Deck 31: Wills, Advance Directives, and Trusts

Question 1

Sometimes the United States Supreme Court must dive into a controversy that has implications beyond the actual facts and issues in the case. In such situations, the court may decide a case on what seems to be a narrow legal technicality, but which is actually a major policy shift that will shape the future of generations to come. A case in point is the dispute in Gonzales, Attorney General v. Oregon. This controversy started when the citizens of Oregon authorized the establishment of a radical new measure legalizing physician-assisted suicide. The unconventional measure, which had been dubbed the Oregon Death with Dignity Act (ODWDA), protected physicians from prosecution under criminal law and from litigation under civil law, for prescribing drugs for terminally ill patients who wished to commit suicide. So far so good. The problem arose because the drugs that would have been prescribed under the law were listed on the Controlled Substances Act (CSA) and are thus subject to federal scrutiny. The situation was, in fact, scrutinized by the United States attorney general (AG), who issued an interpretive ruling that stated that any physician who prescribed such drugs under the authority of the act and with the intent to have those drugs used for suicide could lose his or her license to practice medicine. The attorney general reasoned that drugs controlled by the CSA were to be used only for legitimate medical purposes and suicide is not a legitimate medical purpose. Moreover, such activities were deemed by the AG to be "inconsistent with the public interest." A lawsuit was filed by several interested parties in the federal district court in Oregon which ruled in favor of the plaintiffs, and which then enjoined the AG from enforcing his interpretation of the CSA. The appeals court agreed. The AG filed an appeal which ended up in the United States Supreme Court. Now 16 years earlier in another case, this one a ground-breaker known as Cruzon v. Director, Missouri Department of Health 110 S.Ct. 2841 (1990), the Supreme Court had ruled that the right to die was constitutionally preserved by the Due Process Clause. Consequently, it had little pro b lem in this case telling the attorney general to, in effect, "mind his own bus i ness." The CSA is supposed to stop physicians from trafficking in illegal drugs. It is not supposed to give the federal government the power to police a state's authority to regulate the practice of medicine. Consequently, the AG clearly overstepped his authority when he tried to short circuit the Oregon law. [See Gonzales, Attorney General v. Oregon, 126 S.Ct. 904 (United States Supreme Court).]
What is the central issue in this case? Explain.

Answer 1

The present case deals with judicial intervention against illegitimate authorized intake of drugs for committing suicide to survive from long term illness. A O Death with Dignity Act was passed which was used as a protective measure to safeguard physicians from using drugs on patients to help them get relief from prolonged illness by committing suicide through intake of drugs authorized by the act.
However, as the drugs were listed in the Controlled Substances Act it was to be scrutinized under law. The United States attorney General scrutinized the case and found that use of drugs for committing suicide is against the law and any physician who prescribed such medicine is subject to lose license to practice. The central issue of the case is whether drugs can be confined to life saver or used as a measure to give relief to those suffering from prolonged illness by helping them commit suicide by the intake of drugs.

Question 2

What makes the California statute ambiguous as to whether it permits postdeath attestation?

Answer 2

In order the will to be effective, all statutory requirements of the act need to be complied with. As per Probate code a will is required to be signed by two witnesses. A formal will before the year 1985, was required to be signed by witnesses in front of the testator. This eliminates the scope for argument that whether witnesses need to sign the will after death of testator.
A new law was passed wherein it required will to be signed by two persons present at the same time and both of them acknowledge the same. However the scope is not limited to extent that witnesses must sign in the testator's presence. It is also not clear whether on signing the will in presence of testator, documents are valid or not. Hence it is ambiguous whether it allows post death attestation.

Question 3

What are the sources of probate law and why is it relevant to business entities?

Answer 3

Sources of Probate Law and Relevance of Business Studies
The term probate is the procedure to handle will and estates of deceased person. Each state has different laws for handling will and settling estates of deceased person. So in order to standardize the rule Uniform Probate Code has been set up. However due to emergence of other probate laws being set up like Uniform Commercial Code and Revised Uniform Partnership Act, Uniform Probate Code is losing popularity.
Also each state wants to use its own law rather than using Uniform Probate Code since traditions are different in each state. Also the Probate law can operate without jurisdiction unlike commercial law.
The relevance of Probate law in handling estates is directly related to people handling different business entities. For instance as per state's Probate laws when a sole proprietor dies, his assets are passed to their heirs. When stockholders die, their shares pass on to their heirs. Likewise in case of death of a partner in partnership is dissolved and estate of deceased partner is paid to other partner's share or the partnership is ended.

