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Recent rulings of interest to you and your practice.
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Trust planning clearly contemplates the future incapacity and death of the donor. The future incapacity or death of the trustee, however, is not always planned for with equivalent detail and thought. This lack of forethought often results in contests between the remaining competent trustees or between the beneficiaries and the trustees. In the matrimonial context, divorcing spouses should carefully consider who should serve as trustees of trusts established for the benefit of children and/or former spouses. Again, the consequences of what happens when that carefully chosen trustee ceases or fails to serve might not be contemplated. When the beneficiaries and trustees are not friendly, as is often the case in trusts established as part of a divorce agreement, the stakes are even higher. To avoid unnecessary and costly battles, the drafting attorney and the trust's donor should focus on matters, including the definition of incapacity, the procedures involved with declaring a trustee incapacitated, how the trust will be administered once a trustee is declared incapacitated, short term incapacity or unavailability, and the possible tax consequences of a having an incapacitated trustee.
Custody litigators use expert testimony and tests to influence the court's decision about which parent should have custody of the child(ren). Psychologists and the MMPI2 test are two tools frequently utilized, but they should be viewed with caution. The American Psychology Association Guidelines for Use in Custody Cases (Guidelines), which were promulgated by the American Psychological Association in 1994, have been a source of discussion and controversy in the courtroom since they were first published. Are they guidelines or are they mandatory directives for the approaches to be taken by the evaluator in the custody evaluation process? For those of us who handle custody litigation, a recent case in Pennsylvania is instructive.
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Over the years, there has been an increase in estate litigation, especially in second-marriage situations where the children are often close in age to the second spouse. Primarily because of increased wealth, we have a more litigious society. However, litigation is not only about money, it is also about emotions. Litigation is on the rise not only between the surviving spouse and children, but also among the children themselves, especially when one of them was actively engaged in a business with the decedent. There are also emotional upsets when a parent attempts to take into consideration the wealth of his or her children.
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As zealous advocates, lawyers should try to influence custody evaluators -- within limits. Here are some suggestions from someone who has fielded such attempts and talked extensively with other experts about them.
Features
Recent rulings of interest to you and your practice.
Features
In many cases, a creditor in a bankruptcy case (the 'Primary Creditor') has the benefit of a guaranty, an escrow, or a letter of credit provided by a third party (the 'Subrogee') to which it can turn in order to satisfy its claim against the debtor. When the Subrogee pays the debtor's obligation to the Primary Creditor after the debtor has filed a petition in bankruptcy, the Subrogee will in most cases be entitled to assert a subrogation claim against the debtor in the bankruptcy case. Below, we discuss the relevant considerations in determining whether a subrogation claim is valid.
Without any reservation, it is safe to say that insolvency crisis facing the U.S. auto industry ' from myriad Tier 2 suppliers right up to the legacy-burdened OEMs ' has become the cause c'l'bre of the professional restructuring community, and for objectively good reason. In this year alone, at least eight parts makers (among them, Collins & Aikman Corp., Meridian Automotive Systems, Inc., Tower Automotive, Inc., Jernberg Industries, Inc., Harvard Industries, Inc., Jacobs Industries, Inc., and Delphi Corp.) filed for Chapter 11 relief. And many industry experts believe that these cases represent merely a harbinger of even bigger things to come.
Bankruptcy claims traders are currently on the lookout for a decision from the Enron bankruptcy court that could add significant uncertainty to distressed debt markets. The court has under advisement the issue of whether claims sold post-petition are subject to disallowance under ' 502(d) or equitable subordination as a result of pre-petition conduct or receipt of avoidable transfers by the transferor.