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…)

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…)

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 31st, 2012

The case of Lee v. Swain has a long history in Georgia, first going up to the Georgia Supreme Court in 2010.  In “Swain I,” the Georgia Supreme Court reversed the trial court’s grant of judgment on the pleadings and found that it was a question of fact whether two documents taken together were Eloise Collins’ will.  These two document were (1) an unwitnessed letter written in 1999 detailing how Collins wanted her property distributed after her death, and (2) a partially filled-out commercial will form that, while properly witnessed, did not address distribution of property.

When the case was sent back down to the trial court, a jury found that the two instruments together were “the true Last Will and Testament of Eloise Harley Collins.”

The caveator appealed on a number of grounds and the Georgia Supreme Court had another chance to weigh in on this case.  While the Court stayed mostly out of the substantive fray, it did provide a little guidance to estate planners. (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…)

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…)

July 18th, 2012

Last month, the Georgia Court of Appeals was busy addressing cases involving efforts to set aside deeds based on fraud.  So, we’ll take another look at a Georgia fraud case this week: Dunkley v. Evans.  While the appellate court had to address several legal issues, we’ll focus on the statute of limitations.  Here’s how the Georgia Court of Appeals said it worked in a fraud case: (more…)

July 16th, 2012

It’s no easy task to set aside a deed based on fraud.  Yet, because fraud is so difficult to prove through direct evidence, courts have established ways for plaintiffs to prove fraud by circumstantial evidence.  In Georgia, great inadequacy of of consideration, joined with great disparity of mental ability in contracting a bargain, may justify equity in setting aside a sale or other contract.  Where these two elements exist, a deed may be set aside without proof of anything else as to fraud.

In Slaick v. Arnold, the Georgia Court of Appeals recently got to apply this framework. (more…)

July 2nd, 2012

The issue of standing regularly arises in fiduciary litigation.   Generally, to establish standing to sue, a plaintiff must have suffered an injury in fact, the injury must be traceable to the conduct complained of, and it must be likely that the injury will be redressed by a decision in the plaintiff’s favor.

Lack of standing can be a good defense in fiduciary litigation cases because many estate planning documents are ambulatory and can be changed at any time.  How can a person have suffered harm – an injury in fact – if they could have been written out of a will, taken off an account, or removed as the beneficiary of an insurance policy at any time?

The issue of standing in a fiduciary litigation context was recently before the United States District Court for the Northern District of Georgia in Hill v. Clark (2012 WL 1903265).  Let’s take a quick look at the background. (more…)