Question 4

In a recent book entitled Dark Age Ahead, Jane Jacobs argues that Western Civilization in general and the United States in particular stand on the verge of cultural collapse. As the cause of this collapse she focuses on the decline of five essential mainstays of society: the family and the community; colleges and universities; the productive use of science; the government and its taxing power; and the self-regulation of the learned professions. She ends her book with a final prognosis of our culture:
Ironically, societies (including our own) that were great cultural winners in the past are in special peril of failing to adapt successfully in the face of new realities. This is because nothing succeeds like success, and it follows that nothing hangs on past its prime like past success. Formerly vigorous cultures typically fall prey to arrogant self-deception for which the Greeks had a word, hubris, which we still use. Because a culture is all of a piece, tolerance of commercial false accounting for gaining profit has military equivalents in inflated reports or enemy casualties, along with wishful intelligence about disaffection in enemy ranks. The falsities merely feed hubris; the enemy is a "public" that knows quickly whether wartime false accounting and wishful intelligence are empty bragging. The Bay of Pigs fiasco in Cuba and false body counts in the Vietnam War demonstrated an American proclivity for deception. Worse, the incentives for deception-success at sycophancy and pursuit of specious careerism-imply civilian cultural expectations that are shameful whether or not they infect military capability. -Jane Jacobs, Dark Age Ahead (New York: Vintage Books, 2005), p. 175.
When Attorney General Gonzales in the Oregon case argues that the government cannot be involved in supporting physicians who prescribe lethal drugs for terminally ill patients, is he "failing to successfully adapt in the face of new realities"? Explain.

Question 5

Sometimes the United States Supreme Court must dive into a controversy that has implications beyond the actual facts and issues in the case. In such situations, the court may decide a case on what seems to be a narrow legal technicality, but which is actually a major policy shift that will shape the future of generations to come. A case in point is the dispute in Gonzales, Attorney General v. Oregon. This controversy started when the citizens of Oregon authorized the establishment of a radical new measure legalizing physician-assisted suicide. The unconventional measure, which had been dubbed the Oregon Death with Dignity Act (ODWDA), protected physicians from prosecution under criminal law and from litigation under civil law, for prescribing drugs for terminally ill patients who wished to commit suicide. So far so good. The problem arose because the drugs that would have been prescribed under the law were listed on the Controlled Substances Act (CSA) and are thus subject to federal scrutiny. The situation was, in fact, scrutinized by the United States attorney general (AG), who issued an interpretive ruling that stated that any physician who prescribed such drugs under the authority of the act and with the intent to have those drugs used for suicide could lose his or her license to practice medicine. The attorney general reasoned that drugs controlled by the CSA were to be used only for legitimate medical purposes and suicide is not a legitimate medical purpose. Moreover, such activities were deemed by the AG to be "inconsistent with the public interest." A lawsuit was filed by several interested parties in the federal district court in Oregon which ruled in favor of the plaintiffs, and which then enjoined the AG from enforcing his interpretation of the CSA. The appeals court agreed. The AG filed an appeal which ended up in the United States Supreme Court. Now 16 years earlier in another case, this one a ground-breaker known as Cruzon v. Director, Missouri Department of Health 110 S.Ct. 2841 (1990), the Supreme Court had ruled that the right to die was constitutionally preserved by the Due Process Clause. Consequently, it had little pro b lem in this case telling the attorney general to, in effect, "mind his own bus i ness." The CSA is supposed to stop physicians from trafficking in illegal drugs. It is not supposed to give the federal government the power to police a state's authority to regulate the practice of medicine. Consequently, the AG clearly overstepped his authority when he tried to short circuit the Oregon law. [See Gonzales, Attorney General v. Oregon, 126 S.Ct. 904 (United States Supreme Court).]
In what way does the central issue not reflect the real issue in the case? Explain.

Question 6

What does the court believe would happen if witnesses were permitted to sign a will after the death of a testator?

Question 7

What are the formal requirements for executing a will?

