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Better to Play Dead: Examining North Carolina\u27s Living Probate Law and Its Potential Effect on Testamentary Disposition
Get PDFOn August 11, 2015, North Carolina became the fifth state in the nation to permit a “living probate proceeding. Like the laws of the four states before it, the new North Carolina law empowers a court to decide the validity of an individual’s will while that individual is still alive. Generally, if the court determines the will is valid, that order is binding. In North Carolina, however, it may not be. In this state, an interested party may challenge a will after the testator has died, even though a court has already found the will valid based on evidence presented by the testator himself. This possibility should not exist. Allowing a post-mortem will contest in this situation destroys the desirability of living probate as an estate planning tool.
This Comment first offers a brief overview of living probate in North Carolina before analyzing benefits and concerns commonly associated with the proceeding. After establishing that the advantages of living probate make it a workable option for many individuals, discussion then turns to the effects of North Carolina’s flawed provision. Because allowing a post-mortem will contest of an already validated will effectively renders living probate pointless, the North Carolina General Assembly should remove the provision entirely
The Law Is What It Is, But Is It Equitable: The Law of Encroachments Where the Innocent, Negligent, and Willful Are Treated the Same
Get PDFA landowner builds a house that encroaches two feet on his neighbor\u27s property. The encroachment involves very little land, but it creates many issues for the respective landowners. In today\u27s society, where subdivisions are developed daily, there is an increasing potential for encroachments due to innocent mistakes, negligence, or willfulness. When an encroachment occurs, it would be terrific if the parties could negotiate a fair solution, but this rarely happens. This is because the law automatically places an encroaching landowner in an inferior bargaining position. In North Carolina, courts will order the encroaching landowner to remove the encroachment regardless of his intent. Therefore, the encroaching landowner must meet the neighbor\u27s demands for waiving a mandatory injunction to compel removal or prepare to move the encroaching portion of the structure.
This Article addresses the public policy and equitable issues sparked by the encroachment of a permanent structure on an adjoining landowner\u27s property. It focuses on the equitable hardship doctrine, which is commonly invoked by many jurisdictions in encroachment cases and applied when the circumstances of a given case justify superseding the landowner\u27s ordinary remedy to an injunction-a doctrine which North Carolina has paid lip service to but does not apply. The analysis in this Article leads to the conclusion that in determining whether to grant an injunction, a court must balance the equities by assessing the relative hardship of each party. Application of the equitable hardship doctrine in encroachment cases will prevent economic waste, the potential for extortion, and unnecessary litigation, and create a just result for both parties
Murder for Life Insurance Money: Protecting the Children
Get PDFChildren are being murdered for life insurance proceeds.
Of course, if a beneficiary murders a child for the recovery of life insurance money and if he is apprehended, he will surely face numerous legal consequences. He will not recover the insurance money, he will be prosecuted and likely sentenced to life imprisonment or execution, he may be sued for the wrongful death of the child and he may be prosecuted for insurance fraud. However, all of these legal responses are triggered by the death of the child and, therefore, do not serve to protect the child from being murdered in the first instance.
On the other hand, there are legal doctrines in place that would appear to be directed toward protecting a child from being the target of a murderous beneficiary, most notably the insurable interest doctrine. Pertinent to this Article, this doctrine is intended to limit the pool of potential beneficiaries to a life insurance policy to those who, out of love and affection, would never consider murdering the child for money. However, the doctrine is often vaguely defined by the courts and loosely applied by insurance companies when issuing life insurance policies.
This Article explains the risk life insurance policies pose to children, discusses the ineffectiveness of current legal measures to protect children in such instances, and proposes significant but necessary measures to protect children from being murdered for life insurance money
The Americanism of Justice Holmes
Get PDFThere is no obvious way to reconcile each of Justice Oliver Wendell Holmes, Jr.\u27s intellectual sides. There is the monstrous Holmes, who thought the world was meaningless, insignificant, and hopelessly violent. There is the tender Holmes, who jealously guarded the time he could spend enjoying literature, philosophy, and art. And there is the scholarly Holmes, who left behind a litany of influential judicial opinions and articles, as well as a classic book, The Common Law.
Although the gulfs between each of Holmes\u27s sides can make reconstructing his thought seem daunting, the task is amenable to a fairly simple solution: Holmes leavened his dismal worldview with a sense of self that allowed him to think of life as valuable, and with a theory of cooperative combinations that opened the door to a better future. Using his famous dissent in Lochner v. New York as a case study, it becomes possible to see how Holmes built his constitutional jurisprudence from these basic premises.
Perhaps surprisingly, a close investigation of Holmes\u27s Lochner dissent reveals that his worldview, his theory of combinations, and his sense of self led him to reject the doctrine of judicial supremacy
Torrens Title in North Carolina - Maybe a Hundred Years Is Long Enough
Get PDFFor over a century, North Carolina property owners have been offered an alternative to the traditional deed and recording system. Title to land may instead be entered in the Torrens system of registered titles. Under the Torrens system, the court determines the state of the title and issues a certificate, which is held in the registry with a copy given to the registered owner. The certificate provides conclusive evidence of ownership and of any liens or encumbrances on the property. Unlike titles evidenced by deeds, Torrens titles are not subject to loss by adverse possession, and transfer of a Torrens title is a simple process of changing the certificate in the registry and issuing a new certificate. A darling of Progressive law reformers in the late nineteenth and early twentieth centuries, nineteen states eventually adopted the Torrens system, although many later had second thoughts and abandoned the system. In 1913, North Carolina became the tenth state to adopt a Torrens Act. North Carolina\u27s experience with Torrens was in many ways typical: a Progressive campaign for adoption, complete with promises of economy and efficiency; adoption followed by a burst of registrations; dwindling registrations as the system\u27s practical shortcomings became apparent; ultimate disuse except in rare (and somewhat questionable) circumstances. But unlike many other states that experimented with the Torrens system, North Carolina has not repealed its Torrens Law; at least not yet. Beginning in 2002, litigation in Eastern North Carolina has drawn renewed attention to the Torrens system and prompted questions about its continued usefulness in the state