The words within the four corners of a trust instrument mean something. In Harvill v. Harvill, a federal case from Tennessee that we’ve previously looked at here, we see that sometimes those express words mean so much that a plaintiff is prevented from making a claim based on allegations that directly contradict the words in the trust. But, it’s also the part of the opinion about an amendment of the trust pursuant to a power of attorney – something that [...] Read More »
A Strong Offense
A Stronger Defense
Jurisdictions have been slowly chipping away at the privity requirement when it comes to legal malpractice claims against estate planning attorneys. Generally, only the client can raise a claim of professional negligence or malpractice against an attorney. In more recent years, however, some jurisdictions have become more comfortable with the idea of “the third party intended beneficiary exception to the rule of privity.” Of course, this exception to the rule frequently comes up in will drafting cases, but not exclusively. Now, [...] Read More »
No-contest clauses can give trustees a great amount of power. Obviously, it is a power that the grantor wants the trustee to wield – in appropriate circumstances – because the grantor thought it important enough to include in his or her trust instrument. But, a trustee must still determine whether a beneficiary’s conduct rises to a level sufficient to trigger the clause and to seek its enforcement. And, if a trustee seeks to enforce a no-contest clause, it is [...] Read More »
Knowing when to initiate guardianship proceedings for a loved one can be a difficult and personal decision. When it comes to substance abuse, those proceedings can enter a grayer area than proceedings involving dementia, injury, or developmental disability. At what point is an addict or alcoholic incapacitated? What happens during moments of sobriety? In In re Guardianship of Esterly (unpublished), the Court of Appeals of Minnesota dealt with some of these difficult questions.
Maintaining property in a family for generations to come can be tricky. As the parties in Hoefer v. Musser found out, the intention of a decedent speaks volumes and can overcome procedural deficiencies such as an improper recording of a warranty deed. In Hoefer, the Missouri Court of Appeals (Southern Division) recently held in favor of a decedent’s wishes to keep a farm in his family for “generations and generations.” See Hoefer v. Musser, No. SD 32576, 2013 WL 6800823 [...] Read More »
In In re Alice J. Welch Revocable Living Trust (Vandenbrook v. Welch), a Wisconsin appellate court was required to interpret a provision in a trust instrument on how trust assets would be valued for purposes of distribution. The trust instrument provided different distribution schemes, depending on whether a certain value exceeded $5 million. So, the first question for the court was whether the value of these assets exceeded $5 million. Let’s take a look at the differing interpretations and why trust [...] Read More »
When it comes to will execution, sometimes the belt and suspenders approach may be well advised. But, other times, less is more. Like, perhaps, when it comes to the number of witnesses. When state law requires that you only need a set number of witnesses to a will, the Court of Appeals of Tennessee’s opinion in the will contest case of Estate of Woolverton shows us the potential problems that may arise when you bring in extra, unnecessary witnesses.
When a trust instrument sets a time for termination of the trust, it terminates, right? Well, maybe not. According to the Kansas Court of Appeals in Lindholm v. Melland (2014 WL 278774) (unpublished), under certain circumstances a trust may continue in existence beyond a termination event. What happened here to keep the Francis G. Melland Trust going over a decade after it was supposed to terminate?
Fiduciaries should know what they’re getting into before they accept the responsibilities and duties that come with that role. People or institutions named as successor fiduciaries may also want to be careful about being named as a successor. As we have previously seen, successor fiduciaries and even non-fiduciaries may wind up with breach of fiduciary duty claims against them even if they have not stepped up to the main role. In Wellin v. Wellin (2014 WL 234216), a federal court in South [...] Read More »
We’ve looked at a number of cases where parties sought to modify the terms of a trust. And there are plenty of good reasons why a trust might need to be modified from circumstances not anticipated by the settlor to simply a scrivener’s error in drafting the instrument. But, whatever or wherever the case may be, there is a good chance that a court is going to require some significant evidence to justify the modification. And that’s what the daughter of [...] Read More »