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Trustee Who Allegedly Breached Fiduciary Duty Denied Admission To Ohio State Bar

March 28, 2013

Authors

Luke Lantta

Trustee Who Allegedly Breached Fiduciary Duty Denied Admission To Ohio State Bar

March 28, 2013

by: Luke Lantta

The potential fallout for an individual trustee who has breached a fiduciary duty can extend beyond a judgment against him or her.  In In re Application of Wiseman, the Supreme Court of Ohio held that a bar applicant who “engaged in prohibited self-dealing while serving as the fiduciary of a trust” would not be admitted to the state bar.

Although the Ohio Supreme Court identified additional “underlying improprieties” that prohibited the applicant’s admission to the bar, the court separately identified “probate litigation” and “breach of fiduciary duties as trustee of life insurance trust” as several of the grounds for disapproving the applicant’s application for admission to the state bar.  Let’s take a brief look at these two issues which might give already-licensed attorneys some pause about serving as fiduciaries.  Because if it’s grounds for denial

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Witnesses Who Viewed Will Signing Over Video Monitor Were Not In “Conscious Presence” Of Testator

August 9, 2012

Authors

Luke Lantta

Witnesses Who Viewed Will Signing Over Video Monitor Were Not In “Conscious Presence” Of Testator

August 9, 2012

by: Luke Lantta

Ohio‘s statute regarding the method of making a will is similar to statutes in other jurisdictions:

Except oral wills, every will shall be in writing, but may be handwritten or typewritten. The will shall be signed at the end by the testator or by some other person in the testator’s conscious presence and at the testator’s express direction. The will shall be attested and subscribed in the conscious presence of the testator, by two or more competent witnesses, who saw the testator subscribe, or heard the testator acknowledge the testator’s signature.

For purposes of this section, “conscious presence” means within the range of any of the testator’s senses, excluding the sense of sight or sound that is sensed by telephonic, electronic, or other distant communication.*

So, how is this statute to be applied when the attesting witnesses ‘witness’ execution from another room through a one-way video monitor?

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Trust Could Not Be Revoked Or Amended Through Will

June 25, 2012

Authors

Luke Lantta

Trust Could Not Be Revoked Or Amended Through Will

June 25, 2012

by: Luke Lantta

Courts repeatedly remind us of the necessity to be very explicit with the language in our trust instruments.  With some very narrow exceptions, the clear, unambiguous language of the instrument controls.  This is sometimes referred to as being bound by the four corners of the instrument.

Our latest reminder of the need to remove all assumptions, ambiguity, or inconsistencies from estate planning documents comes to us from Ohio in WesBanco, Inc. v. Blair.  Here, we had the son of the decedent claiming that the decedent’s will revoked or amended his trust thereby eliminating the decedent’s allegedly estranged girlfriend as a beneficiary under the trust.  The son claimed that the decedent had reserved the right to amend or revoke the trust and he did so when he executed his will.

Seems that if the decedent and girlfriend had a falling out and

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Order Removing Successor Trustee Was Not Final, Appealable Order

January 10, 2012

Authors

Luke Lantta

Order Removing Successor Trustee Was Not Final, Appealable Order

January 10, 2012

by: Luke Lantta

Trust litigation often involves many components.  If there is a dispute with a trustee, the plaintiffs often request removal of the trustee, an accounting, and damages.  As a practical matter, courts will often deal with the various requests for relief in a piecemeal fashion.  Thus, a court may enter an order removing a trustee and appointing a successor trustee many months before actually reaching a decision whether the trustee did, in fact, breach its fiduciary duties.

When these matters are addressed through separate orders, the question often becomes “can I appeal and when?”  In Guardianship & Protective Services, Inc. v. Setinsek, an Ohio Court of Appeals addressed that question under Ohio law.

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Ohio Attorney-In-Fact Abuses Power Of Attorney

October 24, 2011

Authors

Luke Lantta

Ohio Attorney-In-Fact Abuses Power Of Attorney

October 24, 2011

by: Luke Lantta

There are so many ways to abuse powers of attorneys.  That’s why they’ve been referred to as “vehicles for fraud.”  While we’ve previously looked at ways in which they’ve been abused and our colleagues at Bryan Cave, Stephanie Moll and Mary McMath, have examined them in the context of “Who Can You Trust?” over at TrustBryanCave.com, the ways in which they can be abused are seemingly endless.  The reality is that these cases will continue to appear in increasing numbers as the Baby Boomers get older.

Last month, in Ward v. Patrizi, the Ohio Court of Appeals dealt with a a classic power of attorney abuse fact pattern.  A person who needed some help managing his bills designated a family member as his attorney-in-fact.  The attorney-in-fact dutifully paid the principal’s bills from his checking account, but, on the day

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