal.

Please note that LSA rules limit you to participating only once, either as a paper panelist or as a roundtable participant.

We will give preference to proposed Trusts and Estates CRN panelists/participants who agree also to serve as a discussant or discussant/chair for another Trusts and Estates CRN panel (those appearances do not “count” for purposes of the 1 appearance rule). Please indicate your willingness to do so in your proposal.  Your volunteering will help us to create and sustain a supportive global community of trusts and estates scholars. We will take into account expertise and topic preferences. Chairs organize the logistics of the panel, as well as moderate at the conference. Chairs will develop a 100-250 word description of the panel for inclusion in the Law and Society program. Discussants will read at least one assigned paper and prepare a short commentary to offer feedback and serve as a basis for discussion among the panelist and audience members. There may be multiple discussants for the same panel, especially if we are able to create panels that include multi-national perspectives.

Those selected by the Trusts and Estates CRN for participation in a panel or program will be informed no later than October 22, 2018.  Each participant will then need to register through the Law and Society system no later than November 7, 2018 using the panel number we assign.

500-word proposals to participate in a program sponsored by the Trusts and Estates CRN are due Monday, October 8, 2018 at 5:00 p.m. GMT to the CRN chairs, Professor Bridget Crawford (bcrawford at law dot pace dot edu) and Professor Kate Galloway (kgallowa at bond dot edu dot au). 

Death of Mr. Catra, Brazilian Singer and Father of 30+ Children

Mr. Catra, the controversial Brazilian singer and actor, died earlier this week of stomach cancer.  Born Wagner Domingues Costa, Mr. Catra had 32 or possibly 33 children with 18 women, according to Brazilian news reports (here, e.g.). He also reportedly had two or possibly three "wives," although Brazil does not recognize plural marriages (despite a 2012 ruling by one Brazilian judge that granted civil union status to a trio comprised of two women and one man).

Mr. Catra was trained as an attorney, so let's hope he had a will. Whether he did or not, this estate could turn out to be quite the minefield, given the complexity of Mr. Catra's domestic arrangements.

According to the OpenLab at City Tech description (here) of Brazilian intestacy laws:

If ... the decedent dies intestate, under the laws of Brazil, all of the assets immediately are transferred to the necessary heirs. The necessary or “legitimate heirs” include the descendants, the ascendants, and in certain circumstances the surviving spouse. The assets distributed to the necessary heirs are not of equal amounts but rather in percentages. The percentage of the decedent’s assets distributed are determined by the regime established in the marriage if there is a surviving spouse, the amount of children, whether the children are from both surviving spouse and decedent or just from the decedent, and whether the decedent left ascendants.

Under the inheritance law, if the surviving spouse is the ascendant of the descendants shared with the decedent, then the surviving spouse’s share is in conjunction with the descendants and is entitled to the minimum 1/4^th of the inheritance. If, however, the surviving spouse is not an ascendant of the descendants, the entitlement to at least 1/4^th of the inheritance is not required; therefore, the spouse shall receive the same share as descendants. During the marital property rules, the amount the surviving spouse receives is determined by whether the marriage between the surviving spouse and decedent was under full community property rules, if they were married under separate property regime, or if they were married under partial community property regime with no private property left from deceased.

Brazil does not appear to recognize a descendible right of publicity per se, but offers some protection for a decedent's "physical, psychological, or moral characteristic" (see here).  Under Brazilian copyright law (explained here), artists and, after their death, the artist's heirs "are exclusively entitled to exercise their moral rights (that is, the right to main the integrity of their work, to have their name liked to the work and to oppose any change that would harm their image)" under Law No. 9,610/1998 (Brazilian Copyright Law). Depending on Mr. Catra's wealth management strategy, his right of publicity and any copyrights may be the largest assets in his estate.

How long before litigation begins?

