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When The Power To Amend Doesn’t Actually Mean You Can Amend

October 20, 2016

Authors

Luke Lantta

When The Power To Amend Doesn’t Actually Mean You Can Amend

October 20, 2016

by: Luke Lantta

Circumstances, laws, and taxes all change.  And, when they do, many settlors don’t want their beneficiaries to have to go into court to get permission to roll with the changes.  That’s why you often find a trust provision that permits non-judicial amendments to the trust.  The breadth of these powers to amend differ from a narrow power to amend to a broad power to amend, like the one before the Maryland Court of Special Appeals in Grueff v. Vito.  There, the power to amend a family trust provided:

This Agreement may be revoked, altered or amended from time to time by an instrument in writing, signed by the holders of not less than seventy-five (75%) interest herein and delivered to the Trustee.

The beneficiaries used that amendment power a number of times over the years.

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Trust Reformation Was Not A Remedy For Failing To Complete An Estate Plan

June 24, 2015

Authors

Luke Lantta

Trust Reformation Was Not A Remedy For Failing To Complete An Estate Plan

June 24, 2015

by: Luke Lantta

With several recent cases in which Massachusetts courts have permitted trust modification, we might have started to think that trusts would be liberally reformed in Massachusetts.  The Appeals Court of Massachusetts’ decision in Lesanto v. Lesanto (Rule 1:28 decision), however, reminds us that certain requirements must be met to reform a trust.

In October 2005, Paul Lesanto executed a will and the Paul Lesanto 2005 Revocable Trust (“First 2005 Trust”).  The bulk of Lesanto’s estate would pour over into the First 2005 Trust.  In 2010, however, Lesanto executed a new trust document that retained the name “The Paul Lesanto 2005 Revocable Trust” (“Second 2005 Trust”), but specifically provided that “[t]he Grantor wishes to establish a Trust which may receive property which the Grantor may transfer to it.  The Grantor

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Tennessee Will Witnesses Must Sign Will Itself

June 10, 2015

Authors

Luke Lantta

Tennessee Will Witnesses Must Sign Will Itself

June 10, 2015

by: Luke Lantta

Just how strictly does Tennessee construe the formalities relating to the execution of a will?  Very.  In In re Estate of Bill Morris, the Court of Appeals of Tennessee considered what it meant for the witnesses to sign the will.  In this case, the decedent’s son filed a will contest claiming that the decedent’s will was not properly executed because the will was not signed by witnesses as required by Tennessee Code Annotated Section 32-1-104.  This statute requires the testator and at least two witnesses to sign the will.

The decedent signed the second page of the will and immediately following the testator’s signature began on the same page an “affidavit” of the witnesses, which continued onto a third page where the two witnesses signed the affidavit.  While the two witnesses signed the affidavit, they

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The Couple Said “I Do” But the Court Wasn’t So Sure

June 10, 2014

Authors

dkasakove

The Couple Said “I Do” But the Court Wasn’t So Sure

June 10, 2014

by: dkasakove

In Estate of Weisberg, the New York Surrogate’s Court was faced with dual petitions for administration in the estate of Chaim Weisberg, an Orthodox Jew who died intestate.  One petition was filed by decedent’s sister, as designee of decedent’s mother, who claimed that decedent was unmarried at the time of his death and his mother was his sole distributee.  A cross-petition and motion for summary judgment was filed by Jannah Geaney, who claimed that she was legally married to decedent in an Islamic ceremony and was therefore his sole distributee and should be administrator of her husband’s estate.  This case focused on whether Geaney met her burden of making a prima facie case of entitlement to summary judgment.  The Court ultimately determined that she had not met her burden even though the Court found no material issue of fact that the decedent and Geaney

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“Suspicious Circumstances” Keep Wisconsin Undue Influence Case Going

March 4, 2013

Authors

Luke Lantta

“Suspicious Circumstances” Keep Wisconsin Undue Influence Case Going

March 4, 2013

by: Luke Lantta

In many jurisdictions, the existence of a confidential relationship can turn an undue influence inquiry on its head.  That’s because the existence of a confidential relationship – usually coupled with evidence of something else – can create a presumption of undue influence.  Under Wisconsin law, that “something else” is “suspicious circumstances surrounding making of the will.”  When you have a confidential relationship with suspicious circumstance, then a presumption of undue influence is raised, which must be rebutted by the proponent of the disputed will.

“Suspicious circumstances” seems like a fuzzy concept so we’re going to take notice when the Court of Appeals of Wisconsin finds that suspicious circumstances existed that precluded summary judgment on an undue influence claim.  In Estate of Ely (Ely v. Orth), the Court of Appeals did just that.  Let’s take a look at these “suspicious circumstances.”

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