I have been practicing in the area of trusts and estates litigation for so long that it is rare that I even raise an eyebrow at what people will do and say about their families in order to gain an advantage in a probate contest or other estate proceeding.  I also have developed a varied practice in guardianships, having represented petitioners and alleged incapacitated persons, and having been appointed many times as a court evaluator.  The court evaluator is the person in a Mental Hygiene Law Article 81 guardianship proceeding appointed to be the so-called “eyes and ears” of the court to report to the judge after conducting a thorough investigation of whether the alleged incapacitated person needs a guardian to handle any or all of that person’s personal needs or property management.  Again, I have seen the best and the worst of people in that aspect of my practice.  Luckily, in the Article 81 arena, the good has outweighed the bad as most litigants have the alleged incapacitated person’s best interests at heart when they commence an Article 81 proceeding; the hoped-for result is the appointment of a guardian to help someone who can no longer handle his or her personal needs and/or property management and “cannot adequately understand and appreciate the nature and consequences of such inability” (Mental Hygiene Law § 81.02 (b)).  Indeed, incapacity must be proved at a hearing by “clear and convincing evidence” demonstrating that the individual “is likely to suffer harm” as a result of his or her infirmities (id.).   Given that the alleged incapacitated person’s very liberty interests are at stake, it is no wonder that the standard is as strict as it is and that the statute affords the incapacitated person due process, including the right to a jury trial.  Think of it from your perspective:  How would you react if someone alleged that you could not take care of your finances, your living arrangements, your health, and even end-of-life decisions?

The value of Article 81 is stated in its legislative purpose.  Unlike its predecessors of conservatorships and committees, which offered no flexibility when a person was found to need assistance with finances or personal needs, Article 81 is designed to “promote the public welfare by establishing a guardianship system which is appropriate to satisfy either personal or property management needs of an incapacitated person in a manner tailored to the individual needs of that person, which takes into account the personal wishes, preferences and desires of that person, and which affords the person the greatest amount of independence and self-determination and participation in all the decisions affecting such person’s life” (Mental Hygiene Law § 81.01).

That does not mean there is no potential for abuse.  I recently was appointed as a court evaluator in an Article 81 proceeding involving a woman who was in a nursing facility after having been hospitalized because she was unable to walk.  After several months in the nursing facility, she still was unable to get out of bed by herself or walk, even with the aid of a walker.  The nursing facility commenced an Article 81 proceeding seeking the appointment of a guardian for the woman.  However, after meeting with the alleged incapacitated person, for whom the court wisely had appointed counsel, it was obvious there was simply no justification for alleging, much less determining, that she needed a guardian.  This was borne out by my interviews with her relatives and even with her social worker at the nursing facility, who told me that the woman was “cognitively intact.”  A review of her medical and psychological records, which were obtained with the woman’s consent, affirmed this.  With just a little digging, I learned that the proceeding was brought because the woman had a billing dispute with the nursing facility and would not pay her bill.   The nursing facility had the right to expect payment, but not at the expense of a person’s liberty interests.

Often, nursing facilities commence Article 81 proceedings in order to have a guardian appointed for an individual in its care who is eligible for Medicaid, but for whom no one is available to apply for the benefits.  This is not an abuse, when the alleged incapacitated person can be said to meet the criteria for needing a property management guardian.  However, that was not the case here.  Commencing an Article 81 proceeding alleging that the woman in question lacked capacity was nothing other than a flagrant abuse of the statute’s intended purpose.  Fortunately, the nursing facility, though its attorney, responded to reason and offered to withdraw the proceeding prior to the hearing.  Had it not, my report to the court would have recommended, in strong terms, that the nursing facility’s request for the appointment of a guardian be denied.  Certainly, this was a situation where recommending sanctions would have been appropriate.  Further, the woman’s court-appointed attorney would have had the option to move to dismiss the proceeding.  And, of course, at the hearing, the judge would have had the opportunity to question the woman and, undoubtedly, would have determined that the woman was not in need of a guardian.

With my eyebrow back in alignment with its mate, I am relieved that Article 81 contains rigorous due process requirements.

