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Georgia Court Rules That Son Did Not Unduly Influence Father

November 23, 2011

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We’ve previously noted that undue influence cases are very fact specific.  In other words, the results of undue influence estate litigation will vary greatly based on the underlying facts.  Of course, this leads to bad facts often making bad law in this area.

In Simmons v. Norton, the Georgia Supreme Court had occasion to remind us of what doesn’t constitute undue influence under Georgia law.

Grandson Failed To Satisfy Requirements For Parol Gift Of Land

November 21, 2011

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It’s probably not a good idea to try to make an oral gift of land.  There’s a reason why the law does not look favorably on oral contracts to transfer land, and there’s a reason why proving an oral transfer of property is so difficult.  Not that it’s impossible.  While the Statute of Frauds generally requires transfer of an interest in land to be in writing, there are exceptions.

In Jones v. Kirk, the Georgia Supreme Court addressed the line between what is – and what is not – a valuable improvement to the subject property so as to move the needle in favor of an enforceable oral agreement to transfer real property.  Here’s a hint – moving your mobile home onto the land isn’t a “valuable improvement.”

Georgia Executor Converted Estate Assets

November 18, 2011

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Georgia Executor Converted Estate Assets

November 18, 2011

Authored by: Luke Lantta

In In re Estate of Tapley, the Georgia Court of Appeals took on a number of procedural issues regarding litigation over the Estate of Opal Mae Tapley.

The case highlights a common problem with fiduciary litigation – estate disputes often span multiple courts and involve multiple separate lawsuits.  The case therefore serves as a good reminder to fiduciary litigators that it is their responsibility to follow proper procedure or risk losing a damage award on appeal.

Wisconsin Testator Did Not Need To Know “Mechanics” Of Will

November 14, 2011

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While a testator’s desires about how property should be divided may be easy, the testamentary schemes that actually effect the disposition of that property can be painfully complex.  Aggrieved beneficiaries and plaintiffs’ lawyers often try to exploit the complexities of actually distributing the property rather than attacking the testator’s simple overall desire as to how the property should be divided.  In other words, an aggrieved beneficiary may try to claim that the testator should know the specific mechanics of how the property will be divided rather than simply understanding who gets what.

In Cychosz v. Cychosz, the testator, Stella Cychosz, had a relatively simple testamentary scheme that involved moderately complex mechanics regarding the disposition of the property.  One of the estate beneficiaries claimed that Stella didn’t have full knowledge of significant portions of her will.  The Wisconsin Court of Appeals disagreed.

Post-Will Post-Nuptial Agreement Waived Wife’s Beneficial Rights Under Husband’s Will

November 4, 2011

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It’s not uncommon for couples to divorce and remarry each other or separate and contemplate divorce but stay married.  If a couple does reconcile, they probably want to make sure they review and clean-up any estate planning done during the separation or after the divorce but before the remarriage.

In Steffens v. Evans, a Florida Court of Appeals ruled that a wife waived all of her beneficial rights under her husband’s will by executing a post-nuptial agreement after the husband had executed his will.

Georgia Estate Owned Contents of ‘Joint’ Safe Deposit Box

October 31, 2011

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Joint tenant with right of survivorship accounts are commonly used to transfer assets outside of probate.  They also tend to lead to a lot of estate litigation.  The concept of a JTWROS account is simple enough: the tenants have an equal right to the account’s assets and the survivor gets the assets when the other account holder dies.

What if someone doesn’t want to make an inter vivos gift of his or her cash or other valuable personal property, but instead wants it to be transferred outside of probate upon his or her death?  Can something like a joint tenant with right of survivorship safe deposit box work?  If your plan is to use a ‘joint’ safe deposit box, then you better pay careful attention to the safe deposit box contract.  At least that was what was decided by the Georgia Court of Appeals in Longstreet v. Decker.

Common Law Marriages, Dead or Alive? Both.

October 25, 2011

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A client recently asked me about the status of Georgia common law marriage, and in answering him, I thought it might be a good time for a reminder for all of us (including those in other states) that even if a state no longer recognizes common law marriage, usually such marriages remain valid if formed prior to the date of a statutory enactment prohibiting them. In addition, most states also recognize common law marriages formed in other states.

For example, the State of Georgia recognizes common law marriages formed prior to January 1, 1997, as well as valid common law marriages formed in other states. Under Georgia law, a valid common law marriage may be formed between a man and a woman if they have (1) the capacity to make a marriage contract, (2) actually entered into a nuptial contract (usually proven by evidence

Ohio Attorney-In-Fact Abuses Power Of Attorney

October 24, 2011

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There are so many ways to abuse powers of attorneys.  That’s why they’ve been referred to as “vehicles for fraud.”  While we’ve previously looked at ways in which they’ve been abused and our colleagues at Bryan Cave, Stephanie Moll and Mary McMath, have examined them in the context of “Who Can You Trust?” over at TrustBryanCave.com, the ways in which they can be abused are seemingly endless.  The reality is that these cases will continue to appear in increasing numbers as the Baby Boomers get older.

Last month, in Ward v. Patrizi, the Ohio Court of Appeals dealt with a a classic power of attorney abuse fact pattern.  A person who needed some help managing his bills designated a family member as his attorney-in-fact.  The attorney-in-fact dutifully paid the principal’s bills from his checking account, but, on the day

Amendments to Florida Probate Rules

October 14, 2011

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Amendments to Florida Probate Rules

October 14, 2011

Authored by: Luke Lantta

In response to several Florida statutory changes that went into effect earlier this year, the Florida Bar’s Probate Rules Committee proposed certain amendments to Probate Rules 5.025 (Adversary Proceedings) and 5.240 (Notice of Administration).  On September 28, 2011, the Florida Supreme Court adopted the Committee’s proposals. 

The Florida Probate Rules have been amended as follows:

Estate Beneficiary Prevented From Joining Lawsuit Against Caretaker

October 7, 2011

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As a general rule, the personal representative of a decedent’s estate is usually the only person who can pursue an action to recover estate property.  It’s one of the personal representative’s fiduciary duties to estate beneficiaries.  Occasionally, in very limited circumstances, another person interested in the estate may be able to pursue an action in the personal representative’s place.  The Connecticut Court of Appeals determined that those limited circumstances were not present in Litwin v. Ryan.

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