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Another Type of Combination

July 25, 2018

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Another Type of Combination

July 25, 2018

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After seven years of blogging about all types of fiduciary litigation cases on bryancavefiduciarylitigation.com, we are excited to announce a change that we think more comprehensively provides information about fiduciary matters and better reflects the type of information our readers want.  This blog will be combining with Bryan Cave Leighton Paisner’s Private Client blog: trustbclp.com.  One blog that covers a broader range of fiduciary matters – planning, life, death, taxes, litigation, and disputes – streamlines our readers’ browsing experiences and better reflects the collaborative approach that Bryan Cave Leighton Paisner takes to fiduciary disputes, where dedicated fiduciary litigators work closely with our planning team to best serve our clients.

If you are already a subscriber to bryancavefiduciarylitigation.com, you will start receiving updates from trustbclp.com.  If you wish to unsubscribe from the combined blog, unsubscribe information will be contained in the first email update you receive from

Georgia Superior Court Could Not Sanction Probate Court Conduct

February 28, 2018

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Probate court practice can be quirky, fraught with procedural peculiarities and appellate traps for those who do not regularly practice there.  Appeals from a Georgia county probate court to that county’s superior court – an appellate process that does not apply to every probate court in Georgia but only to those in certain counties – is one arena in which these quirks frequently arise.  Often, the issues relate to jurisdiction between the two courts.  In McNair v. McNair, the Georgia Court of Appeals addressed a superior court’s authority to impose sanctions for conduct that occurred in probate court proceedings in the same case but prior to the appeal to superior court.

The short answer?  It can’t.

Estate disputes are among the most hotly contested disputes for myriad reasons, not the least of which is they often involve family. 

When Military Wills Do Not Contemplate Future-Born Children

February 7, 2018

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Estate planning probably isn’t high on the priority list for many 20-year-olds, even if they are 20-year-olds serving in uniform.  While the Armed Forces may make it easy for those serving our country to get a will, these testators may need to be reminded to update those wills they executed as certain life events occur, like getting married or having children.  So it was in Hobbs v. Winfield, where the Georgia Supreme Court determined that the military will executed by a 20-year-old did not contemplate the birth of future children and, therefore, the birth of those children revoked his will.

At 20-years-old, while serving in the military, the testator executed a will.  The will named the testator’s mother as his sole beneficiary and personal representative, and, if his mother predeceased him, his ‘grandmother’ was the successor beneficiary and personal representative. 

Using Lay Witnesses To Combat Experts: Taking A Knife To A Gun Fight?

October 11, 2017

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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

If It’s Not In The Will, Does It Matter What The Testator Wants?

August 17, 2017

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If you want someone to get your money or property when you die, why don’t you just say so?  The case reporters are thick with stories of testators who left money or property to one person with the supposed ‘understanding’ or ‘instruction’ that the person who got the money would use it for the care of another.  Add Rabun v. Rabun to that list.

In this trust and estate dispute, the decedent transferred assets during his life and through his will to his grandson (who was also his executor and his adopted son).  The decedent’s widow claimed that the decedent intended for some of these assets to be used by the executor for her support, so she sought imposition of a constructive trust on those assets.

In support of her claim, the widow pointed to

Need Another Reason To Avoid Mixing Family & Finances?

July 25, 2017

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You have a big heart and a little bit of money.  You want to help out a cash-strapped family member, and – “because you’re family” – you don’t put down how much you’ll loan or how it’ll be paid back.  You would hate to do it, but, in a worst-case scenario, you suppose a court could help you get it back.  Through its opinion in Roberts v. Smith, however, the Georgia Court of Appeals may have made it harder to get that money or property back from a family member through an implied trust.

Four siblings arranged to purchase a home for the benefit of one of the siblings.  All of the siblings verbally agreed to contribute money toward the purchase and maintenance of the house.  One of the siblings testified that “[n]obody had a set amount to pay,” and another testified that “we

Transferring Property To A Trust: It’s Not What You Meant, It’s What You Said

June 21, 2017

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When we put pen to paper, sometimes the words don’t come out right.  If that happens, hopefully there’s an opportunity to explain what we meant.  Most times that’s true – even in estate planning.  For example, we have seen how scrivenor’s errors can be explained.  But, for the second time in less than a year, Georgia has limited the role evidence of the settlor’s intent plays under Georgia trust law. In Gibson v. Gibson, the Georgia Supreme Court strictly applied a statute governing the transfer of property to a trust to determine that mistitled brokerage accounts were never transferred to two trusts regardless of the settlor’s intent.

In Gibson, the Georgia Supreme Court had to decide a number of issues arising out of a divorce.  One of the multitude of issues on appeal was whether

Guardians Should Guard Against Claims Of Undue Influence

June 7, 2017

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guardian‘s job requires that the guardian be involved in the affairs of the ward.  In turn, the ward likely is going to be dependent on and trust the guardian.  Chances are – because Georgia sets an order of preference for persons eligible to become a guardian for a ward – the guardian also may be a close family member.  Since people often like to put their family members into their wills as beneficiaries, a guardian may run into a situation where the ward names him or her as a beneficiary of the ward’s estate.  While that seems all well and natural, because of the fiduciary relationship between guardian and ward, that will may get a close look by a court.

So what is a guardian to do?

Distance herself from the estate planning process.

While there is no

Waiver Of Year’s Support Through Post-Nuptial Agreement

May 5, 2017

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divorce-jpgOriginally posted on BryanCaveFiduciaryLitigation.com.

Divorce should put an early end to the marriage vow of “’til death does us part.” But, when it comes to estate disputes, neither divorce nor death can part the path to the courthouse.  In In re: Estate of Boyd, the husband and wife may have suspected their marriage could end: after 15 years of marriage, they separated, reconciled, and then entered into a post-nuptial agreement.  The agreement provided how assets would be distributed if the parties were married at the time of either’s death and provided for distribution of assets if the parties separated or filed for divorce prior to death.  The latter provision is relevant.

Waiver Of Year’s Support Through Post-Nuptial Agreement

May 3, 2017

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Divorce should put an early end to the marriage vow of “’til death does us part.” But, when it comes to estate disputes, neither divorce nor death can part the path to the courthouse.  In In re: Estate of Boyd, the husband and wife may have suspected their marriage could end: after 15 years of marriage, they separated, reconciled, and then entered into a post-nuptial agreement.  The agreement provided how assets would be distributed if the parties were married at the time of either’s death and provided for distribution of assets if the parties separated or filed for divorce prior to death.  The latter provision is relevant.

The husband filed for divorce and died hours later.  The wife filed a petition for year’s support in the probate

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