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How Much Notice Is Required To Remove A Georgia Executor?

September 2, 2015

Authors

Luke Lantta

How Much Notice Is Required To Remove A Georgia Executor?

September 2, 2015

by: Luke Lantta

Just how much notice is required before removing an executor in Georgia?  Maybe not all that much.

In Myers v. Myers, the beneficiary of several testamentary trusts filed a petition in probate court seeking, among other things, removal of the executor of the estate for numerous alleged breaches of fiduciary duty and a conflict of interest.  The beneficiary later withdrew the request that the executor be removed out of concern over an in terrorem clause and limited the petition to a request for an accounting.  In the amended petition, however, the beneficiary still repeated all of the original petition’s breach of fiduciary duty and conflict of interest allegations – he just didn’t specifically seek removal based on

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With No Contest Provision Lurking, Petition Was All Or Nothing

March 4, 2015

Authors

Luke Lantta

With No Contest Provision Lurking, Petition Was All Or Nothing

March 4, 2015

by: Luke Lantta

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

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Mississippi Adopts Good Faith And Probable Cause Exception

November 5, 2014

Authors

Luke Lantta

Mississippi Adopts Good Faith And Probable Cause Exception

November 5, 2014

by: Luke Lantta

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

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Nevada Trustees Not Permitted To Disinherit Trust Beneficiaries For Alleged Violation Of No-Contest Clause

February 27, 2014

Authors

Luke Lantta

Nevada Trustees Not Permitted To Disinherit Trust Beneficiaries For Alleged Violation Of No-Contest Clause

February 27, 2014

by: Luke Lantta

No-contest clauses can give trustees a great amount of power.  Obviously, it is a power that the grantor wants the trustee to wield – in appropriate circumstances – because the grantor thought it important enough to include in his or her trust instrument.  But, a trustee must still determine whether a beneficiary’s conduct rises to a level sufficient to trigger the clause and to seek its enforcement.   And, if a trustee seeks to enforce a no-contest clause, it is probably well-advised to enforce it evenhandedly.  In In the Matter of Joseph L. Dugan Revocable Living Trust dated January 13, 2003 (unpublished disposition), the Nevada Supreme Court took a look at an attempt to enforce a clause against two of three trust beneficiaries.

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When The General Powers Granted To A Trustee Conflict With A Specific Trust Provision

May 10, 2013

Authors

Luke Lantta

When The General Powers Granted To A Trustee Conflict With A Specific Trust Provision

May 10, 2013

by: Luke Lantta

Almost invariably, settlors give their trustees broad powers regarding trust property.  Often these broad powers include the power to convey and encumber trust property and the power to loan trust property.  But, sometimes, the settlor also gives the trustee specific instructions with respect to specific trust property.  In Hamel v. Hamel, the Kansas Supreme Court interpreted a trust instrument that gave the trustee broad general powers, but also specific directions regarding a specific piece of real property, and examined the interplay between the two provisions.

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A Cautionary Tale About Trustees Picking Sides Between Beneficiaries

February 7, 2013

Authors

Luke Lantta

A Cautionary Tale About Trustees Picking Sides Between Beneficiaries

February 7, 2013

by: Luke Lantta

When trust beneficiaries fight, the trustee usually ends up stuck in the middle.  The trustee is often then forced into taking a position in the dispute.  Not surprisingly, judges tend to be very interested in what the trustee thinks, especially if the trustee is a corporate fiduciary.  Chances are that the trustee’s position in the litigation is aligned with one set of beneficiaries but is adverse to the positions being advocated by another set of beneficiaries.  So, how far can or should a trustee force the issue of upholding the settlor’s intent as expressed in the trust instrument?  In Shelton v. Tamposi, the Supreme Court of New Hampshire gives us some thoughts under the Uniform Trust Code in a case involving an in terrorem clause, and the court suggests that there is a bright line the trustee shouldn’t cross.

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Can A Beneficiary Do An End-Run Around An In Terrorem Clause By Getting Someone Else To File A Caveat?

January 17, 2013

Authors

Luke Lantta

Can A Beneficiary Do An End-Run Around An In Terrorem Clause By Getting Someone Else To File A Caveat?

January 17, 2013

by: Luke Lantta

Well, probably not in Georgia.  If someone is behind the scenes pulling the strings to “initiate” legal proceedings, then that person – who didn’t actually file a caveat him or herself – may have violated the in terrorem clause.

In the first appearance of Norman v. Gober before the Georgia Supreme Court in 2011, the Court decided that eleven-year-old William Howard Norman, the grandson of Margaret Susan Scheer, lacked standing to challenge Scheer’s will because Norman was not an heir-at-law when the caveat was filed.  Norman was a contingent residuary beneficiary under Scheer’s will.  In other words, even if Norman’s caveat was successful, he would still take nothing.  As the Georgia Supreme Court put it, Norman was not “a person who will be injured by the probate of [the] [W]ill, or who will benefit by its not being probated.”  Actually, Norman would have benefited by the probate of

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Should A Testator Explain Why She Disinherited A Child?

October 29, 2012

Authors

Luke Lantta

Should A Testator Explain Why She Disinherited A Child?

October 29, 2012

by: Luke Lantta

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.

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