 

 

Promises, Promises was, of course, a classic Broadway musical with music by Burt Bacharach, lyrics by Hal David, and book by Neil Simon. For baseball fans this group represents, like the 1927 Yankees, a veritable “murderers’ row” of genius. It introduced classic songs like “I Say a Little Prayer,” “A House Is Not a Home,”  “I’ll Never Fall in Love Again,” and “Promises, Promises,” all immortalized by the great Dionne Warrick.

So what does this have to do with divorce agreements and estates of deceased ex-spouses? Enough to warrant a blog entry.  The Moneyist is a useful, well-written, and regular feature of the investment website MarketWatch. It is written by Quentin Fottrell. The topic of a recent article was: “My father’s divorce decree says his kids will inherit his house — but he later put it in a trust for his third wife. Which one wins out?” (The article is linked below.)

This fact pattern is a familiar one and it plays out in a variety of scenarios and many of those scenarios would create an estate obligation to give the house (or its date of death market value) to the decedent’s children from the first marriage. Most frequently, one sees a dispute about an obligation in a divorce setting that requires the decedent to maintain life insurance for his or her ex-spouse or children. Before the ink on the divorce decree is dry, the obligated spouse lets the life insurance policy lapse. (A marriage may be a mere mortal thing, but bitterness and spite live forever.) Years later, when that obligated ex-spouse dies, the beneficiaries ask for their insurance proceeds only to find there are none. Do they have a valid claim against the estate? In New York, and under the right circumstances, they do.

Interested in some relevant cases on point? See these links:

New York Law Cases

Rogers vs. Rogers Law Case

See this link for the MarketWatch article:

Marketwatch.com

 

This entry is occasioned by a recent article from Prof. Gerry W. Breyer, a very prominent scholar in the field of trusts and estates.  A Grave Error:  A Man Attempting to Fake His Own Death Was Caught Because of a Typo, by Gerry W. Beyer (the Governor Preston E. Smith Regents Professor of Law, Texas Tech Univ. School of Law).

A Long Island man was scheduled to be sentenced for a crime. On the date of his sentencing his attorney appeared alone and informed the court that his client  had died in New Jersey and produced a death certificate supplied to the attorney by the man’s grieving fiancé. The district attorney was suspicious because the death certificate contained several misspellings of the word “registry.” (The document spelled the word “regsitry.”) Upon investigation, it turned out that New Jersey officials were not deficient in their spelling but that the death certificate was a forgery. The defendant is now alive but not well; he is in much more trouble.

All attorneys reading this story will have breathed a sigh of relief when they realize that the  attorney was as misled by his client and his client’s  fiancé as was the court and the prosecutor. It may be a stretch, but perhaps there is a lesson or two here relevant to the practice of trusts and estates. If not, then at least it was a pretty good story. Don’t you think? It made me laugh to beat the band.

One.  The official death certificate is a necessary proof of death. Obvious and usually there is no difficulty obtaining such a document when a person has died. But there are times when a death certificate is unavailable because the person has gone missing and the court is called upon to declare a missing person dead.  If the proof before the court shows that a missing person was exposed to a specific peril then the court can declare that person dead.  Alternatively, if the  person was missing for a continuous and unexplained period of three years, then the court can declare him or her dead. The FBI’s National Crime Information Center stated in its 2019 Missing Person and Unidentified Person statistics that as of December 31, 2019, there were approximately 87,500 active missing person records. (Youth under the age of 18 accounted for 35% of the total, and 44% of the missing persons were under 21.)

Two. The importance of attending to the details of language extends beyond the typographical error. It includes the choice of words themselves in a legal instrument. The courts frequently are called upon to untangle  knots of uncertainty caused by the ambiguous choice of words in a testamentary instrument.  The person who signed the instrument is no longer available to explain what his or her intention was, so the courts have to rely on an ancient body of common law guidelines to help them determine what the meaning was. In the parlance of our times, these are called “construction proceedings.”

Suppose a Will provides “I give and bequeath to my sister, xxxxx, any and all household items which she desires to take from my principal residence after my decease. Anything which she does not take from my principal residence shall become part of my residuary estate.”  What is the meaning of the phrase “household items?” Does the definition include the extensive and valuable art collection of the testator? If it does, then the artworks go to the decedent’s sister. If the words “household items” are interpreted to exclude art objects, then the testator’s residuary beneficiaries are entitled to them. Reasonable minds may differ, but the court is obliged to decide. If you are interested in the details of this case (the sister won), here is a link to it: Matter of Isenberg.

