In Estate of Boyar, the Supreme Court of Illinois had an opportunity to address an important question of Illinois trust law: whether the “doctrine of election” applicable to will contests should be extended to challenges to amendments to living trusts in cases where the trust serves the same purpose as a will. The trial court decided it did. The Illinois appellate court also decided it did. The Illinois Supreme Court, however, decided that there was no reason for the lower courts to address whether the doctrine of election should be extended to living trusts because that doctrine couldn’t be invoked under the circumstances present in the case. Nevertheless, we get some good insight into when the doctrine of election could come into play in whatever contexts it might be applicable.
First, some quick facts. (more…)
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Luke Lantta
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Trustees, Trusts
| Tagged with: amendment to trust, doctrine of election, does doctrine of election apply to living trusts, does doctrine of election apply to trusts, does doctrine of election apply to wills, estate of boyar, fiduciary litigation, illinois, illinois estate disputes, illinois estate litigation, illinois fiduciary litigation, illinois lack of capacity, illinois trust disputes, illinois trust litigation, illinois trusts and estates disputes, illinois trusts and estates litigation, illinois undue influence, In re estate of boyar, incapacity, lack of capacity, removal of trustee, revocable living trust, trust amendment, undue influence, validity of trust amendment
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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…)
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Luke Lantta
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Estates, Executors, Probate Court
| Tagged with: attesting witnesses, estate litigation, expert testimony on testamentary capacity, expert witnesses in lack of capacity cases, expert witnesses in undue influence cases, fiduciary litigation, fowler v. kulhowvick, lack of capacity, lack of testamentary capacity, massachusetts, massachusetts estate litigation, massachusetts fiduciary litigation, massachusetts probate court litigation, massachusetts testamentary capacity, massachusetts trusts and estates litigation, massachusetts undue influence, notary for will, probate court litigation, probate litigation, subscribing witnesses, testamentary capacity litigation, trust litigation, trusts and estates litigation, undue influence litigation, witnesses to will
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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…)
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Luke Lantta
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Estates, Executors, Probate Court
| Tagged with: amerson v. pahl, attesting witnesses, caveat will, confidential relationship, estate litigation, fiduciary litigation, georgia, georgia confidential relationship, georgia estate litigation, georgia estate litigation lawyers, georgia fiduciary litigation, georgia fiduciary litigation lawyers, georgia lack of capacity, georgia lack of testamentary capacity, georgia probate court litigation, georgia probate court litigation lawyers, georgia undue influence, lack of capacity, lack of testamentary capacity, notary for will, probate court litigation, subscribing witnesses, undue influence, witnesses to will
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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…)
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Luke Lantta
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Estates, Executors, Probate Court
| Tagged with: capacity to make a will, caveat will, estate litigation, fiduciary litigation, georgia, georgia estate lawyers, georgia estate litigation, georgia estate litigation lawyers, georgia fiduciary litigation, georgia fiduciary litigation lawyers, georgia incapacity, georgia lack of capacity, georgia probate court litigation, georgia probate court litigation lawyers, georgia testamentary capacity, georgia trusts and estates lawyers, georgia trusts and estates litigation, georgia trusts and estates litigation lawyers, incapacity, lack of capacity, lack of testamentary capacity, patterson-fowlkes v. chancey, probate court litigation, testamentary capacity, trusts and estates litigation, videotaping will executions
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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…)
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Luke Lantta
| Posted in
Estates, Executors, Powers of Attorney, Trustees, Trusts
| Tagged with: confidential relationship, davison v. hines, georgia, georgia confidential relationship, georgia estate litigation, georgia estate litigation lawyers, georgia fiduciary litigation, georgia fiduciary litigation lawyers, georgia incapacity, georgia lack of capacity, georgia power of attorney, georgia trust litigation, georgia trust litigation lawyers, georgia trusts and estates litigation, georgia trusts and estates litigation lawyers, georgia unue influence, incapacity, lack of capacity, power of attorney, revocable trust, undue influence
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It’s not that often we see a multi-count seemingly detailed breach of fiduciary duty and undue influence complaint get tossed on a motion to dismiss, but that’s what happened in Kaiden v. Zimonja (unpublished).
In affirming the trial court’s dismissal of the complaint, the Appeals Court of Massachusetts helps us understand what’s at the core of undue influence claims. (more…)
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Luke Lantta
| Posted in
Estates, Executors, Fiduciary Duty, Trusts
| Tagged with: breach of fiduciary duty, incapacity, inter vivos trust, kaiden v. zimonja, lack of capacity, massachusetts, massachusetts breach of fiduciary duty, massachusetts estate litigation, massachusetts incapacity, massachusetts trust litigation, massachusetts undue influence, tortious interference with expectancy, undue influence
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