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Gifts Causa Mortis Failed For Lack Of Delivery

February 6, 2012

Authors

Luke Lantta

Gifts Causa Mortis Failed For Lack Of Delivery

February 6, 2012

by: Luke Lantta

Disputes over gifts causa mortis are rare.  That’s probably because, if a donor is going to make a gift causa mortis, he or she might just as well dispose of the asset through a will.

Here’s a quick refresher on gifts causa mortis:  A gift causa mortis is a gift made in contemplation of death.  Under this doctrine, a gift made during the life of the donor becomes effective upon the donor’s death if certain requirements are met.  While gifts causa mortis and inter vivos gifts are similar, an inter vivos gift, unlike a gift causa mortis, passes immediately with irrevocable title upon the gift being completed.

In Estate of Hansen, the Wisconsin Court of Appeals examined whether Roger Hansen made gifts causa mortis to three nieces and a great-nephew and determined he did not.

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Son Had Standing To Challenge Will And Sale And Lease Agreements

December 5, 2011

Authors

Luke Lantta

Son Had Standing To Challenge Will And Sale And Lease Agreements

December 5, 2011

by: Luke Lantta

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.

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Grandson Failed To Satisfy Requirements For Parol Gift Of Land

November 21, 2011

Authors

Luke Lantta

Grandson Failed To Satisfy Requirements For Parol Gift Of Land

November 21, 2011

by: Luke Lantta

It’s probably not a good idea to try to make an oral gift of land.  There’s a reason why the law does not look favorably on oral contracts to transfer land, and there’s a reason why proving an oral transfer of property is so difficult.  Not that it’s impossible.  While the Statute of Frauds generally requires transfer of an interest in land to be in writing, there are exceptions.

In Jones v. Kirk, the Georgia Supreme Court addressed the line between what is – and what is not – a valuable improvement to the subject property so as to move the needle in favor of an enforceable oral agreement to transfer real property.  Here’s a hint – moving your mobile home onto the land isn’t a “valuable improvement.”

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Georgia Estate Owned Contents of ‘Joint’ Safe Deposit Box

October 31, 2011

Authors

Luke Lantta

Georgia Estate Owned Contents of ‘Joint’ Safe Deposit Box

October 31, 2011

by: Luke Lantta

Joint tenant with right of survivorship accounts are commonly used to transfer assets outside of probate.  They also tend to lead to a lot of estate litigation.  The concept of a JTWROS account is simple enough: the tenants have an equal right to the account’s assets and the survivor gets the assets when the other account holder dies.

What if someone doesn’t want to make an inter vivos gift of his or her cash or other valuable personal property, but instead wants it to be transferred outside of probate upon his or her death?  Can something like a joint tenant with right of survivorship safe deposit box work?  If your plan is to use a ‘joint’ safe deposit box, then you better pay careful attention to the safe deposit box contract.  At least that was what was decided by the Georgia Court of Appeals in Longstreet v. Decker.

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Daughter Forged Power of Attorney And Exercised Undue Influence Over Father

October 28, 2011

Authors

Luke Lantta

Daughter Forged Power of Attorney And Exercised Undue Influence Over Father

October 28, 2011

by: Luke Lantta

We’ll start and end the week here at BryanCaveFiduciaryLitigation.com with powers of attorney.  In order to abuse a power of attorney, there actually has to be one.   In Kubek v. Jones, the United States District Court for the Middle District of Alabama recently determined that a decedent’s daughter forged a power of attorney so she could convert her father’s retirement benefits and life insurance policy to the exclusion of her stepmother.  And, as if the forgery wasn’t enough, she also exercised undue influence over her father.

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Kentucky Grantor Was Not Unduly Influenced In Conveying Home To ‘Grandson’

October 12, 2011

Authors

Luke Lantta

Kentucky Grantor Was Not Unduly Influenced In Conveying Home To ‘Grandson’

October 12, 2011

by: Luke Lantta

Perception — or perhaps more precisely, misperception — fuels so much fiduciary litigation.  For example, an elderly grantor may have perfectly legitimate reasons for conveying property to someone outside the family.  Even if the grantor’s reasons aren’t good, she is within her rights to make a completely unreasonable transfer so long as nothing afoul is afoot (e.g., lack of capacity, undue influence, fraud, etc.).

But, when a blood relative learns of this transfer, a sense of entitlement kicks in, and we’re on our way to litigation.  The problem for these elderly grantors, who are under so much pressure to explain or change their decision, is that they oftentimes say or do anything to try to make everyone happy.  That never works.  And that was the sort of situation recently before the Kentucky Court of Appeals.

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Estate Beneficiary Prevented From Joining Lawsuit Against Caretaker

October 7, 2011

Authors

Luke Lantta

Estate Beneficiary Prevented From Joining Lawsuit Against Caretaker

October 7, 2011

by: Luke Lantta

As a general rule, the personal representative of a decedent’s estate is usually the only person who can pursue an action to recover estate property.  It’s one of the personal representative’s fiduciary duties to estate beneficiaries.  Occasionally, in very limited circumstances, another person interested in the estate may be able to pursue an action in the personal representative’s place.  The Connecticut Court of Appeals determined that those limited circumstances were not present in Litwin v. Ryan.

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North Carolina Caveator Wins “Close” Undue Influence Case

September 16, 2011

Authors

Luke Lantta

North Carolina Caveator Wins “Close” Undue Influence Case

September 16, 2011

by: Luke Lantta

While it’s still rare for an undue influence case to make it to a jury, it seems that courts have been gradually loosening the requirements to allow more plaintiffs to present their cases to a jury.  Perhaps it’s simply a matter of numbers as more aging Baby Boomers are beginning to succumb to “old age and physical and mental weakness,” which opens the door to an undue influence claim.

Whatever the reasons, we are seeing more appellate decisions involving plaintiffs having won undue influence claims at the trial court level.  Earlier this month, in In the Matter of the Estate of Raney, the North Carolina Court of Appeals considered the appeal of a jury verdict in which a jury – after being presented with a lot of bad and good facts – concluded that the propounder of a will had exerted undue influence over the testatrix.  In light of these mixed

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Who’s a Settlor? Apparently, It’s Harder to Figure Out than You Think.

August 15, 2011

Authors

Luke Lantta

Who’s a Settlor? Apparently, It’s Harder to Figure Out than You Think.

August 15, 2011

by: Luke Lantta

It’s not uncommon for one person to establish a trust, fund it with some nominal amount (say, $100.00), and then have another person come along and contribute a more significant amount to the trust (say, $70,000.00).  Under these circumstances, who is the settlor of that trust?  A federal appellate court recently answered that question in Roberts v. McConnell.  So, why did a seemingly simple question of “who was the settlor” have to go from a bankruptcy court, to a federal district court, to a federal appellate court?

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