Question 8

In a recent book entitled Dark Age Ahead, Jane Jacobs argues that Western Civilization in general and the United States in particular stand on the verge of cultural collapse. As the cause of this collapse she focuses on the decline of five essential mainstays of society: the family and the community; colleges and universities; the productive use of science; the government and its taxing power; and the self-regulation of the learned professions. She ends her book with a final prognosis of our culture:
Ironically, societies (including our own) that were great cultural winners in the past are in special peril of failing to adapt successfully in the face of new realities. This is because nothing succeeds like success, and it follows that nothing hangs on past its prime like past success. Formerly vigorous cultures typically fall prey to arrogant self-deception for which the Greeks had a word, hubris, which we still use. Because a culture is all of a piece, tolerance of commercial false accounting for gaining profit has military equivalents in inflated reports or enemy casualties, along with wishful intelligence about disaffection in enemy ranks. The falsities merely feed hubris; the enemy is a "public" that knows quickly whether wartime false accounting and wishful intelligence are empty bragging. The Bay of Pigs fiasco in Cuba and false body counts in the Vietnam War demonstrated an American proclivity for deception. Worse, the incentives for deception-success at sycophancy and pursuit of specious careerism-imply civilian cultural expectations that are shameful whether or not they infect military capability. -Jane Jacobs, Dark Age Ahead (New York: Vintage Books, 2005), p. 175.
When the Supreme Court supported the right to die in the Cruzan case was it exhibiting the type of self-deceptive hubris, of which Jacobs writes in Dark Age Ahead? Why or why not?

Question 9

Sometimes the United States Supreme Court must dive into a controversy that has implications beyond the actual facts and issues in the case. In such situations, the court may decide a case on what seems to be a narrow legal technicality, but which is actually a major policy shift that will shape the future of generations to come. A case in point is the dispute in Gonzales, Attorney General v. Oregon. This controversy started when the citizens of Oregon authorized the establishment of a radical new measure legalizing physician-assisted suicide. The unconventional measure, which had been dubbed the Oregon Death with Dignity Act (ODWDA), protected physicians from prosecution under criminal law and from litigation under civil law, for prescribing drugs for terminally ill patients who wished to commit suicide. So far so good. The problem arose because the drugs that would have been prescribed under the law were listed on the Controlled Substances Act (CSA) and are thus subject to federal scrutiny. The situation was, in fact, scrutinized by the United States attorney general (AG), who issued an interpretive ruling that stated that any physician who prescribed such drugs under the authority of the act and with the intent to have those drugs used for suicide could lose his or her license to practice medicine. The attorney general reasoned that drugs controlled by the CSA were to be used only for legitimate medical purposes and suicide is not a legitimate medical purpose. Moreover, such activities were deemed by the AG to be "inconsistent with the public interest." A lawsuit was filed by several interested parties in the federal district court in Oregon which ruled in favor of the plaintiffs, and which then enjoined the AG from enforcing his interpretation of the CSA. The appeals court agreed. The AG filed an appeal which ended up in the United States Supreme Court. Now 16 years earlier in another case, this one a ground-breaker known as Cruzon v. Director, Missouri Department of Health 110 S.Ct. 2841 (1990), the Supreme Court had ruled that the right to die was constitutionally preserved by the Due Process Clause. Consequently, it had little pro b lem in this case telling the attorney general to, in effect, "mind his own bus i ness." The CSA is supposed to stop physicians from trafficking in illegal drugs. It is not supposed to give the federal government the power to police a state's authority to regulate the practice of medicine. Consequently, the AG clearly overstepped his authority when he tried to short circuit the Oregon law. [See Gonzales, Attorney General v. Oregon, 126 S.Ct. 904 (United States Supreme Court).]
In what way might the court's previous ruling in the Cruzon case have affected the decision making in this case? Explain.

Question 10

What did the Colorado court say about the issue in the Estate of Royal case?

Question 11

When does a person who makes a will have the capacity to do so?

Question 12

In a recent book entitled Dark Age Ahead, Jane Jacobs argues that Western Civilization in general and the United States in particular stand on the verge of cultural collapse. As the cause of this collapse she focuses on the decline of five essential mainstays of society: the family and the community; colleges and universities; the productive use of science; the government and its taxing power; and the self-regulation of the learned professions. She ends her book with a final prognosis of our culture:
Ironically, societies (including our own) that were great cultural winners in the past are in special peril of failing to adapt successfully in the face of new realities. This is because nothing succeeds like success, and it follows that nothing hangs on past its prime like past success. Formerly vigorous cultures typically fall prey to arrogant self-deception for which the Greeks had a word, hubris, which we still use. Because a culture is all of a piece, tolerance of commercial false accounting for gaining profit has military equivalents in inflated reports or enemy casualties, along with wishful intelligence about disaffection in enemy ranks. The falsities merely feed hubris; the enemy is a "public" that knows quickly whether wartime false accounting and wishful intelligence are empty bragging. The Bay of Pigs fiasco in Cuba and false body counts in the Vietnam War demonstrated an American proclivity for deception. Worse, the incentives for deception-success at sycophancy and pursuit of specious careerism-imply civilian cultural expectations that are shameful whether or not they infect military capability. -Jane Jacobs, Dark Age Ahead (New York: Vintage Books, 2005), p. 175.
Some people have argued that the Supreme Court justices used a "technicality" to avoid the real issue in Oregon and in doing so managed to support governmentally approved suicide without actually "sticking their necks out" in the Gonzales case. Is this action by the justices on the Supreme Court an example of the "American proclivity for self-deception"? Explain.

