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…)

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…)

May 21st, 2012

Non-probate transfers of assets can be tough to attack.  First, they’re often hard for estate beneficiaries or heirs to find out about.  Second, even if they do know about them, in Georgia they’re often wrongly challenged in probate court or there’s a probate court ruling or order that makes them difficult to challenge in the appropriate forum. 

That’s why a case like Prainito v. Smith is unusual.  In this case, the Georgia Court of Appeals affirmed a jury verdict that a decedent’s grandson exercised undue influence and committed actual fraud with regard to a securities account to which the grandson was a joint tenant with the decedent and a certificate of deposit on which the grandson was a payable on death beneficiary.

The appellate court’s failure to flesh out some more of the underlying details of the case and failure to fully address the undue influence claim, however, make the decision one that may create some issues down the road. (more…)

February 27th, 2012

Guardianship and conservatorship disputes involve extremely sensitive issues and personal information about the ward.  That’s probably why in Georgia, at least, there isn’t an overwhelming amount of appellate authority in this area.  At the probate court level, much of the information is kept under seal.  Once it goes up on appeal, however, that which was once private gets a very public airing.

In a rare appeal of the appointment of a conservator, the Georgia Court of Appeals gave us guidance on the type of circumstances that justify appointment of a conservator.  In In re Cochran, the appellate court considered the case of Sara Cochran who, at 79 years of age, was a serial victim of fraudulent lottery schemes. (more…)

January 19th, 2012

A recent Georgia Supreme Court case explains the shifting burdens in Georgia will contest cases.  In Parker v. Kelley, Virginia Crawford Kelley filed a petition to probate the will of Mabel Frances White in solemn form.  Phillip Harold Parker filed a caveat.

Let’s take a look at how this propounder satisfied her burden and thus shifted the burden of proof to the caveator. (more…)

November 22nd, 2011

Congratulations to Bryan Cave‘s 14 new partners, including BryanCaveFiduciaryLitigation.com contributor Kimberly Civins.  Read more about Bryan Cave’s new partners here.