Bonus puzzle for coming this far: this blog entry contains two references to “The Big Lebowski.” What are they?

What!!! You haven’t seen the Coen Brothers’ movie? Shame on you. I think they really tied the piece together. Three.

 

In New York, is there a legal remedy for “wrongful life” when a hospital or a doctor refuses to follow the terms of a patient’s living will and his or her health care proxy’s instructions resulting in pain and suffering by the patient?

Most people have heard of legal actions for pain and suffering and wrongful death.  The former requires that the individual was aware of his or her pain (see, e.g., McDougald v Garber, 73 NY 246 [1989]).  Economic recovery belongs to the individual or, if that person subsequently dies, to his or her estate under the theory that the recovery is designed to compensate the individual for his or her pain and suffering (id. at 253-254).  In contrast, in an action for wrongful death, monetary recovery from the wrongdoer who is found to be responsible for the decedent’s death belongs to the decedent’s distributees, those relatives who would take under the laws of intestacy (if the decedent died without a will), and is designed to compensate them for any economic losses they suffer resulting from the decedent’s death (see, e.g., Heslin v County of Greene, 14 NY3d 71, 76 [2010]).

But, what is “wrongful life,” and is it actionable in New York?  Recently, Supreme Court, Bronx County, was called upon to consider these issues in Lanzetta v Montefiore Med. Ctr., 2021 NY Misc. Lexis 543 *, 2021 NY Slip Op 21026 (Sup Ct, Bronx County 2021).   In that case, plaintiff sought to recover damages for decedent’s twenty days of pain and suffering prior to his death allegedly caused by defendant, Montefiore Medical Center, when it administered life-sustaining medical treatment to decedent in contravention of decedent’s living will and the directives given by decedent’s health care agent (id. at *1-*3).  “Wrongful life” actions usually encompass a negligence or medical malpractice claim brought on behalf of a child who is born impaired, with the claim being that the child would have been better off if he or she was not born (id. at *3).  However, New York courts have determined that claims for “wrongful life” do not exist “‘because, as a matter of public policy, an infant born in an impaired state suffers no cognizable injury in being born compared to not having been born at all'” (id. at *3-*4, quoting B.F. v Reproductive Medicine Assocs. of New York 30 NY3d 608, 614 [2017]).  However, the Lanzetta action involved an elderly individual, not an infant, and the reasoning behind the Reproductive Medicine does not apply.

Relying on the Second Department case of Cronin v Jamaica Hosp. Med. Ctr., 60 AD3d 803 (2d Dept 2009), the Lanzetta court determined that the decedent did not sustain a legally cognizable injury as a result of defendant’s alleged failure to treat decedent in conformity with the directives in decedent’s living will and those provided by the decedent’s health care agent.  (id. at *7-*8).  In so finding, the Lanzetta court stated that plaintiff’s reliance on Public Health Law Article 29, which governs health care agents and proxies, was misplaced, because the “health care and proxies act,” as it is known, does not expressly or impliedly create a “private right of action” for the principal, or his or her estate, against the medical provider who violates the “statutory duty” to comply with the health care agent’s directives.  (id. at *5-*10).

Although the Lanzetta court recognized the importance of having one’s medical treatment wishes followed, the court determined that it was bound to conclude that a cause of action for “wrongful prolongation of life” does not exist in New York and dismissed the action.  In so doing, however, the court stated that whether there should be a common law action for wrongful life is for the appellate courts to determine and whether there should be a statutory right is for the Legislature for consider.  What do you think?

 

The governing principle of this blog is to be useful to the general public.  One way to accomplish this goal is to avoid the use of jargon; another way is to avoid reporting on the minutiae of the practice by rehashing the recent decisions from the courts.  (Attorneys have many outlets for such shoptalk.)

In this entry, we offer a modest proposal or two on ways of making estate planning and practice easier and less expensive (or, at the very least, giving New Yorkers more choices).

