In an attempt to reach younger demographics, Attorney Robert Miller has created a YouTube series, “Estate Planning is not just for the wealthy.” Please watch, subscribe, and share at www.basiclaw4u.com
Former billionaire owner of the New Orleans Saints and New Orleans Pelicans, Tom Benson, passed away. He was on his third wife and there was an apparent fight with his daughter in 2015 over his mental competence regarding running these organizations. Yes, predictable result.
It should be noted that Wills tend to be made public because they are filed, and Trusts tend to remain private. Therefore, what goes into a Will is potentially important for the privacy of the family. In this case, the Will, which has been filed, appears to be a typical Pour-Over Will, which names the Trustee of his Revocable Living Trust as the benefactor of all his property. However, Mr. Benson did not stop there.
The Will goes on to provide provisions in the event that the Revocable Living Trust is held to be invalid. He specifically provides that his daughter, Renee Benson, and her children, Rita LeBlanc, Ryan LeBlanc, and all their descendants shall have no interest in his estate whatsoever. He also indicated that, in no way, would any of these individuals be appointed the Personal Representative/Executor.
Clearly, there were costs to his daughter in attacking his mental competence a few years before his death. To wit, she and her descendants were apparently excluded. Although we have not read the Trust, the provision set forth in the Will seems clear.
To put this in the Will, airs this dirty laundry against his said family members for the public to see. Mr. Benson left no doubt about his desire. Good for clarity – bad for family.
Finally, we cannot actually know how he intended to control and dispose of his one plus billion dollars, because those provisions will be more adequately set forth in his Trust. A Trust which is not filed for the world to see.
It is difficult to have an individual deemed incompetent. Moving forward with such an attempt is dangerous in the extent that it is never well-received by the elderly person.
Win or fail, you will probably harm your relationship with that person and, as indicated in this case, could have significant financial costs.
It is one of the most sensitive and difficult areas of estate planning when a parent is married to a new spouse. It seems like there is automatic friction between the children of the prior spouse and the current spouse, resulting in friction with the parent.
The moral is that one should move very slowly in challenging the competence of a parent that they believe is making decisions inconsistent with how the child thinks. In furtherance, I would advise a client to move very slowly in airing such dirty laundry in such a public way; although in this case, it appears very intentional.
A Trust can be private, a Will is not.
It is almost always better for the blended family to try to suck it up and love their parents, even if they don’t agree with all of their decisions.
On June 19, 2017, the Supreme Court ruled in Matal v. Tam, that the anti-disparagement provisions of the federal Lanham Act, which governs federal trademark applications, infringes on free speech rights of trademark applicants. The Supreme Court held that Asian-American members of the rock band “The Slants” have the right to trademark their disparaging name in a ruling that will potentially have a broad impact on how the First Amendment is applied to federal trademarks.
The United States Patent and Trademark Office rejected the band’s federal trademark application and cited the anti-disparagement provision of the Lanham Act prohibiting federal trademarks that “disparage…or bring…into contempt or disrepute” any “persons, living or dead.” The Supreme Court held in Matal v. Tam, that trademarks are government speech, and not private speech, and therefore the anti-disparagement provision violates the trademark applicant’s commercial free speech as protected by the First Amendment. The majority opinion, written by Justice Samuel Alito, noted that the issuance of trademarks by the United States Patent and Trademark Office is not immune from the First Amendment as it is a government program.
The Supreme Court’s ruling is a win for all individuals or businesses seeking to apply for federal trademarks. Notably, the Supreme Court’s decision may be powerful precedent for the NFL’s Washington Redskins who are currently litigating with the United States Patent and Trademark Office over its cancellation of the team’s trademarks relating to “Redskins” in 2014. The United States Patent and Trademark Office argues that the team’s trademarks may be offensive to some Native Americans and thus violate the federal Lanham Act. Currently, that lawsuit is stayed pending the Supreme Court’s Matal v. Tam decision.
To evaluate what intellectual property your own business may need to protect, and to get assistance in filing for federal trademark or copyright protection, please contact the business attorneys at Shinners & Cook, P.C.
Under Michigan law, corporations and limited liability companies (LLCs) are treated as separate and distinct entities or “persons.” Shareholders, owners, and members are presumably not liable for business obligations as a general rule. This enables business shareholders, owners, and members to be free from personal liability for business obligations, liabilities, and debts. However, there is an exception to this rule known as “piercing the corporate veil.” “Piercing the corporate veil” of corporate limited liability sometimes occurs in Michigan business litigation. Under this exception, owners of a corporation or limited liability company can be found liable for the business’s obligations by failing to adhere to corporate formalities, fraud, or other wrongdoing, such that the corporation is a “mere instrumentality” or “alter ego” of the business owner.
In a recent Michigan business case, Estate of James Armour II v. Hall, (Mich. Ct. App. May 9, 2017), the Michigan Court of Appeals reaffirmed this legal separation between business owners and their corporations or limited liability companies. In this case, the plaintiff attempted to sue a business owner in Mason County, Michigan. The business owner’s limited liability company conducted business in Mason County, but the owner, personally, did not. The business owner was active in the operation of the business during some months of the year, but otherwise resided out-of-state. The Court ruled that since the defendant in his personal capacity did not himself conduct business in Mason County, and instead only conducted business on behalf of the limited liability company, there was no grounds to support venue in that County for the lawsuit against the business owner in his personal capacity.
This Michigan case reinforces the general rule of limited corporate liability that business owners are separate and distinct from their businesses. The Court stated that “a limited liability company is a separate legal entity” and that limited liability company members are “not ordinarily liable for the acts, debts, or obligations of the company.” The Court concluded that absent evidence that the business was a “mere instrumentality” or “alter ego” of the business owner, the Court would refuse to impose on the business owner a form of “vicarious venue” for business conduct. To evaluate the advantages of incorporating or re-organizing your business as a corporation or limited liability company, and to get assistance in protecting your business, please contact the business attorneys at Shinners & Cook, P.C.
Whether your business is retail, service, industrial, or otherwise, its logos, names, products, customers, and business practices may be worth protecting from competitors and former employees. Whether you have a successful business or are just starting out, every business needs to determine what its intellectual property is and whether it is valuable enough to protect.
There are four basic kinds of intellectual property which a business can protect: trademarks, copyrights, trade secrets, and patents. Intellectual property can be one of a business’s most valuable assets, and should be protected ferociously. Think of the formula for Coke, the “11 herbs and spices” of KFC, or even the name of your business. How would you feel if a company opened up across the street from you with a confusingly similar name? Could you stop them?
Trademarks may protect names, logos, symbols, or other marks used to identify a business, product, or service. A business that owns a trademark may prevent anyone else from attempting to copy, reproduce, or impermissibly use the trademark in the United States. Copyrights and patents protect original artistic works or unique processes, devices, and machines for a set period of time. Trade secrets protect business know-how and practices that give the business advantage over competitors. Examples of trade secrets may be customer lists and identities, business manuals, and secret manufacturing recipes or processes.
Protecting intellectual property is not automatic, and requires your business to take action for legal protection. These steps might include creating confidentiality and non-compete agreements, filing for federal trademark, copyright, or patent protection, or monitoring and enforcing your intellectual property rights against others. To evaluate what intellectual property your business may need to protect, and to get assistance in protecting your business’ intellectual property, please contact the business attorneys at Shinners & Cook, P.C.