April 4th, 2012

Let’s say that you have a will executed in 2005 that provides something like “I give all the residue of my estate, including my homestead, to the Trustee serving under my Irrevocable Trust Agreement dated October 26, 1999, as amended or hereafter amended.”  In other words, you have a trust incorporated into the  will. 

Now, let’s say you want to challenge the validity of that trust.  What should you do when you receive a notice of administration regarding that 2005 will? (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…)

December 14th, 2011

In a number of jurisdictions, there may be a presumption or inference of undue influence when a testator gives all or part of his or her estate to a person who is not the “natural object of the decedent’s bounty.”

In other words, a son or daughter is usually considered the natural object of a testator’s bounty so that the testator can give all of his or her estate to one child to the exclusion of the others without creating a presumption of undue influence on that basis alone.  Conversely, if a testator gives all of his or her estate to a friend or ‘stranger’ to the exclusion of his or her children, then that friend is usually not the natural object of the testator’s bounty and that may create a presumption of undue influence.

With that background, that’s why it is unusual that a trial court in Massachusetts recently determined that a testator’s friend and not the testator’s adopted daughter was the natural object of the testator’s bounty.  The Appeals Court of Massachusetts affirmed this part of the trial court’s decision in Purcell v. Landers, but reversed the trial court on failing to require trial testimony of the witnesses who attested to the will.

So, how does a friend become the natural object of a testator’s bounty while a daughter loses that status?  Threaten to set the testator’s house on fire with him in it. (more…)

September 30th, 2011

In Avery v. Avery, the Indiana Supreme Court resolved what had apparently been an open question under Indiana law when it ruled that filing of an answer as required by Indiana Trial Rule 7 is required in a will contest action. (more…)