May 16th, 2012
When settling a fiduciary litigation case, it’s a fairly common practice to agree to the creation of a reserve fund from which to pay various estate or trust related expenses that will be incurred in the future. Recent litigation out of Florida reminds us that when creating a reserve fund, you will want to be specific about what expenses can be paid from the reserve. (more…)
May 14th, 2012
It’s not that often we see a multi-count seemingly detailed breach of fiduciary duty and undue influence complaint get tossed on a motion to dismiss, but that’s what happened in Kaiden v. Zimonja (unpublished).
In affirming the trial court’s dismissal of the complaint, the Appeals Court of Massachusetts helps us understand what’s at the core of undue influence claims. (more…)
May 9th, 2012
Estate beneficiaries’ happiness is inversely proportional to the amount of money spent by an administrator for professional help. That’s why we see a lot of disputes not over the hiring of a professional, but over the appropriateness of the total amount paid to a professional hired to help settle an estate, such as an attorney or accountant.
In Murphy v. Prescott (unpublished), the Appeals Court of Massachusetts weighed in on a group of heirs’ claims that certain fees paid to the administrator, an attorney, and an accountant in connection with settling an estate were unreasonable. The appellate court also gave some helpful advice to attorneys about those pesky time sheets. (more…)
May 7th, 2012
It’s not easy being a trustee, so if you’re a state that wants to create a positive atmosphere for fiduciary business, you’ll have a trust code that encourages financial institutions and individuals to accept that fiduciary role.
So states do this well; others, well, not so much. One aspect that is almost uniform, however, is the difficulty with which it is to put trustees personally on the hook for a successful litigant’s attorney’s fees. That’s why, when it happens in a case like Jacobson v. Sklaire, we take notice. (more…)
May 2nd, 2012
In Miller v. Miller, the trustees of the family trust of which Clifford Miller was a beneficiary almost completely prevailed on an appeal of a final judgment refusing to remove the co-trustees, approving a lease renewal entered into by the trustees, and awarding attorney’s fees. So, where didn’t they prevail? (more…)
April 23rd, 2012
Effective May 1, 2012, new amendments to the Delaware Chancery Court Rules will materially change the required content of consent petitions to modify trusts. The official website of the Delaware judiciary describes the amendments as “help[ing] the Court protect trust assets of minor and unborn beneficiaries and ensur[ing] the integrity of the Court in the process of modifying trusts.”
So what’s the big deal? Let’s see . . . (more…)
April 18th, 2012
Talk to a guardian or conservator and you’ll likely find out it is a thankless, demanding job. Often these fiduciaries not only have to provide a great deal of care and protection for their wards but also have to be wary of persons eager to bring claims against them for converting the ward’s assets, breaching fiduciary duties, or any number of other possible claims.
Take for example the case of James McQuien. McQuien began living with Clorina Haring way back in 1974. In 2001, Haring wasn’t doing so well on account of Alzheimer’s, so McQuien was appointed Haring’s guardian and conservator. In this role, McQuien hired a sitter for Haring while he was at work and wrote checks to himself and for cash, some of which he used to pay the sitter and the rest of which he used for food and other household expenses.
McQuien also filed his annual reports with the probate court, none of which was challenged.
Nevertheless, after Haring’s death, the executor of Haring’s estate petitioned the probate court for a final accounting and settlement from McQuien. After a two-day bench trial, which included testimony from 15 witnesses including experts in assisted living and home health care, the probate court accepted McQuien’s accounting and discharged him and his surety from any other estate obligations. The probate court’s order was affirmed by the Georgia Court of Appeals in In re Estate of Haring. Let’s briefly see why. (more…)
April 16th, 2012
Before we jump into this landmark case from Connecticut, let’s take a very brief look at the procedural and factual history of Gross v. Rell (concurrence and dissent here).
Daniel Gross had a leg infection, which was treated in New York. After being discharged from the New York hospital, he went to Waterbury to further convalesce. He was admitted to Waterbury Hospital because of complications, and nine days later a hospital employee filed an application for appointment of conservator in Waterbury Probate Court. An attorney was appointed for Gross in the involuntary conservatorship action. A conservator was ultimately appointed, and a week or two later, the conservator placed Gross in the ‘locked ward’ of Grove Manor Nursing Home, Inc.
Gross filed a petition for a writ of habeas corpus, which was granted. A free man, Gross then brought a claim in federal court alleging that his civil rights were violated by the conservator, the attorney, and the nursing home. The federal court dismissed the case finding that the conservator, attorney, and nursing home were entitled to immunity from liability. Gross appealed and the federal appellate court certified several questions of Connecticut law to the Connecticut Supreme Court, mostly dealing with the immunity questions.
Well, how did the Connecticut Supreme Court respond? (more…)
April 9th, 2012
I don’t want to get into a lot of detail about The Florida Bar v. Doherty, a recent attorney disciplinary proceeding from Florida, but just want to raise it as a cautionary tale for those practitioners who wear multiple hats for the same client. You know – those practitioners who act as both estate planner and investment advisor for the same client; those practitioners who act as estate planner for a client and then get named as trustee, executor, etc. in that client’s estate planning documents; those practitioners who act as estate planner and annuity salesperson for the same client; and those practitioners who act as attorney and business partner for the same client. (more…)
