Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Saturday, January 26, 2013

Article on Will Contests

Joyce-moore-20100428-105041Joyce Moore (Shareholder, Langley & Banack, Inc.) recently published her article entitled Will Contests: From Start to Finish, 44 St. Mary's L.J. 97 (2012).  Here is the introduction to the article:  

The focus of this Article is primarily on the practical problems facing attorneys and courts when evaluating and proving up a will or trust contest. The focus extends further into the special procedural and evidentiary rules applicable to these actions, the use and misuse of summary judgment proceedings in these cases, and some observations regarding developing trends and strategies in will and trust contest litigation.

Threshold evaluation questions are the first issue this Article addresses. Section II explores these requirements, such as whether a potential contestant has standing, “unnatural dispositions” of estate property, recognition of “no contest” clauses, burdens of proof allocations, and other practical problems facing potential contestants. In sum, section II of this Article raises and addresses issues related to getting into the courthouse doors for a will or trust contest.

Section III takes the next pragmatic step in addressing potential grounds for will contests. The section does so by providing an in-depth analysis of the statutory requirements for a valid will, the issue of insane delusion, the requirements of testamentary capacity, and the possibilities of undue influence. Section IV further addresses the always-pertinent question of jurisdiction. Further, this section outlines the general rules of Probate and Trust Code jurisdiction.

Following the jurisdictional questions, section V addresses venue in probate and trust matters.

Section VI provides an important pleading checklist for practitioners. The checklist can act as a guide to ensure pleading defects do not arise. Section VI also makes note of “citation” and “notice” rules while also addressing various other points of interest that are vital to successful will and trust contests.

Section VII examines special discovery tools as outlined in the Probate Code that are crucial to the preparation of either side of a will contest. These tools include the use of a demand for delivery of a will, potential waivers, and pre-death filing of wills.

The next section addresses evidentiary issues that plague practitioners in will contests. The section not only addresses these issues, but also provides efficient ways to resolve many of the complex problems.

Building off section VIII, section IX focuses on pre-trial evidence rules, evaluating motions in limine and pre-trial conference orders, and the benefits of these proceedings for will contestants.

Section X addresses summary judgment rulings. The section lays out how to keep the summary judgment in perspective, the varying types of summary judgments, and effective responses to opposing parties' summary judgment motions.

Section XI touches on proponent's counter-attacks to will contests; some of these counter-attacks include utilization of the tort of tortious interference with inheritance rights, malicious prosecution, and more.

Section XII provides the practitioner with guidelines to make the most of the document execution process. While no process is perfect, these tools can potentially mean the difference between a probate litigator's dream and an estate planner's nightmare.

In summation, this Article strives to raise pertinent issues in will and trust contest litigation, provide pragmatic approaches to these issues, and thus provide guidance in handling these often-complex problems.

January 26, 2013 in Articles, Wills | Permalink | Comments (0) | TrackBack (0)

Elderly Man Gets a Light Sentence For Suicide Pact With Wife

Images-5In central California, a court recently sentenced George Taylor to two days in jail and probation for assisting his wife to commit suicide. Long ago, 86-year-old firefighter George Taylor and his wife had agreed to a suicide pact, but somehow George did not end up carrying out his end of the pact.  One of the odd things about the couple's agreement is that there did not seem to be an apparent reason they wanted to carry it out when they chose to.  Neither one was suffering from a terminal illness, and they were financially secure.  Forbes speculates that the court's light sentence may indicate an underlying philosophy that elderly people do have a right to die, even if assisted by a loved one. 

See Carolyn Rosenblatt, Is It Ever Ok To Assist An Elder to Commit Suicide?, Forbes, Jan. 26, 2013.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

January 26, 2013 in Current Events | Permalink | Comments (0) | TrackBack (0)

2012 Excellence in Writing Awards for Probate & Property Magazine Announced

P&PThe editors of Probate & Property magazine have recently announced the winners of the magazine's 2012 Excellence in Writing Awards.

