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    The Lawletter Blog

    Matthew T. McDavitt

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    ESTATES:  Personal Representatives/Methods for Determining Fair Compensation

    Posted by Matthew T. McDavitt on Wed, May 24, 2023 @ 15:05 PM

    The Lawletter Vol. 48 No. 2

    Matt McDavitt, Senior Attorney

               A common issue to be resolved in any administration of a decedent estate is the determination of the rightful value of the compensation due to the serving personal representative. While the will of the decedent may validly dictate the amount of compensation due to the serving personal representative (though, subject to judicial scrutiny), more commonly, the value of such fiduciary compensation follows statutory strictures. Lacking an appropriate testamentary personal representative compensation provision, states employ an array of calculation methods to determine the proper value of such remuneration based on one of several methods.

                A common methodology employed in personal representative compensation statutes is to examine a suite of elements characterizing the relative complexity of the estate administration, the objectively reasonable effort required to perform the necessary tasks, the diligence of the personal representative, and results attained therefrom:

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    ESTATES:  Is It Legal to Inherit Objects Made from Endangered Species Parts?

    Posted by Matthew T. McDavitt on Tue, Dec 6, 2022 @ 11:12 AM

    The Lawletter Vol 47 No 4

    Matthew McDavitt—Senior Attorney, National Legal Research Group

         It is not uncommon for the estates of individuals at death to possess one or more souvenirs, pieces of jewelry, trophies, collectibles, or artworks made from animal parts, such as carved ivory, fur rugs, tortoise-shell ornaments, crocodile skin leather, and the like. What legal issues might an estate or beneficiary face if he were bequeathed animal parts listed in Endangered Species Act?

         The U.S. Congress enacted the Endangered Species Act (“ESA” or the “Act”) (currently codified at 16 U.S.C. §§ 1531-1544) on December 28, 1973, with the aim of barring commerce in the endangered and threatened species listed in the Act, as such financial value contributes to the continuing depletion of such species and the contraction of their populations and range.

         Importantly, among the acts prohibited under the ESA, it is forbidden for an individual to “possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any such species taken in violation [of the Act].” Id. § 1538(a)(1)(D) (emphasis added). However, this statutory language barring possession of an ESA-regulated species part applies solely to animals “taken in violation” of the Act, i.e., the animal was captured and/or killed and transformed into a commercial product after such species had been listed to the ESA.

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    Topics: Matthew T. McDavitt, estates law, Endangered Species Act regulations, bequeathed animal parts, noncommercial possession

    WILLS: Construction of Survival Clause—Beneficiaries Who Predecease Distribution

    Posted by Matthew T. McDavitt on Mon, Nov 15, 2021 @ 09:11 AM

    The Lawletter Vol 46 No 6

    Matthew McDavitt—Senior Attorney, National Legal Research Group

         In some wills, testators expressly condition the beneficiaries’ receipt of legacies upon their survival to the date of actual distribution of the gift during the estate administration. In such circumstances, the question occasionally arises regarding the propriety of such survival mandate where (1) the administration is delayed beyond the average length due to dilatory conduct by the executor or due to litigation, and (2) one or more legatees survived the testator’s death but died prior to the distribution of the legacy. A handful of courts nationally have addressed this fact pattern, arriving at a logical rule applicable when unusual delay in distribution results in the one or more legatees predeceasing distribution.

         It is well-settled that the “personal representative is under a duty to settle and distribute the estate of the decedent . . . as expeditiously and efficiently as is consistent with the best interests of the estate.” 31 Am. Jur. 2d Executors and Administrators § 686 (2021). As such, a handful of American courts examining the issue have concluded that the equitable rule in this circumstance is that legacies conditioned upon beneficiary survival to the date of distribution vest at the time such legacies could first have been distributed (often a year from when the estate was opened), to protect such gifts when the administration is unduly delayed.

