Category: Estates and Trusts


The Creativity Cliff: Another Reason Extended Copyright Terms Are Not About Authors

Quality of life and creative capacity at the end of life are other reasons to doubt that long copyright terms are important for authors. Ezekiel Emanuel’s “Why I Hope To Die at 75” caused a stir for his views on graceful death and quality of life. Part of his argument is that creativity, on average, diminishes late in life. Those who pursue prolonging life as if they are “immortals” “operate on the assumption that they will be … outliers” such as one of Emanuel’s colleagues who still publishes papers that change policy at 90. “But the fact is that by 75, creativity, originality, and productivity are pretty much gone for the vast, vast majority of us.” (Emanuel picks 75 because that is his trigger age for not fighting death). The article has a graph that indicates truly creative, novel ideas and work decline after the early to mid 60s for most people. Emanuel is quick to point out that there are many other ways to be productive and contribute to society after creativity slows down or goes away. Nonetheless, if he is correct that “This age-creativity relationship is a statistical association, the product of averages; … [and] The age-creativity curve—especially the decline—endures across cultures and throughout history, suggesting some deep underlying biological determinism probably related to brain plasticity”, it suggests that there is what I would call a creativity cliff.

If the creativity cliff is real, it suggests that giving more incentives to create late in life is unwise. As I argue in The Life and Death of Copyright, the idea that authors need copyright after death to provide for heirs is absurd and unsupported. When I presented the paper, many asked but what if I am old and want to leave something to my children, isn’t copyright an incentive? It may be an incentive, but it is not sound, in part because of the creativity cliff. In general, as Hal Varian has noted, very few works ever generate a steady income stream. That is true regardless of when one creates. Copyrighted works are part of winner-take-all markets and “Such markets end up fostering over-entry into the field because too many people believe they will be the one to sit at the top of the market when only a few or arguably one can do so.” As Emanuel points out, many of us hope to be outliers and “immortals” who have excellent quality of life and tremendous creativity late in life, but by definition that can’t be true. Thus those who say they need copyright as an incentive to write as they see death approaching labor under the illusion that they are the outliers. I laud the effort and probably will write until I die, but that is not a sound basis for policy.


Reconciling Ehrlich and Macool (Or, What’s In a Signature Anyway?)

Recently I wrote about In re Ehrlich, 47 A.3d 12 (2012), a trusts and estates case pending before the New Jersey Supreme Court that will serve as a bellwether of what can be probated in harmless error jurisdictions.  Under the Uniform Probate Code’s harmless error rule, a defective document can be probated if there is clear and convincing evidence that the decedent intended it to be a will.

As I previously explained, the proponent in Ehrlich wants to probate an unsigned and unattested document that otherwise reads like the usual formal will.  The decedent had noted in one corner of the document that he mailed “the original” to his executor.  I suggested that the dissenting appellate division judge, who wanted to deny probate, was applying a substantial compliance standard instead of the harmless error rule, which New Jersey adopted in 2004.

But another possibility is that the dissent and majority have different understandings of testamentary intent.  This would help reconcile Ehrlich with In re Macool, 3 A.3d 1258 (2010), another important harmless error case.

In Macool, the dissenting judge in Ehrlich voted with the majority to hold that probate under the harmless error rule requires proof that the decedent (1) actually reviewed the document and (2) gave final assent to it.  The Macool court refused to probate a document that a lawyer had dictated while Macool was in his office; although the lawyer’s secretary had typed up the document, Macool never saw it because she died just an hour after leaving the lawyer’s office.   The court explained that in the absence of review and final assent, it could not be certain the document reflected Macool’s final testamentary wishes.

Similarly, the dissenting judge in Ehrlich may not see adequate evidence of testamentary intent.  Perhaps from the dissent’s perspective, all we have is an unsigned and unwitnessed document.  The other evidence—the handwritten notation; the fact that the decedent drew up the document just before he had life-threatening surgery; and that he executed health care directives on the same day that the document is dated—all of this is simply not enough to convince the judge that Ehrlich gave final assent to the document.  In other words, the dissenting judge may not be sufficiently certain about Ehrlich’s testamentary intent.

