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Tennessee Will Witnesses Must Sign Will Itself

June 10, 2015

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Just how strictly does Tennessee construe the formalities relating to the execution of a will?  Very.  In In re Estate of Bill Morris, the Court of Appeals of Tennessee considered what it meant for the witnesses to sign the will.  In this case, the decedent’s son filed a will contest claiming that the decedent’s will was not properly executed because the will was not signed by witnesses as required by Tennessee Code Annotated Section 32-1-104.  This statute requires the testator and at least two witnesses to sign the will.

The decedent signed the second page of the will and immediately following the testator’s signature began on the same page an “affidavit” of the witnesses, which continued onto a third page where the two witnesses signed the affidavit.  While the two witnesses signed the affidavit, they

Time Limit For An Estate Accounting

June 3, 2015

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Estates can be left open for a long time.  Like decades long.  And during that time, an executor is going to continue to owe certain fiduciary duties to the beneficiaries of the estate, such as the duty to provide an accounting to the beneficiaries.  In In re: Estate of John Malcolm Wade, the Georgia Court of Appeals examined the time limit in which a beneficiary may bring an action for an accounting of an estate.

In this case, the estate had been open since 1987 and was still open in 2012 when one of the beneficiaries (Mary, who was also a co-executor with her four siblings) petitioned the probate court to obtain an accounting of her co-executors’ dealings on behalf of the estate.  The siblings claimed that Mary’s action was time-barred under

Applying The Doctrine Of Dependent Relative Revocation

May 6, 2015

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The name of the doctrine itself is something that could only be loved by trusts and estates lawyers: dependent relative revocation.  The idea that it captures, however, is more intuitive.  If cancellation of an old will and making of a new will are parts of the same scheme, and the cancellation of the old will is so tied to the making of the new will that its revocation is entirely dependent on a new will being made, then, if the new will is not made or is otherwise found to be invalid, the old will (though cancelled or revoked) is given its effect.  In other words, if you revoke a will only as part of making a new will but the new will either doesn’t get made or is invalid, then the old will springs back into effect.

In 

Can A Virtual Adoption Be Undone?

April 23, 2015

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Can A Virtual Adoption Be Undone?

April 23, 2015

Authored by: Luke Lantta

The inheritance rights of adopted children have a long, complex history in many jurisdictions.  In Georgia, add into the adoption equation the equitable doctrine of “virtual adoption.”  In a virtual adoption, the ‘adopting parent’ orally agrees to adopt the child of another as his or her own without actually legally adopting the child and all parties act on the oral agreement to adopt.   Virtual adoption is not legal or statutory adoption.  It is an equitable remedy that is applied only upon the death of the ‘adopting parent’ to avoid an unfair result to the ‘adopted child’ by the application of intestacy laws.

As might be expected, these virtual adoption situations are very fact specific.  There must be evidence of an actual oral agreement to adopt and evidence that all the parties acted on that agreement.  The people

How Far Does Direct Benefits Estoppel Extend?

April 16, 2015

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Under direct benefits estoppel (or the doctrine of election), a beneficiary must choose: either challenge the will (or trust) or accept the benefits provided under that instrument.  You can’t have it both ways, meaning you can’t both take benefits under an instrument and challenge that same instrument’s validity.  But how far can a fiduciary extend this defense?

In Harrison v. Harrison (unpublished Rule 23 order), an Illinois appellate court drew a line in the sand.  While direct benefits estoppel may apply to direct challenges to the validity of a will, it will not apply to actions construing a will.  The appellate court ruled that, even if a litigant accepts benefits under a will, he is not necessarily estopped from arguing that certain provisions of the will are void as against public policy and

With No Contest Provision Lurking, Petition Was All Or Nothing

March 4, 2015

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The law generally disfavors in terrorem clauses, also known as no contest provisions, because they result in forfeitures.  Nevertheless, some people and practitioners like sticking them in governing instruments – sometimes out of habit, sometimes for good reason, and sometimes for not very good reasons at all.  Courts in numerous jurisdictions have chipped away at the enforceability of these clauses by, among other things, strictly construing them and creating a probable cause exception.  In In re Shaheen Trust, in a matter of first impression, an Arizona appellate court considered what happens when there is a no contest provision and a beneficiary brings a multi-count petition.  Must each count be successful or at least have probable cause to survive the in terrorem clause?

According to the Arizona appellate court, yes.  When a single petition alleges multiple

Giving The Same Property Twice In A Will

February 25, 2015

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Giving The Same Property Twice In A Will

February 25, 2015

Authored by: Luke Lantta

There are clearer ways to create a life estate than what Hodge King used in his will.  The problem with Mr. King’s will was that he appeared to leave his real property to his wife, Mrs. King, in fee simple but then also appeared to leave that same property to his son and son’s children after Mrs. King’s death.  In Thompson v. Blackwell, the Georgia Supreme Court was tasked with interpreting Mr. King’s will to figure out what happens when you give the same piece of property to people, apparently to both in fee simple, in succession.

Let’s start where we always start: the language within the four corners of the will.  In Item II of his will, Mr. King provided:

I give, devise and bequeath to my wife, Hattie F. King, all my property, both real

Insurance As Evidence Of Ownership

December 10, 2014

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Insurance As Evidence Of Ownership

December 10, 2014

Authored by: Luke Lantta

When a will contains a catch-all bequest of all “personal property” without a specific list or identification of the decedent’s personal property, disputes can arise whether the decedent actually owned particular property, whether the property was joint property with the decedent’s spouse, or whether some entity in which the decedent held an interest actually owns the disputed property.  As shown in the recent Arizona case of Keland v. Moore (unpublished), a little advance planning concerning some valuable property possibly could have avoided this estate litigation.

Kristi Keland and her husband, Tres, lived on a ranch owned by an LLC, which the couple controlled.  When Kristi died, she was survived by Tres.  Kristi’s will bequeathed her personal property to her sisters.  Kristi’s and Tres’ home contained some valuable Native American baskets.  One of Kristi’s sisters claimed that

Mississippi Adopts Good Faith And Probable Cause Exception

November 5, 2014

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Forfeitures are disfavored in law.  So it may come as little surprise that, in Parker v. Benoist, the Supreme Court of Mississippi determined that Mississippi law should recognize a good faith and probable cause exception to a forfeiture in terrorem clause in a will.  The in terrorem clause in the will at issue in this case contained an increasingly common provision that purported to bar even good faith challenges to the will based on probable cause:

If any beneficiary hereunder (including, but not limited to, any beneficiary of a trust created herein) shall contest the probate or validity of this Will or any provision thereof, or shall institute or join in (except as a party defendant) any proceeding to contest the validity of this Will or to prevent any provision thereof from being carried out in accordance with its

Who Can Offer A Will For Probate?

October 29, 2014

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Who Can Offer A Will For Probate?

October 29, 2014

Authored by: Luke Lantta

In Georgia, not everyone may offer a will for probate.  Instead, Section 53-5-2 of Georgia’s Probate Code provides that, if for any reason, the executor fails to offer the will for probate with reasonable promptness, or if no executor is named, any interested person may offer the will for probate.  The categories of “interested persons” could potentially be broad.

Indeed, when it comes to caveats to wills, Georgia’s courts have allowed a long list of people to be considered “interested persons” with standing to caveat a will.  For will caveats, interested persons include heirs, a purchaser from an heir, a judgment creditor of an heir, an administrator appointed for the testator before the discovery of the will, and persons claiming under an earlier will.

Yet, when given an opportunity in Ray v. Stevens to adopt a universal definition

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