In 1949, Georgia O’Keeffe donated the Alfred Stieglitz Collection of Modern American and European Art to Fisk University ("Fisk") in Nashville, Tennessee. O’Keeffe, as executor of her late husband’s estate, divided his collection of paintings, sculptures, prints and photographs and donated the nearly 1,000 pieces to six institutions, including Fisk. O’Keeffe had donated the collection to Fisk with the express stipulation that the paintings not be sold or exchanged, as evidenced by a letter written that year to then Fisk-President Charles S. Johnson.
In 2005, cash-strapped Fisk attempted to sell the paintings from the collection in order to rectify its ‘troubled financial condition’. In court filings, Fisk officials indicated that the school would run out of operating funds by the end of 2007 without selling 50 percent of the collection.
In March 2008, the Court enjoined Fisk from selling the painting and ordered the school to put the collection on display by October 6th or forfeit the collection to the Georgia O’Keeffe Museum in Santa Fe, New Mexico.
Since then, Fisk, arguing that selling the art for a reported $30 million does not violate O’Keeffe’s original intent, has filed an appeal to sell half the collection to a museum in Arkansas. This week, Fisk asked the appeals court to send the case back to trial court saying the judge should not have blocked the sale without a more comprehensive hearing. Those of you familiar with my recent Machu Picchu blog, and the Beaverbrook blog trilogy of March 2007, October 2007 and August 2008 will find some parallels here: In court documents, the parties disagree as to whether the collection is a charitable gift as opposed to an asset that Fisk can dispose of at will.
Interestingly, the Fisk website indicates that "The Alfred Stieglitz Collection is unavailable for viewing due to renovations currently underway at the Carl Van Vechten Gallery".
David M. Smith
Listen to The Question of Compensation and Complaints.
This week on Hull on Estates and Succession Planning, Ian and Suzana discuss the question of compensation and complaints regarding compensation.
Cases for Increasing and Decreasing Compensation – Hull on Estates and Succession Planning podcast #122
Listen to Cases for Increasing and Decreasing Compensation.
This week on Hull on Estates and Succession Planning, Ian and Suzana discuss cases for increasing and decreasing compensation.
A person with more than one set of distinct interests or roles in the same estate may have a conflict of interest. This can create all sorts of problems and issues in an estate administration and is a driving concept in much estate litigation.
Say Joe Smith is the executor of an estate but also received gifts from his mother the testator during her lifetime. One of these gifts, say, came in the form of a transfer of a bank account into joint ownership between the two of them.
Wearing his executor’s hat (to use some traditional vernacular), Joe may have a duty to determine whether the bank account transfer was not a gift at all and actually subject to a resulting trust in which case the estate might have a claim to the asset. Joe may need to do so because, as executor, his duty is to identify estate assets and bring them into the estate.
However, wearing his hat as a recipient of the bank account, Joe is unlikely to want to give the bank account back to the estate.
In short, Joe may have a conflict of interest.
In such circumstances, Joe may need two lawyers, one to advise him as estate trustee, the other to protect him personally. Sometimes an executor’s conflict is such that he cannot continue to act as estate trustee.
While this example may be simple enough, there is a tremendous range of conflicts that can creep into estate matters.
Thanks for reading.
Yesterday, we read about Franz Kafka’s unfulfilled wishes with respect to his manuscripts, both published and unpublished, at the time of his death in 1924. Flash forward eight decades or so. Dmitri Nabokov, the 73 yr old sole surviving heir of Vladimir Nabokov, continues his 30-yr struggle with his father’s deathbed request that his last unpublished work, The Original of Laura, be destroyed. The stakes are high for Laura; at one point, Dmitri referred to it as "the most concentrated distillation of [my father’s] creativity." The task of burning the manuscript was originally entrusted to Vladimir’s wife Vera, but when she died in 1991 she had not yet carried out her husband’s last wish.
As discussed in the Business Standard, those in favour of heeding Nabokov’s wishes are not willfully destructive. It is understood that great writers might work through countless drafts before arriving at a final product that meets their approval. On the other hand, there’s the argument that writers (including Kafka) seldom can judge their own work.
The long twisted saga may find its fate as a cliffhanger of sorts. In a dramatic verdict, Dmitri indicated late last month that he had indeed "decided to make a decision" about what to do, but that he would "neither disclose publicly either the decision or the deed." Apparently (or should I say apparition-ly?), Dmitri reached his decision after an imagined ghostly conversation with his dead father. Stay tuned for the future unveiling of either a box of Laura‘s ashes or what might be Nabokov’s greatest literary work.
David M. Smith
Listen to Executor Obligations
This week on Hull on Estate and Succession Planning, Ian and Suzana discuss what to anticipate as an executor and how to ensure that you are well prepared for your duties.
A common area of complaint stems from an allegation that the executor or trustee was negligent in his or her efforts to administer the assets of an estate or trust. For a comprehensive discussion of the personal liability of trustees, see Maurice C. Cullity, Q.C., "Personal Liability of Trustees and Rights of Indemnification", (1996) 16 E.T.J. 115.
Generally speaking, most claims or objections to accounts arise out of what is perceived by beneficiaries to be negligence or failure on the part of the executor or trustee to maintain a proper standard of care and skill in his or her office. The most common complaints arise out of the following situations:
- investments by the executor or trustee which are not authorized by the will or by the law;
- the failure to provide a proper mix of investments so as to balance competing interests, such as life interests as opposed to remainder interests;
- the negligent or improper investment by the executor or trustee in investments of a speculative nature;
- an executor or trustee can be held liable for not maintaining the value of assets, such as a residence, by effecting proper repairs and would be liable for such neglect;
- executors or trustees must be extremely careful to make sure that all proper considerations are taken into account in making elections under the Income Tax Act, so as to avoid any criticism by the beneficiaries;
- care must be taken by an executor or trustee to ensure that prompt filings of returns are made and that penalties and interest payable on late filings are not incurred; and
- while trustees are seldom culpable for what are perceived by beneficiaries to be unnecessary delays, care must be taken to ensure that damages are not in fact incurred by the beneficiaries by reason of delays caused by inattention.