Must the Remedy at Law Be Inadequate Before a Constructive Trust Will Be Impressed?
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Spring 2014 Melanie Leslie – Trusts and Estates – Attack Outline 1
Spring 2014 Melanie Leslie – Trusts and Estates – Attack Outline Order of Operations (Will) • Problems with the will itself o Facts showing improper execution (signature, witnesses, statements, affidavits, etc.), other will challenges (Question call here is whether will should be admitted to probate) . Look out for disinherited people who have standing under the intestacy statute!! . Consider mechanisms to avoid will challenges (no contest, etc.) o Will challenges (AFTER you deal with problems in execution) . Capacity/undue influence/fraud o Attempts to reference external/unexecuted documents . Incorporation by reference . Facts of independent significance • Spot: Property/devise identified by a generic name – “all real property,” “all my stocks,” etc. • Problems with specific devises in the will o Ademption (no longer in estate) . Spot: Words of survivorship . Identity theory vs. UPC o Abatement (estate has insufficient assets) . Residuary general specific . Spot: Language opting out of the common law rule o Lapse . First! Is the devisee protected by the anti-lapse statute!?! . Opted out? Spot: Words of survivorship, etc. UPC vs. CL . If devise lapses (or doesn’t), careful about who it goes to • If saved, only one state goes to people in will of devisee, all others go to descendants • Careful if it is a class gift! Does not go to residuary unless whole class lapses • Other issues o Revocation – Express or implied? o Taxes – CL is pro rata, look for opt out, especially for big ticket things o Executor – Careful! Look out for undue -
Modernizing Legal L Remedies for a Toxic World
Modernizing Legal Remedies for a Toxic World A Report Prepared Professor Kenneth Rumelt, Environmental & Natural Resources Law Clinic, Vermont Law School for the Vermont Natural Resources Council and the Vermont Public Interest Research Group January 2018 INTRODUCTION .......................................................................................................................... 1 RECOMMENDATIONS ................................................................................................................ 2 Recommendation #1: Hold polluters strictly liable for any harm they cause. ............................ 2 Recent Litigation Involving PFOA Illustrates the Difficulties in Proving Negligence. ......... 3 Strict Liability Fills the Gap When Environmental Law and Regulations Fail to Protect People and the Environment Fully. ......................................................................................... 3 Strict Liability Encourages Safer Practices for Unregulated Contaminants. .......................... 4 Strict Liability is Not a New Concept in the World of Toxic Chemicals. .............................. 5 Strict Liability Helps Lower Litigation Costs. ........................................................................ 6 Strict Liability Requires No New Government Programs, Regulations, or Spending. ........... 7 Recommendation #2: Authorize by statute the right to sue for the cost of medical testing and monitoring after exposure to toxic pollution. ............................................................................ -
The Texas Constructive Trust and Its Peculiar Requirements
Digital Commons at St. Mary's University Faculty Articles School of Law Faculty Scholarship Spring 2018 The Texas Constructive Trust and Its Peculiar Requirements David Dittfurth St. Mary's University School of Law, [email protected] Follow this and additional works at: https://commons.stmarytx.edu/facarticles Part of the Estates and Trusts Commons Recommended Citation David Dittfurth, The Texas Constructive Trust and Its Peculiar Requirements, 50 Tex. Tech L. Rev. 447 (2018). This Article is brought to you for free and open access by the School of Law Faculty Scholarship at Digital Commons at St. Mary's University. It has been accepted for inclusion in Faculty Articles by an authorized administrator of Digital Commons at St. Mary's University. For more information, please contact [email protected]. THE TEXAS CONSTRUCTIVE TRUST AND ITS PECULIAR REQUIREMENTS David Dittfurth" I. INTRODUCTION ........................................ 447 II. THESIS .............................................. 448 III. CONSTRUCTIVE TRUST MECHANICS ........................ 451 A . JudicialR em edy ........................................................................ 451 B. Statutory Rem edies ................................................................... 452 IV. THE THREE-ELEMENT RULE ........................................................... 454 A. KCM Financial, LLC v. Bradshaw...................454 B . K insel v. L indsey ...................................................................... 458 V. THE FUNCTION OF WRONGDOING.................................................. -
The Restitution Revival and the Ghosts of Equity
