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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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Forgiveness May Be Available For An Untimely Caveat

January 20, 2017

Authors

Luke Lantta

Forgiveness May Be Available For An Untimely Caveat

January 20, 2017

by: Luke Lantta

It’s a new year and with it comes many resolutions. Each year, a popular resolution is to be more forgiving or to forgive someone who wronged you.  Apparently, trying to get a head start on its resolutions, on December 30, the Georgia Court of Appeals entered its opinion in In re: Estate of James Lynn Hill.  What does this have to do with forgiveness?  Remember that time we said that “in Georgia, the time to file a caveat may be short and unforgiving?”  Well, some forgiveness may be available.

An executrix filed a petition to probate a will.  Notice was sent to an heir informing him of the deadline to object.  The heir filed a caveat, but did so over a month late.  Under Read More

Virtual Adoption Requires Intestacy

July 15, 2015

Authors

Luke Lantta

Virtual Adoption Requires Intestacy

July 15, 2015

by: Luke Lantta

For the second time this year, the Georgia Supreme Court has addressed the equitable doctrine of virtual adoption.  Here’s how we previously described the doctrine:

In a virtual adoption, the ‘adopting parent’ orally agrees to adopt the child of another as his or her own without actually legally adopting the child and all parties act on the oral agreement to adopt.   Virtual adoption is not legal or statutory adoption.  It is an equitable remedy that is applied only upon the death of the ‘adopting parent’ to avoid an unfair result to the ‘adopted child’ by the application of intestacy laws.

In Johnson v. Rogers, the Georgia Supreme Court reaffirmed that this equitable doctrine can only be applied where the ‘adoptive parent’ dies Read More

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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How Far Does Direct Benefits Estoppel Extend?

April 16, 2015

Authors

Luke Lantta

How Far Does Direct Benefits Estoppel Extend?

April 16, 2015

by: Luke Lantta

Under direct benefits estoppel (or the doctrine of election), a beneficiary must choose: either challenge the will (or trust) or accept the benefits provided under that instrument.  You can’t have it both ways, meaning you can’t both take benefits under an instrument and challenge that same instrument’s validity.  But how far can a fiduciary extend this defense?

In Harrison v. Harrison (unpublished Rule 23 order), an Illinois appellate court drew a line in the sand.  While direct benefits estoppel may apply to direct challenges to the validity of a will, it will not apply to actions construing a will.  The appellate court ruled that, even if a litigant accepts benefits under a will, he is not necessarily estopped from arguing that certain provisions of the will are void as against public policy and

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In Georgia, The Time To File A Caveat May Be Short And Unforgiving

August 27, 2014

Authors

Luke Lantta

In Georgia, The Time To File A Caveat May Be Short And Unforgiving

August 27, 2014

by: Luke Lantta

A recent case decided by the Georgia Court of Appeals serves as a reminder that probate court litigation often differs procedurally from other types of litigation.  So, when faced with a will contest or other probate proceeding, it’s often best to consult with someone who specializes in that type of fiduciary litigation.

In In re: Estate of Loyd, one of the heirs of Virginia Childs Loyd, Jack, tried to object to a petition to probate the will on the grounds of undue influence.  The trial court dismissed Jack’s caveat as untimely and the appellate court agreed.

After the petition to probate the will was filed, the probate court entered an order requiring certain of the heirs, including Jack, to file any objections to

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When Can A Replaced Executor Challenge A Will?

June 24, 2014

Authors

Luke Lantta

When Can A Replaced Executor Challenge A Will?

June 24, 2014

by: Luke Lantta

The world of people who can challenge a will has its limits.  A person challenging a will must have some recognizable “interest” in the will, and while the definition and scope of that “interest” may vary by jurisdiction, a property right that would be affected by a will contest is often sufficient.  In other words, if setting aside the subsequent will would put money in your pocket, then you likely have standing to challenge that will.  But what about someone with no pecuniary interest in the estate, like a replaced executor?  In Estate of Sobol, a California appellate court recently construed the scope of that “interest” under California law.

Here, the court dealt with a scenario in which Sonia Sobol executed a will that named Jay Rose as her executor.  Sonia later executed a codicil

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Preparing A Will For A Blind Testator

May 22, 2014

Authors

Luke Lantta

Preparing A Will For A Blind Testator

May 22, 2014

by: Luke Lantta

People with disabilities need wills, too.  Depending on the disability, however, an estate planner may need to do a little extra work to ensure that the testator’s intent is upheld if the will is challenged.  In deciding other issues in Ammons v. Clouds, the Georgia Supreme Court gave estate planners a few suggestions on how to draft a will for a blind client.

In Georgia, there is some authority that, if a testator is blind, more than the ordinary degree of “positive proof that he actually knew and assented [to the contents of the will] is required to repel any suspicion which circumstances may have cast upon the good faith of the transaction . . . .”  Estate planners, therefore, should take extra care to show that the will was prepared according to the testator’s

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Tennessee Requires All Witnesses To A Will To Testify

February 13, 2014

Authors

Luke Lantta

Tennessee Requires All Witnesses To A Will To Testify

February 13, 2014

by: Luke Lantta

When it comes to will execution, sometimes the belt and suspenders approach may be well advised.  But, other times, less is more.  Like, perhaps, when it comes to the number of witnesses.  When state law requires that you only need a set number of witnesses to a will, the Court of Appeals of Tennessee’s opinion in the will contest case of Estate of Woolverton shows us the potential problems that may arise when you bring in extra, unnecessary witnesses.

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Georgia Self-Proving Affidavit Was Insufficient

September 17, 2013

Authors

Luke Lantta

Georgia Self-Proving Affidavit Was Insufficient

September 17, 2013

by: Luke Lantta

When a legislature goes through the trouble of giving you a statutory form, as the Georgia General Assembly has done with self-proving affidavits under O.C.G.A. § 53-4-24, why would you omit items from the statutory form?  In Martina v. Elrod, a will contest case, the caveators invalidated a self-proving affidavit because the self-proving affidavit was not in substantial compliance with the statutory requirements.  So, what was missing?

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