January 30th, 2012

As ill luck or the passage of time would have it,  subscribing witnesses to a will may be dead or otherwise unavailable when it finally comes time to petition to probate the will.  How can you prove the will without subscribing witnesses?

In Mason v. Phillips, the Georgia Supreme Court walked through how you do it in Georgia, and found that the executor failed to prove the will. (more…)

January 26th, 2012

January 25th, 2012

Pam Crisp filed a petition in a Georgia probate court seeking removal of Mark Bocker as administrator of her stepfather’s estate and damages for Bocker’s alleged breach of fiduciary duties.  After a hearing, the probate court removed Bocker as administrator, appointed the county administrator as Bocker’s successor, and awarded damages to Crisp.  Bocker appealed the judgment to superior court.

The trial of the case was set for December 15, 2010.  Two days before the trial was set to begin, Bocker’s attorney filed a motion for continuance and noted that opposing counsel consented to a continuance of the matter until January 26, 2011.  This continuance was granted.

Two days before the trial was set to begin, on January 24, 2011, Bocker filed an amended motion for continuance.  This continuance was not granted, and neither Bocker nor his attorney appeared at the trial.  That did not work in Bocker’s favor. (more…)

January 19th, 2012

A recent Georgia Supreme Court case explains the shifting burdens in Georgia will contest cases.  In Parker v. Kelley, Virginia Crawford Kelley filed a petition to probate the will of Mabel Frances White in solemn form.  Phillip Harold Parker filed a caveat.

Let’s take a look at how this propounder satisfied her burden and thus shifted the burden of proof to the caveator. (more…)

January 10th, 2012

Trust litigation often involves many components.  If there is a dispute with a trustee, the plaintiffs often request removal of the trustee, an accounting, and damages.  As a practical matter, courts will often deal with the various requests for relief in a piecemeal fashion.  Thus, a court may enter an order removing a trustee and appointing a successor trustee many months before actually reaching a decision whether the trustee did, in fact, breach its fiduciary duties.

When these matters are addressed through separate orders, the question often becomes “can I appeal and when?”  In Guardianship & Protective Services, Inc. v. Setinsek, an Ohio Court of Appeals addressed that question under Ohio law. (more…)

January 5th, 2012

There isn’t some magic language necessary to create a trust.  Generally, all you need is an expressed intent to create a trust and some property.  Sure, trust codes and common law  require a trustee, trustee duties, and adherence to the rule against perpetuities, but you get the idea.  Nevertheless, there is always a surprising amount of litigation over whether certain language in a will or other document creates a trust.

In Estate of Brill, the Mississippi Supreme Court was tasked with construing some language in a holographic will to determine what, exactly, the testator meant by the language.  The question was whether the language conveyed property in fee simple, created a condition precedent or created a testamentary trust.

Let’s take a look at the contents of Bobbye N. Brill’s holographic will. (more…)

January 3rd, 2012

There’s a well-respected, senior attorney I know who tells all beginning lawyers that, if you have a filing deadline, file 5 days early and you’ll never have to worry about cutting it too close to the deadline.  As a practical matter, that may not always work, but that’s still good advice.

If that ‘rule’ was followed in Rothman-Browning v. Marshall, it may have avoided an appeal from an order by a Florida trial court prematurely approving a guardianship plan. (more…)