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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.  So, it’s not

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.  The testator then had the first

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 an expert with lay testimony – it does not work out well for the

Court Reverses Finding of Undue Influence

August 25, 2017

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Undue influence occurs when a person’s free will is overpowered and replaced by the will of another.  In Missouri, a finding of undue influence generally requires the person who exerted influence to have been in a position of trust, and to have caused the coercion through active conduct.  Although the elements seem fairly straightforward, actually proving undue influence can be much trickier.  Because undue influence is often only demonstrated through circumstantial evidence, the ensuing courtroom testimony provides for a telling tale from lawyers and hairstylists and priests.

In Nestel v. Rohach, three of the four Nestel siblings tried to remove their sister, Melissa, as the personal representative of their mother’s estate.  The siblings claimed that Melissa exercised undue influence over Joanne, their mother, when Joanne made Melissa the beneficiary of several bank accounts containing substantial assets.  At trial, the jury found that there was

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 evidence that the decedent allegedly told people that

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 manual on how a guardian should

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 court.  Recall that “year’s support” is the unique and often

Beware The Constructive Trust When Relying On ‘Informal’ Estate Distributions

April 6, 2017

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We like when families can work out their estate disputes outside of the courtroom.  Georgia, for one, embraces the “family settlement doctrine,” where heirs at law can agree to distribute or divide property devised under a will, in lieu of that manner provided by the will.  So, too, families often want to ‘avoid probate’ and ‘informally’ distribute the estate.  As the Georgia Court of Appeals reminded us in Maxey v. Sapp, that’s all well and good until someone doesn’t get what they want or what they thought they were getting.

The Sapps executed a joint will providing that when one of them died the survivor would inherit the other’s property. After the survivor’s death, the remainder of the estate was to be devised and bequeathed to their five children, share and share alike. After the husband died, the

Court Orders Administrator To Elect Portability

March 22, 2017

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When the IRS enacted the portability election provisions in 2011, which allowed estates of married taxpayers to pass along the unused part of their estate and gift tax exclusion amount to their surviving spouse, it remarked that it “expect[ed] that most estates of people who are married will want to make the portability election. . . .”  But, to elect portability, an estate tax return must be filed in order to pass along the exclusion.  So, what happens when an executor refuses to elect portability?  Take them to court, of course.

In In the Matter of the Estate of Vose, the decedent and her spouse entered into an antenuptial agreement prior to their marriage, which provided:

6.1 Waiver: Except as otherwise specifically provided in this Agreement, [Spouse] and [Decedent] mutually waive, discharge, and release each other to the fullest extent lawfully possible from any and all claims

Forgiveness May Be Available For An Untimely Caveat

January 20, 2017

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It’s a new year and with it comes many resolutions. Each year, a popular resolution is to be more forgiving or to forgive someone who wronged you.  Apparently, trying to get a head start on its resolutions, on December 30, the Georgia Court of Appeals entered its opinion in In re: Estate of James Lynn Hill.  What does this have to do with forgiveness?  Remember that time we said that “in Georgia, the time to file a caveat may be short and unforgiving?”  Well, some forgiveness may be available.

An executrix filed a petition to probate a will.  Notice was sent to an heir informing him of the deadline to object.  The heir filed a caveat, but did so over a month late.  Under In re: Estate of Loyd, this should be the end of it,

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