The Restitution Revival and the Ghosts of Equity Caprice L. Roberts∗ Abstract A restitution revival is underway. Restitution and unjust enrichment theory, born in the United States, fell out of favor here while surging in Commonwealth countries and beyond. The American Law Institute’s (ALI) Restatement (Third) of Restitution & Unjust Enrichment streamlines the law of unjust enrichment in a language the modern American lawyer can understand, but it may encounter unintended problems from the law-equity distinction. Restitution is often misinterpreted as always equitable given its focus on fairness. This blurs decision making on the constitutional right to a jury trial, which "preserves" the right to a jury in federal and state cases for "suits at common law" satisfying specified dollar amounts. Restitution originated in law, equity, and sometimes both. The Restatement notably attempts to untangle restitution from the law-equity labels, as well as natural justice roots. It explicitly eschews equity’s irreparable injury prerequisite, which historically commanded that no equitable remedy would lie if an adequate legal remedy existed. Can restitution law resist hearing equity’s call from the grave? Will it avoid the pitfalls of the Supreme Court’s recent injunction cases that return to historical, equitable principles and reanimate equity’s irreparable injury rule? Losing anachronistic, procedural remedy barriers is welcome, but ∗ Professor of Law, West Virginia University College of Law; Visiting Professor of Law, The Catholic University of America Columbus School of Law. Washington & Lee University School of Law, J.D.; Rhodes College, B.A. Sincere thanks to Catholic University for supporting this research and to the following conferences for opportunities to present this work: the American Association of Law Schools, the Sixth Annual International Conference on Contracts at Stetson University College of Law, and the Restitution Rollout Symposium at Washington and Lee University School of Law. -
Beware the Constructive Trust Claim
Portfolio Media. Inc. | 860 Broadway, 6th Floor | New York, NY 10003 | www.law360.com Phone: +1 646 783 7100 | Fax: +1 646 783 7161 | [email protected] Beware The Constructive Trust Claim Law360, New York (October 13, 2010) -- Faced with the prospect of little recovery at some distant point in the future, larger unsecured creditors are using the remedy of a constructive trust to target specific property and to attempt to obtain a full recovery superior to all other claimants, including senior secured creditors. Even if lacking in merit, the mere assertion of a constructive trust claim may prove to be an impediment in getting past an objection to plan confirmation based on the demand that the unresolved constructive trust claim be separately classified. The ultimate resolution of the claimant’s entitlement to a constructive trust remedy, including the procedure to attack it, depends on the circuit in which the bankruptcy case is pending. The Basic Law as to the Remedy of a Constructive Trust “A constructive trust is an involuntary equitable trust created as a remedy to compel the transfer of property from the person wrongfully holding it to the rightful owner.” In re Real Estate Associates Ltd. Partnership Litig., 223 F. Supp. 2d 1109, 1139 (C.D. Cal. 2002). “The imposition of a constructive trust requires: (1) the existence of res (property or some interest in property); (2) the right of the complaining party to that res; and (3) some wrongful acquisition or detention of the res by another party who is not entitled to it.” See Burlesci v. -
18-1501 Supreme Court of the United States
18-1501 IN THE Supreme Court of the United States CHARLES C. LIU AND XIN WANG A/K/A LISA WANG, Petitioners, v. SECURITIES AND EXCHANGE COMMISSION, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit AMICUS CURIAE BRIEF OF THE NEW CIVIL LIBERTIES ALLIANCE IN SUPPORT OF PETITIONERS ____________ JOHN J. VECCHIONE Counsel of Record MARK CHENOWETH MARGARET A. LITTLE KARA ROLLINS New Civil Liberties Alliance 1225 19th Street NW, Suite 450 Washington, DC 20036 (202) 869-5210 Counsel for Amicus Curiae i TABLE OF CONTENTS TABLE OF AUTHORITIES ...................................... iii INTEREST OF AMICUS ............................................ 1 SUMMARY OF ARGUMENT ..................................... 3 I. THE SEC OBTAINED ITS PRESENT DISGORGEMENT POWERS BY A CAREFUL STRATAGEM OF AVOIDING TEXTUAL OR ORIGINALIST EXAMINATIONS OF ITS CLAIM TO THEM ..................................................... 5 A. How Did the SEC Obtain Its Current Disgorgement Power? .............. 5 B. The Petitioners’ Penalties Starkly Illuminate the Unbound Nature of the SEC’s Assumed Powers .................................................. 12 II. THIS COURT’S MODERN JURISPRUDENCE FORECLOSES THE REMEDY AWARDED HERE AND THE NINTH CIRCUIT MUST BE REVERSED .......................................... 14 A. The SEC Cannot Inflict Penalties Not Delineated by Statute .................................................. 15 ii B. Equity Means Equity and Not What the SEC Wants It to Mean ........ 17 C. This Disgorgement Is a Penalty and Cannot Be Countenanced in Equity ................................................... 20 D. Ruling Against the SEC Here Comports with Other Precedents of the Court .......................................... 23 CONCLUSION .......................................................... 24 iii TABLE OF AUTHORITIES CASES Australian Land Title, Ltd., 92 F.T.C. 362 (1978) ......................................... 11 BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996) ................................ 5, 23, 24 Central Bank of Denver v. -
