This author has often complained that the trust laws have not kept pace with modern practice as it relates to estate planning. Estate planning trusts (a.k.a. “living trust”) are used as will substitutes. The rules pertaining to wills are well known, and are established by case and by code. In contrast, the statutory rules relating …
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Weinberger v. Morris – Why Doesn’t the Merger Doctrine Extinguish Many Living Trusts?
This writer has commented regularly that the modern estate planning trust is a legal fiction. A convenient legal fiction, mind you, but still a legal fiction. The estate planning trust (also known by the unfortunate term, “living trust”) is a merely a will substitute. It takes effect – meaning, it provides a benefit to a …
Paul Ronald vs. Bank of America – Court Closes Door on Another Exotic Theory of Mortgage Liability
The trend in the courts has been to reduce the legal theories available to persons who suffered losses during the mortgage meltdown. Traditional theories based on breach of contract, fraud, and promissory estoppel, remain viable causes of action. Yet the more exotic theories seeking to impose liability have been narrowed and often eliminated. Such is …
Tracing the Origin of the English Trust to the Year 1350
Here is the clearest explanation I have found to date regarding the rise of trusts in English law. Bear in mind that England was still a feudal system in the year 1350. Also bear in mind that a court of law could not enforce a trust – such jurisdiction lay within the court of equity, …
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Bellows v. Bellows – Further Proof That Estate Planning Trusts Are Not Always a Good Idea
The fees in a probate case trigger a reaction that sometimes borders on panic. Part of the reasoning behind the use of an estate planning trust (sometimes referred to as an inter vivos trust) is that the trust will save on attorney’s fees. However, as I tell clients, it only works if the beneficiaries get …
William Penn Partnership – There are No Winners
The Delaware Supreme Court recently decided William Penn Partnership v. Saliba, a case in which there are no winners. In the case, one of the members breached his fiduciary obligations, but his conduct caused no damage. Nonetheless, the court awarded attorneys’ fees as an “equitable remedy.” In this author’s view, the award distorts the law …
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Trust Does Not Create Contractual Rights in Favor of Beneficiary
The courts are increasingly faced with the cases involving the interpretation and enforcement of estate planning trusts. In Diaz v. Bukey (May 10, 2011) 2011 DJDAR 6650, the court concisely framed the dispute: “The beneficiary of a trust petitions to remove her sister as trustee of their parents’ trust. The trustee responds by seeking to …
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McMackin v. Ehrheart – The Canary Swallows the Cat
In McMackin v. Ehrheart (April 8, 2011) 2011 DJDAR 5122, the court of appeal held that a Marvin-based palimony claim under California law could be asserted against an estate more than three years after the decedent’s death. We remark on the extent to which the law is willing to allow a person to make a …
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Historic Roots of the English Legal System
Scholars trace the creation of the English common law to the second half of the 12th century, at the time of Henry II. Explains Belgian scholar Raoul Van Caenegem in The Birth of the English Common Law (Cambridge Univ. Press 1973), “the Common Law of England – so different from the jus commune or common …
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The Historical Roots of Eviction Law
The law of eviction, or unlawful detainer, has roots that extend back hundreds of years. Here in California, where everyone has the opportunity to make a fresh start, we sometimes forget the past and how it affects our laws. Yet in eviction, which is properly referred to as “unlawful detainer,” the historical underpinnings are quite …