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 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…)

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…)

December 14th, 2012

The drafting lawyer.

The attesting witnesses.

The notary.

Time and again the case law suggests to us that these are three of your most important witnesses in defending (or pursuing) a lack of testamentary capacity or undue influence case.  Yet, we sometimes don’t put a lot of thought into who will be our attesting witnesses or notary and how they might come across as witnesses at trial.

In Amerson v. Pahl, decided by the Georgia Supreme Court, we get to see again how a case turns on the testimony of these three witnesses. (more…)

December 6th, 2012

When someone dies, creditors may often come out of the woodwork.  That doesn’t mean they should be ignored.  That’s true even if you don’t think they have a good claim as a creditor and even if the estate doesn’t have any assets. (more…)

October 2nd, 2012

There is almost never anything good that can be gained by videotaping the execution of a will.  Chances are the testator will be nervous that the whole episode is being taped and that likely will end up showing up on the video.  One of the only reasons that you would tape the execution of a will is a concern about an incapacity challenge, so think about – nerves aside – how the testator is going to look to a jury.

If you think there will be an incapacity challenge, you’re almost always better off instead having witnesses execute contemporaneous affidavits attesting to all those facts that will support a finding of capacity under the laws of your jurisdiction.

Of course, then cases like Patterson-Fowlkes v. Chancey come along where the videotaping of a will execution pays off.

So, what good stuff was on the tape of Ruth Chancey Wright executing her will? (more…)

September 14th, 2012

Lawyers like to get paid.

Clients like it if they can get someone else to pick up the tab for their lawyer’s fees.

That’s why a Florida appellate court’s decision in Bonney v. Bonney stings. (more…)