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 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…)

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…)

February 13th, 2012

Just a quick case update to start the week.  In December, we wrote about a Florida appellate court’s decision in Rosenkrantz v. Feit in which the court of appeals allowed one attorney-in-fact to pursue a lawsuit against her co-attorney-in fact.

Last week, the same Florida court of appeals denied the appellee’s motion for rehearing, but substituted this new opinion for the one issued in December.

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…)

January 10th, 2012

Trust litigation often involves many components.  If there is a dispute with a trustee, the plaintiffs often request removal of the trustee, an accounting, and damages.  As a practical matter, courts will often deal with the various requests for relief in a piecemeal fashion.  Thus, a court may enter an order removing a trustee and appointing a successor trustee many months before actually reaching a decision whether the trustee did, in fact, breach its fiduciary duties.

When these matters are addressed through separate orders, the question often becomes “can I appeal and when?”  In Guardianship & Protective Services, Inc. v. Setinsek, an Ohio Court of Appeals addressed that question under Ohio law. (more…)

January 5th, 2012

There isn’t some magic language necessary to create a trust.  Generally, all you need is an expressed intent to create a trust and some property.  Sure, trust codes and common law  require a trustee, trustee duties, and adherence to the rule against perpetuities, but you get the idea.  Nevertheless, there is always a surprising amount of litigation over whether certain language in a will or other document creates a trust.

In Estate of Brill, the Mississippi Supreme Court was tasked with construing some language in a holographic will to determine what, exactly, the testator meant by the language.  The question was whether the language conveyed property in fee simple, created a condition precedent or created a testamentary trust.

Let’s take a look at the contents of Bobbye N. Brill’s holographic will. (more…)

December 19th, 2011

I understand why someone would want co-executors, co-trustees, co-attorneys-in-fact, etc.  Maybe it’s because they’re afraid of having too much power in one person’s hand.  Maybe it’s because they don’t want to offend a friend, child, or relative.  Maybe it’s because it may just be easier to have a few people with that power in case the other is indisposed.  I get it.  But, going in, they should also know it’s a recipe for litigation.

Co-fiduciaries often have to work unanimously – either by statute or by the underlying instrument.  Lack of unanimity leads to lawsuits.  Moreover, when, for example, one attorney-in-fact lives in the same state as the principal, the co-attorney-in-fact residing in another state may be cut out of the process.  Whether perceived or actual shenanigans exist, litigation may result.

In Rosenkrantz v. Feit, a Florida Court of Appeals considered whether one attorney-in-fact could pursue a lawsuit against her co-attorney-in-fact.  The trial court had dismissed the case on the grounds that the attorney-in-fact filing the suit had failed to state a claim against her co-attorney-in-fact.  The appellate court, however, disagreed. (more…)

December 5th, 2011

You can’t win a fight over a will if you don’t have standing to challenge the will.  We’ve previously looked at standing in the context of guardianship challenges and beneficiaries who thought they could pursue the estate’s claims better than the executor could.  Today, we take a look at who has standing to pursue claims that a will and several contracts were the products of undue influence and a lack of capacity.

In Matter of Estate of Glennie, the Montana Supreme Court reversed a trial court’s decision that a testator’s son lacked standing to challenge the will and to seek to set aside cattle sale and lease agreements entered into by a sibling and the testator.  In doing so, the Montana Supreme Court showed us what to look for under Montana law in order to determine standing. (more…)

November 23rd, 2011

We’ve previously noted that undue influence cases are very fact specific.  In other words, the results of undue influence estate litigation will vary greatly based on the underlying facts.  Of course, this leads to bad facts often making bad law in this area.

In Simmons v. Norton, the Georgia Supreme Court had occasion to remind us of what doesn’t constitute undue influence under Georgia law. (more…)