Question 13

Sometimes the United States Supreme Court must dive into a controversy that has implications beyond the actual facts and issues in the case. In such situations, the court may decide a case on what seems to be a narrow legal technicality, but which is actually a major policy shift that will shape the future of generations to come. A case in point is the dispute in Gonzales, Attorney General v. Oregon. This controversy started when the citizens of Oregon authorized the establishment of a radical new measure legalizing physician-assisted suicide. The unconventional measure, which had been dubbed the Oregon Death with Dignity Act (ODWDA), protected physicians from prosecution under criminal law and from litigation under civil law, for prescribing drugs for terminally ill patients who wished to commit suicide. So far so good. The problem arose because the drugs that would have been prescribed under the law were listed on the Controlled Substances Act (CSA) and are thus subject to federal scrutiny. The situation was, in fact, scrutinized by the United States attorney general (AG), who issued an interpretive ruling that stated that any physician who prescribed such drugs under the authority of the act and with the intent to have those drugs used for suicide could lose his or her license to practice medicine. The attorney general reasoned that drugs controlled by the CSA were to be used only for legitimate medical purposes and suicide is not a legitimate medical purpose. Moreover, such activities were deemed by the AG to be "inconsistent with the public interest." A lawsuit was filed by several interested parties in the federal district court in Oregon which ruled in favor of the plaintiffs, and which then enjoined the AG from enforcing his interpretation of the CSA. The appeals court agreed. The AG filed an appeal which ended up in the United States Supreme Court. Now 16 years earlier in another case, this one a ground-breaker known as Cruzon v. Director, Missouri Department of Health 110 S.Ct. 2841 (1990), the Supreme Court had ruled that the right to die was constitutionally preserved by the Due Process Clause. Consequently, it had little pro b lem in this case telling the attorney general to, in effect, "mind his own bus i ness." The CSA is supposed to stop physicians from trafficking in illegal drugs. It is not supposed to give the federal government the power to police a state's authority to regulate the practice of medicine. Consequently, the AG clearly overstepped his authority when he tried to short circuit the Oregon law. [See Gonzales, Attorney General v. Oregon, 126 S.Ct. 904 (United States Supreme Court).]
How might this case affect advanced directives and living wills? Explain.

Question 14

What does the court believe a rule allowing postdeath attestation would do?

Question 15

What are the protections given to the spouse and the children of a test a tor?

Question 16

In a recent book entitled Dark Age Ahead, Jane Jacobs argues that Western Civilization in general and the United States in particular stand on the verge of cultural collapse. As the cause of this collapse she focuses on the decline of five essential mainstays of society: the family and the community; colleges and universities; the productive use of science; the government and its taxing power; and the self-regulation of the learned professions. She ends her book with a final prognosis of our culture:
Ironically, societies (including our own) that were great cultural winners in the past are in special peril of failing to adapt successfully in the face of new realities. This is because nothing succeeds like success, and it follows that nothing hangs on past its prime like past success. Formerly vigorous cultures typically fall prey to arrogant self-deception for which the Greeks had a word, hubris, which we still use. Because a culture is all of a piece, tolerance of commercial false accounting for gaining profit has military equivalents in inflated reports or enemy casualties, along with wishful intelligence about disaffection in enemy ranks. The falsities merely feed hubris; the enemy is a "public" that knows quickly whether wartime false accounting and wishful intelligence are empty bragging. The Bay of Pigs fiasco in Cuba and false body counts in the Vietnam War demonstrated an American proclivity for deception. Worse, the incentives for deception-success at sycophancy and pursuit of specious careerism-imply civilian cultural expectations that are shameful whether or not they infect military capability. -Jane Jacobs, Dark Age Ahead (New York: Vintage Books, 2005), p. 175.
Are the rulings in Roe v. Wade and Planned Parenthood v. Casey two examples adapting successfully to changing circumstances or another case of self-deception? Explain.

