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How Property Was Titled Did Not Control Disposition Of Asset

December 9, 2015

Authors

Luke Lantta

How Property Was Titled Did Not Control Disposition Of Asset

December 9, 2015

by: Luke Lantta

A deed transfers a lake cottage to a revocable living trust.  Title to the cottage is still in the name of that trust when the grantors die.  The cottage gets distributed according to the terms of that trust, right?  According to the Wisconsin Court of Appeals in Simon v. Sheedy, maybe not.  It depends whether someone can show that the grantors wanted the asset disposed of in another way.

Patrick and Margaret Sheedy created a revocable living trust in 1995.  They deeded their lake cottage along with some other properties to that trust.  Under the terms of the 1995 trust, the cottage would essentially end up being jointly owned by the Sheedys’ children.  In 2004, Patrick and Margaret created another revocable trust, the terms of which were different from the 1995 trust.  In particular, the cottage was to be

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Personal Representative Should Have Been Removed For Conflict Of Interest

September 16, 2015

Authors

Luke Lantta

Personal Representative Should Have Been Removed For Conflict Of Interest

September 16, 2015

by: Luke Lantta

It’s not often that a personal representative asks a court to remove her.  It’s probably less often that a trial court refuses to remove a personal representative who asks to be removed.  But, that was the situation before the Court of Appeals of Wisconsin in Rapp v. Weller.  The appellate court, however, ultimately decided that the personal representative should be removed for an unmanageable conflict of interest.  What was the conflict of interest?

The personal representative had conflicts stemming from her fiduciary duties to the estate she represented and her personal interest as an heir of that same estate.  Laura Rapp had been appointed as personal representative for her brother Laurence Berg’s estate.  She participated in a mediation and signed a settlement agreement on the estate’s behalf.

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Wisconsin Appellate Court Considers Distribution Value Of Trust Assets

February 18, 2014

Authors

Luke Lantta

Wisconsin Appellate Court Considers Distribution Value Of Trust Assets

February 18, 2014

by: Luke Lantta

In In re Alice J. Welch Revocable Living Trust (Vandenbrook v. Welch), a Wisconsin appellate court was required to interpret a provision in a trust instrument on how trust assets would be valued for purposes of distribution.  The trust instrument provided different distribution schemes, depending on whether a certain value exceeded $5 million.  So, the first question for the court was whether the value of these assets exceeded $5 million.  Let’s take a look at the differing interpretations and why trust language can’t be read in isolation.

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Trustee That Reinvested Trust Assets Through Its Insurance Affiliate Did Not Impermissibly Self Deal

August 2, 2013

Authors

Luke Lantta

Trustee That Reinvested Trust Assets Through Its Insurance Affiliate Did Not Impermissibly Self Deal

August 2, 2013

by: Luke Lantta

Corporate trustees have wrestled with investing trust assets in their own stock, their own proprietary mutual funds, or through their affiliates.  State trust laws take varied approaches to these practices as have the corporate trustees themselves.  Some options – where permitted by law – include refunding the entire commissions, reducing the commissions, offsetting the commissions by reducing the trustee fees, or taking the full commissions.  Needless to say, any approach may be met with hostility from the beneficiaries and claims of improper self-dealing.  In French v. Wachovia Bank, N.A., a federal appellate court has given us a watershed opinion on one of these approaches taken by a corporate trustee.

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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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Gifts Causa Mortis Failed For Lack Of Delivery

February 6, 2012

Authors

Luke Lantta

Gifts Causa Mortis Failed For Lack Of Delivery

February 6, 2012

by: Luke Lantta

Disputes over gifts causa mortis are rare.  That’s probably because, if a donor is going to make a gift causa mortis, he or she might just as well dispose of the asset through a will.

Here’s a quick refresher on gifts causa mortis:  A gift causa mortis is a gift made in contemplation of death.  Under this doctrine, a gift made during the life of the donor becomes effective upon the donor’s death if certain requirements are met.  While gifts causa mortis and inter vivos gifts are similar, an inter vivos gift, unlike a gift causa mortis, passes immediately with irrevocable title upon the gift being completed.

In Estate of Hansen, the Wisconsin Court of Appeals examined whether Roger Hansen made gifts causa mortis to three nieces and a great-nephew and determined he did not.

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Wisconsin Testator Did Not Need To Know “Mechanics” Of Will

November 14, 2011

Authors

Luke Lantta

Wisconsin Testator Did Not Need To Know “Mechanics” Of Will

November 14, 2011

by: Luke Lantta

While a testator’s desires about how property should be divided may be easy, the testamentary schemes that actually effect the disposition of that property can be painfully complex.  Aggrieved beneficiaries and plaintiffs’ lawyers often try to exploit the complexities of actually distributing the property rather than attacking the testator’s simple overall desire as to how the property should be divided.  In other words, an aggrieved beneficiary may try to claim that the testator should know the specific mechanics of how the property will be divided rather than simply understanding who gets what.

In Cychosz v. Cychosz, the testator, Stella Cychosz, had a relatively simple testamentary scheme that involved moderately complex mechanics regarding the disposition of the property.  One of the estate beneficiaries claimed that Stella didn’t have full knowledge of significant portions of her will.  The Wisconsin Court of Appeals disagreed.

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Liability of Successor Personal Representatives

August 17, 2011

Authors

Luke Lantta

Liability of Successor Personal Representatives

August 17, 2011

by: Luke Lantta

The general rule is that a successor personal representative is not liable for the acts of its predecessor absent certain circumstances (e.g., the successor knew of a breach and permitted it to continue, neglected to take proper steps to redress a breach, etc.).  So, do these certain circumstances arise when the predecessor and successor personal representatives are partners in the same small law firm?  The Wisconsin Court of Appeals recently dealt with that issue and many more in In re Elegreet.

In addition to the successor personal representative liability question, the Court was faced with issues that come up all the time at the trial court level but which don’t often get appellate scrutiny: fees where the executor is also an attorney, attorney’s fees to a successful (or partially successful) beneficiary, and reduction in the personal representative’s fees.  So what led to this tangled web?

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