One.    Ante-Mortem Probate

“Ante-Mortem Probate.”  So much for our plan to avoid jargon.  This phrase simply means that a testator should has the right to have his or her Will certified as valid by the courts before the testator dies. Once dead, the testator is probably unable to testify as to his or her intent and capacity (short of an admissible séance). But while still alive, the testator can certainly prove his or her mental capacity, freedom from coercion, etc. In other words, one can call it pre-death probate.

At this point, many New York Trusts and Estates attorneys will have either fainted from an attack of the vapors or are frothing at the mouth in rage at the notion of pre-death probate. Having the court certify the validity of a testamentary plan will strike the local practitioner as a very radical proposal that has been studied and rejected.

Opponents will drag out some hoary old legal maxims (“the living have no heirs,” “a will is an ambulatory document”). However, one would hardly designate states like Delaware or Ohio as bastions of radicalism (or the seven other states that permit such a practice). These states have had pre-death probate for many years (in some cases for over forty years). While New York does not authorize pre-death probate, it has available many strategies that can be used to prevent an expensive and nasty probate contest. Clients should be made aware of these strategies when they inform their attorneys of their intent to disinherit an evil child or to leave all or much of their wealth to charity to the detriment of their children. Disinheritance of a distributee (“next of kin”) frequently provokes a probate contest.

The topic of ante-mortem probate has a long scholarly pedigree.  When the drafters of the Uniform Probate Code (a model proposal put together by the National Conference of Commissioners on Uniform State Laws, a committee of legal scholars and practitioners) studied the topic they unanimously agreed on the wisdom of ante-mortem probate but they could not agree on the means of implementing it. It turns out the devil, as usual, was in the details and not the concept because there are several approaches for implementing a plan of pre-death probate.  The drafters of the Uniform Probate Code could not agree on which method to adopt. We will not rehearse here the several techniques of giving life to this proposal (this is a blog entry after all, not a law review note or article).  If the reader is interested in a detailed look at the topic, then you can refer to any one of the following:

  1. An excellent overview of the topic listing the various models of implementing the use of pre-death probate is “No ‘Dead Giveaways’: Finding a Viable Model of Ante-Mortem Probate for New Jersey”

By Joseph A. Romano, Esq.

Seton Hall Law Review, Vol. 48, p. 1683. 2018

Seton Law Review

  1. Another model for implementing pre-death probate is examined here:

The Commissioners’ Model of Ante-Mortem Probate

Joe Savoie, Esq, Tekell, Book, Allen & Morris, L.L.P

The Commissioners’ Model

  1. Finally, the attorneys reading this blog entry will know the American College of Trusts and Estates Counsel (ACTEC) as the preeminent national organization of the best attorneys in the field. They recently produced a podcast discussing the experiences of attorneys in two states that have enacted enabling legislation for ante-mortem probate (Delaware and New Hampshire):

ACTEC Foundation

TWO.   Service of Process

There I go again, more jargon.  “Service of process” is merely a term that refers to the  manner by which interested parties to a court proceeding are given proper notice of the litigation so that they can appear and protect their interests.  Once the court has obtained proper jurisdiction over a party, it can proceed to act on the relief requested in the complaint (called a  petition in the Surrogate’s Court).  In most New York trial courts a defendant in a civil matter (called a respondent in Surrogate’s Court) must be served in person with the notice of the proceeding, the summons and complaint (called a citation and petition in Surrogate’s Court).  If the plaintiff is unable to serve the defendant personally, then the law permits the plaintiff to choose alternative means of making service without a court order.  The same procedure does not apply to proceedings in the Surrogate’s Court. In Surrogate’s Court, the petitioner (the plaintiff) must serve personally a New Yorker and if he or she fails to do so then application must be made to the Surrogate for an order approving an alternative means of service.

An illustration may be helpful to make sense of this.  Suppose the nominated executor of a decedent’s Will is unable to obtain the consent to probate a will from the decedent’s three adult children because the will leaves everything to a charity.  One child lives in New Jersey, another in Connecticut, while the third lives in New York.  The governing statute (Surrogate’s Court Procedure Act 307) permits the New Jersey and Connecticut siblings to be served by mail (certified mail return receipt requested, or overnight mail) but the New Yorker must be served in person unless the court orders otherwise.  In the Supreme Court, under the governing law (CPLR §308), if the New Yorker is avoiding personal service, then the plaintiff is free to use alternatives to personal service without resort to the court for an order. Not so in Surrogate’s Court. Why? I don’t know.

