A 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

If a deed has been procured by fraud, it may take a while for the defrauded person to figure out that he or she has been duped.  That’s why, in certain circumstances, the statute of limitations to set aside a fraudulent deed may be tolled.  But a mere allegation that a deed has been procured by fraud isn’t enough to toll the statute of limitations.  The allegedly defrauded person usually can’t just blindly accept someone else’s purportedly fraudulent representations.  Then again, the situation may be different if a fiduciary is the alleged fraudster or if there is a confidential relationship between the parties.  In McCall v. Williams, the Georgia Court of Appeals explored the intersection between alleged fraud, the duty to exercise reasonable

It’s not uncommon to hear that someone gets left the family farm allegedly based on a promise to keep farming the land or to keep the farm in the family.  What if the devisee never follows through on that promise and once he receives the property, he quickly sells it?  In Johnson v. Burrell, the Georgia Supreme Court considered claims that a devisee of a pecan farm made false statements to the testator, upon which the testator relied in making a will.

In a new will, Hubert Johnson devised a 350 acre pecan farm to Donna Ellis Burrell.  A few weeks after executing the will, Hubert died.  Two of Hubert’s kin filed caveats alleging that Donna executed undue influence over Hubert and that she procured the execution of the will through fraud or misrepresentation.  In Georgia, a

Caregivers sometimes end up getting written into a will or a trust.  When they do, it’s not surprising if litigation ensues.  In Gardner v. Cole (Rule 23 order), we get to see an Illinois caregiver and her husband withstand a challenge by the grantor’s surviving relatives to impose a constructive trust over the trust assets and bank accounts that went to the caregiver and her husband.  So, how was the caregiver successful?

An attorney-in-fact owes fiduciary duties to his or her principal when acting pursuant to a power of attorney.  When an attorney-in-fact acts contrary to his or her principal’s instructions, then they may end up breaching their fiduciary duties.  In Georgia, the same may hold true for successor attorneys-in-fact under a power of attorney because that’s what happened to Se Ill Choi in Lee v. Choi.

John Blackwell executed a power of attorney naming his wife, Ki Tae Lee, as attorney-in-fact, and naming Choi as her successor in the event the wife was unable to serve.  It was a typically broad power of attorney, providing for bank, business, real property, personal property, tax and insurance transactions, borrowing money, the commencement and prosecution of disputes, and granting access to safe deposit boxes.

The Blackwells also agreed to open a joint investment account naming

In many jurisdictions, the existence of a confidential relationship can turn an undue influence inquiry on its head.  That’s because the existence of a confidential relationship – usually coupled with evidence of something else – can create a presumption of undue influence.  Under Wisconsin law, that “something else” is “suspicious circumstances surrounding making of the will.”  When you have a confidential relationship with suspicious circumstance, then a presumption of undue influence is raised, which must be rebutted by the proponent of the disputed will.

“Suspicious circumstances” seems like a fuzzy concept so we’re going to take notice when the Court of Appeals of Wisconsin finds that suspicious circumstances existed that precluded summary judgment on an undue influence claim.  In Estate of Ely (Ely v. Orth), the Court of Appeals did just that.  Let’s take a look at these “suspicious circumstances.”

The drafting lawyer.

The attesting witnesses.

The notary.

Time and again the case law suggests to us that these are three of your most important witnesses in defending (or pursuing) a lack of testamentary capacity or undue influence case.  Yet, we sometimes don’t put a lot of thought into who will be our attesting witnesses or notary and how they might come across as witnesses at trial.

In Amerson v. Pahl, decided by the Georgia Supreme Court, we get to see again how a case turns on the testimony of these three witnesses.

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 disinherited two of her children.

Let’s just jump right into this one: in 2010, a Houston County, Georgia jury declared that a Will and a Revocable Trust executed by Thomas Hines, Sr., in 2002 were invalid, as they were the product of undue influence.

In Davison v. Hines, the Georgia Supreme Court affirmed the jury verdict.  The reason we just jumped right into the discussion of this case is because undue influence cases are fact-intensive.  So, let’s look at the facts that supported the verdict.

At the heart of many an undue influence case is the confidential relationship.  Under the law of many jurisdictions, it’s a game-changer – it can shift burdens and create presumptions.  But, proving a confidential relationship is often very fact intensive.

In Mangarelli v. Snyder, a New Jersey appellate court gives us a short, sweet lesson on facts sufficient to establish a confidential relationship under New Jersey law.