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Georgia Superior Court Could Not Sanction Probate Court Conduct

February 28, 2018

Authors

Luke Lantta

Georgia Superior Court Could Not Sanction Probate Court Conduct

February 28, 2018

by: Luke Lantta

Probate court practice can be quirky, fraught with procedural peculiarities and appellate traps for those who do not regularly practice there.  Appeals from a Georgia county probate court to that county’s superior court – an appellate process that does not apply to every probate court in Georgia but only to those in certain counties – is one arena in which these quirks frequently arise.  Often, the issues relate to jurisdiction between the two courts.  In McNair v. McNair, the Georgia Court of Appeals addressed a superior court’s authority to impose sanctions for conduct that occurred in probate court proceedings in the same case but prior to the appeal to superior court.

The short answer?  It can’t.

Estate disputes are among the most hotly contested disputes for myriad reasons, not the least of which is they often involve family. 

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When Military Wills Do Not Contemplate Future-Born Children

February 7, 2018

Authors

Luke Lantta

When Military Wills Do Not Contemplate Future-Born Children

February 7, 2018

by: Luke Lantta

Estate planning probably isn’t high on the priority list for many 20-year-olds, even if they are 20-year-olds serving in uniform.  While the Armed Forces may make it easy for those serving our country to get a will, these testators may need to be reminded to update those wills they executed as certain life events occur, like getting married or having children.  So it was in Hobbs v. Winfield, where the Georgia Supreme Court determined that the military will executed by a 20-year-old did not contemplate the birth of future children and, therefore, the birth of those children revoked his will.

At 20-years-old, while serving in the military, the testator executed a will.  The will named the testator’s mother as his sole beneficiary and personal representative, and, if his mother predeceased him, his ‘grandmother’ was the successor beneficiary and personal representative. 

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Using Lay Witnesses To Combat Experts: Taking A Knife To A Gun Fight?

October 11, 2017

Authors

Luke Lantta

Using Lay Witnesses To Combat Experts: Taking A Knife To A Gun Fight?

October 11, 2017

by: Luke Lantta

Expert witnesses can be expensive.  Yet, in estate disputes, they may be unavoidable.  When a will gets challenged based on an alleged lack of testamentary capacity or undue influence, you can all but guarantee that the decedent’s treating physician and medical records will make an appearance.  On the other side, the parties will line up the decedent’s friends, family, associates and the like who interacted with the decedent around the time the will was executed to claim the decedent either lacked capacity or was totally competent.  But, are these lay witnesses enough to overcome the doctor?  Perhaps not.

The Supreme Court of Appeals of West Virginia‘s opinion in Merritt v. Wolford provides a good example of what often happens when a party tries to combat

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Court Reverses Finding of Undue Influence

August 25, 2017

Authors

Doug Stanley

Court Reverses Finding of Undue Influence

August 25, 2017

by: Doug Stanley

Undue influence occurs when a person’s free will is overpowered and replaced by the will of another.  In Missouri, a finding of undue influence generally requires the person who exerted influence to have been in a position of trust, and to have caused the coercion through active conduct.  Although the elements seem fairly straightforward, actually proving undue influence can be much trickier.  Because undue influence is often only demonstrated through circumstantial evidence, the ensuing courtroom testimony provides for a telling tale from lawyers and hairstylists and priests.

In Nestel v. Rohach, three of the four Nestel siblings tried to remove their sister, Melissa, as the personal representative of their mother’s estate.  The siblings claimed that Melissa exercised undue influence over Joanne, their mother, when Joanne made Melissa the beneficiary of several bank accounts containing substantial assets.  At trial, the jury found that there was

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If It’s Not In The Will, Does It Matter What The Testator Wants?

August 17, 2017

Authors

Luke Lantta

If It’s Not In The Will, Does It Matter What The Testator Wants?

August 17, 2017

by: Luke Lantta

If you want someone to get your money or property when you die, why don’t you just say so?  The case reporters are thick with stories of testators who left money or property to one person with the supposed ‘understanding’ or ‘instruction’ that the person who got the money would use it for the care of another.  Add Rabun v. Rabun to that list.

In this trust and estate dispute, the decedent transferred assets during his life and through his will to his grandson (who was also his executor and his adopted son).  The decedent’s widow claimed that the decedent intended for some of these assets to be used by the executor for her support, so she sought imposition of a constructive trust on those assets.