The dissent in Ehrlich writes that he now believes Macool “gives too expansive an interpretation” to the harmless error rule.  Perhaps the dissent fears that Macool opened the barnyard door to the probate of documents that will fall short of what the dissent believes is necessary to establish testamentary intent.  In particular, the dissent appears reluctant to find testamentary intent without a decedent signature.

I, for one, have never been concerned about Macool throwing open the barnyard door.  In fact, I have argued that Macool partially closed it.  I’ve written more about that here.


The Relationship Between Substantial Compliance and Harmless Error

Estates and trusts junkies are watching what the New Jersey Supreme Court will do with the harmless error doctrine in In re Ehrlich, 47 A.3d 12 (2012), a case it has recently agreed to review.  The New Jersey appellate court and most legal reporters framed Ehrlich as determining the scope of In re Macool, 3 A.3d 1258 (2010), which held the harmless error rule can only be applied when the decedent actually reviewed the document in question and gave final assent to it.  But really the central question in Ehrlich is about the relationship between harmless error and substantial compliance.  Because New Jersey is generally a progressive jurisdiction on estates and trusts issues, Ehrlich may reveal much about how intent-oriented courts are inclined to be.

After Ehrlich’s death, a fourteen-page document labeled “Last Will and Testament” was found in his home.  Ehrlich was an attorney and the document was typed on legal paper with Ehrlich’s name and law office address printed in the margin of each page.  The document was not signed or witnessed, but Ehrlich handwrote on the cover page, “Original mailed to H.W. Van Sciver,” whom Ehrlich had named executor. Ehrlich prepared the document just before he had life-threatening surgery and on the same day he executed a power of attorney and living will.  The document left the bulk of Ehrlich’s estate to his nephew, Jonathan.  Under intestacy, the estate would be split between Jonathan and another nephew and niece.  Ehrlich had not talked to the other nephew and niece for more than 20 years.

You all know where this story is heading.  Sciver died in 2005 and the original will could not be located.  Nothing suggests that the original was ever returned to Ehrlich.  This means the usual rules governing lost wills, which contemplate the will last being in the possession of the testator, cannot neatly resolve the case.  To get the bulk of Ehrlich’s estate, Jonathan must convince the New Jersey Supreme Court to allow probate of the document found in Ehrlich’s home.  Because the document is neither signed nor witnessed, everything turns on how the Court interprets the harmless error rule, which the New Jersey legislature adopted a few years ago.

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The Old Illegitimacy Part II: Facilitating Societal Discrimination

In a prior post, I demonstrated that the law makes explicit distinctions between marital and nonmarital children and denies the latter benefits automatically granted to its marital counterparts.  The harms resulting from the law’s continued distinctions on the basis of birth status are significant.  For example, these distinctions impair nonmarital children’s ability to acquire property and wealth.  While individuals often use part of their inheritance for a down payment on a home, to start a business, or to fund their own children’s education, nonmarital children are denied the same access to intergenerational wealth.

These legal distinctions may also stigmatize nonmarital children. Denying nonmarital children access to post-secondary educational support that is granted to marital children suggests that the former are less deserving of support.  It also signals that fathers’ responsibilities to their children differ depending on whether they are marital or nonmarital.  Denying U.S. citizenship to the children of unmarried fathers unless their fathers expressly agreed to support them similarly signals that nonmarital children are not automatically entitled to support.

These legal distinctions also facilitate societal discrimination by encouraging individuals (either intentionally or otherwise)  to make negative assumptions about unmarried parents and their children.  Many Americans (not just former Gov. Mike Huckabee) believe that it is wrong for unmarried persons to have children.  Seventy-one percent of participants in a recent Pew Research Center study indicated that the increase in nonmarital births is a “big problem” for society and 44% believe that it is always or almost always morally wrong for an unmarried woman to have a child.  Some people assume that unmarried mothers are sexually irresponsible and that their children will be burdens on the public purse.  They also expect nonmarital children to underachieve academically, economically, and socially.

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Harmless Error (The Estates and Trusts Kind)

As I’ve previously discussed on this site, Uniform Probate Code 2-503 allows courts to probate documents that were improperly executed upon clear and convincing evidence that the decedent intended the document to be a will.  New Jersey, which codified this harmless error rule several years ago, finally has a published appellate decision interpreting it.  The case, In re Will of Macool (2010 WL 3608686 (N.J. Super. A.D.)) is notable because it may provide a counterweight to In Re Kuralt, in which a Montana court arguably extended 2-503 to probate a document that indicated how the decedent wanted to dispose of his property but was not intended to be a will. 

