The question of when subscribing witnesses are necessary to admit a will to probate can sometimes be a tricky one.  So tricky that it may even trip up a probate court.  The issues mainly seem to arise when dealing with shifting burdens when a will is challenged.

In a recent Georgia case, Reeves v. Webb (consolidated with Groenenboom v. Webb), there was a petition to probate the decedent’s will in solemn form, and an objection and caveat were filed on the grounds that there was a breach of fiduciary duty to the decedent, fraud, undue influence, and lack of testamentary capacity.  The probate court dismissed the petition by finding that the propounder did not make out a prima

If you want to challenge a trust’s validity, you can’t also accept a distribution from that trust.  You have to choose.  This is known as the doctrine of election.  In fact, as the Michigan Court of Appeals recently determined in In re William W. Weigle Revocable Trust (unpublished), in Michigan, once you’ve filed suit, you can’t then try to give it back.

In this case, William W. Weigle executed a trust amendment in 2007 under which the petitioners – who were Weigle’s neighbors – were to receive a one-half interest in Weigle’s house and 72% of the balance of the trust assets while respondent – who was also Weigle’s neighbor – was to receive the remaining 19% of the trust’s assets.  Weigle later amended his trust to grant petitioners all interest in the house

The testator’s intent as set out in a will is usually sacrosanct.  Key emphasis on “usually.”  Assuming that the will isn’t invalid for any number of reasons such as incapacity, undue influence, fraud, etc., the property should be distributed according to the testator’s intent.  But, sometimes family members disagree with how the testator wanted to devise the property, and – shockingly – sometimes family members can even agree to an alternate division of property.  Why shouldn’t such an agreement be enforceable?  Well, in many jurisdictions it is under the family settlement doctrine.

The family settlement doctrine is a doctrine that allows the heirs of an estate to come up with a valid, enforceable agreement to deviate from the terms of a will when it comes to the distribution of division of property.  Here’s how Read More

We’ve previously noted that, as the population ages, power of attorney litigation has become a ‘hot’ area of fiduciary litigation.  Transfers of property from a principal to her agent get looked at closely and often – and sometimes justifiably – with suspicion.  And, if the holder of a power of attorney transfers property to herself using the power of attorney, if anyone catches it, then litigation is all but assured.  But, this doesn’t mean that a principal is forever barred from ever giving money or property to her agent.  The principal’s agent is, for example, often the principal’s child.  Certainly, absent incapacity, undue influence, fraud or other similar issues, a parent should be able to freely give property

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

Standing to caveat a will?  Check.  Undue influence?  Check.  Testamentary capacity?  Check.  Monomania?  Fraud?  Check and double check.  While the Georgia Supreme Court’s opinion in Odom v. Hughes didn’t break any new ground, it examined such a wide range of will contest topics that it’s definitely worth a read.  Without further ado . . .

Thomas and Michael Tessier allegedly bilked Frederick and Thaddeus Jakobiec and the estate of their mother, Beatrice Jacobiec, out of millions of dollars.  One part of that scheme allegedly involved the theft of approximately $100,000 in life insurance proceeds due a trust benefiting Thaddeus.   After Beatrice’s death, Thomas was rummaging through Beatrice’s items and found that a life insurance policy existed on the life of Beatrice.  That policy was payable to a trust known as the Smillie Trust.  So began this alleged criminal enterprise.

Thomas and Michael filed an ex parte petition to remove Frederick as trustee and install Michael as the trustee of the Smillie Trust for the benefit of Thaddeus.  Nearly simultaneously, Thomas fraudulently created a second trust for Thaddeus.  Through alleged fraud, forgery, and subterfuge, Thomas convinced the insurance company to pay the death benefit to the

Sometimes parties have a hard time letting go of trusts and estates litigation even after that litigation has been settled.  For example, we’ve seen trustees sanctioned for failing to sign releases contemplated by settlement agreements.  We also often see settlement regret where a party tries to set aside or ‘undo’ a settlement.  You’re probably more likely to see post-settlement disputes where, as part of a settlement, the parties agree to undertake some other obligations rather than just ‘walking away.’  Often, in estate litigation, those other obligations involve the transfer of property.

In Haney v. Camp, the Georgia Court of Appeals considered questions involving co-executors’ claims for attorneys’ fees in connection with enforcement of a consent order.  The Georgia appellate court’s opinion largely involved various state law legal standards for awarding attorney’s fees.  For us, we’re more interested in the underlying estate litigation

Last month, the Georgia Court of Appeals was busy addressing cases involving efforts to set aside deeds based on fraud.  So, we’ll take another look at a Georgia fraud case this week: Dunkley v. Evans.  While the appellate court had to address several legal issues, we’ll focus on the statute of limitations.  Here’s how the Georgia Court of Appeals said it worked in a fraud case: