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Court Orders Administrator To Elect Portability

March 22, 2017

Authors

Luke Lantta

Court Orders Administrator To Elect Portability

March 22, 2017

by: Luke Lantta

When the IRS enacted the portability election provisions in 2011, which allowed estates of married taxpayers to pass along the unused part of their estate and gift tax exclusion amount to their surviving spouse, it remarked that it “expect[ed] that most estates of people who are married will want to make the portability election. . . .”  But, to elect portability, an estate tax return must be filed in order to pass along the exclusion.  So, what happens when an executor refuses to elect portability?  Take them to court, of course.

In In the Matter of the Estate of Vose, the decedent and her spouse entered into an antenuptial agreement prior to their marriage, which provided:

6.1 Waiver: Except as otherwise specifically provided in this Agreement, [Spouse] and [Decedent] mutually waive, discharge, and release each other to the fullest extent lawfully

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Missouri Court Determines When Estate Beneficiary Has Standing to Raise Undue Influence Claims

December 23, 2013

Authors

Stephanie Moll

Missouri Court Determines When Estate Beneficiary Has Standing to Raise Undue Influence Claims

December 23, 2013

by: Stephanie Moll

This post originally appeared here on Bryan Cave’s Private Client Service Group blog, TrustBryanCave.com.

With research and drafting assistance from Washington University extern, Kelsey Delong.

In Williams v. Hubbard, et. al., the Missouri Court of Appeals addressed the issue of whether a beneficiary of a decedent’s estate would be entitled to funds from the decedent’s account if the payable on death (“POD”) beneficiary or joint owner of the account was found to have procured the beneficiary or ownership interests through undue influence. In this case, the court found that the beneficiary could have rights to some of the decedent’s multiple accounts, but not all of them.

In this case, Betty Margaret Reynolds (“Betty”) hired Respondent Kenneth Nelson to draft several of her estate planning documents, including a beneficiary deed, a 2000 Will, and a 2006 Will. The beneficiary deed named

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Beneficiaries Removed From Accounts Lacked Standing To Sue

July 2, 2012

Authors

Luke Lantta

Beneficiaries Removed From Accounts Lacked Standing To Sue

July 2, 2012

by: Luke Lantta

The issue of standing regularly arises in fiduciary litigation.   Generally, to establish standing to sue, a plaintiff must have suffered an injury in fact, the injury must be traceable to the conduct complained of, and it must be likely that the injury will be redressed by a decision in the plaintiff’s favor.

Lack of standing can be a good defense in fiduciary litigation cases because many estate planning documents are ambulatory and can be changed at any time.  How can a person have suffered harm – an injury in fact – if they could have been written out of a will, taken off an account, or removed as the beneficiary of an insurance policy at any time?

The issue of standing in a fiduciary litigation context was recently before the United States District Court for the Northern District of Georgia in Hill v. Clark (2012 WL 1903265). 

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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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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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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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Estate Beneficiary Prevented From Joining Lawsuit Against Caretaker

October 7, 2011

Authors

Luke Lantta

Estate Beneficiary Prevented From Joining Lawsuit Against Caretaker

October 7, 2011

by: Luke Lantta

As a general rule, the personal representative of a decedent’s estate is usually the only person who can pursue an action to recover estate property.  It’s one of the personal representative’s fiduciary duties to estate beneficiaries.  Occasionally, in very limited circumstances, another person interested in the estate may be able to pursue an action in the personal representative’s place.  The Connecticut Court of Appeals determined that those limited circumstances were not present in Litwin v. Ryan.

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Who Has Standing To Challenge The Appointment Of A Guardian

August 29, 2011

Authors

Luke Lantta

Who Has Standing To Challenge The Appointment Of A Guardian

August 29, 2011

by: Luke Lantta

The class of people who can be appointed guardian or who are statutorily required to receive notice of a guardianship proceeding may be the only people who can later challenge the manner in which a guardian was appointed.  Seems pretty intuitive.  But what about a situation where two parties are divorced and one ex-spouse has a guardian appointed to go after the other ex-spouse?  And the ex-spouse getting sued claims that the guardianship proceeding was a fraud just to go after him?  In fact, the ex-spouse claims, his ex isn’t even incapacitated at all.

In Cacioppo v. Emolo, the New Jersey court of appeals was faced with that question: who has standing to challenge the appointment of a guardian?

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