Forbes Article – How To Kill An Irrevocable Trust
The following is a link to a Forbes article entitled “How To Kill An Irrevocable Trust,” click here for the article.
In California Probate Code sections 15400-15414 and related relevant sections govern the modification and revocation of a trust. These statutes and the provisions of the trust itself must be read and carefully evaluated. In some situations it might or it might not be possible to modify or revoke an irrevocable trust. You should consult legal counsel on these issues. The Forbes article is also interesting for its discussion of some of the changed circumstances that might prompt someone to consider seeking to modify or revoke an irrevocable trust, and legal planning opportunities relating to those situations.
Dave Tate, Esq. (San Francisco)
Liability, litigation and trials; mediator and dispute resolution; risk management; D&O; boards, governance and leadership.
Blogs: http://taterealestatelaw.com; http://californiaestatetrust.com
What Do You Do If The Other Side Makes Your Argument First?
The following is a link to an interesting article from the Persuasive Litigator, discussing in the context of litigation, but also relevant to arguments and persuasiveness in general, what you might do if the other side makes your argument first in an effort to portray your argument in a negative manner. In fact this is not uncommon in trials. Click here for article discussion.
Dave Tate, Esq. (San Francisco)
Liability, litigation and trials; mediator and dispute resolution; risk management; D&O; boards, governance and leadership.
Blogs: http://taterealestatelaw.com; http://californiaestatetrust.com
Avoiding Ambiguity in Trusts
The following is a link to a detailed, interesting blog post from San Diego attorney Scott Soady’s blog, entitled “Avoiding Ambiguity in an Irrevocable Educational Trust. Click here for the blog post. In the post Mr. Soady discusses the Muldoon v. Rogers case, which is an unpublished opinion but is interesting for the Court’s analysis and in the context of trust and will drafting.
Dave Tate, Esq. (San Francisco) – liability, litigation and trials; mediator and dispute resolution; risk management; D&O; boards, governance and leadership.
Legal Standing To Enter Into A Lease
The following is a link to an interesting overview discussion from Sheppard Mullin entitled “What Makes A Lease “Enforceable” – What You Need to Know.” Perhaps more correctly, the discussion mostly relates to some of the elements of the legal standing of a party, lessor or lessee, to sign and enter into the lease. Legal standing to enter into a contract might first be thought of early in the context of creating a contract, which would be correct, but its relevance more often comes into play later in disputes and litigation over the enforceability of the contract. Click here for article discussion.
Dave Tate, Esq. (San Francisco) – liability, litigation and trials; mediator and dispute resolution; risk management; D&O; boards, governance and leadership.
Off Topic But Relevant – How to Work a Room
Discussions about how to work a room aren’t new but it’s an important skill and art that always needs improving. Worthwhile networking requires personal meeting in all industries. The following are links to two useful “working the room” articles that I came across today while doing some morning reading:
2. From Boston University Click Here (a one-page pdf).
Dave Tate, Esq. (San Francisco) – liability, litigation and trials; mediator and dispute resolution; risk management; D&O; boards, governance and leadership.
Donations to Hospital and Allegations of Coercion and Contested Will
The following is a link to an interesting New York Times article dated May 29, 2013, Huguette Clark’s will and estate, and allegations that she was coerced by the hospital where she had been staying for the last 20 years of her lift to donate money and assets to the hospital and to leave the hospital $1 million in her will. Click here for article.
My initial thoughts, based on the information provided by the article. The article does refer to information provided in papers that have been filed with the court, and of course we don’t have those papers which presumably do contain significant information that will be admissible as evidence at the scheduled September trial. Ms. Clark was extremely wealth. Living in a hospital for the last 20 years of her life certainly is unusual. However, the article doesn’t indicate that she lacked capacity to make that decision at least early in her 20-year stay. Ms. Clark had the money to live anywhere that she wanted. Ms. Clark was in bad shape when she first entered the hospital and they treated her back to health. Apparently she felt safe and well-cared for in the hospital.
If Ms. Clark’s family members or friends were concerned about her mental capacity and decision making, or if they were concerned that the hospital was unduly influencing her, the article doesn’t indicate that Ms. Clark was ever conserved by her family members or that there was any attempt to conserve her during the 20 year hospital stay.
Ms. Clark did pay for the cost of her stay at the hospital. The article doesn’t provide information about those costs. The article indicates that Ms. Clark left $1 million to the hospital in her will, that she had donated to the hospital an additional $4 million during the 20 years, and that her estate was worth $300 million on her death. The article also indicates or suggests that the hospital did try to get Ms. Clark to donate additional funds to the hospital. The attorney for the parties who are contesting the will in part stated: “What this is about is not just a will contest, it’s about the accountability of professionals.”
My initial take away based on the information provided in the article (but of course additional information could indicate otherwise): inadequate evidence that Ms. Clark lacked mental capacity, or that she was coerced, and given the amount of her wealth it is arguable that she really wasn’t generous to the hospital but was instead generous to the people and entities who do inherit the majority of her wealth. Given that Ms. Clark had lived at the hospital for 20 years, it would not have surprised me if she had left more to the hospital.
A restitution judgment debt or amount owing does not terminate on death . . . .
From one of my recent cases, at the time of decedent/debtor’s death there was a substantial amount remaining due and unpaid on a judgment of restitution that had been awarded against the decedent/debtor several years earlier. As a defense in the case the argument was raised claiming that the judgment of restitution expired or terminated on decedent/debtor’s death. The answer: a restitution judgment debt or amount owing does not terminate on the debtor’s death and is collectible and enforceable following the debtor’s death. United States v. Cloud (9th Cir. 1990) 921 Fed. 2d 225. As you may know, post-death recovery on a debt owed by a decedent can be complicated, possibly requiring all of the following: a petition to open the probate of the estate, a creditor claim in the estate proceeding, a separate complaint following denial of the creditor claim, a separate action to recover from decedent’s trust and/or any trust in which decedent was the trustor or beneficiary or possibly a trustee, and a separate action against the surviving spouse for recovery on community property debt.
Enjoy,
Dave Tate, Esq. (San Francisco – (415) 613-9713 – tateatty@yahoo.com – civil, real property, business, trust/estate, conservatorship, and elder litigation; disputes; petitions and hearings; difficult administrations; fiduciary duties; and mediations)
