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How To Prove A Will When Your Subscribing Witnesses Are All Dead Or Unavailable?

January 30, 2012

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As ill luck or the passage of time would have it,  subscribing witnesses to a will may be dead or otherwise unavailable when it finally comes time to petition to probate the will.  How can you prove the will without subscribing witnesses?

In Mason v. Phillips, the Georgia Supreme Court walked through how you do it in Georgia, and found that the executor failed to prove the will.

Bryan Cave Presents In-House Counsel CLE Institute

January 26, 2012

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On Friday, February 24, 2012, Bryan Cave will host the 2012 In-House Counsel CLE Institute, a complimentary CLE seminar, in its Atlanta office.  Recognizing the many diverse topics corporate counsel confront on a daily basis, Bryan Cave attorneys will provide guidance on the following issues:

  • Dodd Frank Update
  • Web 2.5
  • Corporate Compliance Issues
  • Data Breach and Security
  • Environmental, Health and Safety Enforcement Developments
  • Doing Business in Asia
  • Antitrust Triage
  • Corporate Tax Hot Topics
  • Anti-Doping in Sports
  • Health Reform’s Impact on Employee Benefits


We anticipate the seminar will be approved for 6.5 hours of CLE credit, including 1.0 hour of Ethics credit and 1.0 hour of Professionalism credit. Breakfast and lunch will be provided, and a reception will conclude the seminar. Breakfast/registration is scheduled to begin at 8:00am on Friday, with the seminar running from 8:30am until 4:30pm.

Please contact Evan Kendall ( or 404.572.4523) if

Estate Administrator Loses Case When Neither He Nor His Attorney Appear At Hearing

January 25, 2012

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Pam Crisp filed a petition in a Georgia probate court seeking removal of Mark Bocker as administrator of her stepfather’s estate and damages for Bocker’s alleged breach of fiduciary duties.  After a hearing, the probate court removed Bocker as administrator, appointed the county administrator as Bocker’s successor, and awarded damages to Crisp.  Bocker appealed the judgment to superior court.

The trial of the case was set for December 15, 2010.  Two days before the trial was set to begin, Bocker’s attorney filed a motion for continuance and noted that opposing counsel consented to a continuance of the matter until January 26, 2011.  This continuance was granted.

Two days before the trial was set to begin, on January 24, 2011, Bocker filed an amended motion for continuance.  This continuance was not granted, and neither Bocker nor his attorney appeared at the trial. 

Facebook’s New “If I Die” App

“If I Die”, a new app for Facebook, has generated a great deal of media attention lately.

For those of you who have not yet heard of it, “If I Die” allows people who download the app to create their own video or text message that is stored on a secured server until he or she passes away, at which time “If I Die” posts the video or text message to his or her Facebook page. To prevent premature posting to the user’s Facebook profile, “If I Die” requires users to appoint three “trustees” who will be responsible for verifying the user’s death.

By offering people a unique opportunity to send a meaningful final message to the people they leave behind, “If I Die” allows users to put a modern spin on the practice of creating an ethical will, which practice dates back to the biblical era. Throughout history, people

Georgia Caveator Failed To Demonstrate Undue Influence Or Incapacity

January 19, 2012

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A recent Georgia Supreme Court case explains the shifting burdens in Georgia will contest cases.  In Parker v. Kelley, Virginia Crawford Kelley filed a petition to probate the will of Mabel Frances White in solemn form.  Phillip Harold Parker filed a caveat.

Let’s take a look at how this propounder satisfied her burden and thus shifted the burden of proof to the caveator.

Order Removing Successor Trustee Was Not Final, Appealable Order

January 10, 2012

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Trust litigation often involves many components.  If there is a dispute with a trustee, the plaintiffs often request removal of the trustee, an accounting, and damages.  As a practical matter, courts will often deal with the various requests for relief in a piecemeal fashion.  Thus, a court may enter an order removing a trustee and appointing a successor trustee many months before actually reaching a decision whether the trustee did, in fact, breach its fiduciary duties.

When these matters are addressed through separate orders, the question often becomes “can I appeal and when?”  In Guardianship & Protective Services, Inc. v. Setinsek, an Ohio Court of Appeals addressed that question under Ohio law.

A Gift for the New Year: Transfer on Death Instruments

Starting on January 1, 2012, Illinois property owners have a new option when it comes to transferring their residential real estate on death. Now that the Illinois Residential Real Property Transfer of Death Instrument Act (the “Act”) has been signed into law, Illinois joins several other states, including Missouri and Colorado, that allow some form of transfer on death instrument for real estate.

Language In Holographic Will Conveyed Property In Fee Simple – It Did Not Create A Condition Precedent Or A Testamentary Trust

January 5, 2012

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There isn’t some magic language necessary to create a trust.  Generally, all you need is an expressed intent to create a trust and some property.  Sure, trust codes and common law  require a trustee, trustee duties, and adherence to the rule against perpetuities, but you get the idea.  Nevertheless, there is always a surprising amount of litigation over whether certain language in a will or other document creates a trust.

In Estate of Brill, the Mississippi Supreme Court was tasked with construing some language in a holographic will to determine what, exactly, the testator meant by the language.  The question was whether the language conveyed property in fee simple, created a condition precedent or created a testamentary trust.

Let’s take a look at the contents of Bobbye N. Brill’s holographic will.

Tax Return Deadline Pushed Back to April 17

January 4, 2012


The IRS announced today that the deadline for filing 2011 tax returns will be April 17, 2012.  April 15, the normal deadline, falls on a Sunday this year, and Emancipation Day falls on Monday April 16 this year.  Emancipation Day is celebrated in the District of Columbia, and District of Columbia holidays impact tax deadlines in the same manner as federal holidays.

Extended returns will still be due on October 15.

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