"No Contest" Trends in California

There are two interrelated concepts flowing in Trusts and Estates law in California. First, there is an interesting article in Smart Money discussing the new trend toward litigation in the estates and trusts area, and how the cooperative, family approach is going "by the wayside" in favor of litigation. Here is the first paragraph:

It's rare that an inheritance passes from one generation to the next without leaving some scars. But smooth transitions are becoming even rarer thanks to the growing influence of a new player: the second spouse. As Americans live longer, they're more likely to move into second marriages, and legal experts and financial planners say the resulting friction with the kids is steadily mounting. In more cases grown children are going to court against their parents even while they're still alive, only to run up against a legal framework that leaves them with surprisingly few rights compared with their parents' new spouses. The once-sleepy field of trust and estates law is now brimming with hardened litigators. In Texas, personal-injury lawyers in search of big paydays have begun taking on will contests. And just as court squabbles are on the rise, so are prenups and sophisticated trusts that are designed to forestall them.

The second trend? With the advent of passage of Senate Bill 1264, California's "no contest" law has been significantly weakened. This weakening affects wills and trusts executed 2001 and later. "No contest" clauses traditionally penalize parties who attempt to attack a will or a trust. Now, it will be significantly easier to attack a will or a trust.

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The Stress of Not Having an Estate Plan

The Arizona Daily Star published an article on March 23, 2009 entitled, You'll Want To Read this Before You Die, discussing the stress inherent in not having an estate plan in place. The article focuses upon the experience of businesswoman Belinda Mossor, whose father died in 1998, with no estate plan. The article goes on:

It took three years for Mossor and her mother to sort out Harry Mossor's finances, insurance and other assets. Eleven years later, Marjorie Mossor is still learning new things about her late husband's finances. Recently, she received a letter from an insurance company informing her of dividends from a policy that belonged to him.

The article also has a sidebar with a number of interesting statistics, none of which are surprising:

A 2007 survey of adult residents of the United States found:

55% don't have a will

52% of Anglos have wills, compared with 32 percent of blacks and 26 percent of Hispanics

41% of people have living wills — 10 percent more than in 2004

38% have designated someone as their health-care power of attorney, compared with 27 percent in 2004

10% say they haven't created an estate plan because they don't want to think about dying or becoming incapacitated, while 9 percent say it's because they don't know whom to talk to about estate planning, and 24 percent say they don't have the assets to warrant it.

Professor Pamela Champine

I did not know her, but the tax/estate planning blogs I track the closest both report the recent death of Professor Pamela Champine of New York Law School, at the age of 44. Those reports are on the TaxProf Blog and the Wills, Trusts and Estates Prof Blog.

New York Law School has published a press release regarding this sad event:

Pamela R. Champine, Professor of Law, died on March 8, 2009 at her home in Greenwich Village. She was 44 years old. A member of the New York Law School faculty since 2000, Professor Champine taught Property; Wills, Trusts, & Future Interests; Federal Income Taxation of Trusts and Estates; and Problems of Timing, and was Director of the Core Curriculum in the Law School’s Graduate Tax Program. Before joining New York Law School, she was an associate in the trusts and estates department of Hughes Hubbard, was law secretary to New York County Surrogate Eve Preminger, and also served as Principal Court Attorney in the New York County Surrogate’s Court. Active in both the New York City Bar and the New York State Bar Association, Professor Champine was elected an Academic Fellow of the American College of Trust and Estate Counsel in 2007.

Although Professor Champine’s first scholarly contributions dealt with taxation and trusts and estates, her focus soon shifted to the highly important and surprisingly understudied questions surrounding capacity and donative transfers. Her final publication as a co-author of Competence in the Law: From Legal Theory to Clinical Application is an outstanding summary of the state of the law and a sad reminder of how much has been lost through her death.

In a moving tribute announcing the news of Professor Champine’s death to the faculty, Professor William P. LaPiana, her close friend and colleague, talked about the great joy she found in teaching. “Pam saw every day of her life as a law professor as a gift,” he said. “She counted it a privilege to teach, read, think, and write, and next to her family, it was what gave her life meaning.” Professor LaPiana added that Professor Champine was “as inspiring as she was effective as she led her students to a thorough understanding of the subjects to which she devoted her efforts. She brought innovative techniques to the classroom and showed her students that what they might have once thought was dry and uninteresting was full of life.”

“I know the entire New York Law School community joins me in our shared grief over Pam's passing,” said Dean and President Richard A. Matasar. “She was one of the most courageous people I have ever known. Through her illness, she showed a continuous love for her profession, her students, and the law. We all have missed her, and the void she leaves will never be filled.”

Professor Champine is survived by her husband David Simonetti and their daughter Isabella.

I note from my own research that Professor Champine recently co-authored Competence in the Law (March 2008).

Blessings to her family and co-workers.

R.I.P.