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Texas Jury Finds That Husband Unduly Influenced Wife

August 31, 2011

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Last week, in In re Ward, the Tenth Court of Appeals of Texas (Waco) affirmed a jury verdict that the will of Doris Ward was unenforceable because her husband, Bobby Ward, exerted undue influence over her.  So, what does a textbook case of undue influence look like?  Well, it usually starts with remarriage. 

Who Has Standing To Challenge The Appointment Of A Guardian

August 29, 2011

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The class of people who can be appointed guardian or who are statutorily required to receive notice of a guardianship proceeding may be the only people who can later challenge the manner in which a guardian was appointed.  Seems pretty intuitive.  But what about a situation where two parties are divorced and one ex-spouse has a guardian appointed to go after the other ex-spouse?  And the ex-spouse getting sued claims that the guardianship proceeding was a fraud just to go after him?  In fact, the ex-spouse claims, his ex isn’t even incapacitated at all.

In Cacioppo v. Emolo, the New Jersey court of appeals was faced with that question: who has standing to challenge the appointment of a guardian?

Who Should Sign Arbitration Agreements?

August 26, 2011

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We are increasingly seeing more agreements between fiduciaries and clients that contain mandatory arbitration provisions.  Typically the agreements are signed by an “authorized representative” of the fiduciary and personally by the client.  But should other persons within the fiduciary’s organization also be signing on to the arbitration provision? 

Although not a fiduciary litigation case, the United States Court of Appeals for the Fifth Circuit decided in DK Joint Venture 1 v. Weyand that a corporation’s CEO and CFO – who were not signatories to their corporation’s arbitration agreements – were not bound to the arbitration agreement simply by virtue of being agents of the corporation.

This decision has some applicability for arbitration agreements between fiduciaries and clients.  Who should sign an arbitration agreement depends on what you’re trying to accomplish with it.

Why Do I need a Trust?

August 24, 2011

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Why Do I need a Trust?

August 24, 2011

Authored by: alan-singer

In light of the increase in the estate tax exemption to $5,000,000, several clients of mine asked why they need a Revocable Trust if they don’t need advanced tax planning (at least in their minds).   The following discusses some of the reasons for doing so.

What is a Revocable Trust?

A Revocable Trust (also known as a “living trust” or an “inter-vivos trust”), is a legal arrangement in which the creator (referred to as a “grantor” or “settlor”) transfers, during life, all (or part) of his or her assets to a Trustee to be managed and administered pursuant to the terms designated in the trust until fully distributed to the beneficiary or beneficiaries.

Fiduciary Litigator’s Overzealous Representation Leads to Sanctions

August 24, 2011

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Litigators can often have a hard time backing down from the zealous representation of their clients.  This is particularly true when someone of diminished capacity is exploited and when still others are aware of the exploitation and either let it happen or facilitate it.  A fiduciary litigator in Iowa recently learned the hard way that, while it might be okay to sue based on suspicions, as soon as you learn that the facts don’t back up your suspicions, you better dismiss the lawsuit.

In Rowedder v. Anderson the Iowa Court of Appeals had it all – incapacitated executors, shady real estate deals, sanctions, a jury trial . . .

Estate Planners Get Sued Over Ponzi Scheme Investments

August 22, 2011

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Keeping with our recent coverage of the intersection between fiduciary litigation and Bernie Madoff and other Ponzi schemes, we again turn to Pennsylvania where last month a prominent Philadelphia couple sued their estate planning attorneys at Duane Morris over money that ended up in the hands of Bernie Madoff.

In Keating v. Duane Morris, Daniel J. Keating III and his wife, Sarah, sued Duane Morris and two of its attorneys for breach of contract, professional liability, and quantum meruit.  According media reports, the Keatings went to Duane Morris for help in crafting an asset protection plan and advice on long-term investment options.  The firm established one trust for the Keatings in 2005 with a trustee, trust protector, investment manager and custodian.  The problems allegedly arose from a second trust established in 2007.

Is The Law Unforgiving To Ponzi Scheme Victims?

August 19, 2011

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Alaska (and potentially Pennsylvania) law may be or so says the United States Court of Appeals for the Third Circuit.  In Michael S. Rulle Family Dynasty Trust v. AGL Life Assurance Company, the federal appellate court – applying Alaska and some Pennsylvania law – summarily dismissed a trust’s suit against a life insurance company for losses sustained through investments in four funds operated by Bernie Madoff.  In fact, the court went so far as to decide that each of the Michael S. Rulle Family Dynasty Trust’s eight claims against AGL Life Assurance Company failed to state a claim upon which relief could be granted, meaning they couldn’t even get to get into the good stuff through discovery.  Here’s the background:

Liability of Successor Personal Representatives

August 17, 2011

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The general rule is that a successor personal representative is not liable for the acts of its predecessor absent certain circumstances (e.g., the successor knew of a breach and permitted it to continue, neglected to take proper steps to redress a breach, etc.).  So, do these certain circumstances arise when the predecessor and successor personal representatives are partners in the same small law firm?  The Wisconsin Court of Appeals recently dealt with that issue and many more in In re Elegreet.

In addition to the successor personal representative liability question, the Court was faced with issues that come up all the time at the trial court level but which don’t often get appellate scrutiny: fees where the executor is also an attorney, attorney’s fees to a successful (or partially successful) beneficiary, and reduction in the personal representative’s fees.  So what led to this tangled web?

Estate Planning for Digital Assets

What are digital assets? Generally speaking, “digital assets” are any type of data in which a person has some right or proprietary interest.  A person’s digital assets may include (but are not limited to) information in his or her email accounts, information saved on his or her Smartphones, his or her computer files, picture files, video files, music files, social networking accounts, blogs, websites, word processing documents, and spreadsheets. 

Do digital assets have value?  Many digital assets have value.  Like tangible assets, digital assets can have monetary value (for example, blogs that generate revenue, or intellectual property rights, which – in some cases – may be extremely valuable), or sentimental value (family photos or video files, for example).  For this reason, it is important to establish a plan for what should happen to your digital assets in the event of your death or incapacity.  It may be necessary to access the digital

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