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Georgia Superior Court Could Not Sanction Probate Court Conduct

February 28, 2018

Authors

Luke Lantta

Georgia Superior Court Could Not Sanction Probate Court Conduct

February 28, 2018

by: Luke Lantta

Probate court practice can be quirky, fraught with procedural peculiarities and appellate traps for those who do not regularly practice there.  Appeals from a Georgia county probate court to that county’s superior court – an appellate process that does not apply to every probate court in Georgia but only to those in certain counties – is one arena in which these quirks frequently arise.  Often, the issues relate to jurisdiction between the two courts.  In McNair v. McNair, the Georgia Court of Appeals addressed a superior court’s authority to impose sanctions for conduct that occurred in probate court proceedings in the same case but prior to the appeal to superior court.

The short answer?  It can’t.

Estate disputes are among the most hotly contested disputes for myriad reasons, not the least of which is they often involve family. 

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The Georgia Superior Court/Probate Court Dance

November 9, 2016

Authors

Luke Lantta

The Georgia Superior Court/Probate Court Dance

November 9, 2016

by: Luke Lantta

No procedural or jurisdictional issues in Georgia fiduciary litigation can cause as much headache as the sometimes exclusive and sometimes concurrent jurisdiction of the superior and probate courts.  The Georgia Court of Appeals’ recent decisions in Rentz v. Rentz and Rentz Family Farms v. Rentz put a spotlight on these procedural and jurisdictional tensions.  The cases involved the distribution of real property held by an estate, a probate court’s order to liquidate that real property despite a current lease on certain parcels, and an attempt to have a superior court weigh in on the propriety of the probate court’s actions while the probate court proceedings were ongoing.

The appellate court’s description of the interaction between the probate and superior court as “complicated” may be an understatement.  Cutting through the “complicated interaction” was

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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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Connecticut Conservator Of The Person Lacked Standing To Bring Lawsuit On Behalf Of Ward

December 21, 2011

Authors

Luke Lantta

Connecticut Conservator Of The Person Lacked Standing To Bring Lawsuit On Behalf Of Ward

December 21, 2011

by: Luke Lantta

Guardians and conservators don’t get appointed because things are going swimmingly for the ward.  In a good many of these cases, a guardian and conservator are appointed because there has been some type of financial exploitation of the ward.  Once the ward has been protected going forward, the question turns to how to try to recover what the ward has lost from the exploitation and who has standing to bring the claims on behalf of the ward?

When it comes to a ward’s financial losses, in Kawecki v. Saas, the Appellate Court of Connecticut clarified that it is the conservator of the estate – and not the conservator of the person (similar to a guardian in other jurisdictions) – who has standing to bring a lawsuit to recover the ward’s financial losses.

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Son Had Standing To Challenge Will And Sale And Lease Agreements

December 5, 2011

Authors

Luke Lantta

Son Had Standing To Challenge Will And Sale And Lease Agreements

December 5, 2011

by: Luke Lantta

You can’t win a fight over a will if you don’t have standing to challenge the will.  We’ve previously looked at standing in the context of guardianship challenges and beneficiaries who thought they could pursue the estate’s claims better than the executor could.  Today, we take a look at who has standing to pursue claims that a will and several contracts were the products of undue influence and a lack of capacity.

In Matter of Estate of Glennie, the Montana Supreme Court reversed a trial court’s decision that a testator’s son lacked standing to challenge the will and to seek to set aside cattle sale and lease agreements entered into by a sibling and the testator.  In doing so, the Montana Supreme Court showed us what to look for under Montana law in order to determine standing.

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Georgia Executor Converted Estate Assets

November 18, 2011

Authors

Luke Lantta

Georgia Executor Converted Estate Assets

November 18, 2011

by: Luke Lantta

In In re Estate of Tapley, the Georgia Court of Appeals took on a number of procedural issues regarding litigation over the Estate of Opal Mae Tapley.

The case highlights a common problem with fiduciary litigation – estate disputes often span multiple courts and involve multiple separate lawsuits.  The case therefore serves as a good reminder to fiduciary litigators that it is their responsibility to follow proper procedure or risk losing a damage award on appeal.

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Pennsylvania Court Could Not Assess A Surcharge Against Non-Party Wrongdoer

November 11, 2011

Authors

Luke Lantta

Pennsylvania Court Could Not Assess A Surcharge Against Non-Party Wrongdoer

November 11, 2011

by: Luke Lantta

When individual fiduciaries are found to have breached their fiduciary duties, they are often found to have received some help.  Many times a spouse, lover, or business partner is seen lurking in the wings, aiding and abetting the breach of fiduciary duty.  From an aggrieved beneficiary’s or successor fiduciary’s perspective, it’s imperative to get that joint-wrongdoer brought into court, where he or she can be held to account for the wrongdoing and – if there’s a recovery to be had – reimburse the estate or trust for damages.  In other words, a person cannot be held to account unless he or she is actually a party to the litigation.

In Estate of Brown, the Superior Court of Pennsylvania, decided that the Court of Common Pleas of Delaware County exceeded its authority when it imposed a surcharge on Kenneth Pearl, who was not a party

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New Florida Rule Of Appellate Procedure Affects Fiduciary Litigation

November 9, 2011

Authors

Luke Lantta

New Florida Rule Of Appellate Procedure Affects Fiduciary Litigation

November 9, 2011

by: Luke Lantta

On November 3, 2011, the Florida Supreme Court approved the Appellate Court Rules Committee’s proposed rule changes to the Florida Rules of Appellate Procedure.  Among the changes to the Florida Rules of Appellate Procedure is the addition of a new Rule 9.170, which governs appeal proceedings in probate and guardianship cases.

Because probate court cases often involve a number of different issues that are akin to a bunch of separate lawsuits all under one probate umbrella, the new rule helps clear up the question of what types of orders are appealable orders.

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Discovery Rule Tolls Statute Of Limitations In Utah Trust Litigation

November 7, 2011

Authors

Luke Lantta

Discovery Rule Tolls Statute Of Limitations In Utah Trust Litigation

November 7, 2011

by: Luke Lantta

The concept of a statute of limitations is easy to understand: a lawsuit has to be commenced within so many years after the complained of act occurred or you can’t pursue the lawsuit.  Where it gets tricky are all the exceptions to the rule.  For example, if the wrongdoer concealed the wrongful act or the wrongful act occurred in some way that made it highly unlikely that the aggrieved person would know about it, then the statute of limitations shouldn’t start running until the injured person knows or through reasonable diligence should have known about the wrongful act.  This “tolling” of the statute of limitations is called the discovery rule: the statute of limitations doesn’t start running until a plaintiff knew or reasonably should have known of the act.

Not all states apply the discovery rule, and not all states apply it to every cause of action.  In Bowen v. Bowen,

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Probate Court Sanctions Against An Attorney Do Not Preclude Disciplinary Proceedings

October 17, 2011

Authors

Luke Lantta

Probate Court Sanctions Against An Attorney Do Not Preclude Disciplinary Proceedings

October 17, 2011

by: Luke Lantta

In a probate court case, attorney Richard S. Weiss was sanctioned by the court.  Weiss was required to resign his appointment as guardian for an elderly woman, required to forgo fees that he claimed to have earned, and required to pay certain sums to the guardianship estate.  Weiss had probably hoped that was the end of the fallout from the conduct that led to the sanctions.  It was not.  The Massachusetts Board of Bar Overseers had not yet weighed in . . . .

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