May 31st, 2012

Probate court jurisdiction seems to give practitioners fits (see here and here).  The limited or specialized jurisdiction of probate courts certainly spills over into trust disputes.  In some jurisdictions, this can have far-reaching implications, such as whether a party has a right to a jury trial.

For example, in DiGaetano v. DiGaetano, the New Hampshire Supreme Court determined that several former trust beneficiaries appealing the judgment of a probate court were not entitled to a jury trial in superior court on their appeal.  It all came down to the nature of the relief sought and the jurisdiction of the original court in which the action was brought. (more…)

May 29th, 2012

As baby boomers enter their 60s, eye disease and vision impairment are likely to become more prevalent in the population.  How might that affect estate planning and will contests?  Are there concerns if a testator cannot read the will he or she is about to execute?

We’ve previously looked at a case where a testator did not need to know the ‘mechanics’ of a will for it to be valid.  Now, we turn to New Jersey, where an appellate court has concluded that a will is not invalid simply because the testator did not read the document before signing it.

The facts of In the Matter of the Estate of Betsy A. Schnitzer are worth a read.  Likewise, the court spends a good deal of time discussing how undue influence presumptions work in New Jersey, which is particularly helpful for New Jersey practitioners.  But, we want to look at the aspect of the case regarding signing a document the testator hasn’t read. (more…)

May 23rd, 2012

Section 737.307 of the Florida Statutes provides for a limitation of actions against a trustee in two circumstances.  The first limitations period is six-months.  The second limitations period is four years.  So, what’s the distinguishing characteristic between the two limitations periods? (more…)

May 21st, 2012

Non-probate transfers of assets can be tough to attack.  First, they’re often hard for estate beneficiaries or heirs to find out about.  Second, even if they do know about them, in Georgia they’re often wrongly challenged in probate court or there’s a probate court ruling or order that makes them difficult to challenge in the appropriate forum. 

That’s why a case like Prainito v. Smith is unusual.  In this case, the Georgia Court of Appeals affirmed a jury verdict that a decedent’s grandson exercised undue influence and committed actual fraud with regard to a securities account to which the grandson was a joint tenant with the decedent and a certificate of deposit on which the grandson was a payable on death beneficiary.

The appellate court’s failure to flesh out some more of the underlying details of the case and failure to fully address the undue influence claim, however, make the decision one that may create some issues down the road. (more…)

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…)