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Do You Really Want To Use That Power Of Attorney To Give Yourself Something?

September 21, 2016

Authors

Luke Lantta

Do You Really Want To Use That Power Of Attorney To Give Yourself Something?

September 21, 2016

by: Luke Lantta

In Georgia, an agent acting under a power of attorney can give himself the principal’s property at the principal’s direction.  The Georgia Supreme Court reaffirmed that maxim in Anderson v. Anderson.

There, less than a week before the principal’s death, the agent used a power of attorney to execute a deed conveying to himself 280 acres of the principal’s property and another 500 acres of the principal’s property to himself and his siblings. The trial court set aside the deeds on the grounds of a breach of fiduciary duty.  The Georgia Supreme Court reversed and remanded because there was some evidence that the agent executed the deeds at the principal’s request.  There can be no breach of fiduciary duty when an agent acts pursuant to the principal’s express direction or with

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Statute Of Limitations Barred Action To Set Aside Allegedly Fraudulent Deed

March 21, 2014

Authors

Luke Lantta

Statute Of Limitations Barred Action To Set Aside Allegedly Fraudulent Deed

March 21, 2014

by: Luke Lantta

If a deed has been procured by fraud, it may take a while for the defrauded person to figure out that he or she has been duped.  That’s why, in certain circumstances, the statute of limitations to set aside a fraudulent deed may be tolled.  But a mere allegation that a deed has been procured by fraud isn’t enough to toll the statute of limitations.  The allegedly defrauded person usually can’t just blindly accept someone else’s purportedly fraudulent representations.  Then again, the situation may be different if a fiduciary is the alleged fraudster or if there is a confidential relationship between the parties.  In McCall v. Williams, the Georgia Court of Appeals explored the intersection between alleged fraud, the duty to exercise reasonable

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Collateral Estoppel Did Not Prevent Georgia Will Contest

March 11, 2014

Authors

Luke Lantta

Collateral Estoppel Did Not Prevent Georgia Will Contest

March 11, 2014

by: Luke Lantta

Guardianship actions sometimes serve as a precursor to will contests.  If a petitioner seeks a guardianship of an alleged incapacitated adult and loses, what implications does that ruling have on a later will contest alleging incapacity?  In Copelan v. Copelan, the Georgia Supreme Court addressed that question while cleaning up some overruled guardianship law.  In the end, it came down to the standard of proof.

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Georgia Appellate Court Reduces Threat Of Attorney’s Fees In Fiduciary Litigation

July 11, 2013

Authors

Luke Lantta

Georgia Appellate Court Reduces Threat Of Attorney’s Fees In Fiduciary Litigation

July 11, 2013

by: Luke Lantta

Perhaps more than other types of litigation, fiduciary litigation can be driven by emotion and understandably so.  Litigation over a trust or estate is often the battleground on which other deep-seated intrafamily issues are fought.  In Georgia, one potential check against letting matters go too far afield is the threat of attorney’s fees against a party who asserts a claim, defense or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim.  In Williams v. Warren, however, the Georgia Court of Appeals may have taken some teeth out of the attorney’s fees statute, particularly when it is implicated in fiduciary litigation.

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A Trust Is Still Not A Legal Entity Under Georgia Law

January 4, 2013

Authors

Luke Lantta

A Trust Is Still Not A Legal Entity Under Georgia Law

January 4, 2013

by: Luke Lantta

It’s a pretty common mistake for litigators in Georgia unfamiliar with fiduciary litigation – naming a trust as a party to a lawsuit.  Apparently, as we recently saw in Ford v. Reddick, it’s a mistake made in real estate transactions, too.

It’s hard to blame them because, on the surface, the Georgia Code’s many references to trusts may unwittingly suggest to some that a trust is itself a legal entity.  But, under Georgia law, it’s not.

So what tripped up the real estate transaction in Ford?

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Georgia Statute Of Limitation For Setting Aside A Deed Based On Fraud

July 18, 2012

Authors

Luke Lantta

Georgia Statute Of Limitation For Setting Aside A Deed Based On Fraud

July 18, 2012

by: Luke Lantta

Last month, the Georgia Court of Appeals was busy addressing cases involving efforts to set aside deeds based on fraud.  So, we’ll take another look at a Georgia fraud case this week: Dunkley v. Evans.  While the appellate court had to address several legal issues, we’ll focus on the statute of limitations.  Here’s how the Georgia Court of Appeals said it worked in a fraud case:

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Georgia Appellate Court Clarifies Threshhold For Setting Aside Deed Based On Fraud

July 16, 2012

Authors

Luke Lantta

Georgia Appellate Court Clarifies Threshhold For Setting Aside Deed Based On Fraud

July 16, 2012

by: Luke Lantta

It’s no easy task to set aside a deed based on fraud.  Yet, because fraud is so difficult to prove through direct evidence, courts have established ways for plaintiffs to prove fraud by circumstantial evidence.  In Georgia, great inadequacy of of consideration, joined with great disparity of mental ability in contracting a bargain, may justify equity in setting aside a sale or other contract.  Where these two elements exist, a deed may be set aside without proof of anything else as to fraud.

In Slaick v. Arnold, the Georgia Court of Appeals recently got to apply this framework.

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Incapacity, Death, and Statutes of Limitation

February 17, 2012

Authors

Luke Lantta

Incapacity, Death, and Statutes of Limitation

February 17, 2012

by: Luke Lantta

We’ve previously looked at statutes of limitation in the context of fiduciary litigation.   As a quick refresher, a lawsuit has to be commenced within so many years after the complained of act occurred or you can’t pursue the lawsuit.  There are exceptions to this rule which allow a statute of limitation to be extended, or “tolled.”

Tolling of statutes of limitations can come up with greater frequency in the fiduciary litigation context because certain events like incapacity can toll a statute of limitations.

In Estate of Formyduval, the North Carolina Court of Appeals examined, under North Carolina law, the interplay between incapacity, death, and the statute of limitations for an action to set aside deeds on the basis of fraud and/or undue influence

Let’s take a quick look at the background of this lawsuit over the estate of

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