ELIZABETH KERR ET AL. V. LYDIA HENDERSON ET AL
09/28/2020 IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE July 23, 2020 Session ELIZABETH KERR ET AL. v. LYDIA HENDERSON ET AL. Appeal from the Chancery Court for Johnson County No. 7226 John C. Rambo, Chancellor No. E2020-00112-COA-R3-CV In this case involving the inheritance of an investment account, the three plaintiffs filed a complaint in September 2016, asserting, inter alia, that a letter executed by their father prior to his 2007 death had operated to create an express trust concerning the account, for which their stepmother had acted as trustee with the understanding that the plaintiffs were to be the beneficiaries of the account after her death. The plaintiffs alternatively sought imposition of a constructive trust. The plaintiffs’ stepmother, who is the subject decedent in this action, had died in April 2016. The plaintiffs initially named as defendants the co- executors of the decedent’s estate, as well as the financial institution holding the investment account. The trial court subsequently entered agreed orders to dismiss the financial institution as a party and to substitute as defendants the decedent’s three adult children from a previous marriage. Upon competing motions for summary judgment and following a hearing, the trial court granted summary judgment in favor of the plaintiffs, finding that an express trust had been created by the writings of the plaintiffs’ father and that, alternatively, a constructive trust should be imposed based on the combined writings and actions of the plaintiffs’ father and the decedent. The defendants filed a motion to alter or amend the judgment, which the trial court denied following a hearing upon finding in part that new evidence submitted by the defendants should not be considered. -
Uniform Trust Code
D R A F T FOR DISCUSSION ONLY UNIFORM TRUST CODE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS MARCH 10, 2000 INTERIM DRAFT UNIFORM TRUST CODE WITHOUT PREFATORY NOTE AND COMMENTS Copyright © 2000 By NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS The ideas and conclusions set forth in this draft, including the proposed statutory language and any comments or reporter’s notes, have not been passed upon by the National Conference of Commissioners on Uniform State Laws or the Drafting Committee. They do not necessarily reflect the views of the Conference and its Commissioners and the Drafting Committee and its Members and Reporters. Proposed statutory language may not be used to ascertain the intent or meaning of any promulgated final statutory proposal. UNIFORM TRUST CODE TABLE OF CONTENTS ARTICLE 1 GENERAL PROVISIONS AND DEFINITIONS SECTION 101. SHORT TITLE. ............................................................ 1 SECTION 102. SCOPE. ................................................................... 1 SECTION 103. DEFINITIONS. ............................................................. 1 SECTION 104. DEFAULT AND MANDATORY RULES. ...................................... 4 SECTION 105. QUALIFIED BENEFICIARIES. ............................................... 5 SECTION 106. NOTICE. .................................................................. 5 SECTION 107. COMMON LAW OF TRUSTS. ................................................ 6 SECTION 108. CHOICE OF LAW. ......................................................... -
Restitution in the Restatement (Second) of Contracts Joseph Perillo Fordham University School of Law
Fordham Law School FLASH: The Fordham Law Archive of Scholarship and History Faculty Scholarship 1981 Restitution in the Restatement (Second) of Contracts Joseph Perillo Fordham University School of Law Follow this and additional works at: https://ir.lawnet.fordham.edu/faculty_scholarship Part of the Law Commons Recommended Citation Joseph Perillo, Restitution in the Restatement (Second) of Contracts, 81 Colum. L. Rev. 37 (1981) Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/788 This Article is brought to you for free and open access by FLASH: The orF dham Law Archive of Scholarship and History. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of FLASH: The orF dham Law Archive of Scholarship and History. For more information, please contact [email protected]. Restitution in the Second Restatement of Contracts Joseph M. Perillo* The rules governing restitution in the Restatement (Second) of Contracts combine outworn dogma with audacious innovation. The new Restatement's uni- fied coverage of the topic is an important improvement on its predecessor's treat- ment of the subject; the first Restatement's chapter on restitution dealt with res- titution primarily in three contexts: as a remedy for a defendant's breach; as relief in favor of a defaulting plaintiff; and as compensation for a performance rendered under a contract unenforceable because of noncompliance with the Stat- ute of Frauds.' In the Restatement (Second) the topic expands to encompass also restitution following -
