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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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The Family Settlement Doctrine Is Alive And Well

August 7, 2014

Authors

Luke Lantta

The Family Settlement Doctrine Is Alive And Well

August 7, 2014

by: Luke Lantta

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

Were Assets Of Sole Proprietorship Personal Property Of Decedent Or Separate Business Interests?

May 15, 2014

Authors

Luke Lantta

Were Assets Of Sole Proprietorship Personal Property Of Decedent Or Separate Business Interests?

May 15, 2014

by: Luke Lantta

When it comes to estate planning and disposition of assets upon death, a business owner should pay careful mind to the type of business he or she owns and update his or her estate planning documents if the form of the business changes.  In England v. Simmons, the Georgia Supreme Court had to determine a testator’s intent when he left his “personal assets” to his brother and sister and left his “business interests” in his sole proprietorship to his brother, sister, and two longtime employees.

Traditional Fine Art was the sole proprietorship of Robert Carl Haege.  Therefore, it had no legal existence separate and apart from Haege himself.  For these reasons, a trial court determined that all property associated with Traditional Fine Art should go to Haege’s brother and sister as “personal assets” –

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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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