May 14th, 2013
March 26th, 2013
Consent Order Barred Aggrieved Party’s Breach Of Fiduciary Duty And Fraud Claims Against Co-Executors
March 11th, 2013
Sometimes parties have a hard time letting go of trusts and estates litigation even after that litigation has been settled. For example, we’ve seen trustees sanctioned for failing to sign releases contemplated by settlement agreements. We also often see settlement regret where a party tries to set aside or ‘undo’ a settlement. You’re probably more likely to see post-settlement disputes where, as part of a settlement, the parties agree to undertake some other obligations rather than just ‘walking away.’ Often, in estate litigation, those other obligations involve the transfer of property.
In Haney v. Camp, the Georgia Court of Appeals considered questions involving co-executors’ claims for attorneys’ fees in connection with enforcement of a consent order. The Georgia appellate court’s opinion largely involved various state law legal standards for awarding attorney’s fees. For us, we’re more interested in the underlying estate litigation and why one party to the agreement claimed they were wronged. (more…)
March 4th, 2013
In many jurisdictions, the existence of a confidential relationship can turn an undue influence inquiry on its head. That’s because the existence of a confidential relationship – usually coupled with evidence of something else – can create a presumption of undue influence. Under Wisconsin law, that “something else” is “suspicious circumstances surrounding making of the will.” When you have a confidential relationship with suspicious circumstance, then a presumption of undue influence is raised, which must be rebutted by the proponent of the disputed will.
“Suspicious circumstances” seems like a fuzzy concept so we’re going to take notice when the Court of Appeals of Wisconsin finds that suspicious circumstances existed that precluded summary judgment on an undue influence claim. In Estate of Ely (Ely v. Orth), the Court of Appeals did just that. Let’s take a look at these “suspicious circumstances.” (more…)
February 27th, 2013
Whether a testator had the requisite capacity to execute a will is often the subject of lay testimony. We’ve frequently talked here about how important the testimony of the drafting attorney, the attesting witnesses, and the notary are in undue influence or lack of testamentary capacity cases. But, sometimes it may be worth getting an expert to testify in these cases especially when there may be some complex capacity issues. If you get an expert, however, there’s still the issue of qualifying him or her.
And, even if you have an expert, here’s another reminder of how important the drafting attorney and witnesses to the will are. In Fowler v. Kulhowvick (Rule 1:28 decision), a Massachusetts probate court actually rejected the expert testimony of a psychologist who failed to interview the drafting attorney and witnesses before offering an opinion on the testator’s testamentary capacity. (more…)
February 20th, 2013
When it comes to so-called ‘rejected’ adopted children, many of us are most familiar with the outrage in 2010 when a Tennessee woman sent her adopted son back to Russia on a one-way flight after claiming the 7-year-old had bouts of violence. But what about the inheritance rights of these adopted children? Do they have any?
We previously looked at the inheritance rights of biological children adopted out of a family. Today we’ll turn to the inheritance rights of adopted children who are adopted out of a family in the Matter of Svenningsen, a case of first impression in New York. (more…)
February 14th, 2013
James R. Franta named Roberta Peery as the personal representative of his estate. But a Minnesota district court determined that she was “unsuitable” for appointment under the Uniform Probate Code. In In re Estate of James R. Franta, the Minnesota Court of Appeals agreed. Why wouldn’t these courts uphold the decedent’s intent? (more…)
Can A Beneficiary Do An End-Run Around An In Terrorem Clause By Getting Someone Else To File A Caveat?
January 17th, 2013
Well, probably not in Georgia. If someone is behind the scenes pulling the strings to “initiate” legal proceedings, then that person – who didn’t actually file a caveat him or herself – may have violated the in terrorem clause.
In the first appearance of Norman v. Gober before the Georgia Supreme Court in 2011, the Court decided that eleven-year-old William Howard Norman, the grandson of Margaret Susan Scheer, lacked standing to challenge Scheer’s will because Norman was not an heir-at-law when the caveat was filed. Norman was a contingent residuary beneficiary under Scheer’s will. In other words, even if Norman’s caveat was successful, he would still take nothing. As the Georgia Supreme Court put it, Norman was not “a person who will be injured by the probate of [the] [W]ill, or who will benefit by its not being probated.” Actually, Norman would have benefited by the probate of the will because it’s the only way he could possibly have had any chance to take a part of Scheer’s estate.
Norman’s mother, however, stood to benefit if the caveat was successful. At the time, the Georgia Supreme Court actually stated that it appeared that the caveat was undertaken for the benefit of Norman’s mother, not him. But, why didn’t Norman’s mother, Lyncia Aynes Norman, file the caveat herself? (more…)
January 14th, 2013
We’ve all probably seen some coverage of a few recent highly publicized disputes about charitable gifts supposedly not being used for their intended purpose. 2012 opened with country-music legend Garth Brooks scoring a $1 million jury verdict against Integris Rural Health, Inc. over a donation that was allegedly not used for its intended purpose. And, 2012 closed with another dispute involving a music legend getting resolved when Albany State University returned $1.2 million in donations from the Ray Charles Foundation because the school did not use the money to build a new performing arts center.
In these two thorny examples of gift-giving and gift-returning, the recipients of the gifts were accused of not following through on the donor’s intended use of the gift. In other words, the donor accused the recipient of doing something wrong. But what happens when the tables are turned and it is the donor accused of wrongdoing while the recipient is blameless? Well, the recipient might not want to start spending that money just yet. (more…)
January 7th, 2013