If spouses want to execute a joint and mutual that binds the surviving spouse to a joint testamentary scheme, then they need to be very deliberate about their intent.  In Estate of Martin (Rule 23 Order), an Illinois appellate court determined that the “Joint Last Will and Testament of Daniel D. Martin Sr. and Florence M. Martin” was not, in fact, a joint and mutual will that prohibited Florence from changing the disposition of property after Daniel, Sr.’s death.

In 1990, Daniel, Sr. and Florence owned real estate in Chicago as joint tenants with rights of survivorship.  The “Joint Last Will and Testament of Daniel D. Martin Sr. and Florence M. Martin,” executed on March 12, 1990, left that property equally to their two sons, Michael and Daniel, Jr.  Daniel, Sr. died in 1998, and, Florence, as the surviving joint

At the heart of many an undue influence case is the confidential relationship.  Under the law of many jurisdictions, it’s a game-changer – it can shift burdens and create presumptions.  But, proving a confidential relationship is often very fact intensive.

In Mangarelli v. Snyder, a New Jersey appellate court gives us a short, sweet lesson on facts sufficient to establish a confidential relationship under New Jersey law.

Non-probate transfers of assets can be tough to attack.  First, they’re often hard for estate beneficiaries or heirs to find out about.  Second, even if they do know about them, in Georgia they’re often wrongly challenged in probate court or there’s a probate court ruling or order that makes them difficult to challenge in the appropriate forum. 

That’s why a case like Prainito v. Smith is unusual.  In this case, the Georgia Court of Appeals affirmed a jury verdict that a decedent’s grandson exercised undue influence and committed actual fraud with regard to a securities account to which the grandson was a joint tenant with the decedent and a certificate of deposit on which the grandson was a payable on death beneficiary.

The appellate court’s failure to flesh out some more of the underlying details of the case and failure to fully address

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

Joint tenant with right of survivorship accounts are commonly used to transfer assets outside of probate.  They also tend to lead to a lot of estate litigation.  The concept of a JTWROS account is simple enough: the tenants have an equal right to the account’s assets and the survivor gets the assets when the other account holder dies.

What if someone doesn’t want to make an inter vivos gift of his or her cash or other valuable personal property, but instead wants it to be transferred outside of probate upon his or her death?  Can something like a joint tenant with right of survivorship safe deposit box work?  If your plan is to use a ‘joint’ safe deposit box, then you better pay careful attention to the safe deposit box contract.  At least that was what was decided by the Georgia Court of Appeals in Longstreet v. Decker.