November 23rd, 2011

We’ve previously noted that undue influence cases are very fact specific.  In other words, the results of undue influence estate litigation will vary greatly based on the underlying facts.  Of course, this leads to bad facts often making bad law in this area.

In Simmons v. Norton, the Georgia Supreme Court had occasion to remind us of what doesn’t constitute undue influence under Georgia law. (more…)

November 22nd, 2011

Congratulations to Bryan Cave‘s 14 new partners, including BryanCaveFiduciaryLitigation.com contributor Kimberly Civins.  Read more about Bryan Cave’s new partners here.

November 21st, 2011

It’s probably not a good idea to try to make an oral gift of land.  There’s a reason why the law does not look favorably on oral contracts to transfer land, and there’s a reason why proving an oral transfer of property is so difficult.  Not that it’s impossible.  While the Statute of Frauds generally requires transfer of an interest in land to be in writing, there are exceptions.

In Jones v. Kirk, the Georgia Supreme Court addressed the line between what is – and what is not – a valuable improvement to the subject property so as to move the needle in favor of an enforceable oral agreement to transfer real property.  Here’s a hint – moving your mobile home onto the land isn’t a “valuable improvement.” (more…)

November 18th, 2011

In In re Estate of Tapley, the Georgia Court of Appeals took on a number of procedural issues regarding litigation over the Estate of Opal Mae Tapley.

The case highlights a common problem with fiduciary litigation – estate disputes often span multiple courts and involve multiple separate lawsuits.  The case therefore serves as a good reminder to fiduciary litigators that it is their responsibility to follow proper procedure or risk losing a damage award on appeal. (more…)

November 16th, 2011

In contracts and settlement agreements, we usually see boilerplate defining an individual party as including that individual party’s “heirs, personal representatives, agents, transferees, servants, employees, attorneys, representatives, successors and assigns” or something similar. 

You also regularly see a paragraph stating something like “this Agreement shall be binding upon the undersigned and their respective heirs, executors, administrators, successors, transferees, assigns, agents and attorneys.”

So, how important is this boilerplate?  According to the Missouri Court of Appeals in Anderson v. Parker, very important. (more…)

November 14th, 2011

While a testator’s desires about how property should be divided may be easy, the testamentary schemes that actually effect the disposition of that property can be painfully complex.  Aggrieved beneficiaries and plaintiffs’ lawyers often try to exploit the complexities of actually distributing the property rather than attacking the testator’s simple overall desire as to how the property should be divided.  In other words, an aggrieved beneficiary may try to claim that the testator should know the specific mechanics of how the property will be divided rather than simply understanding who gets what.

In Cychosz v. Cychosz, the testator, Stella Cychosz, had a relatively simple testamentary scheme that involved moderately complex mechanics regarding the disposition of the property.  One of the estate beneficiaries claimed that Stella didn’t have full knowledge of significant portions of her will.  The Wisconsin Court of Appeals disagreed. (more…)

November 11th, 2011

When individual fiduciaries are found to have breached their fiduciary duties, they are often found to have received some help.  Many times a spouse, lover, or business partner is seen lurking in the wings, aiding and abetting the breach of fiduciary duty.  From an aggrieved beneficiary’s or successor fiduciary’s perspective, it’s imperative to get that joint-wrongdoer brought into court, where he or she can be held to account for the wrongdoing and – if there’s a recovery to be had – reimburse the estate or trust for damages.  In other words, a person cannot be held to account unless he or she is actually a party to the litigation.

In Estate of Brown, the Superior Court of Pennsylvania, decided that the Court of Common Pleas of Delaware County exceeded its authority when it imposed a surcharge on Kenneth Pearl, who was not a party to the underlying proceeding. (more…)

November 9th, 2011

On November 3, 2011, the Florida Supreme Court approved the Appellate Court Rules Committee’s proposed rule changes to the Florida Rules of Appellate Procedure.  Among the changes to the Florida Rules of Appellate Procedure is the addition of a new Rule 9.170, which governs appeal proceedings in probate and guardianship cases.

Because probate court cases often involve a number of different issues that are akin to a bunch of separate lawsuits all under one probate umbrella, the new rule helps clear up the question of what types of orders are appealable orders. (more…)

November 7th, 2011

The concept of a statute of limitations is easy to understand: a lawsuit has to be commenced within so many years after the complained of act occurred or you can’t pursue the lawsuit.  Where it gets tricky are all the exceptions to the rule.  For example, if the wrongdoer concealed the wrongful act or the wrongful act occurred in some way that made it highly unlikely that the aggrieved person would know about it, then the statute of limitations shouldn’t start running until the injured person knows or through reasonable diligence should have known about the wrongful act.  This “tolling” of the statute of limitations is called the discovery rule: the statute of limitations doesn’t start running until a plaintiff knew or reasonably should have known of the act.

Not all states apply the discovery rule, and not all states apply it to every cause of action.  In Bowen v. Bowen, however, the discovery rule was applied in Utah to a lawsuit regarding a trust. (more…)

November 4th, 2011

It’s not uncommon for couples to divorce and remarry each other or separate and contemplate divorce but stay married.  If a couple does reconcile, they probably want to make sure they review and clean-up any estate planning done during the separation or after the divorce but before the remarriage.

In Steffens v. Evans, a Florida Court of Appeals ruled that a wife waived all of her beneficial rights under her husband’s will by executing a post-nuptial agreement after the husband had executed his will. (more…)