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    Topics: wills, Matt McDavitt, unreasonable delay in distribution, interests vest on undelayed distribution date

    GIFTS: Beneficiaries/Disqualification to Take/Ingratitude

    Posted by Matthew T. McDavitt on Thu, Apr 8, 2021 @ 09:04 AM

    The Lawletter Vol 46 No 3

    Matt McDavitt—Senior Attorney, National Legal Research Group

                It is well-settled that in most states, completed inter vivos gifts are deemed irrevocable, even in circumstances where the donor’s relationship with the donee later deteriorates or the purpose of the gift dissipates. “Many gifts are made for reasons that sour with the passage of time. Unfortunately, gift law does not allow a donor to recover/revoke an inter vivos gift simply because his or her reasons for giving it have soured.” Dayal v. Lakshmipathy, 2020-Ohio-5441, ¶ 37, 163 N.E.3d 683 (quotation formatting and citations omitted). However, Louisiana has a unique statute that allows completed lifetime gifts to be revoked upon proper facts showing “ingratitude” to the donor, either through attempted murder or through cruel treatment, where an action is brought within a year of the injurious act or imputed knowledge of such.

    Revocation on account of ingratitude may take place only in the following cases:

    • If the donee has attempted to take the life of the donor; or
    • If he has been guilty towards him of cruel treatment, crimes, or grievous injuries.
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    Topics: Matthew T. McDavitt, inter vivos gifts, ingratitude, Louisiana revocation

    ESTATES: Can Legitimacy of a Putative Heir Be Challenged in an Intestacy Administration?

    Posted by Matthew T. McDavitt on Mon, Sep 28, 2020 @ 11:09 AM

    The Lawletter Vol 45 No 5

    Matt McDavitt, Senior Attorney, National Legal Research Group

         When a person dies without a will, the decedent’s estate is passed via the statutory regime of intestate succession, representing the presumed intention of most people to gift their estate at death to their close heirs.

         A decedent’s intestate heirs encompass one’s closest blood relatives (plus more remote relatives via representation through deceased family members who have died leaving surviving issue), plus any children that were legally adopted by the decedent, or their issue. However, while it is common nowadays for out-of-wedlock children to petition estate administrations in order to prove their relation to a claimed deceased father, the related circumstance also arises where the paternity of a presumptive child of marriage is challenged.

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    Topics: intestacy, estates, putative heir, presumption of legitimacy, clear and convincing evidence

    PROPERTY: When Partition by Division of Sale Proceeds Is Appropriate

    Posted by Matthew T. McDavitt on Wed, Dec 18, 2019 @ 10:12 AM

    The Lawletter Vol 44 No 6

    Matthew McDavitt—Senior Attorney, National Legal Research Group

                Any co-owner possessing an interest in realty has a right, under common and/or statutory law, to the partition of such realty, as no owner may be forced to remain in co-ownership. Physical partition is preferred and should be made where such realty may be divided without substantial prejudice to the other co-owners. Partition may be made over the objections of the other co-owners, and the fact that the other owners possess property or use interests cannot prevent partition. Fesmire v. Digh, 385 S.C. 296, 683 S.E.2d 803 (Ct. App. 2009).

                In some states, if the realty sought to be partitioned constitutes an owner's constitutionally or statutorily protected homestead, then such homestead status is an affirmative defense to partition, see Morris v. Figueroa, 830 So. 2d 692 (Miss. Ct. App. 2002); conversely, other jurisdictions hold that a cotenant's homestead interest in the property does not preclude partition, premised upon the absolute right of co-owners to exit co-ownership at will, see Wisner v. Pavlin, 2006 SD 64, 719 N.W.2d 770.

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    Topics: Matthew T. McDavitt, property sale, partition, sale proceeds

    WILLS: Scope of Description "Personal Effects"

    Posted by Matthew T. McDavitt on Wed, Jun 19, 2019 @ 09:06 AM

    The Lawletter Vol 44 No 4

    Matthew McDavitt—Senior Attorney, National Legal Research Group

                The phrase "personal effects" is a descriptor that commonly leads to litigation regarding its usual or intended scope. Unqualified, the word "effects" in a testamentary context generally denotes personal property of any description. Adler v. First-Citizens Bank & Trust Co., 4 N.C. App. 600, 603, 167 S.E.2d 441, 443 (1969). However, pairing the adjective "personal" with the noun "effects" expressly modifies and limits its scope:

    The adjective "personal" would be unnecessary and useless if it did not restrict the meaning of "effects," which standing alone would have covered all personalty. . . . [T]he words "personal effects" . . . [usually] cover only those articles of tangible personal property that in their use or intended use had some intimate connection with the person of the testatrix.

