Monthly Archives: July 2014

July 28, 2014

Philip Seymour Hoffman’s Will Released

by Rebecca Klock Schroer

Philip Seymour Hoffman, famous actor and director, died in February 2014 at the age of 46.  A copy of his will was recently released.

There are a few interesting aspects of Hoffman’s will. 

Hoffman was survived by three children under the age of 12.  His will gives everything to his partner/long-time girlfriend, Marianne O’Donnell, who is also the mother of his three children.  The media seems to be suggesting that he slighted his kids by doing so.  However, Hoffman has been quoted as saying that he did not want his children to become trust fund kids.  Also, the media has glossed over the fact that the will directs that anything O’Donnell disclaims passes to a trust for their son.  Accordingly, there is a chance that the trust for their son would be funded, although it is entirely up to O’Donnell whether she disclaims.

Hoffman’s will was executed in 2004 before his youngest two children were born.  The will refers to Hoffman’s oldest child by name and does not have any language regarding after-born children.  If the will was governed by Colorado law (instead of New York law), the after-born children would be included and would receive a share equal to that of Hoffman’s oldest child under Colo. Rev. Stat. § 15-11-302.  This issue may not come up since there is no indication that O’Donnell plans to disclaim any of the property, which is the only circumstance under which the children would receive something.

Hoffman’s estate is estimated to be worth $35 million and a large portion of that will be paid to the IRS for federal estate tax (an estimated $15 million). If Hoffman and O’Donnell had been married, the entire amount would have passed to her free of estate tax under the unlimited marital deduction.  While some couples choose not to get married for various reasons, marriage would have provided a significant tax advantage in an estate of this size. 

Finally, the will states that it is Hoffman’s strong desire, and not direction, that his son be raised and reside in or near Manhattan, Chicago or San Francisco.  The will goes on to state that if his son cannot reside in any of these cities, he requests that his son visit these cities at least twice a year.  The purpose of this request is so that his son would be exposed to culture, arts and architecture.  While clauses like this may not be legally enforceable, they do provide insight into the testator’s intent. 

July 14, 2014

Enforcing Mediated Settlement Agreements

by Jean Stewart

Resolution of a family conflict by mediation in trust and estate litigation is satisfying for the mediator but often tiring and less satisfying for the parties in conflict. Inherent in the mediation process is some give and take on all sides.  While mediators like to talk about “enlarging the pie” to the end that everyone gets all of their needs met, it is often the case that parties leave the mediation session with less than everything they hoped for or believed they would be awarded by the courts.

This requires that counsel for the litigants, not the mediator, insure that any settlement the parties reach is as enforceable as any contract.  While most lawyers learned basic contract law in their first year of law school and confronted a basic contracts question on their admission exam, some lawyers forget basic contract law when drafting their settlement agreements following mediation.  A valid, signed contract serves as the first defense to an effort to revoke a settlement agreement by a party who experiences remorse.   

Colorado also offers the parties, pursuant to CRS 13-22-308, an opportunity to streamline the enforcement of mediated agreements as court orders.  Yaekle v. Andrews, 195 P.3d 1101, 1108 (Colo. 2008). Getting signed settlement agreements approved and adopted as orders of the court is relatively simple in trust and estate litigation.  Most attorneys use the Rule 8.8, Colorado Rules of Probate Procedure Non-Appearance Hearing process. Making the settlement contract an order of the court offers a variety of additional mechanisms not only to resist any effort to revoke the settlement itself but also to invoke the court’s inherent authority to enforce its own orders.  

Mediation is hard work for the mediator, for the parties and for the lawyers involved. Everyone wants to avoid the consequences resulting from a party changing his or her mind. A successful mediation calls on the best lawyering skills to reduce the terms of the agreement to an enforceable contract.  When appropriate, seeking court approval and making the settlement agreement an order of the court further reinforces the agreement and enhances the likelihood that its terms will be carried out.