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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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The Mental Capacity Needed To Change Domicile

October 5, 2016

Authors

Luke Lantta

The Mental Capacity Needed To Change Domicile

October 5, 2016

by: Luke Lantta

In litigation, domicile matters because it can control where a lawsuit must be filed and fought.  For most of us, where we are domiciled should be straightforward.  It’s the place where we actually live and intend to remain.  Domicile questions can get a little trickier when someone moves around.  Domicile questions can start to get really tricky when the mental capacity of someone is impaired and that person moves around.  If domicile requires someone to form the intent to remain in a certain place, how much mental capacity is needed to form that intent?

In Estate of Milton Theophilus Pond, II, the Georgia Court of Appeals considered the domicile of a person whose capacity was sufficiently impaired by autism to warrant a guardianship.  The ward lived with his mother in North

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The Family Settlement Doctrine Is Alive And Well

August 7, 2014

Authors

Luke Lantta

The Family Settlement Doctrine Is Alive And Well

August 7, 2014

by: Luke Lantta

The testator’s intent as set out in a will is usually sacrosanct.  Key emphasis on “usually.”  Assuming that the will isn’t invalid for any number of reasons such as incapacity, undue influence, fraud, etc., the property should be distributed according to the testator’s intent.  But, sometimes family members disagree with how the testator wanted to devise the property, and – shockingly – sometimes family members can even agree to an alternate division of property.  Why shouldn’t such an agreement be enforceable?  Well, in many jurisdictions it is under the family settlement doctrine.

The family settlement doctrine is a doctrine that allows the heirs of an estate to come up with a valid, enforceable agreement to deviate from the terms of a will when it comes to the distribution of division of property.  Here’s how Read More

Holding Power Of Attorney Doesn’t Prohibit All Gifts From Principal To Agent

July 8, 2014

Authors

Luke Lantta

Holding Power Of Attorney Doesn’t Prohibit All Gifts From Principal To Agent

July 8, 2014

by: Luke Lantta

We’ve previously noted that, as the population ages, power of attorney litigation has become a ‘hot’ area of fiduciary litigation.  Transfers of property from a principal to her agent get looked at closely and often – and sometimes justifiably – with suspicion.  And, if the holder of a power of attorney transfers property to herself using the power of attorney, if anyone catches it, then litigation is all but assured.  But, this doesn’t mean that a principal is forever barred from ever giving money or property to her agent.  The principal’s agent is, for example, often the principal’s child.  Certainly, absent incapacity, undue influence, fraud or other similar issues, a parent should be able to freely give property

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Who Will Administer Palma Bonora’s Eight Million Dollar Estate?

May 7, 2014

Authors

cchen

Who Will Administer Palma Bonora’s Eight Million Dollar Estate?

May 7, 2014

by: cchen

Warring Public Administrators Face Off in New York’s Appellate Court

Public administrators from two New York counties, Kings and Richmond, have been engaged in a dispute over which will administer the eight million dollar estate of decedent Palma Bonora, who died intestate.

Bonora was a lifelong Brooklyn (Kings County) resident who, for the last four years of her life, lived in a Staten Island (Richmond County) nursing home.  Prior to her relocation to Staten Island, Bonora’s guardian had Bonora’s Brooklyn home demolished and the land later sold.  It is undisputed that Bonora lacked the mental capacity to change her domicile from Kings County to Richmond County and that she was moved by her guardian to Staten Island so that she could obtain the necessary medical care.

Under New York law, the venue of estate administration lies in the county in

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Conservator Did Not Have A Conflict Of Interest

April 15, 2014

Authors

Luke Lantta

Conservator Did Not Have A Conflict Of Interest

April 15, 2014

by: Luke Lantta

Often family members receive priority when it comes to being appointed conservator of an incapacitated adult.  If a conservator – who has control over the finances of the ward – is also named as a beneficiary in the ward’s will or recipient of some other of the ward’s assets upon death, the argument goes that the conservator is incentivized to not spend funds in support of the ward.  Is this a conflict of interest that precludes appointment of such a conservator or warrants removal?

In In re Estate of Lorraine McKitrick (via FindLaw), the Georgia Court of Appeals affirmed a probate court’s order that it did not.  In this case, the conservator was the ward’s son and had a potential death benefit in the ward’s accounts.  The ward had complained that the conservator refused to

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California Appellate Court Rules That Trust Arbitration Provision Was Unenforceable

March 25, 2014

Authors

Luke Lantta

California Appellate Court Rules That Trust Arbitration Provision Was Unenforceable

March 25, 2014

by: Luke Lantta

Mandatory arbitration provisions in trusts are a relatively new concept, and only now are courts really beginning to weigh in on their enforceability.  In McArthur v. McArthur, add the First District Court of Appeal of California to the list of courts that have now considered the issue.  It determined that an arbitration provision in the inter vivos trust of Frances E. McArthur was unenforceable as against a trust beneficiary who brought suit to invalidate an amendment to the trust based on undue influence and lack of testamentary capacity.

Let’s start with the provision.  In 2011, Frances amended her 2001 trust to give a greater portion of the property to one of her daughters and to add a “Christian Dispute Resolution” provision that required mediation and, if necessary,

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Guardianships For Alcoholics

February 25, 2014

Authors

Luke Lantta

Guardianships For Alcoholics

February 25, 2014

by: Luke Lantta

Knowing when to initiate guardianship proceedings for a loved one can be a difficult and personal decision.  When it comes to substance abuse, those proceedings can enter a grayer area than proceedings involving dementia, injury, or developmental disability.  At what point is an addict or alcoholic incapacitated?  What happens during moments of sobriety?  In In re Guardianship of Esterly (unpublished), the Court of Appeals of Minnesota dealt with some of these difficult questions.

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Court Refuses To Declare That A Revocable Trust Is Irrevocable

February 4, 2014

Authors

Luke Lantta

Court Refuses To Declare That A Revocable Trust Is Irrevocable

February 4, 2014

by: Luke Lantta

We’ve looked at a number of cases where parties sought to modify the terms of a trust.  And there are plenty of good reasons why a trust might need to be modified from circumstances not anticipated by the settlor to simply a scrivener’s error in drafting the instrument.  But, whatever or wherever the case may be, there is a good chance that a court is going to require some significant evidence to justify the modification.  And that’s what the daughter of Donald Ross Frost was unable to provide to an Arkansas court in Erwin v. Frost.

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Breach Of Fiduciary Duty Under Power Of Attorney

January 28, 2014

Authors

Luke Lantta

Breach Of Fiduciary Duty Under Power Of Attorney

January 28, 2014

by: Luke Lantta

One recent fiduciary litigation trend is the increase in litigation involving powers of attorney.  While some of these cases involve the abuse of a validity executed power of attorney, others involve issues in the procurement of the power of attorney, such as procurement through fraud, undue influence, or lack of capacity.  In Estate of Mary E. Hiller, the Supreme Judicial Court of Maine recently considered a probate court‘s decision involving procurement of a power of attorney and acts purportedly taken pursuant to that power of attorney.

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