The Trust & Estate winners are as follows:

  • Best Practical Use Article -- Christopher R. Hoyt, Retirement Assets to a Surviving Spouse -- Rollovers and Portability Are Your First Choice, January/February 2012.
  • Best Cutting Edge Article -- Gerry W. Beyer & Naomi Cahn, When You Pass on, Don't Leave the Passwords Behind: Planning for Digital Assets, January/February 2012.
  • Best Overall Article -- Tiffany B. Carmona and Tye J. Klooster, Wandry v. Commissioner: The "Secret Sauce" Estate Planners Have Been Waiting For?, November/December 2012.

January 26, 2013 in Appointments and Honors | Permalink | Comments (1) | TrackBack (0)

Special Needs, Elder Law, Wills, Trusts, Estates & Tax Blog

FriedmanReaders of this blog may enjoy examining the excellent materials on the Special Needs, Elder Law, Wills, Trusts, Estates, & Tax Blog prepared by Lawrence Friedman of FriedmanLaw in Bridgewater, New Jersey.

In a recent post, Mr. Friedman discusses contracts with care facilities.  Here is the opening paragraph of his post:

While it always is dangerous to sign any contract without first consulting a lawyer, it is especially risky to sign papers provided by a nursing home, assisted living facility, or other care center upon a loved one’s admission.  First, you likely will be under substantial stress and not in a frame of mind to give the contract the deliberate attention needed.  Second, care facility contracts typically contain jargon foreign to lay persons.   I can almost guaranty that you’d be surprised to learn all the obligations you undertake when signing as ”responsible party” for a nursing home or assisted living resident.

January 26, 2013 in Estate Planning - Generally | Permalink | Comments (2) | TrackBack (0)

Friday, January 25, 2013

More on Betty May Harris Case

WillsAs I have previously discussed, Betty May Harris bequeathed her large fortune to her next door neighbor instead of her niece because she believed that her family was only trying to obtain her wealth and place her in a home. I also discussed that a judge determined that Harris' most recent will was valid. Harris was compelled to change her will when her niece, Coralie Hart, ransacked her home to locate Harris' will. Hart took the will and a number of other financial documents without Harris' knowledge. Mrs. Hart also sought to become her guardian and to appoint her son-in-law, Mr. Swindells, to be the "financial manager to the person and estate of Mrs. Harris." When Mrs. Harris heard of her niece's actions, she was shocked and became concerned about her niece's intention. She wrote a new will, revoking the will that bequeathed her estate to Hart. The will left her estate to her friend, Mrs. Gray. Mr. Gray helped his Mrs. Harris write a new will and obtained the assistance of two neurologists to help determine whether Mrs. Harris had the testamentary capacity she needed to write a will.

Needless to say that did not stop Hart from challenging the will, claiming that her aunt did not have the testamentary capacity to revoke her first will and write a new one. In addition, Hart claimed that her aunt was having delusions that her family was out to get her and her money. The court disagreed and held that to have a delusion, it must be "a fixed and incorrigible false belief which [the testatrix] could not be reasoned out of." In other words, the belief must be unreasonable. The court determined that Hart's conduct made Harris' beliefs appear reasonable under the law. 

See Bernadette Carey, Australia: Valid Suspicions or Obvious Delusions? An Important Distinction For The Purposes of Assessing Testamentary Capacity, cbp Lawyers, Jan. 14, 2013.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

January 25, 2013 in Current Events, Wills | Permalink | Comments (1) | TrackBack (0)

Thursday, January 24, 2013

February 13: First Paralegal eLearning Session on Trust Funding

Images-4On February 13, The ABA Section of Real Property, Trust and Estate Law and the ABA Standing Committee on Paralegals is hosting a 60-minute session on trust funding.  This session is part of the eLearning paralegal program I have previously discussed.  Paralegals, legal support staff, young lawyers, legal educators, and students are all encouraged to attend.

Please click here for more information or to register. 