Unexpected Nudes: Scofield Thayer and the Metropolitan Museum

This weekend I went to see the exhibit Obsession: Nudes by Klimt, Schiele, and Picasso from the Scofield Thayer Collection at the Met Breuer in New York. (The show runs until October 7, 2018.) The exhibit contains 50+ pieces from the collection of Scofield Thayer, the co-owner and co-founder of The Dial modernist literary magazine (Thayer’s affiliation lasted from 1919 to 1926).

Apparently, while over in Vienna getting analyzed by none other than Dr. Sigmund Freud in the early 1920s, Thayer began buying works by Klimt, Schiele, Picasso and others. Thayer's collection went on display in New York in 1924, but when the same works were displayed later in Thayer’s hometown, Worcester, Massachusetts, the residents there reacted negatively to the sexually explicit content of many of the pieces. There’s a great write-up in American Art (here) of the Worcester Art Museum’s curators informing Thayer in advance of the 1924 exhibit there that “it seemed best to omit” some of the racier pieces, “[b]ecause we feared that a conservative public might be prejudiced against the exhibition.” The curators appear to have predicted accurately the reaction of Worcester residents.

Even in the 21^st century, the show at the Met Breuer comes with a warning: “Viewers are advised that some images in this exhibition contain explicit erotic content.”

The Met Breuer show opens somewhat coyly with an introductory statement printed on the wall at the entrance to the exhibit (pictured at right):

Offended by intolerant views toward provocative art, Thayer drew up his will in 1925, leaving his collection to The Met before retreating from public life until his death in 1982. An exhibition of the bequest has been planned since its arrival at the Museum in 1984, but its diversity, unevenness, and vast quantity proved a challenge. While a select group of paintings by artists of the School of Paris is always on view, the light-sensitive watercolors, drawings, and prints have rarely been displayed. This exhibition, held on the centenary of the 1918 deaths of Klimt and Schiele, presents these erotic and evocative works together for the first time.

Reading between the lines, it sounded to me like the collection contains material the Met wasn’t especially excited to receive. I also wondered why, if the Met had received the bequest in 1984, there had been a 30+ year delay in exhibiting (much of?) the work.

A little digging turns up quite the saga. Mr. Thayer suffered from mental illness, outlived the individual heirs named in his will (probably lacking the mental capacity to execute a new will after a nervous breakdown in 1926), and he left most of his collection (except for some Aubrey Beardsley drawings which spent some time at the Beinecke Rare Book & Manuscript Library at Yale) to the Metropolitan Museum. The Museum apparently did not know in advance that it was to receive the bequest (see the NY Times story here). So the failure to mount a show therefore began to make a bit more sense (although 30+ years a long time). It also reminded me of one of the lessons I learned in practice: work during the donor’s lifetime with museums that are intended beneficiaries of important art work under a testator’s will. Very often, a museum will prefer a cash gift over an entire collection, especially if the donor puts restrictions on the sale or display of the property (which apparently Thayer did with the Beardsley drawings).

There is a documentary film about Thayer currently in the works -- Stroke of Genius, Scofield Thayer – The Man Who Made America Modern. Its trailer (here) is enticing. But it is the story of Thayer’s will that drew me, as someone who teaches Trusts & Estates, to the linger at exhibit and then read James Dempsey’s biography The Tortured Life of Scofield Thayer (University of Florida Press, 2014).

There’s so more to say…about Thayer’s association with Albert C. Barnes (of Barnes Foundation fame, whose posthumous art-filled legacy has been complicated), his wife’s relationship with e.e. cummings, the way the Klimt, Schiele and Picasso depict women and (in the case of Schiele and Picasso, at least) under-age models in the art work (see Art News’ commentary here). I’ve barely scratched the surface of the many interesting issued inspired by a quick trip to the museum this weekend. I am reminded, yet again, of how macro issues of family, health, life, death, property, control, and money (or Trusts & Estates and Taxation, as I think of them) are all related.

This is an exhibit worth taking in if you happen to be passing through New York before October 7.

Interested in Joining Application for Trusts & Estates Collaborative Research Network?