    Gaston v. Gaston, 320 Mass. 627, 628, 70 N.E.2d 527, 528 (1947).  Thus, "[t]he term 'personal effects' ordinarily does not include cash and property held for investment." Beasley v. Wells, 55 So. 3d 1179, 1185 (Ala. 2010); In re Estate of Stengel, 557 S.W.2d 255 (Mo. Ct. App. 1977) (the term "personal effects" meant tangible property worn or carried about the person or tangible property having some intimate relation to the person of the testatrix; the term did not include the bonds, stocks, savings and loan accounts, cash, coins, or currency).

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    Topics: wills, Matthew T. McDavitt, intended scope, personal property not bequeathed, "personal effects"

    PERSONAL INJURY: Liability for Employer's Failure to Obtain Workers’ Compensation Insurance

    Posted by Matthew T. McDavitt on Fri, Jan 18, 2019 @ 09:01 AM

    The Lawletter Vol 44 No 1

     

    Matthew McDavitt—Senior Attorney, National Legal Research Group

     

                Sometimes, through ignorance or neglect, employers subject to the state statutory workers' compensation mandates fail to obtain or maintain the requisite insurance. Where employers subject to the system's mandates are found on the date of an employee's workplace accident (or other compensable event) to lack such insurance (either as a self-insurer or through a third-party insurer), such noncompliance with the workers' compensation insurance mandate has serious consequences for the employer.

     

    First, a noncompliant employer loses a primary benefit of the workers' compensation system's exclusive remedy provision.  This provision bars injured workers from suing their employers in tort in exchange for statutorily defined wage replacement and medical benefits, thereby significantly limiting the potential legal exposure of the employer regarding such accidents.

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    Topics: Matthew T. McDavitt, workers' compensation, noncompliance consequences, insurance requisite, state's employer mandates

    WORKERS' COMPENSATION: Exclusivity—Employer’s Failure to Obtain Insurance

    Posted by Matthew T. McDavitt on Fri, Sep 28, 2018 @ 10:09 AM

    The Lawletter Vol 43 No 4

    Matthew McDavitt, Senior Attorney, National Legal Research Group

                In circumstances where an employer subject to the workers' compensation mandate fails to obtain the requisite insurance coverage, such noncompliance can have serious legal consequences. By statute in many states, such noncompliance deprives the employer of the standard employer tort defenses barring a defendant employer from asserting (1) an assumption of risk, (2) the fellow servant rule, and (3) contributory negligence in a tort suit brought by an injured worker.

                From a policy perspective, this statutory defensive penalty was intentionally enacted so as to materially disadvantage noncompliant employers at trial (by removing an employer’s preferred tort defenses), thereby encouraging employers to participate in the system. Bath Mills v. Odom, 168 F.2d 38, 39-40 (4th Cir. 1948); Blinkinsop v. Weber, 85 Cal. App. 2d 276, 279, 193 P.2d 96, 97 (1948).

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    Topics: workers' compensation, insurance coverage, noncompliance consequences

    TRUSTS: Creation/Timing of Self-Proving Affidavits

    Posted by Matthew T. McDavitt on Mon, Sep 18, 2017 @ 11:09 AM

    The Lawletter Vol 42 No 7

    Matthew McDavitt, Senior Attorney, National Legal Research Group

                In the execution of wills, many testators utilize the optional execution of self-proving affidavits, where statutorily authorized, wherein the will execution witnesses sign a statement before an officer authorized to administer oaths affirming their observation of the testator's mental capacity and testamentary intent, as well as the signing of the will. A properly executed self-proving affidavit raises a legal presumption of due execution and eliminates the normal requirement mandating that witnesses to a will testify in court as to the authenticity of the will.

                In practice, self-proving affidavits are normally created contemporaneously with the execution of the will, and some states' statutes mandate such simultaneous affidavit execution. However, some state statutes expressly allow self-proving affidavits to be executed at any time after the observed will execution. Thus, for example, we see both simultaneous and postexecution self-proving affidavit execution mentioned in Michigan's statutory provision on the subject:

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    Topics: trusts, proper execution, timing, self-proving affidavits

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