Therefore, when the matter appears on the court’s calendar the out-of-state siblings may appear (personally or by their attorneys) while the New Yorker does not appear.  The Surrogate will have to adjourn the matter until the New Yorker is properly served. This results in an exchange between the Surrogate and the attorney for the petitioner (the person seeking that probate of the Will) that will be incomprehensible to the laypersons from New Jersey and Connecticut. An example:

Clerk: “Number 4 on the Probate Calendar, estate of Jane Doe.”

The child from New Jersey: “Here!”

The child from Connecticut: “Here, your Honor.”

The Surrogate (to the attorney for the petitioner): “Counselor, the file is marked ‘jurisdiction incomplete’.”

Attorney: “Yes, your Honor, I request a supplemental citation be issued approving alternative service by virtue of an affirmation of due diligence and a proposed order I have with me and would like to file.”

The Surrogate: “I’ll review it, mark the calendar ‘Supp. Cite.'”

Should the disinherited children for New Jersey and Connecticut ask the attorney what just happened, they will be told that the court adjourned the whole thing and they will either have to appear again or retain counsel to appear on their behalf. In other words, a waste of time and a waste of money.

 

In these troubled times, we at Jaspan Schlesinger LLP extend our best wishes for the coming year to all.

Before my colleague Sally Donahue continues her series on guardianship matters next week, I thought I would fill in the gap and digress from the world of Trusts and Estates with some thoughts on the role that live music and theatre plays in making New York the world capital of the performing arts.  I hope COVID-19 does not change that verb “plays” into the past tense “played.”

Many have suffered terribly in this pandemic, many of our friends and relatives have died or have mourned, many have lost their jobs, especially at the lower end of the earnings spectrum. Wall Street is fine; Main Street not so much. So, if you don’t mind, I would like to write about a group of artists who have been sidelined from displaying the fruits of their years of dedication, work, and talent.  Even during the pre-pandemic times, when the New York live music and theatre scene was booming, making a living as performer was always a daunting challenge.

As I write, the Jazz Standard has closed and Birdland is in dire financial straits. The Metropolitan Opera, never a profitable enterprise, is suffering.  Jazz at Lincoln Center is struggling. They have done their best to continue their work on the streaming services available on the internet and your support would greatly assist in keeping them alive. For example:

From the New York Times, “Ten Classical Concerts to Stream in January”

NY Times Concerts to Stream in January

From Jazz at Lincoln Center, “New Online Jazz Programs”

Jazz at Lincoln Center

Two samples of what we are missing.

From Jazz at Lincoln Center, “El Cantante, from Una Noche Con Rubén BladesJazz at Lincoln Center Orchestra with Wynton Marsalis featuring Rubén Blades.”  As a fortunate member of that audience, I echo the sentiments  that, “the Jazz at Lincoln Center Orchestra with Wynton Marsalis welcomed a very special guest to their Manhattan stage: nine-time Grammy winning singer, songwriter, actor, and activist Rubén Blades. For one unforgettable night—music-directed by the JLCO’s bassist and ’emerging master in the Latin jazz idiom’ (DownBeat) Carlos Henriquez—the worlds of salsa and swing collided. Backed by one of the world’s leading big bands, Blades took the audience on a tour through his greatest hits. In their write-up of the show, the New York Times said ‘Mr. Henriquez’s arrangements delivered consistently… Radically beautiful.’ ” Any fans of Jazz in general and Latin Jazz in particular will share this sentiment when listening to this song and taking advantage of the internet to watch other selections form that great institution, Jazz at Lincoln Center, and its great leader Wynton Marsalis.

