February 29th, 2012

Since our last review of subscribing witnesses to a will generated a lot of interest, here’s a recent case from Mississippi in which the Mississippi Court of Appeals had to consider whether the notary public who notarized the signature of an attesting witness was, herself, an attesting witness to the will.  Here’s the quick answer: she wasn’t. (more…)

February 27th, 2012

Guardianship and conservatorship disputes involve extremely sensitive issues and personal information about the ward.  That’s probably why in Georgia, at least, there isn’t an overwhelming amount of appellate authority in this area.  At the probate court level, much of the information is kept under seal.  Once it goes up on appeal, however, that which was once private gets a very public airing.

In a rare appeal of the appointment of a conservator, the Georgia Court of Appeals gave us guidance on the type of circumstances that justify appointment of a conservator.  In In re Cochran, the appellate court considered the case of Sara Cochran who, at 79 years of age, was a serial victim of fraudulent lottery schemes. (more…)

February 17th, 2012

We’ve previously looked at statutes of limitation in the context of fiduciary litigation.   As a quick refresher, a lawsuit has to be commenced within so many years after the complained of act occurred or you can’t pursue the lawsuit.  There are exceptions to this rule which allow a statute of limitation to be extended, or “tolled.”

Tolling of statutes of limitations can come up with greater frequency in the fiduciary litigation context because certain events like incapacity can toll a statute of limitations.

In Estate of Formyduval, the North Carolina Court of Appeals examined, under North Carolina law, the interplay between incapacity, death, and the statute of limitations for an action to set aside deeds on the basis of fraud and/or undue influence. 

Let’s take a quick look at the background of this lawsuit over the estate of Naomi L. Formyduval, and remember that the dates are important. (more…)

February 15th, 2012

This week, let’s take a look at another case from Florida.  You see a lot of trust instruments that ‘require’ a “corporate co-trustee.”  There are a lot of good reasons why the grantor may have wanted a corporate co-trustee to serve with a family member, friend, or other co-trustee.

Then again, as time goes by, a corporate co-trustee may no longer make a lot of sense.  It could be that the trust has been substantially administered or that the corpus is so small that a corporate trustee’s fee schedule just doesn’t work.  That’s when the beneficiaries and trustees usually get together and go to court to have the trust modified to permit the corporate trustee’s resignation and have the trust modified either to allow a single trustee or to allow an individual to serve as co-trustee.  These things are often done by consent order, which the judge is happy to sign to move another case off his or her docket.

But what happens if the trust instrument specifically prohibits judicial modification? (more…)

February 13th, 2012

Just a quick case update to start the week.  In December, we wrote about a Florida appellate court’s decision in Rosenkrantz v. Feit in which the court of appeals allowed one attorney-in-fact to pursue a lawsuit against her co-attorney-in fact.

Last week, the same Florida court of appeals denied the appellee’s motion for rehearing, but substituted this new opinion for the one issued in December.

February 9th, 2012

Pursuing fiduciary litigation cases in federal court can be tricky.  Not only does a plaintiff have to contend with the possibility of jurisdiction destroying defendants, but a plaintiff also has to deal with the ‘probate exception’ to federal jurisdiction.

In Downey v. Keltz, the United States District Court for the Northern District of Illinois did a succinct job of explaining that a petition for an accounting does not implicate the ‘probate exception’ and likely does not require that all trust beneficiaries be parties to the litigation.  A petition to remove a trustee, however, likely would invoke the ‘probate exception’ and would require all trust beneficiaries to be parties to that litigation.

Let’s take a look at how the Court got there. (more…)

February 6th, 2012

Disputes over gifts causa mortis are rare.  That’s probably because, if a donor is going to make a gift causa mortis, he or she might just as well dispose of the asset through a will.

Here’s a quick refresher on gifts causa mortis:  A gift causa mortis is a gift made in contemplation of death.  Under this doctrine, a gift made during the life of the donor becomes effective upon the donor’s death if certain requirements are met.  While gifts causa mortis and inter vivos gifts are similar, an inter vivos gift, unlike a gift causa mortis, passes immediately with irrevocable title upon the gift being completed.

In Estate of Hansen, the Wisconsin Court of Appeals examined whether Roger Hansen made gifts causa mortis to three nieces and a great-nephew and determined he did not. (more…)

February 2nd, 2012

Trust termination can be a touchy subject.  Corporate fiduciaries usually get it, but courts and beneficiaries often don’t.  That is, courts and beneficiaries often don’t fully appreciate the deference that should be given the wishes of the grantor.  The grantor chose to have certain assets held in trust.  Therefore, you can’t just go and terminate a trust for no good reason.

In In re The Pike Family Trusts, the Supreme Judicial Court of Maine recently had occasion to consider whether a spendthrift provision prevented the termination of a trust. (more…)