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California Appellate Court Rules That Trust Arbitration Provision Was Unenforceable

March 25, 2014

Authors

Luke Lantta

California Appellate Court Rules That Trust Arbitration Provision Was Unenforceable

March 25, 2014

by: Luke Lantta

Mandatory arbitration provisions in trusts are a relatively new concept, and only now are courts really beginning to weigh in on their enforceability.  In McArthur v. McArthur, add the First District Court of Appeal of California to the list of courts that have now considered the issue.  It determined that an arbitration provision in the inter vivos trust of Frances E. McArthur was unenforceable as against a trust beneficiary who brought suit to invalidate an amendment to the trust based on undue influence and lack of testamentary capacity.

Let’s start with the provision.  In 2011, Frances amended her 2001 trust to give a greater portion of the property to one of her daughters and to add a “Christian Dispute Resolution” provision that required mediation and, if necessary,

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Breach Of Fiduciary Duty Under Power Of Attorney

January 28, 2014

Authors

Luke Lantta

Breach Of Fiduciary Duty Under Power Of Attorney

January 28, 2014

by: Luke Lantta

One recent fiduciary litigation trend is the increase in litigation involving powers of attorney.  While some of these cases involve the abuse of a validity executed power of attorney, others involve issues in the procurement of the power of attorney, such as procurement through fraud, undue influence, or lack of capacity.  In Estate of Mary E. Hiller, the Supreme Judicial Court of Maine recently considered a probate court‘s decision involving procurement of a power of attorney and acts purportedly taken pursuant to that power of attorney.

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Illinois Caregiver Remains Trust Beneficiary

November 14, 2013

Authors

Luke Lantta

Illinois Caregiver Remains Trust Beneficiary

November 14, 2013

by: Luke Lantta

Caregivers sometimes end up getting written into a will or a trust.  When they do, it’s not surprising if litigation ensues.  In Gardner v. Cole (Rule 23 order), we get to see an Illinois caregiver and her husband withstand a challenge by the grantor’s surviving relatives to impose a constructive trust over the trust assets and bank accounts that went to the caregiver and her husband.  So, how was the caregiver successful?

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Illinois Supreme Court Punts Question Of Whether Doctrine Of Election Extends To Challenges To Trust Amendments

May 2, 2013

Authors

Luke Lantta

Illinois Supreme Court Punts Question Of Whether Doctrine Of Election Extends To Challenges To Trust Amendments

May 2, 2013

by: Luke Lantta

In Estate of Boyar, the Supreme Court of Illinois had an opportunity to address an important question of Illinois trust law:  whether the “doctrine of election” applicable to will contests should be extended to challenges to amendments to living trusts in cases where the trust serves the same purpose as a will.  The trial court decided it did.  The Illinois appellate court also decided it did.  The Illinois Supreme Court, however, decided that there was no reason for the lower courts to address whether the doctrine of election should be extended to living trusts because that doctrine couldn’t be invoked under the circumstances present in the case.  Nevertheless, we get some good insight into when the doctrine of election could come into play in whatever contexts it might be applicable.

First, some quick facts.

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Who Should An Expert On Testamentary Capacity Talk To Before Rendering An Opinion?

February 27, 2013

Authors

Luke Lantta

Who Should An Expert On Testamentary Capacity Talk To Before Rendering An Opinion?

February 27, 2013

by: Luke Lantta

Whether a testator had the requisite capacity to execute a will is often the subject of lay testimony.  We’ve frequently talked here about how important the testimony of the drafting attorney, the attesting witnesses, and the notary are in undue influence or lack of testamentary capacity cases.  But, sometimes it may be worth getting an expert to testify in these cases especially when there may be some complex capacity issues.  If you get an expert, however, there’s still the issue of qualifying him or her.

And, even if you have an expert, here’s another reminder of how important the drafting attorney and witnesses to the will are.  In Fowler v. Kulhowvick (Rule 1:28 decision), a Massachusetts probate court actually rejected the expert testimony of a psychologist who failed to interview the drafting attorney and witnesses before offering an opinion on

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Three Of Your Most Important Witnesses In A Lack Of Capacity Or Undue Influence Case

December 14, 2012

Authors

Luke Lantta

Three Of Your Most Important Witnesses In A Lack Of Capacity Or Undue Influence Case

December 14, 2012

by: Luke Lantta

The drafting lawyer.

The attesting witnesses.

The notary.

Time and again the case law suggests to us that these are three of your most important witnesses in defending (or pursuing) a lack of testamentary capacity or undue influence case.  Yet, we sometimes don’t put a lot of thought into who will be our attesting witnesses or notary and how they might come across as witnesses at trial.

In Amerson v. Pahl, decided by the Georgia Supreme Court, we get to see again how a case turns on the testimony of these three witnesses.

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Videotaped Execution Of Will Pays Off

October 2, 2012

Authors

Luke Lantta

Videotaped Execution Of Will Pays Off

October 2, 2012

by: Luke Lantta

There is almost never anything good that can be gained by videotaping the execution of a will.  Chances are the testator will be nervous that the whole episode is being taped and that likely will end up showing up on the video.  One of the only reasons that you would tape the execution of a will is a concern about an incapacity challenge, so think about – nerves aside – how the testator is going to look to a jury.

If you think there will be an incapacity challenge, you’re almost always better off instead having witnesses execute contemporaneous affidavits attesting to all those facts that will support a finding of capacity under the laws of your jurisdiction.

Of course, then cases like Patterson-Fowlkes v. Chancey come along where the videotaping of a will execution pays off.

So, what good stuff was on the tape of Ruth Chancey

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Georgia Will And Revocable Trust Were Invalid Products Of Undue Influence

August 7, 2012

Authors

Luke Lantta

Georgia Will And Revocable Trust Were Invalid Products Of Undue Influence

August 7, 2012

by: Luke Lantta

Let’s just jump right into this one: in 2010, a Houston County, Georgia jury declared that a Will and a Revocable Trust executed by Thomas Hines, Sr., in 2002 were invalid, as they were the product of undue influence.

In Davison v. Hines, the Georgia Supreme Court affirmed the jury verdict.  The reason we just jumped right into the discussion of this case is because undue influence cases are fact-intensive.  So, let’s look at the facts that supported the verdict.

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Breach Of Fiduciary Duty And Undue Influence Complaint Against Church Elder Dismissed

May 14, 2012

Authors

Luke Lantta

Breach Of Fiduciary Duty And Undue Influence Complaint Against Church Elder Dismissed

May 14, 2012

by: Luke Lantta

It’s not that often we see a multi-count seemingly detailed breach of fiduciary duty and undue influence complaint get tossed on a motion to dismiss, but that’s what happened in Kaiden v. Zimonja (unpublished).

In affirming the trial court’s dismissal of the complaint, the Appeals Court of Massachusetts helps us understand what’s at the core of undue influence claims.

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