Youtube Lincoln Center

From Broadway, “Girl From the North Country” was a great hit  just as everything shut down. The innovative musical combined the music of Bob Dylan with the story telling of playwright Conor McPherson to produce a memorable night at the theatre. If it returns to the stage, it is a performance  that is guaranteed to break your heart.  Here’s a review from Ben Brantley of the New York Times.  (It seems to strike an appropriate evocation of times past and perhaps times present for those of our neighbors suffering from the hardships of the pandemic.)  Mr. Brantley, if you please,  “A nation is broken. Life savings have vanished overnight. Home as a place you thought you would live forever no longer exists. People don’t so much connect as collide, even members of the same family. And it seems like winter is never going to end. . . Yet while this singular production, which opened on Thursday night at the Belasco Theater under McPherson’s luminous direction, evokes the Great Depression with uncompromising bleakness, it is ultimately the opposite of depressing. That’s because McPherson hears America singing in the dark. And those voices light up the night with the radiance of divine grace. . . ‘As we know, pain comes in all kinds,’ Dr. Walker tells the audience early in the show. ‘Physical, spiritual, indescribable.’ Those varieties of pain are all palpable in ‘Girl [From the North Country],’ and they’re never going to be healed. And then the music starts. You don’t know where it comes from, or even exactly what it means. But there’s no mistaking the sound of salvation.”

Here’s a preview from the London production:

Youtube London production

 

 

 

 

 

Mom needs help with her finances and daily life.  She is no longer capable of paying her bills, doing her banking, managing her medications, and is generally failing mentally.  As a doting child, you want to help her, but how?  Well, you certainly can take her to the doctor, manage her healthcare, bring her groceries, or even have her move into your home.  After all, who would not help Mom in her time of need?  (That begs the question, left unanswered in this blog entry.)  But, what about paying her bills, managing her finances and applying for Medicaid?  That requires being an agent under Mom’s Power-of-Attorney.  But, Mom never executed one, and she no longer has the capacity to do so.

Now what?  Where do you turn when it seems there is nowhere to turn?

New York State Mental Hygiene Law Article 81 to the rescue.  This blog entry, and several to follow, will explain some of the benefits, and some of the pitfalls, of applying to be appointed as a guardian for the personal needs and property management of an individual who can no longer take care of himself or herself, if that person meets the legal criteria for such an appointment.

According to the Urban Institute, as well as the United States Census Bureau, the number of Americans ages 65 and over is growing exponentially and is expected to reach 80 million in the next twenty or so years.  It is no longer the exception that people live well into their eighties and nineties.  Although the subject of an Article 81 proceeding often is an older person, the statute  extends its reach to any New York State resident who is “unable to provide” for his or her personal needs or property management, cannot “adequately understand and appreciate the nature and consequences” of that inability, and “is likely to suffer harm” as a result, and requires a judicial determination of incapacity after a hearing by a justice of the New York State Supreme Court based on “clear and convincing evidence.”  The reason for the high level of judicial scrutiny is that such a finding and the concomitant appointment of an Article 81 guardian is a limitation on the incapacitated person’s liberty interests.

Who can petition under Article 81 for the appointment a guardian?  That is broader than one might think.  It includes a relative of the alleged incapacitated person (“AIP”), a person with whom the AIP resides, the director of a facility in which the AIP is a patient or resident, or anyone concerned with the AIP’s welfare.  Even the AIP can petition for the appointment of a guardian.

A word to the wise:  Take care of your estate planning while you are able.  In particular, be sure to execute a Power-of-Attorney.  If you have a relative or a friend who can no longer handle his or her activities of daily living, and did not plan for this event, be aware that an Article 81 proceeding can be the remedy.  In upcoming blog entries, I will explain the process of commencing and litigating an Article 81 proceeding, but know that help is just an email or telephone call away.

For further information about estate planning or commencing an Article 81 proceeding, please contact Sally M. Donahue, Esq., at sdonahue@jaspanllp.com or at 516-746-8000.

 

 

Continuing our theme of odd bequests (last time the blog considered the adventures of Trouble, Leona Helmsley’s millionaire Maltese), let’s consider some other weird or questionable estate plans if only as a warning to the reader.

“Item I gyve unto my wife my second best bed with the furniture.” Thus did William Shakespeare make the sole provision for his wife in his will. While this has puzzled scholars for centuries, the current opinion seems to be that it was not a slight at all (Anne was entitled to one-third of the estate by Medieval law anyway.) To wit:

“In Shakespeare’s time, a bed was an expensive and luxurious item, generally regarded as a valuable heirloom to be passed down the generations rather than given to a surviving spouse. In a world where social status was highly prized, people were keen to show off their wealth at every possible opportunity. It wasn’t uncommon for the ‘best bed’ to be kept in one of the rooms downstairs, as a way of making sure all your visitors could see how well you were doing. It was also the bed that would be offered to staying guests, so the ‘second best bed’ referenced in Shakespeare’s will is likely to have been the actual marriage bed, the one that he and Anne shared as man and wife.” (Shakespeare  Birth Place Trust, Shakespeare second-best-bed.)