In Macool, Louise wrote a will in 1995 and codicil in 2007.   Her husband, Elmer, was the primary beneficiary of these documents and his children (Louise’s stepchildren) were the contingent beneficiaries.   In 2008, Elmer died and Louise went to her lawyer to revise her estate plan.  The crux of her new plan was to reduce what her stepchildren were taking and to make gifts to her niece and godchild.  Louise gave her lawyer handwritten notes that summarized her new plan; these notes were a bit cryptic and it’s hard to imagine that the lawyer would have known what to do with them in the absence of oral clarification from Louise.  The lawyer dictated a complete document while Louise was in his office and a secretary typed up the dictation that same afternoon or the next morning.  Louise was supposed to come back at a later date to review the document, but she died about an hour after leaving the lawyer’s office. 

The trial court found, and the appellate court agreed, that Louise intended to alter her testamentary plan to include her niece and godchild.  In refusing to probate the document, however, the court distinguished between evidence “showing decedent’s general disposition to alter her testamentary plans” and evidence establishing that the decedent “intended the draft will prepared by [the attorney] to constitute her binding and final will.”  The court held that for the harmless error rule to apply, the proponent of a writing must prove by clear and convincing evidence that “(1) the decedent actually reviewed the document in question; and (2) thereafter gave his final assent to it.”  Read More


Billionaire Girard’s Imperfect Legacy

GC Founder's HallIn his early-19th century will, Stephen Girard, one of the richest persons in United States history, endowed a school, Girard College, for the education of white boys who were poor and orphaned. As of the early 21st century, the Philadelphia school (whose Founder’s Hall is pictured at right and from which I was graduated in 1980), educates students of all races and both genders from families with limited financial resources headed by a single parent or guardian. Thus have the scope of race and gender radically opened and the concepts of poor and orphaned subtly shifted.

Girard’s will, which elaborately detailed all aspects of the school and dedicated his entire fortune to creating it, also prohibits clergy of any sect ever from stepping foot on campus. Despite early constitutional challenges, this provision remains unchanged and generally enforced. Though there is considerable scholarship on Girard College, in law as well as sociology and other fields, relatively little intellectual energy has been devoted to discerning how and why transformations occurred as to race, gender, poverty and family, yet not as to religion.* Read More


Moving the Barnes, Illustrated

Alfred Barnes knew that a picture (or at least a painting) was worth a thousand words.

I’ve always had difficulty teaching the Barnes saga because doing so requires that I separate my unbridled enthusiasm for the place from a more scholarly discussion about the appropriate limits of deadhand control.  But it’s also difficult to explain to students what moving the Barnes means when most have never visited the foundation. 

This year, I’ll be helped along considerably by comparing these pictures of the current gallery 


barnes inside

with these renderings of the new facility planned for downtown Philadelphia.


barnes outside

barnes inside

You can see other representations of the planned gallery here, courtesy of the New York Times.


Probating Not-Wills

This semester I began using the just-released 8th edition of Dukeminier’s Wills, Trusts, and Estates.  Five weeks into the semester, I’m pleased with this latest revision, primarily because some chapters have been reorganized in ways that are much more consistent with how I actually teach the course, which means that the students spend less time hopping between cases.  One new note, however, has needled me into reconsidering the 1990 Uniform Probate Code, particularly as amended in 2008.

In the note, the casebook authors describe Stephanie Lester’s 2007 study of more than 120 Australian cases in which the court used the dispensing power, i.e., probated a document which had not been executed in compliance with the formalities because clear and convincing evidence showed that the decedent intended the document to be a will.   The casebook authors provide this summary of Lester’s work:  “[Lester] concluded that the dispensing power has continued to fare well—with one exception.  In a troubling number of cases, the court admitted a document to probate despite evidence that the document was not intended to be a will but for which there was good evidence of whom the decedent wanted to benefit.”  (For an American case of the same stripe, see In re Estate of Kuralt, where the court probated as a holographic codicil a letter stating that the ailing Kuralt would have a “lawyer visit the hospital to be sure you inherit the rest of the place in MT.”  (emphasis by Kuralt). 

