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Copy Of Will Was Good Enough

Copy Of Will Was Good Enough

November 27, 2013

Authored by: Luke Lantta

Originally posted on bryancavefiduciarylitigation.com

Testators may want to keep careful track of who has copies of their will and where those copies are.  If only a copy of a will – and not the original – is found, it may raise a question about whether the testator destroyed the original in an attempt to revoke it.  Such was the argument made by the caveators in Johnson v. Fitzgerald.  Let’s see why the Georgia Supreme Court felt like a copy was good enough to admit to probate in solemn form.

The executor of an estate offered a copy of a will for probate in solemn form, requesting that it be admitted to probate upon proper proof.  The original could not be found.  The testator’s heirs at law filed a caveat alleging that the will had been revoked by the testator’s destruction of it.

Under Georgia law, if

Conflict Of Interest Warranted Judicial Removal Of Personal Representative And Trustee

Originally posted on bryancavefiduciarylitigation.com

Individual trustees who must administer real property often attempt to save the trust money by personally making certain improvements, repairs, or maintenance to the property.  They then charge the trust for the work they performed.  As the Nebraska Court of Appeals points out in In re Estate of Robb, however, these acts – however well-intentioned – may be self-dealing and can put the trustee in a position of a conflict of interest, which can warrant removal from that fiduciary position.

When Mason D. Robb died, his son, Theodore, became the personal representative of his estate and the trustee of the inter vivos Mason D. Robb Revocable Living Trust.  The trust contained three pieces of real estate.

Under the terms of the trust, the trustee was to hold and use the trust property to pay administrative costs and the debts of the settlor and for the

2013 Amendments to Delaware Trust Laws

August 29, 2013

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Originally posted on bryancavefiduciarylitigation.com.

Effective earlier this month, Delaware once again amended its trust statutes.  In what has become an (almost) annual ritual, Delaware has tweaked its trust statutes in an effort to make the state a more appealing jurisdiction for trust administration.  A full look at the law is here, but here are some of the highlights:

Children Born Out of Wedlock 

Section 1 of the Act amending the trust statutes cross-references the legitimation process elsewhere in the Delaware Code for purposes of intestate succession for persons born out of wedlock.

Definition of “Governing Instrument”

The definition of “governing instrument” now also expressly includes “any instrument that modifies a governing instrument or, in effect, alters the duties and powers of a fiduciary or other terms of a governing instrument.”

No Duty to Inquire to Satisfy Prudent Person Standard

The amendments clarify that a fiduciary has no duty to inquire as to the nature and extent of investments held

Defalcation, Bankruptcy, And Fiduciary Litigation

Originally posted on our sister blog, www.bryancavefiduciarylitigation.com

Last week, the United States Supreme Court issued its opinion in Bullock v. BankChampaign, N.A., which addressed the circumstances in which a breach of fiduciary duty judgment can be discharged in bankruptcy proceedings.  Specifically, the Court resolved a deeply fractured Circuit split on the scope of the term “defalcation” within Section 523(a)(4) of the Federal Bankruptcy Code.  That Section of the Bankruptcy Code provides that an individual cannot obtain bankruptcy discharge “for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.”  For years, the lower courts had struggled with what, exactly, “defalcation” means.  Wonder no longer because the Supreme Court has defined it.

When The General Powers Granted To A Trustee Conflict With A Specific Trust Provision

From BryanCaveFiduciaryLitigation.com

Almost invariably, settlors give their trustees broad powers regarding trust property.  Often these broad powers include the power to convey and encumber trust property and the power to loan trust property.  But, sometimes, the settlor also gives the trustee specific instructions with respect to specific trust property.  In Hamel v. Hamel, the Kansas Supreme Court interpreted a trust instrument that gave the trustee broad general powers, but also specific directions regarding a specific piece of real property, and examined the interplay between the two provisions.

Arthur L. Hamel’s trust instrument gave the trustee broad authorization to control and administer trust property, including “the power to do all acts that might legally be done by an individual in absolute ownership and control of the property” and provided the trustee with “the power to lend money to . . . any beneficiary

Trustee Was Authorized To Convey – Not Distribute – Property To Estate Of Deceased Trust Beneficiary

From BryanCaveFiduciaryLitigation.com

Time to get into the weeds on the scope of a trustee‘s powers.  There are basically two sources of power for a trustee – the trust instrument and state law.  Where those two intersect, overlap, conflict, or diverge is where you will likely find the bulk of fiduciary litigation about trustee powers.

The Inheritance Rights Of ‘Rejected’ Adopted Children

From BryanCaveFiduciaryLitigation.com

When it comes to so-called ‘rejected’ adopted children, many of us are most familiar with the outrage in 2010 when a Tennessee woman sent her adopted son back to Russia on a one-way flight after claiming the 7-year-old had bouts of violence.  But what about the inheritance rights of these adopted children?  Do they have any?

How Far Does The Scope Of An Attorney-In-Fact’s Authority Extend?

December 18, 2012

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From BryanCaveFiduciaryLitigation.com

Litigation over powers of attorney is pretty popular right now.  And a lot of the dispute is whether an attorney-in-fact is authorized to perform some act under the authority granted in the power of attorney.

In Harris v. Peterson, the Georgia Court of Appeals is one of the latest courts to weigh in on these issues.  It tackled the question of whether an attorney-in-fact can perform an act that the principal refused to perform.

The background facts can be distilled to this:

Dennison Williams and Darius Peterson are brothers who jointly owned some real property.  Williams executed a financial power of attorney appointing his sister-in-law, Anita Peterson, as his agent.  Anita was Darius’ wife.  Among other things, Williams authorized Anita to sell real property.

Williams wanted to sell his interest in some of the jointly owned property to Eugene

Should A Testator Explain Why She Disinherited A Child?

November 1, 2012

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From BryanCaveFiduciaryLitigation.com

Hell hath no fury like a disinherited child.  Or, if not fury, then at least an appetite for litigation.

Many estate planners recommend against total disinheritance and instead couple a token distribution with an in terrorem clause.  That way the disinherited child stands to lose something if he or she pursues estate litigation.  Of course, that doesn’t always work.  Especially if the risk is greatly outweighed by the potential reward – say giving up a sure $5,000 for a possible $1 million.

So, what else can a testator do to ensure that his or her intent to disinherit is upheld if there is litigation?

In In the Matter of the Probate of the Alleged Will of Joan Pennella, a recent case out of New Jersey, we see the value placed by a court on the testator’s own explanation of why she

No Fiduciary Duty Owed To Remainder Beneficiaries Of Revocable Trust Prior To Grantor’s Death

October 12, 2012

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From BryanCaveFiduciaryLitigation.com

Applying Michigan law, in Pennell v. Alverson the Arizona Court of Appeals recently came out with a well-written opinion explaining when a trustee owes fiduciary duties to the remainder beneficiaries of a revocable trust.

Cleo Hubbard executed a revocable trust that provided that Cleo was the sole income and principal beneficiary of the trust during her lifetime, and that the remainder beneficiaries were Cleo’s daughters and grandchildren.  The trust also named Cleo as trustee and Angella Alverson, one of Cleo’s grandchildren, as successor trustee in the event of Cleo’s death or resignation.  Cleo later amended the trust to appoint Angella as co-trustee.

Cleo died and the remainder beneficiaries sued Angella alleging breach of fiduciary duty and a number of other claims.  Angella sought to dismiss the claims on the grounds that