Bridget Crawford (Elisabeth Haub School of Law at Pace University, New York) and Kate Galloway (Faculty of Law, Bond University, Australia) are preparing an application to the Law and Society Association for the formation of a Trusts & Estates Collaborative Research Network.  Here's a description of the function of the proposed network:

This CRN will provide a forum within the Law & Society Association for scholars from all disciplines who are interested in the effects on society of the law, practice and effects of succession (also referred to as inheritance) and wealth transfers (whether at death or during lifetime, outright or in trust). Subjects of inquiry may involve any aspect of government or social policy with respect to trusts, estates, inheritance, wealth transfer, equity or courts with jurisdiction over these issues. Participants are encouraged to apply multi-disciplinary and interdisciplinary approaches to questions across the range of scholarship in this area: issues related to transfer of wealth between spouses or family members; preferences created for certain types of transfers or transfers to particular classes of individuals; the transfer of wealth to charities or non-profit organizations; generational equity; issues of social and economic inequality; comparative aspects of the law of succession and the law of trusts more broadly; the relationship between/among gender, race, sexual orientation, socioeconomic class, immigration, language status, disability and the law of succession and the law of trusts; the socio-linguistics of testation and wealth transfer; access to estate planning justice for low- and middle-income individuals; questions of cultural or group inheritance rights; and similar issues.

If you would like to be part of the application for the Trusts & Estates CRN, please send an email to Bridget Crawford (bcrawford at law.pace.edu) and indicate whether you are a current Law & Society member. For those who are not familiar with the operations of the LSA (very large) Annual Meeting, one principal function of the CRNs is to "bundle” papers and panels into coherent thematic programs with chairs and commentators. All who are interested are welcome to join the initial application. Non-U.S. scholars warmly encouraged to join the application.

We Talk About Death to Enjoy Life: Why T&E Lawyers and Professors are the Happiest of the Lot

Trusts & Estates profs may enjoy this book review over at the New Statesman written by Rowan Williams, the former Archbishop of Canterbury. Williams reviews four popular press books, three of which have been published in the last six weeks:

• Kathryn Mannix, With the End in Mind: Dying, Death and Wisdom in an Age of Denial (Little, Brown and Company, 2018)
• Caitlin Doughty, From Here to Eternity: Travelling the World to Find the Good Death (Weidenfeld & Nicolson, 2017)
• Sue Black, All that Remains: A Life in Death (Doubleday, 2018)
• Richard Holloway, Waiting for the Last Bus: Reflections on Life and Death (Canongate Books, 2018).

Here is an excerpt from Williams' review:

Odd as it may sound, these books are heartening and anything but morbid. ... [T]hey leave you thinking about what kind of human qualities you value, what kinds of people you actually want to be with. The answer these writers encourage is “mortal people,” people who are not afraid or ashamed of their bodies, those bundles of rather unlikely material somehow galvanised into action for a fixed period, and wearing out under the stress of such a rich variety of encounter and exchange with the environment. * * *

The most important contribution these books make is to keep us thinking about what exactly we believe to be central to our human condition. It is not a question to answer in terms simply of biological or neurological facts but one that should nag away at our imagination. How do we want to be? And if these writers are to be trusted, deciding that we want to be mortal is a way of deciding that we want to be in solidarity with one another and with our material world, rather than struggling for some sort of illusory release.

The full review, under the headline How Dying Offers us a Chance to Live the Fullest Life, is available here. 

I myself have always believed that when one is in the business of talking about death for a living, whether as a funeral director or as an estate planner, one develops a certain realistic view that ... it could be me next (immediately followed in my brain by, "Does my nominated executor know where to find my will? If my students think I died intestate, I would be so embarrassed!") 

Alas, the books reviewed by Williams are not about Trusts & Estates attorneys and professors, or why (in my anecdotal experience), this cohort tends to be a reasonably happy bunch, as lawyers go (although let's acknowledge that alcoholism and depression are rampant in our profession). But the review is a good reminder that talking about death tends to make one appreciate life.

To life!

What Deference is Owed to the Wishes of a Deceased Author or Artist?

