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Guardians Should Guard Against Claims Of Undue Influence

June 7, 2017

Authors

Luke Lantta

Guardians Should Guard Against Claims Of Undue Influence

June 7, 2017

by: Luke Lantta

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

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Tennessee Will Witnesses Must Sign Will Itself

June 10, 2015

Authors

Luke Lantta

Tennessee Will Witnesses Must Sign Will Itself

June 10, 2015

by: Luke Lantta

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

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Witnesses Who Viewed Will Signing Over Video Monitor Were Not In “Conscious Presence” Of Testator

August 9, 2012

Authors

Luke Lantta

Witnesses Who Viewed Will Signing Over Video Monitor Were Not In “Conscious Presence” Of Testator

August 9, 2012

by: Luke Lantta

Ohio‘s statute regarding the method of making a will is similar to statutes in other jurisdictions:

Except oral wills, every will shall be in writing, but may be handwritten or typewritten. The will shall be signed at the end by the testator or by some other person in the testator’s conscious presence and at the testator’s express direction. The will shall be attested and subscribed in the conscious presence of the testator, by two or more competent witnesses, who saw the testator subscribe, or heard the testator acknowledge the testator’s signature.

For purposes of this section, “conscious presence” means within the range of any of the testator’s senses, excluding the sense of sight or sound that is sensed by telephonic, electronic, or other distant communication.*

So, how is this statute to be applied when the attesting witnesses ‘witness’ execution from another room through a one-way video monitor?

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Close Friend Became “Natural Object Of The Decedent’s Bounty”

December 14, 2011

Authors

Luke Lantta

Close Friend Became “Natural Object Of The Decedent’s Bounty”

December 14, 2011

by: Luke Lantta

In a number of jurisdictions, there may be a presumption or inference of undue influence when a testator gives all or part of his or her estate to a person who is not the “natural object of the decedent’s bounty.”

In other words, a son or daughter is usually considered the natural object of a testator’s bounty so that the testator can give all of his or her estate to one child to the exclusion of the others without creating a presumption of undue influence on that basis alone.  Conversely, if a testator gives all of his or her estate to a friend or ‘stranger’ to the exclusion of his or her children, then that friend is usually not the natural object of the testator’s bounty and that may create a presumption of undue influence.

With that background, that’s why it is unusual that a trial court in

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

November 14, 2011

Authors

Luke Lantta

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

November 14, 2011

by: Luke Lantta

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.

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