Law Relating to Torts
J.K.SHAH CLASSES CS EXECUTIVE - JURISPRUDENCE, INTERPRETATION AND GENERAL LAWS CHAPTER 3 LAW RELATING TO TORTS Q: Discuss the scope and conditions of liability for tort The term ‘tort’ is a French equivalent of English word ‘wrong’. Simply stated ‘tort’ means wrong. But every wrong or wrongful act is not a tort. Tort is really a kind of civil wrong as opposed to criminal wrong. Wrongs, in law, are either public or private. Section 2(m) of the Limitation Act, 1963, states: “Tort means a civil wrong which is not exclusively a breach of contract or breach of trust.” Thus, two important elements can be derived from above definitions, are: (i) that a tort is a species of civil injury of wrong as opposed to a criminal wrong, and (ii) that every civil wrong is not a tort. GENERAL CONDITIONS OF LIABILITY FOR A TORT In general, a tort consists of some act or omission done by the defendant (tortfeasor) whereby he has without just cause or excuse caused some harm to plaintiff. To constitute tort, there must be: • a wrongful act or omission of the defendant; • the wrongful act must result in causing legal damage to another; and • the wrongful act must be of such a nature as to give rise to a legal remedy. (i) Wrongful act : The act complained of, should under the circumstances, be legally wrongful as regards the party complaining. Thus, every person whose legal rights, e.g., right of reputation, right of bodily safety and freedom, and right to property are violated without legal excuse, has a right of action against the person who violated them, whether loss results from such violation or not. -
IN the COURT of APPEALS of TENNESSEE at JACKSON May 13, 2015 Session
IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON May 13, 2015 Session ROBERT W. MILLS v. NITA D. MILLS, ET AL. Appeal from the Chancery Court for Shelby County No. CH1301272 Arnold B. Goldin, Chancellor ________________________________ No. W2014-00855-COA-R3-CV – June 24, 2015 _________________________________ This case involves various causes of action related to the administration of an estate, specifically, the executor‘s action in failing to fund a residuary trust. The trial court granted summary judgment on the grounds that no assets remained in the estate to fund the residuary trust, the expiration of the statute of limitations, and laches. Although we rely on different grounds, we affirm the trial court‘s order granting summary judgment and dismissing the complaint. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded J. STEVEN STAFFORD, P. J., W.S., delivered the opinion of the Court, in which BRANDON O. GIBSON, J., and KENNY ARMSTRONG, J., joined. Lee S. Saunders and Robert Steven Butler, Somerville, Tennessee, for the appellant, Robert W. Mills. Kacey L. Faughnan, Edward T. Autry, and Joseph B. Reafsnyder, Memphis, Tennessee, for the appellees, Nita D. Mills, and James Johnson. OPINION Background On January 30, 2013, Plaintiff/Appellant Robert W. Mills (―Appellant‖) filed a Complaint to Compel Disclosure of Residual Trust or Alternatively for Declaratory Judgment and Judicial Estoppel, For Equitable Relief, For Constructive Trust to Prevent Unjust Enrichment, For Resulting Trust, For Accounting and for Injunction against Appellees Nita D. Mills (―Ms. Mills‖ or ―Defendant Mills‖), Individually and as Executrix of the Estate of William B. -
Page 1 of 4 N.C.P.I.—Civil 865.65 TRUSTS by OPERATION of LAW—PURCHASE MONEY RESULTING TRUST (REAL OR PERSONAL PROPERTY). GENERAL CIVIL VOLUME JUNE 2014
Page 1 of 4 N.C.P.I.—Civil 865.65 TRUSTS BY OPERATION OF LAW—PURCHASE MONEY RESULTING TRUST (REAL OR PERSONAL PROPERTY). GENERAL CIVIL VOLUME JUNE 2014 ------------------------------ 865.65 TRUSTS BY OPERATION OF LAW1 — PURCHASE MONEY RESULTING TRUST (REAL OR PERSONAL PROPERTY).2 The (state number) issue reads: "[Is] [Was] (identify property) held under a purchase money resulting trust by (name alleged trustee)?" You will note that in this issue I have used the word "trust." A trust is a legal relationship between persons. A trust exists when one person acquires property under circumstances where he incurs a legal duty to handle that property in a particular way so as to benefit another person. A 1 Trusts created by operation of law are classified into resulting trusts and constructive trusts. "[T]he creation of a resulting trust involves the application of the doctrine that valuable consideration rather than legal title determines the equitable title resulting from a transaction; whereas a constructive trust ordinarily arises out of the existence of fraud, actual or presumptive - usually involving the violation of a confidential or fiduciary relation - in view of which equity transfers the beneficial title to some person other than the holder of the legal title. Also, a resulting trust involves a presumption or supposition of law of an intention to create a trust, where as a constructive trust arises independent of any actual or presumed intention of the parties and is usually imposed contrary to the actual intention of the trustee." Bowen v. Darden, 241 N.C. 11, 13-14, 84 S.E.2d 289, 292 (1954).