Foucault. Harper Lee. Lord Byron. Orwell. Auden. Thomas Hardy. Henry James. Beckett. Dickinson. Robert Louis Stevenson. Plath. The executors or administrators of each of these writers' estates have wrestled with the question of how the author's work should be treated after the author's death. Some left specific instructions prohibiting publication or autobiographies, instructions that were ignored. For T&E and IP scholars, these situations raise many interesting questions.

I was curious to read in the (UK) Guardian, this piece by Blake Morrison. He asks in the book section, "Should an Author's Dying Wishes be Obeyed?"  Here is an excerpt:

If book burning stems from anger, however misguided or orchestrated, manuscript burning stems from fear. Better to destroy the evidence than to allow it to get into the “wrong” hands. Even now, in a supposedly confessional age, the potential for vicarious outrage is enormous; it’s only the list of offences that has changed. Where illegitimacy, alcoholism, humble social origins or a history of mental illness might once have been cause for shame, these days it’s racism, misogyny, political extremism and sexual abuse. * * *

Texts have an immense power to cause pain. As Stephen Fry likes to say: “Sticks and stones may break my bones, but words will always hurt me.” * * *

That authors can exert their influence from beyond the grave is no fiction; just because they are past doesn’t stop them tampering with their future. In his lifetime, Samuel Beckett was careful to police new productions of his plays: stage directions had to be followed to the letter. Since Beckett’s death, his nephew Edward Beckett has done the same. * * *

Slavish obedience is one route for an executor, defiance for the sake of literature another. When several parties are involved, each jealously possessive of the author, things get trickier.* * *

For most literary executors doing right by an author is humdrum work: keeping the books in print, looking after royalties, answering letters, selling manuscripts, charging permission fees, and generally ensuring that the authorial brand name goes on even though the author has been discontinued. But it’s not a job to take lightly. The duties are at best thankless (the person who appointed you isn’t around to show gratitude) and at worst it’s an ethical nightmare. Authors are difficult enough to deal with when alive. And things don’t get any easier when they are dead.

The full piece is available here. Food for thought.

Boni-Saenz on Distributive Justice and Donative Intent

My friend Alex Boni-Saenz has an article on "Distributive Justice and Donative Intent," forthcoming in UCLA Law Review.  Cribbing now from his abstract: 

The inheritance system is beset by formalism. Probate courts reject wills on technicalities and refuse to correct obvious drafting mistakes by testators. These doctrines lead to donative errors, or outcomes that are not in line with the decedent’s donative intent. While scholars and reformers have critiqued the intent-defeating effects of formalism in the past, none have examined the resulting distribution of donative errors and connected it to broader social and economic inequalities. Drawing on egalitarian theories of distributive justice, this Article develops a novel critique of formalism in the inheritance law context. The central normative claim is that formalistic wills doctrines should be reformed because they create unjustified inequalities in the distribution of donative errors. In other words, probate formalism harms those who attempt to engage in estate planning without specialized legal knowledge or the economic resources to hire an attorney. By highlighting these distributive concerns, this Article reorients inheritance law scholarship to the needs of the middle class and crystallizes distributive arguments for reformers of the probate system.

As always with Alex's work, I admire this article.  To be clear, I'm a big fan of reducing formalism -- and especially allowing holographic wills and reformation of wills (and trusts) to correct for clear error or to dispense with technical requirements of attestation (which would solve the problem with the case Alex uses at the start of the article).  I think those of us who want a retreat from formalism are going to face high hurdles from the trusts and estates bar -- at least that's been my experience in North Carolina.  But I want to pick up on some themes here, because some of my concern with formalism in probate is different from Alex's.  While I'm not fan of formalism in legal history, I sometimes wonder if the formalism serves a positive purpose by defeating documents that should be defeated, even if there isn't enough evidence to defeat the document through traditional doctrines such as undue influence or lack of capacity.  While in some places formalism causes us to probate a will that was poorly drafted (and that is inconsistent with testator's clear intent), but in some cases perhaps formalism defeats an improperly executed will that was the product of undue influence, even though we can't prove undue influence.  If anything, maybe we need more formalism.  How's that for a controversial statement!  Formalism frequently cases a retreat to intestacy.  That, of course, makes it imperative that we have an intestacy regime that makes sense -- and on this Deborah Gordon and I will have something to say in the not-too-distant future.

