August 29th, 2012

We’ve recently looked at the inheritance rights of children adopted out of families, now let’s look at the inheritance rights of children adopted into families.

Big news out of Massachusetts this week, as the Supreme Judicial Court ruled in Bird Anderson v. BNY Mellon, N.A. that a Massachusetts law that had significant implications for trusts and estates planners, fiduciaries, and especially adopted children was unconstitutional as applied to the trust case before it.

Let’s take a look at the law. (more…)

August 23rd, 2012

Settlement regret.

A lot of litigants end up getting it, especially in such emotionally-charged litigation as probate litigation.  Most of the time those litigants just end up expressing those feelings of regret to their lawyers.  Sometimes they try to take it further.  How can the regretful party’s lawyer see it coming and how can that lawyer guard against it?

A New Jersey trial court in In the Matter of the Estate of Lillian A. Hogan (not for publication) provides some clues.  (more…)

August 21st, 2012

We’ve taken a look at the Florida appellate courts’ seemingly endless string of cases reversing trial courts that have removed fiduciaries without notice and an opportunity to be heard.

In Kountze v. Kountze, we have yet another reminder of this basic rule, but this time in the context of removal of a trustee and with a little different twist. (more…)

August 9th, 2012

Ohio‘s statute regarding the method of making a will is similar to statutes in other jurisdictions:

Except oral wills, every will shall be in writing, but may be handwritten or typewritten. The will shall be signed at the end by the testator or by some other person in the testator’s conscious presence and at the testator’s express direction. The will shall be attested and subscribed in the conscious presence of the testator, by two or more competent witnesses, who saw the testator subscribe, or heard the testator acknowledge the testator’s signature.

For purposes of this section, “conscious presence” means within the range of any of the testator’s senses, excluding the sense of sight or sound that is sensed by telephonic, electronic, or other distant communication.*

So, how is this statute to be applied when the attesting witnesses ‘witness’ execution from another room through a one-way video monitor? (more…)

August 7th, 2012

Let’s just jump right into this one: in 2010, a Houston County, Georgia jury declared that a Will and a Revocable Trust executed by Thomas Hines, Sr., in 2002 were invalid, as they were the product of undue influence.

In Davison v. Hines, the Georgia Supreme Court affirmed the jury verdict.  The reason we just jumped right into the discussion of this case is because undue influence cases are fact-intensive.  So, let’s look at the facts that supported the verdict. (more…)

August 1st, 2012

It’s been a while since we last looked at spendthrift clauses in trusts.  If drafted correctly, they can be an effective tool for shielding assets.  Of course, if a beneficiary knows he or she is an actual or contingent remainder beneficiary of a trust, then it usually helps for that beneficiary to actually know whether a spendthrift clause exists.

In Estate of Hord, the Court of Appeals of Iowa had occasion to consider the enforceability and scope of the spendthrift clause in Carl Hord’s will.  Let’s take a look at what the clause said: (more…)