In support of her claim, the widow pointed to

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Need Another Reason To Avoid Mixing Family & Finances?

July 25, 2017

Authors

Luke Lantta

Need Another Reason To Avoid Mixing Family & Finances?

July 25, 2017

by: Luke Lantta

You have a big heart and a little bit of money.  You want to help out a cash-strapped family member, and – “because you’re family” – you don’t put down how much you’ll loan or how it’ll be paid back.  You would hate to do it, but, in a worst-case scenario, you suppose a court could help you get it back.  Through its opinion in Roberts v. Smith, however, the Georgia Court of Appeals may have made it harder to get that money or property back from a family member through an implied trust.

Four siblings arranged to purchase a home for the benefit of one of the siblings.  All of the siblings verbally agreed to contribute money toward the purchase and maintenance of the house.  One of the siblings testified that “[n]obody had a set amount to pay,” and another testified that “we

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Transferring Property To A Trust: It’s Not What You Meant, It’s What You Said

June 21, 2017

Authors

Luke Lantta

Transferring Property To A Trust: It’s Not What You Meant, It’s What You Said

June 21, 2017

by: Luke Lantta

When we put pen to paper, sometimes the words don’t come out right.  If that happens, hopefully there’s an opportunity to explain what we meant.  Most times that’s true – even in estate planning.  For example, we have seen how scrivenor’s errors can be explained.  But, for the second time in less than a year, Georgia has limited the role evidence of the settlor’s intent plays under Georgia trust law. In Gibson v. Gibson, the Georgia Supreme Court strictly applied a statute governing the transfer of property to a trust to determine that mistitled brokerage accounts were never transferred to two trusts regardless of the settlor’s intent.

In Gibson, the Georgia Supreme Court had to decide a number of issues arising out of a divorce.  One of the multitude of issues on appeal was whether

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Guardians Should Guard Against Claims Of Undue Influence

June 7, 2017

Authors

Luke Lantta

Guardians Should Guard Against Claims Of Undue Influence

June 7, 2017

by: Luke Lantta

guardian‘s job requires that the guardian be involved in the affairs of the ward.  In turn, the ward likely is going to be dependent on and trust the guardian.  Chances are – because Georgia sets an order of preference for persons eligible to become a guardian for a ward – the guardian also may be a close family member.  Since people often like to put their family members into their wills as beneficiaries, a guardian may run into a situation where the ward names him or her as a beneficiary of the ward’s estate.  While that seems all well and natural, because of the fiduciary relationship between guardian and ward, that will may get a close look by a court.

So what is a guardian to do?

Distance herself from the estate planning process.

While there is no

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Waiver Of Year’s Support Through Post-Nuptial Agreement

May 3, 2017

Authors

Luke Lantta

Waiver Of Year’s Support Through Post-Nuptial Agreement

May 3, 2017

by: Luke Lantta

Divorce should put an early end to the marriage vow of “’til death does us part.” But, when it comes to estate disputes, neither divorce nor death can part the path to the courthouse.  In In re: Estate of Boyd, the husband and wife may have suspected their marriage could end: after 15 years of marriage, they separated, reconciled, and then entered into a post-nuptial agreement.  The agreement provided how assets would be distributed if the parties were married at the time of either’s death and provided for distribution of assets if the parties separated or filed for divorce prior to death.  The latter provision is relevant.

The husband filed for divorce and died hours later.  The wife filed a petition for year’s support in the probate

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Agents Under Power of Attorney – Where Will You Get Hauled Into Court?

April 19, 2017

Authors

Luke Lantta

Agents Under Power of Attorney – Where Will You Get Hauled Into Court?

April 19, 2017

by: Luke Lantta

Powers of attorney can be matters of convenience or matters of necessity – the principal either doesn’t want to do something or the principal can’t do something.  For the agents under a power of attorney, allowing yourself to be named as an agent may be nothing more than a favor to friend or an expectation as a son or daughter.  When agreeing to be an agent, it may be worth a pause to consider the geographic scope of that responsibility.  Friends and kids move away, but – like a daughter acting as an agent under her father’s power of attorney in Sullivan v. Bunnell – they may find themselves getting hauled into court across the country because they served as an agent under a power of attorney.

Here, in the midst of his divorce, the father moved from Read More

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