Two Issues from Edward Albee's estate

The New York Times is talking about Edward Albee's instructions to his executor to destroy his unfinished work.  (And congratulations to law professors Lior Stahilevitz and Eva Subotnik who're quoted in the article.)  This deserves some commentary down the road.  We require trusts to be operated for the benefit of the beneficiaries, not for the personal interests of the (now dead) settlor; I think there's a strong analogy between trust rules and the duties of executors.  Though I completely understand that there's a somewhat different set of issues with an executor.  And I obviously recognize that there's a long history with artists leaving instructions to destroy manuscripts. 

What is really beyond surprising is this story that Albee's estate has pulled the rights to perform Who's Afraid of Virginia Woolf because a producer cast an African American man in it.  The letter from Albee's estate to the producer, Michael Streeter, is reprinted in this story.   I think these two paragraphs are the most relevant:

Regarding the matter of your request to cast an actor who is African-American as Nick in VIRGINIA WOOLF?, it is important to note that Mr. Albee wrote Nick as a Caucasian character, whose blonde hair and blue eyes are remarked on frequently in the play, even alluding to Nick’s likeness as that of an Aryan of Nazi racial ideology. Furthermore, Mr. Albee himself said on numerous occasions when approached with requests for non-traditional casting in productions of VIRGINIA WOOLF? that a mixed-race marriage between a Caucasian and an African-American would not have gone unacknowledged in conversations in that time and place and under the circumstances in which the play is expressly set by textual references in the 1960’s.

This provides clear evidence that productions of WHO’S AFRAID OF VIRGINIA WOOLF? must, indeed, continue to be cast per Mr. Albee’s intention, and according to the legal rights held by his estate, which works with great care to ensure that the author’s intent is upheld as closely as possible and with great consideration given to his stage directions and dialogue.

Is this permitted under 1981?  Maybe this is legal, but I don't think it should be.  And I'd be surprised if it is -- here you have a play that's being licensed (this is way, way into commerce, this isn't just some personal decision of a man who's in the quiet of his home) and they are making decisions based the race of an actor.  But regardless of the law, good Lord, I wouldn't think that the estate would want to buy this much terrible publicity.  Surely this will do enormous damage to his reputation.  I mean Scott Simon's already talking about how this will be the end of the performance of Who's Afraid of Virginia Woolf.  I think it's going to cost a lot more than that -- and quite frankly I think it ought to.

At any rate, I suspect there's a great article to be written about the balance between Albee's artistic legacy and the rights associated with it and the duty of executors to administer the estate in a way that promotes the best interests of the beneficiaries.

Partial Revocation by Physical Act

When I was in Alabama recently I had the pleasure of spending a day in Selma.  It was quite a treat to see that city again, which has loomed so large in our nation's Civil Rights history.  (You may recall I had a civil rights trivia question out of it.)  Right now, though I want to post a picture of a will probated back in the 1960s.  It's a great example of partial revocation by physical act.  Look at how the testator literally "cut out" the beneficiaries!

Benjamin Turner's Will

My friend Rick Francis was kind enough to let me take digital pictures of Benjamin Turner's will (1810) last time I was in Southampton County.  It's three pages long.  This is, so far as I know, the first time the Nat Turner's named (spelled here "Natt") appeared in a public record.