Make of the foregoing what you will. Perhaps we are being too harsh if we conclude any aspersion being cast on Anne. Shakespeare always knew what he was doing and Anne apparently was a beloved and crucial partner to the Bard because there is no record of family discord in his final years with Anne or any litigation in the wake of Shakespeare’s death. Moreover, Germaine Greer wrote a fine book called Shakespeare’s Wife. Nothing if not provocative, she argued that the relationship was a one of devotion and affection (reflected in the plays and their sympathetic views on marriage in general and wives in particular) and that Anne deserves great praise. Of course, this view was pilloried by the Shakespeare scholarly establishment (despite the book’s meticulous scholarship and Ms. Greer’s PhD in Elizabethan drama from Cambridge with her thesis being “Love and Marriage in Shakespeare’s Early Comedies”). Greer’s knowledge, verve for style, and imagination make a persuasive case for Anne being the actual head of a considerable household (mostly in Will’s absence) and as an effective businesswoman and partner to her husband.

One can only imagine the litigation such an instrument would have caused today. The provision for his wife was apparently made in a very shaky hand as an interlineation; there were other interlineations; the document was prepared at several different times.  Probate proceedings, construction proceedings, accountings, rights of election.  It is enough to make a trust and estates litigator like your writer cry tears of joy. Avoiding such a result should be a prime goal of defensive estate planning. (There’s more to estate planning than tax efficiency!)

Apropos of nothing, a slight digression. Shakespeare’s life gives lie to the modern conceit that creative genius and business acumen do not mix. Shakespeare was not just the supreme poet and dramatist of the English language (a hard thing for an Irishman to admit), he was also an actor, a producer, a very astute business person, and not a college graduate.  Perhaps these factors figure in the academic debates (then and now) on the “true” identity of Shakespeare and the backlash experienced by a non-academic like Germaine Greer whose brilliance, achievements, daring,  and iconoclasm can disturb mainstream minds. Your writer suspects Ms. Greer would agree with Shakespeare’s jibe at professional scholars in Measure for Measure:

. . . scholar, proud scholar,

Dress’d in a little brief authority,

Most ignorant of what he’s most assur’d–

His glassy essence–like an angry ape

Plays such fantastic tricks before high heaven

As makes the angels weep . . .

We moderns are not immune from making odd bequests, even with the help of professionals. Perhaps the salient example of late is the mess the late actor Philip Seymour Hoffman made of his estate. His will, executed ten years before his death when he had only one child, gave everything to the actor’s then partner and the mother of his three children. By the time of his sad and untimely death, the couple were separated. His taxable estate was estimated to total $35 million. Upon reading this, the trusts and estates professionals will recoil in horror. They are imagining upwards of $12 million flying out the window and into the waiting arms tentacles of the IRS. Say what you want about the institution of marriage (and I am very happily married, thank you), it does have its tax advantages.

But that is not all. In his will, Mr. Hoffman also requested that his son (and presumably his after born children)  live in New York City (Manhattan, specifically), Chicago, or San Francisco or that they visit one or more of these cities at least twice a year. Why? “The purpose of this request is so that my son will be exposed to the culture, arts, and architecture that such cities offer.”  The story is also told that one of the motivating factors to Mr. Hoffman’s testamentary intent was to avoid his children becoming “trust fund kids.”  As if there is something wrong with that.

 

 

 

 

Cutting right to the chase, a spoiler alert: Trouble is dead!  She shuffled off this mortal coil some years ago at the tender age of 12. You recall (don’t you?) that Trouble was a Maltese owned by Leona Helmsley. Trouble was the beneficiary of a $12 million bequest to a trust established for the dog’s benefit. The court later reduced the bequest to $2 million figuring that the reduced sum would be enough to keep Trouble in dog biscuits and out of trouble for her life. The court was right and Trouble died without ever appearing in the tabloid press linked to any hint of scandal. Trouble even received an obituary in the New York Times. There is no record of Trouble ever appearing in the Wedding Announcements Section, however.

