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If It’s Not In The Will, Does It Matter What The Testator Wants?

August 17, 2017

Authors

Luke Lantta

If It’s Not In The Will, Does It Matter What The Testator Wants?

August 17, 2017

by: Luke Lantta

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

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Need Another Reason To Avoid Mixing Family & Finances?

July 25, 2017

Authors

Luke Lantta

Need Another Reason To Avoid Mixing Family & Finances?

July 25, 2017

by: Luke Lantta

You have a big heart and a little bit of money.  You want to help out a cash-strapped family member, and – “because you’re family” – you don’t put down how much you’ll loan or how it’ll be paid back.  You would hate to do it, but, in a worst-case scenario, you suppose a court could help you get it back.  Through its opinion in Roberts v. Smith, however, the Georgia Court of Appeals may have made it harder to get that money or property back from a family member through an implied trust.

Four siblings arranged to purchase a home for the benefit of one of the siblings.  All of the siblings verbally agreed to contribute money toward the purchase and maintenance of the house.  One of the siblings testified that “[n]obody had a set amount to pay,” and another testified that “we

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

April 6, 2017

Authors

Luke Lantta

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

April 6, 2017

by: Luke Lantta

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

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Court Could Not Impose Constructive Trust On Assets Transferred From Trust To Limited Partnership

January 17, 2014

Authors

Luke Lantta

Court Could Not Impose Constructive Trust On Assets Transferred From Trust To Limited Partnership

January 17, 2014

by: Luke Lantta

Whether a particular court has jurisdiction to hear a trust dispute can become increasingly more complicated as trustees, beneficiaries, and assets move to different states.  So, when a lawsuit is filed, a threshold question should be whether the lawsuit was filed in a court with jurisdiction over the parties and the property.

The Nevada Supreme Court’s decision in In re Aboud Inter Vivos Trust highlighted some of these jurisdictional issues when the Court considered whether a district court could impose a constructive trust over assets transferred from a trust to a limited partnership and then from the limited partnership to a corporation.

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Georgia Appellate Court Adds Uncertainty For Recipients Of Charitable Gifts

January 14, 2013

Authors

Luke Lantta

Georgia Appellate Court Adds Uncertainty For Recipients Of Charitable Gifts

January 14, 2013

by: Luke Lantta

We’ve all probably seen some coverage of a few recent highly publicized disputes about charitable gifts supposedly not being used for their intended purpose.  2012 opened with country-music legend Garth Brooks scoring a $1 million jury verdict against Integris Rural Health, Inc. over a donation that was allegedly not used for its intended purpose.  And, 2012 closed with another dispute involving a music legend getting resolved when Albany State University returned $1.2 million in donations from the Ray Charles Foundation because the school did not use the money to build a new performing arts center.

In these two thorny examples of gift-giving and gift-returning, the recipients of the gifts were accused of not following through on the donor’s intended use of the gift.  In other words, the donor accused the recipient of doing something wrong.  But what happens when the tables are turned and it is

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Incapacity, Death, and Statutes of Limitation

February 17, 2012

Authors

Luke Lantta

Incapacity, Death, and Statutes of Limitation

February 17, 2012

by: Luke Lantta

We’ve previously looked at statutes of limitation in the context of fiduciary litigation.   As a quick refresher, a lawsuit has to be commenced within so many years after the complained of act occurred or you can’t pursue the lawsuit.  There are exceptions to this rule which allow a statute of limitation to be extended, or “tolled.”

Tolling of statutes of limitations can come up with greater frequency in the fiduciary litigation context because certain events like incapacity can toll a statute of limitations.

In Estate of Formyduval, the North Carolina Court of Appeals examined, under North Carolina law, the interplay between incapacity, death, and the statute of limitations for an action to set aside deeds on the basis of fraud and/or undue influence

Let’s take a quick look at the background of this lawsuit over the estate of

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Pennsylvania Court Could Not Assess A Surcharge Against Non-Party Wrongdoer

November 11, 2011

Authors

Luke Lantta

Pennsylvania Court Could Not Assess A Surcharge Against Non-Party Wrongdoer

November 11, 2011

by: Luke Lantta

When individual fiduciaries are found to have breached their fiduciary duties, they are often found to have received some help.  Many times a spouse, lover, or business partner is seen lurking in the wings, aiding and abetting the breach of fiduciary duty.  From an aggrieved beneficiary’s or successor fiduciary’s perspective, it’s imperative to get that joint-wrongdoer brought into court, where he or she can be held to account for the wrongdoing and – if there’s a recovery to be had – reimburse the estate or trust for damages.  In other words, a person cannot be held to account unless he or she is actually a party to the litigation.

In Estate of Brown, the Superior Court of Pennsylvania, decided that the Court of Common Pleas of Delaware County exceeded its authority when it imposed a surcharge on Kenneth Pearl, who was not a party

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Kentucky Grantor Was Not Unduly Influenced In Conveying Home To ‘Grandson’

October 12, 2011

Authors

Luke Lantta

Kentucky Grantor Was Not Unduly Influenced In Conveying Home To ‘Grandson’

October 12, 2011

by: Luke Lantta

Perception — or perhaps more precisely, misperception — fuels so much fiduciary litigation.  For example, an elderly grantor may have perfectly legitimate reasons for conveying property to someone outside the family.  Even if the grantor’s reasons aren’t good, she is within her rights to make a completely unreasonable transfer so long as nothing afoul is afoot (e.g., lack of capacity, undue influence, fraud, etc.).

But, when a blood relative learns of this transfer, a sense of entitlement kicks in, and we’re on our way to litigation.  The problem for these elderly grantors, who are under so much pressure to explain or change their decision, is that they oftentimes say or do anything to try to make everyone happy.  That never works.  And that was the sort of situation recently before the Kentucky Court of Appeals.

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