Mor[t]ality and Identity: Wills, Narratives, and Cherished Possessions

Deborah Gordon of Drexel Law has posted "Mor[t]ality and Identity: Wills, Narratives, and Cherished Possessions" on ssrn.  Cribbing now from her abstract:

Franz Kafka is credited with observing that “the meaning of life is that it stops.” This recognition — that life’s one certainty is certain death — has been the source of great artistic, scientific, political, and personal inspiration. How we have lived over the course of our days — our individual and collective histories — and how we will be remembered by those who survive us — our legacies — are bridged not only by our achievements and relationships but also by cherished items of property that we have accumulated and decided to pass on. This type of possession often has a narrative that endows it with meaning. By incorporating a personal property narrative into testamentary documents, a decedent can transcend her mortality by infusing it with her morality.

This Article starts by discussing connections between property law and language, explaining how property theorists have used metaphorical and narrative language about “things” to explore the political and economic communities the property creates among the people who have interests in those things. The Article then explores various inheritance texts, both fictional and legal, to demonstrate the multiple ways narratives and inheritance intersect and together “transmit traditions, cultural values, and ideologies.” The balance of the Article explores the potential for stories about cherished possessions to democratize inheritance law and enhance its purposes. It does so, first, by proposing model language to assist individuals and individuals and their lawyers in drafting conveyances that acknowledge the narrative power of cherished possessions. Having surmounted this procedural hurdle, the remaining sections argue that the current practice of trivializing personal property dispositions, either by relegating them to separate non-binding memoranda or not dealing with personal property at all other than in a general or residuary clause, are missed opportunities. Building from empirical studies that show how individuals identify with personal possessions, often because of the memories associated with those items, this Article argues that including these family histories in testamentary documents can help make estate planning more accessible and meaningful to a broad range of property owners. Encouraging personal property dispositions that include narratives also benefits survivors; psychological research shows a relationship between family stories and resilience, and sociological studies support the idea that sharing stories aids in bereavement. Finally, using this narrative approach as a strategy for encouraging broader participation in estate planning will benefit the inheritance system more holistically.

If you teach trusts and estates or property (or are interested in the relationship between property and memory), I think you'll be very interested in this.  One thing that this makes me wonder about is whether intestacy needs to (or could reasonably) adapt to account for such important personal property.  But more importantly, building off Deborah's article, I wonder if we should "read" wills using her insight by looking at the value of devises.  That is, I think that even when testators do not leave explicit statements regarding property, their choices about distribution of property leave important statements about property.  This is one way historians have used wills to draw distinctions between New Englanders in the eighteenth century, Quakers in Pennsylvania and New Jersey, and those in the Chesapeake.  And I suppose one other question that Deborah's paper invites is how devises of human beings in pre-Civil War wills affected -- and tells us about -- African American families.  One under-studied subject is how wills of slave-owners divide slaves at the death of testators.  Those divisions reflect both the testator's desires for which of his (or her) family members receive humans and also how those testators treated African American families.  One of the things that really struck me when I first started reading wills of slaveowners lo' those many years ago was how much data they contain about African American families, too -- such as the names of enslaved people and often their family relations (parents, children).  

Deborah's article makes me think again that we're on the brink of a real expansion of trusts and estates scholarship.  We're asking much broader questions than have been traditionally been asked about the subject and we're building a critical mass of people interested in areas from psychology to gender, pedagogy and of course doctrine.