Question 17

Sometimes the United States Supreme Court must dive into a controversy that has implications beyond the actual facts and issues in the case. In such situations, the court may decide a case on what seems to be a narrow legal technicality, but which is actually a major policy shift that will shape the future of generations to come. A case in point is the dispute in Gonzales, Attorney General v. Oregon. This controversy started when the citizens of Oregon authorized the establishment of a radical new measure legalizing physician-assisted suicide. The unconventional measure, which had been dubbed the Oregon Death with Dignity Act (ODWDA), protected physicians from prosecution under criminal law and from litigation under civil law, for prescribing drugs for terminally ill patients who wished to commit suicide. So far so good. The problem arose because the drugs that would have been prescribed under the law were listed on the Controlled Substances Act (CSA) and are thus subject to federal scrutiny. The situation was, in fact, scrutinized by the United States attorney general (AG), who issued an interpretive ruling that stated that any physician who prescribed such drugs under the authority of the act and with the intent to have those drugs used for suicide could lose his or her license to practice medicine. The attorney general reasoned that drugs controlled by the CSA were to be used only for legitimate medical purposes and suicide is not a legitimate medical purpose. Moreover, such activities were deemed by the AG to be "inconsistent with the public interest." A lawsuit was filed by several interested parties in the federal district court in Oregon which ruled in favor of the plaintiffs, and which then enjoined the AG from enforcing his interpretation of the CSA. The appeals court agreed. The AG filed an appeal which ended up in the United States Supreme Court. Now 16 years earlier in another case, this one a ground-breaker known as Cruzon v. Director, Missouri Department of Health 110 S.Ct. 2841 (1990), the Supreme Court had ruled that the right to die was constitutionally preserved by the Due Process Clause. Consequently, it had little pro b lem in this case telling the attorney general to, in effect, "mind his own bus i ness." The CSA is supposed to stop physicians from trafficking in illegal drugs. It is not supposed to give the federal government the power to police a state's authority to regulate the practice of medicine. Consequently, the AG clearly overstepped his authority when he tried to short circuit the Oregon law. [See Gonzales, Attorney General v. Oregon, 126 S.Ct. 904 (United States Supreme Court).]
How might this case affect future generations? Explain.

Question 18

What is the main thrust of the dissenting judge's argument that the second witness be permitted to sign the will and the will be allowed?

Question 19

What are the different methods of revoking or changing a will?

Question 20

In a recent book entitled Dark Age Ahead, Jane Jacobs argues that Western Civilization in general and the United States in particular stand on the verge of cultural collapse. As the cause of this collapse she focuses on the decline of five essential mainstays of society: the family and the community; colleges and universities; the productive use of science; the government and its taxing power; and the self-regulation of the learned professions. She ends her book with a final prognosis of our culture:
Ironically, societies (including our own) that were great cultural winners in the past are in special peril of failing to adapt successfully in the face of new realities. This is because nothing succeeds like success, and it follows that nothing hangs on past its prime like past success. Formerly vigorous cultures typically fall prey to arrogant self-deception for which the Greeks had a word, hubris, which we still use. Because a culture is all of a piece, tolerance of commercial false accounting for gaining profit has military equivalents in inflated reports or enemy casualties, along with wishful intelligence about disaffection in enemy ranks. The falsities merely feed hubris; the enemy is a "public" that knows quickly whether wartime false accounting and wishful intelligence are empty bragging. The Bay of Pigs fiasco in Cuba and false body counts in the Vietnam War demonstrated an American proclivity for deception. Worse, the incentives for deception-success at sycophancy and pursuit of specious careerism-imply civilian cultural expectations that are shameful whether or not they infect military capability. -Jane Jacobs, Dark Age Ahead (New York: Vintage Books, 2005), p. 175.
Both Roe v. Wade and Planned Parenthood v. Casey use a standard for personhood based on science's ability to push viability closer and closer to conception. Is this faith in science not an excellent example of h u bris? Explain.

Question 21

Do you agree with the dissenting opinion? Why or why not?

Question 22

What are the three grounds for contesting a will?

Question 23

Who inherits the property of someone who dies without a will?

Question 24

What are the steps to be taken by an executor or administrator in settling an estate?

Question 25

What are the types and purposes of advance directives?

Question 26

What are the various types of trusts and when might they be used?