January 24, 2013 in Conferences & CLE, Trusts | Permalink | Comments (1) | TrackBack (0)

Powerball Winners Have A Big Heart

ImagesLast year, Powerball winners Mark and Cindy Hill pledged to use their portion of the winnings for a good cause.  Instead of keeping all of the proceeds for themselves, they will improve Mark's hometown, Camden Point.  Specifically, they plan to move the downtown firehouse to the site of the town's baseball field.  They will then relocate the baseball field further away from the highway to protect the kids. 

See Mark and Cindy Hill, Powerball Winners, Use Jackpot to Help Town of Camden Point, Huffingtonpost.com, Jan. 24, 2013. 

Special thanks to David S. Luber (Attorney at law, Florida Probate Attorney Wills and Estates Law Firm) for bringing this article to my attention.

January 24, 2013 in Current Events | Permalink | Comments (0) | TrackBack (0)

Family Still Fighting Over Sir Peter Ustinov's Estate

UnknownSir Peter Ustinov was a double-Oscar winning actor who passed away in 2004 at 82.  He starred in movies such as Spartacus, Death on the Nile and Logan's Run.  Sir Peter was married three times and had four children.  At the time of his death, it was estimated that he was worth tens of millions.  Since his last will was written 36 years before his death, judges ruled that he died intestate.

The battle over his estate is still going as Igor Cloutier von Ustinov, his son with his second wife, brough proceedings in a bid to freeze out his stepmother. Igor is trying to prove that since his father set up trusts, his estate should be handed to his offspring in spite of the court's ruling that revoked the will. 

Sir Peter's son in law, Malcolm Rennie, says he doubts there is much left to fight for since Ustinov was successful at such a high level and everybody wanted a piece of him.  Malcolm speculates that the bulk of the estate has gone to the lawyers.

The battle over the estate has been going on for over five years, since the judges ruled that his last-written will was invalidated when he married Lady Helene.  This judgment opened the door for her to claim a share of his estate.  Igor is now claiming that the trusts his father set up reserve a sizable slice of Sir Peter's assets for his children. Sir Peter's other three children have all been involved in the legal battle as well.

See Sir Peter Ustinov's Estate May be Lost on Legal Fees in Bitter Family Feud, The Telegraph, Jan. 24, 2013. 

January 24, 2013 in Current Events, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

Guardianship Changes May Be Working In Nebraska

Elderly peopleChief Justice Michael Heavican, the top judge in Nebraska, stated that the recent changes in the oversight of guardians and conservators in Nebraska "has exposed cases of theft and misuse of funds" and provided more protection for those under conservators. Even with this success, some guardians have decried that new requirements are too strict for spouses who are guardians. 

See Martha Stoddard, Nebraska Chief Justice: Guardianship, Juvenile Probation Initiatives Show Success, Ohama.com, Jan. 18, 2013.

January 24, 2013 in Current Events, Guardianship | Permalink | Comments (0) | TrackBack (0)

Elder Abuse Leads To Jail

Elderly peopleAccording to Sokolove Law, "[t]he California Attorney General announced that the former director of nursing at a hospital in the Kern Valley Healthcare District was sentenced to three years in state prison for the "convenience drugging" of elderly patient including one who ended up dying." Gwen Hughes, the director of nursing, pled "no contest" to the charges against her. The state accused Hughes of ordering that 23 elderly patients be placed on psychotropic medication even though they did not need the medicine. Hughes apparently gave the medicine to her patients that she thought "were noisy, prone to wandering, or were argumentative." The vast majority of these patients suffered from Alzheimer's or dementia. Hughes ordered the director of the hospital's pharmacy to give the patients the drugs even though they did not have a prescription for them. The state determined that the drugs that were given hastened at least three of the patient's deaths. All of the patients suffered at least some adverse physical reactions. 

See Elder Abuse Leads to Jail for Nursing Director, Sokolove Law, Jan. 16, 2013.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

January 24, 2013 in Current Events, Elder Law | Permalink | Comments (0) | TrackBack (0)