But seriously, folks, the care of our loved ones extends beyond the two-legged variety of friends and relatives. The number of celebrities who leave bequests to their animal companions is staggering. And who is to blame them? Charles De Gaulle, not a noted sentimentalist, once said, “The better I get to know men, the more I find myself loving dogs.” Albert Einstein was a well-known pet lover. He had a dog named Chico Marx. Whether either of these notables provided for their pets is unknown.

New York allows you to make a provision for your pet in your Will, or even in a living trust. Provision for the benefit of a pet may be made in  variety of ways and the New York City Bar Association did a very useful monograph a few years ago on the topic. A copy is attached to this blog entry. (It is supplied for informational purposes only, with no warranty either express or implied that it is current. Its main benefits were that it is informative and available to the public.).

It is interesting to note that when New York first enacted the law authorizing pet trusts (Estates Powers and Trusts Law §7-8.1) it limited the duration of such trusts to 21 years. That was changed to allow the trust to exist for the life of the animal beneficiary. After all, some varieties of parrots can live well over 60 years. And should you have a tortoise near and dear to your heart, then expect the creature to need provision for a century or more.

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Editor’s correction to writer: Dude, you’re showing your age. “Pet” is not the preferred nomenclature. “Animal companion,” please.

Editor’s note to reader:  please feel free to substitute “animal companion” for “pet” in this blog entry.

New York City Bar Association, Committee on Animal Law, May 2016, “Providing For Your Pets in the Event of Your Death or Hospitalization”

Providing For Your Pet NYC Bar.org

 

A bonus joke. A guy goes into a bar with his dog. He has a drink and tells the bartender that his dog can talk and if he can prove it then he should drink for free. The evening’s early, so the bartender rolls his eyes and says, “OK, buddy, let’s hear it.”

The guy says to the dog, “Dog, what  does sandpaper feel like?” RUUUF, RUUUF! says the dog.

The bartender says, “you’ll have to do better than that Mac.”

The guy then says to the dog, “Dog, what’s on top of a house?”  ROOOF,  ROOOF! says the dog.

The bartender is losing his patience and is about to throw the guy out along with his barking dog when the guy says, “Wait, wait, once more, watch this. Dog, who was the greatest baseball player of all time?” RUUUTH, RUUUTH! says the dog.

With that, the bartender grabs the guy by the ear and the dog by the tail and throws them both to the curb outside. The pair are sitting there nursing their bruises when the dog looks up at the guy and says,  “DiMAGGIO?”

  1. In earlier entries, we warned of the changing tax landscape and the possibility that a new administration will bring a new set of tax laws and regulations. One aspect of the Internal Revenue Code particularly ripe for change is the high level of exemption amounts applicable to estates and gifts.

The Internal Revenue Service announced today the estate and gift tax exemption limits for 2021: the estate and gift tax exemption will be $11.7 million per individual, up from $11.58 million in 2020. That means an individual could give or bequeath $11.7 million to heirs and pay no federal estate or gift tax, while a married couple could shield $23.4 million. (The exclusion amount  for annual gifts remains at $15,000, or $30,000 for married couples under certain conditions.)

For high net worth individuals, this presents an opportunity. If these exemption amounts are reduced next year, any gifts made now will most probably be secure and free from IRS recoupment if and when new and much lower limits are enacted.  If you are in such a category, then it is worthwhile to consider some planning moves now.

See linked article from The Journal of Accountancy for this and additional income-tax related changes:

2021 IRS Tax Tables and Inflation Adjustments

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  1. Also, the Treasury Department just announced inflation-adjusted figures for retirement account savings for 2021. For the new year, one can save for retirement in tax-advantaged accounts the inflation-adjusted amount of $58,000. For more information, seek out the advice of your counsel or  accountant. We at Jaspan Schlesinger are fortunate to have as one of our colleague Victor M. Finmann, a nationally-recognized authority on such esoteric topics.

See linked article from Forbes  for this and additional pension plan and retirement savings accounts:

Forbes.com 2021 IRS Changes