CFP: The Unruly Nature of the Laws of Trusts and Estates

Call for Papers

Trusts & Estates Section

2017 AALS Annual Meeting

January 4-7, 2017 – San Francisco, CA

Sex, Death, and Taxes: The Unruly Nature of the Laws of Trusts and Estates

Trusts & Estates is a far-reaching and broad-based discipline of law that impacts private citizens’ decisions about sex, death, and taxes.  This legal discipline is based on speculation about donors and their intentions that, by their very nature, create unintended consequences because the laws exist largely unseen until they come into play.  Moreover, ascertaining these preferences prove difficult because individuals are entrenched with idiosyncratic preconceptions about death, family, property rights, personal legacies, paternalism, altruism, investment strategies, taxes, and many other effective interests.  In addition, the field sits at the crossroads of other legal disciplines such as family law, property law, elder law, and tax law.  For students, T&E makes an appearance in law schools and the bar exam, but is not like a constitutional law class that is unabashedly theoretical in its presentation and in meeting students’ non-expectations of a skills-centric classroom experience.  In practice, some of the most thriving areas require expertise in T&E.  In ordinary people’s everyday lives, the legal discipline is like an operating system that quietly runs in the background, but in reality organizes and informs the end user’s experience, often without the end user’s full awareness.  In the academy, it is caught between the practical and theoretical—a microcosm of the questions at the heart of debates about the value and normative objectives of a legal education.  Yet, during a time when T&E is becoming more relevant than ever, the discipline may be under–theorized and marginalized in the academy.  Therefore, this panel will interrogate T&E’s unruly nature, entertaining inquiries about the intersectionality of gender, race, sexual orientation, and class; the pervasiveness of succession law in aligned fields; its history of adaptation to changing social norms; and the development and evolution of law reform in this area.  The panel will explore new visions for the field and frameworks that disrupt and reimagine the field, while looking forward to practical and theoretical responses to such things as the pending elder care issues, concentration of wealth, taxation, large wealth transfers, social fixity, and the ongoing privatization of family caregiving and support. 

Submissions, due dates and method:

Submissions should be of abstracts between 250 and 1000 words, inclusive of any footnotes. Scholarship may be at any stage of the publication process from work-in-progress to completed article, but if already published, scholarship may not be published any earlier than 2015. Each potential speaker may submit only one abstract for consideration.

There are two submission due dates.  The Section seeks detailed abstracts in late summer, with final papers due in late fall.

• The due date for detailed abstracts is August 15, 2016.
• The due date for final papers is November 15, 2016.

 

Snoop on Intestacy

From Business Insider, here:

We caught up with Snoop Dogg in his trailer after his performance Tuesday night at the AOL NewFront event in Manhattan, promoting his new AOL series "Coach Snoop." We asked him if he's left a will, and if he made plans for his estate when he dies.

Snoop doesn't care. He'll be dead.

"I don’t give a f--- when I’m dead. What am I gonna give a f--- about?" Snoop told Business Insider. "This goin’ on while I’m gone, you know?"

Snoop hopes to be reincarnated, and observe the ruckus over his estate from the next life.

"Hopefully, I’m a butterfly," Snoop said. "I come back and fly around and look at all these motherf-----s fighting over my money and shit, like, 'Look at all these dumb motherf-----s.' Ha!”

H/T Francine Lipman

Prince's Estate

Prince has given us all so many gifts.  Most importantly, his music got me through my college years.  He gives law professors a particular set of gifts.  Since 2006 I've been teaching a property problem around his landlord-tenant dispute with Carlos Boozer.  (I call it "Prince's Purple Pain Property Practice Problem.")  And this spring I asked one short question about this on my trusts and estates final -- how his property will be distributed if, as appears likely, he died intestate.  (Equally to his siblings is the answer -- under Minnesota law as well as the UPC, which is what I was testing on my exam in case any of my students are reading this.  Neither Minnesota nor the UPC treat half-siblings any differently from full-blood siblings.) Prince's estate will be the way to explain that doctrine going forward. Every trusts and estates casebook will use him, I'm sure.

At the New York Times Brent Staples is talking about Prince's lack of estate planning.  Really shocking that someone with, what, 1/3 of a billion dollars would die without a will, isn't it?  Borderline malpractice for his lawyers, I should think.  

I've been meaning to talk about the Times editorial (which I'm guessing Staples had a lot to do with) about the revelation that the Jesuits sold hundreds of humans and used the money to finance building at Georgetown University.  They make the case for reparations in the form of scholarships for descendants of people once owned by the Jesuits.  But teaching and pro bono work this spring has prevented me from doing as much blogging as I would have liked.  Once I get on the other side of grading I hope to talk some about a bunch of projects -- black power in a prison library in the 1970s (there are some surprising jurisprudence angles on this, I think); William Saunders and the "rule of law" and the Klan in Reconstruction-era North Carolina; and trusts used to manage and occasionally free enslaved people.

In the interim, happy graduation to everyone!