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Massachusetts Law Retroactively Giving Inheritance Rights To Adopted Children Ruled Unconstitutional As Applied

Originally published at bryancavefiduciarylitigation.com

We’ve recently looked at the inheritance rights of children adopted out of families here and here, now let’s look at the inheritance rights of children adopted into families.

Big news out of Massachusetts this week, as the Supreme Judicial Court ruled in Bird Anderson v. BNY Mellon, N.A. that a Massachusetts law that had significant implications for trusts and estates planners, fiduciaries, and especially adopted children was unconstitutional as applied to the trust case before it.

Let’s take a look at the law.

The rights of adopted children as “heirs” under Massachusetts law have a long history.

Prior to 1958, Massachusetts had a statute prescribing a rule of construction for certain types of instruments relating to inheritance that provided that unless the contrary “plainly appear[ed] by the terms of the instrument,” an adopted child was excluded from the definition

Massachusetts Law Retroactively Giving Inheritance Rights To Adopted Children Ruled Unconstitutional As Applied

August 29, 2012

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We’ve recently looked at the inheritance rights of children adopted out of families, now let’s look at the inheritance rights of children adopted into families.

Big news out of Massachusetts this week, as the Supreme Judicial Court ruled in Bird Anderson v. BNY Mellon, N.A. that a Massachusetts law that had significant implications for trusts and estates planners, fiduciaries, and especially adopted children was unconstitutional as applied to the trust case before it.

Let’s take a look at the law.

What Happens When Your Client Regrets Settling A Probate Matter?

August 23, 2012

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Settlement regret.

A lot of litigants end up getting it, especially in such emotionally-charged litigation as probate litigation.  Most of the time those litigants just end up expressing those feelings of regret to their lawyers.  Sometimes they try to take it further.  How can the regretful party’s lawyer see it coming and how can that lawyer guard against it?

New Jersey trial court in In the Matter of the Estate of Lillian A. Hogan (not for publication) provides some clues. 

Removal Of Florida Trustee Requires Notice And An Opportunity To Be Heard

August 21, 2012

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We’ve taken a look at the Florida appellate courts’ seemingly endless string of cases reversing trial courts that have removed fiduciaries without notice and an opportunity to be heard.

In Kountze v. Kountze, we have yet another reminder of this basic rule, but this time in the context of removal of a trustee and with a little different twist.

IRS Releases New Draft Form 706 for 2012 Decedents

August 18, 2012

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The IRS has released a new draft Form 706 for estates of decedents dying in 2012.   It is important to note the IRS’ caution at the beginning of the draft Form:

“This is an early release draft of an IRS tax form, instructions, or publication, which the IRS is providing for your information as a courtesy. Do no file draft forms. Also, do not rely on draft instructions and publications for filing. ”

 

Georgia Will And Revocable Trust Were Invalid Products Of Undue Influence

From BryanCaveFiduciaryLitigation.com

Let’s just jump right into this one: in 2010, a Houston County, Georgia jury declared that a Will and a Revocable Trust executed by Thomas Hines, Sr., in 2002 were invalid, as they were the product of undue influence.

In Davison v. Hines, the Georgia Supreme Court affirmed the jury verdict.  The reason we just jumped right into the discussion of this case is because undue influence cases are fact-intensive.  So, let’s look at the facts that supported the verdict.

– Thomas’s 2001 will left the bulk of his estate to his wife for her life, and upon her death, divided the estate equally between his sons.  Thomas’s 2002 will, however, gave Steve Davison and his wife, Deborah, control over Thomas’s assets and estate.  Deborah was a granddaughter of Thomas.

– In December 2001, although Thomas didn’t want to move from his home,

Witnesses Who Viewed Will Signing Over Video Monitor Were Not In “Conscious Presence” Of Testator

August 9, 2012

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Ohio‘s statute regarding the method of making a will is similar to statutes in other jurisdictions:

Except oral wills, every will shall be in writing, but may be handwritten or typewritten. The will shall be signed at the end by the testator or by some other person in the testator’s conscious presence and at the testator’s express direction. The will shall be attested and subscribed in the conscious presence of the testator, by two or more competent witnesses, who saw the testator subscribe, or heard the testator acknowledge the testator’s signature.

For purposes of this section, “conscious presence” means within the range of any of the testator’s senses, excluding the sense of sight or sound that is sensed by telephonic, electronic, or other distant communication.*

So, how is this statute to be applied when the attesting witnesses ‘witness’ execution from another room through a one-way video monitor?

Adopting Out

Adopting Out

August 7, 2012

Authored by: Stephanie Moll and Mary McMath

With special guest blogger, Bryan Cave summer associate, Anne Jump.

When people create Wills and Trusts, they routinely define what constitutes a “descendant” in their estate planning documents for purposes of determining who will inherit their estates. Many include in their definition of descendant any child adopted into the family and that child’s descendants. (For a discussion on issues relating to adult adoption, see our prior post, “Girlfriends Come and Go, but Daughters are Forever: the Case for Adult Adoption”.)

But what happens when a descendant is adopted out of a family? For example, where a trust document has defined descendants to include any person adopted by a descendant, a child adopted out of a family may no longer be considered a descendant. The Supreme Court of Montana came to just such a conclusion in the recent case, In the Matter of the Cecilia Kincaid Gift Trust for

Georgia Will And Revocable Trust Were Invalid Products Of Undue Influence

August 7, 2012

Authored by:

Categories

Let’s just jump right into this one: in 2010, a Houston County, Georgia jury declared that a Will and a Revocable Trust executed by Thomas Hines, Sr., in 2002 were invalid, as they were the product of undue influence.

In Davison v. Hines, the Georgia Supreme Court affirmed the jury verdict.  The reason we just jumped right into the discussion of this case is because undue influence cases are fact-intensive.  So, let’s look at the facts that supported the verdict.

IRS Finally Approves Deductibility of Contributions to Domestic LLCs Wholly Owned by Charities

From BryanCaveCharityLaw.com

Tax practitioners have long believed that donations could be made to single member LLCs wholly owned by section 501(c)(3) organizations on the theory that, for tax purposes, the donation was treated as made to the charity and not the LLC.  In long awaited guidance, the IRS has finally agreed in Notice 2012-52.  The analysis in the notice is not surprising, and is in fact, exactly what tax practitioners have been arguing ever since disregarded entities came into existence.

Generally, a business entity that has a single owner and that is not a corporation is treated as disregarded as an entity separate from its owner.  These “business entities” are typically limited liability companies. If an entity is disregarded, its operations and activities are treated in the same manner as a sole proprietorship, branch, or division of the owner, and the owner generally reports all income, loss, deductions, and credits on

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