My reaction to this trend is twofold: (1) if it is troubling, it’s not surprising, and (2) is it really troubling? Read More


CBGB’s Post Script: Not So Punk

120px-CBGB_club_facade.jpgThe iconic music club CBGB & OMFUG (aka CB’s) opened its doors in 1973, featuring acts like Patti Smith Group, Television, The Ramones, Talking Heads, The Dictators, and Blondie. Although initially intending to showcase a variety of music (hence the full name “Country Blue Grass Blues and Other Music For Uplifting Gormandizers”), founder Hilly Kristal ended up nurturing America’s punk scene. During the 1980s, hardcore bands such as Reagan Youth, Muphy’s Law, and Agnostic Front appeared during Sunday matinees, often called “thrash days.” At CB’s, the bathrooms had no doors; fliers papered the walls. After a thirty-three year run, the club closed in October 2006. Patti Smith appeared in a final concert to bid the club adieu.

Although now gone, the club remains legendary, the memory of rebellion, stale beer, and cigarettes firmly stuck in many’s minds. This Tuesday, fans and celebrities like Stevie Van Zandt and The Dictator’s Handsome Dick Manitoba came to the opening of the Rock and Roll Hall of Fame Annex NYC to see an exhibit of CBGB artifacts, including the club’s tattered awning, cash register, and flier-covered phone booth.

But the club’s past does not resemble the present wranglings over its legacy. When club founder Hilly Kristal died last year, he left the majority of his estate (worth millions due to the popularity of CBGB tee-shirts) to his daughter, leaving his son and ex-wife disappointed and ready to challenge the will. In a suit filed in Surrogate’s Court in Manhattan, Mr. Kristal’s former wife (and mother of his children) claims that she is the rightful owner of the business and that Mr. Kristal and their daughter deceived her by hiding the money from the sale of the CBGB merchandise. As Karen Kristal (the founder’s ex-wife) explained to The New York Times, “I put up the money, spent my time in there. And then my daughter says that they get it all. And that’s a lie.” Longtime members of the CBGB community shake their heads at the ugliness of the dispute but insist that CBGB’s symbolic place as the birthplace of punk rock will remain undisturbed. The Ramones’ artistic director Arturo Vega offers that the lawsuit “shouldn’t reflect what this place was about . . . . CBGB was a beacon of freedom for young people, something to believe in.” Indeed.


Eager Heirs

Today’s New York Times has an excellent article about how important it is that parents share their estate plan with their adult children, particularly if the plan runs counter to expectations:

The day will come, or may have already, when your children think of your money as theirs.

In uncertain economic times like these, with the stock and housing markets down, credit markets tightening and widespread anxiety about the economic future taking hold, the subject of inheritance can be even more fraught for a family: parents may worry over the fate of their fortune, and children may feel the need to dip into it.

A parent’s instinct under such stress — to put off discussion until far in the future — can have its own set of costs. . . .

Succession is a natural progression, as old as the concept of private property, yet many parents never bother to tell their children about plans for their estate. . . .

Grown children who know their parents have assets typically expect the money to be left to them in equal shares, say lawyers, wealth advisers and psychologists with long experience in the legal, practical and emotional aspects of inheritance.

Parents, though, often have different plans, deciding that Morgan has enough; that Jack the spendthrift should receive an annuity; that Judy’s special needs after an accident require extra consideration; or even that the best gift is to leave the children little or nothing material.

Mitchell Gans, a law professor at Hofstra University in Hempstead, N.Y., who has helped develop some of the most complex estate plans in the country, recommends that in such cases you should prepare the will and then notify “the kids that you are cutting out — or who are getting less than the others.”

“If you have the courage to do that,” Professor Gans said, “you cut down significantly the chance of litigation after death.”

As an Estates and Trusts professor, I could make good use of a phrase that neatly sums up the unfortunate tendency to start thinking of your parents’ money as your own, even when said parents are still very much alive and kicking. Heirticipation is the best I’ve been able to come up with, but I hope some of you chime in with more inspired suggestions.