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Using Lay Witnesses To Combat Experts: Taking A Knife To A Gun Fight?

October 11, 2017

Authors

Luke Lantta

Using Lay Witnesses To Combat Experts: Taking A Knife To A Gun Fight?

October 11, 2017

by: Luke Lantta

Expert witnesses can be expensive.  Yet, in estate disputes, they may be unavoidable.  When a will gets challenged based on an alleged lack of testamentary capacity or undue influence, you can all but guarantee that the decedent’s treating physician and medical records will make an appearance.  On the other side, the parties will line up the decedent’s friends, family, associates and the like who interacted with the decedent around the time the will was executed to claim the decedent either lacked capacity or was totally competent.  But, are these lay witnesses enough to overcome the doctor?  Perhaps not.

The Supreme Court of Appeals of West Virginia‘s opinion in Merritt v. Wolford provides a good example of what often happens when a party tries to combat

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Guardians Should Guard Against Claims Of Undue Influence

June 7, 2017

Authors

Luke Lantta

Guardians Should Guard Against Claims Of Undue Influence

June 7, 2017

by: Luke Lantta

guardian‘s job requires that the guardian be involved in the affairs of the ward.  In turn, the ward likely is going to be dependent on and trust the guardian.  Chances are – because Georgia sets an order of preference for persons eligible to become a guardian for a ward – the guardian also may be a close family member.  Since people often like to put their family members into their wills as beneficiaries, a guardian may run into a situation where the ward names him or her as a beneficiary of the ward’s estate.  While that seems all well and natural, because of the fiduciary relationship between guardian and ward, that will may get a close look by a court.

So what is a guardian to do?

Distance herself from the estate planning process.

While there is no

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Giving Away What You Don’t Know You Have

September 14, 2016

Authors

Luke Lantta

Giving Away What You Don’t Know You Have

September 14, 2016

by: Luke Lantta

Under Georgia law, the standard for testamentary capacity requires that a testator remember generally what property is subject to the will’s disposition.  You don’t have to know every dollar, where it is, or all your personal property.  You just have to have some idea of what you have in order to give it away.  While we’d like to quibble over how specific your knowledge must be about the extent of your property to demonstrate testamentary capacity, in Webb v. Reeves, the Georgia Supreme Court just told us that you don’t actually need to know the extent of your property as long as someone apprises you of it.

In this estate dispute’s second appearance here, a caveat was filed to the petition to probate the will of Joseph Thomas Schmidt on, among

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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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Georgia Probate Court Lacked Authority To Extend Time To Appeal

November 12, 2013

Authors

Luke Lantta

Georgia Probate Court Lacked Authority To Extend Time To Appeal

November 12, 2013

by: Luke Lantta

Probate court litigation can be very different from other types of litigation, especially when it comes to procedural matters.  Within a single probate case, there can be multiple evidentiary hearings, which can be like mini-trials.  Also, the probate court may enter numerous orders along the way, the rules of appealing which can be different from typical appeals.  For example, in Georgia, “[a]n appeal shall lie to the superior court from any decision made by the probate court, except an order appointing a temporary administrator.”  The time limit for such an appeal is “within 30 days of the date the judgment, order, or decision complained of was entered.”  How hard is that 30 day time limit?  In Duncan v. Moreland, the Georgia Court of Appeals let us know.

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Does Renunciation Rule Apply To Self-Settled Inter Vivos Trusts?

September 19, 2013

Authors

Luke Lantta

Does Renunciation Rule Apply To Self-Settled Inter Vivos Trusts?

September 19, 2013

by: Luke Lantta

We previously looked at the doctrine of election, where a party generally must renounce the benefits received from an estate (or trust?) before he or she can challenge the will (or trust?).  In Estate of Boyar, the Illinois Supreme Court sidestepped the question of whether the doctrine of election should be extended to challenges to amendments to living trusts in cases where the trust serves the same purpose as a will.

Where Illinois did not weigh in, a Florida appellate court did.

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Georgia Supreme Court Addresses Numerous Fiduciary Litigation Topics In Will Contest Opinion

July 23, 2013

Authors

Luke Lantta

Georgia Supreme Court Addresses Numerous Fiduciary Litigation Topics In Will Contest Opinion

July 23, 2013

by: Luke Lantta

Standing to caveat a will?  Check.  Undue influence?  Check.  Testamentary capacity?  Check.  Monomania?  Fraud?  Check and double check.  While the Georgia Supreme Court’s opinion in Odom v. Hughes didn’t break any new ground, it examined such a wide range of will contest topics that it’s definitely worth a read.  Without further ado . . .

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Should A Testator Explain Why She Disinherited A Child?

October 29, 2012

Authors

Luke Lantta

Should A Testator Explain Why She Disinherited A Child?

October 29, 2012

by: Luke Lantta

Hell hath no fury like a disinherited child.  Or, if not fury, then at least an appetite for litigation.

Many estate planners recommend against total disinheritance and instead couple a token distribution with an in terrorem clause.  That way the disinherited child stands to lose something if he or she pursues estate litigation.  Of course, that doesn’t always work.  Especially if the risk is greatly outweighed by the potential reward – say giving up a sure $5,000 for a possible $1 million.

So, what else can a testator do to ensure that his or her intent to disinherit is upheld if there is litigation?

In In the Matter of the Probate of the Alleged Will of Joan Pennella, a recent case out of New Jersey, we see the value placed by a court on the testator’s own explanation of why she disinherited two of her children.

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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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Testamentary Capacity Does Not Require Understanding Of Complex Financial Transactions

June 27, 2012

Authors

Luke Lantta

Testamentary Capacity Does Not Require Understanding Of Complex Financial Transactions

June 27, 2012

by: Luke Lantta

Testamentary capacity is a continuum.  Somewhere along the line, a testator slips from having the requisite capacity to execute a will to not having it.  Where that line falls, however, is the subject of much litigation.

In Deroy v. Estate of Baron, the Appellate Court of Connecticut helped clarify that line under Connecticut law.

A trial court had ruled that a testator lacked the capacity to make a will based on a neurologist’s report about the testator that stated:  “Given her cognitive impairments, it is unlikely that she would be able to make fully informed, thoughtful judgments regarding complex financial issues.”

This, however, was the wrong standard to apply.

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