Wills, Trusts & Estates Prof Blog

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

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Monday, July 27, 2015

Florida Probate Court Has No Jurisdiction Over Real Property From Out-Of-State

Florida-state-flagA Florida appellate court has recently held that a Florida probate court cannot order the partition and sale of out-of-state real property.  The Court held that the Florida probate court has no jurisdiction over out of state real property.  In order to partition out-of-state property the personal representatives of the estate would have to open an ancillary action in the State of Georgia.  The decision of Florida’s Fourth District Court of Appeals can be read here.

See Anya Van Veen, Florida Probate Court Has No Jurisdiction Over Out-Of-State Real Property, Clark Skatoff PA, July 24, 2015. 

July 27, 2015 in Current Events, Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0)

Sunday, July 19, 2015

CLE On Post - Windsor / Same-Sex Marriage Case Impact

CLEThe American Bar Association is presenting a CLE entitled, Post - Windsor / Same-Sex Marriage Case Impact, Thursday July 23, 2015, 1:00-2:30pm Eastern, online.  Here is why you should attend:

Two years after the U.S. Supreme Court's ruling that Section 3 of Defense of Marriage Act was unconstitutional in United States v. Windsor, the U.S. Supreme Court held in Obergefell v. Hodges, that the Fourteenth Amendment requires states to allow same-sex marriages and to recognize same-sex marriages performed in other states. While Windsor required employers to make a number of changes to their qualified plans and how they administered health plan coverage provided to same-sex spouses with respect to rights protected by federal law, including federal income tax, employers still had to impute income on same-sex spouse coverage at the state level. Furthermore, it was unclear whether sponsors could discriminate between same-sex spouse and opposite-sex spouses with respect to the provision of benefits. This webinar will review how the Windsor and Obergefell decisions affect plans sponsors and their plans, including imputation of income on health plan coverage at the state level, the risk sponsors of self-insured plans assume if they choose not to offer same-sex spouses the same benefits offered to opposite-sex spouses, whether plan sponsors may choose to re-design plans to eliminate domestic partner coverage, and the guidance that would be helpful to plan sponsors to address the issues that arise from Windsor and Obergefell.

July 19, 2015 in Conferences & CLE, Estate Planning - Generally, New Cases | Permalink | Comments (0)

Friday, July 10, 2015

Man Forced To Pay Nursing Home Cost As Part Of Alimony

Wedding RingsA 94 year old Nebraska man has been order to pay alimony to cover the nursing home care of his 95 year old ex-wife after a series of appeals. The couple was married in 1982 and never had children but the man sought to avoid paying under a child support statute because the expense would drive his income below the poverty line. The Nebraska Supreme Court held against him stating that the statute did not apply since there were no marital children and he had the option to sell property to provide himself with funds.

See, 94-Year-Old Must Pay Alimony to Offset Ex-Spouse's Nursing Home Costs, Elder Law Answers, July 9, 2015.

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

July 10, 2015 in Current Affairs, Current Events, New Cases | Permalink | Comments (0)

Tuesday, July 7, 2015

Florida Requires Full Due Process Be Given In Guardianship Cases

Gavel 2Martin Zelman was a very successful individual who amassed a tidy fortune over his eight decades on Earth. But in his autumn years, allegations of incapacity began to spring up from his children, particularly when it came to his wife who held a joint bank account with him that "accidentally" had $3 million placed into it by Mr. Zelman. After being ruled incapacitated by the judge in a suit brought by his son, the $3 million that Zelman had transferred was order to be returned by the judge acting sua sponte.

In Zemel v. Zemel, the Court of Appeals ruled that the rights of the non-litigant spouse were trampled when she was not offered a chance to be heard concerning the matter or notified of the proceedings over the account. The wife had a property right in the proceeds of the account and to transfer the money without her involvement, or even at the request of the party bringing the suit, resulted in a due process violation that would not stand. The court stressed that the rights of a non-party cannot be tossed aside for the convenience of another case or party and that all proper procedure must be given.
See Brian Spiro, Due Process Required in Guardianship Proceedings, Clark Skatoff, July 2, 2015.

July 7, 2015 in Guardianship, New Cases | Permalink | Comments (0)

Article On Victims of Substantiated Child Abuse As Ascertainable Creditors

Mizzou LawAlice Haseltine (University of Missouri School of Law, J.D. Candidate 2015) recently published an article entitled, Victims of substantiated child abuse: Missouri's new reasonably ascertainable creditors, 79 Mo. L. Rev. 1121-1137 (2014)  Provided below is the article’s abstract:

This Note begins with an exploration of the unique factual circumstances that gave rise to the court’s determination that victims of child abuse are reasonably ascertainable creditors.  The Note goes on to discuss the constitutionality of creditor claim bars and the evolution of the reasonably ascertainable creditor in Missouri.  Next, this Note provides an analysis of the Supreme Court of Missouri’s reasoning in Austin and – finally – explores possible ex-tensions of Austin while weighing the policy considerations associated with a broad extension of the court’s holding to future claims of child abuse against decedents’ estates.

July 7, 2015 in Articles, Current Affairs, New Cases | Permalink | Comments (0)

Monday, July 6, 2015

Trust Reformation By Massachusetts' Lower Courts Restrained

Trust AltIn recent years, courts in Massachusetts have been rather liberal in reforming trust to meet the expectations of the settlor even if proper creation procedure was not followed. But this trend might be on the wane following a case that had a will pouring into an existing trust that was later revoked then reestablished, with different terms, in the same year. However, state law at the time required the trust to be in existence before the will was executed and the termination of the first trust ultimately caused a lapse for the pour over provision.
At probate, the court ruled the failure to properly identify the new trust in the will a drafting error and allowed the pour over to proceed. However, the appeals court overturned the decision stating that reformation cannot take the place of actually executing the legal formalities, executing a new will or valid codicil in this instance, no matter what the intent of the testator might have been. Essentially, the court said that no matter how fair it might be to "reform" a document to meet the creator's intent, if there is nothing valid to fix then the court is powerless to act.
See Luke Lantta, Trust Reformation Was Not A Remedy For Failing To Complete An Estate Plan, Bryan Cave Fiduciary Litigation, June 24, 2015.
Special thanks to Jim Hillhouse for bringing this article to my attention.

July 6, 2015 in New Cases, Trusts, Wills | Permalink | Comments (0)

Brother Of Deceased Liquor Magnate Denied Right To See Trust Documents

New ZealandA New Zealand judge has denied a request to examine trust records by the brother of late liquor king Michael Erceg. The dispute centers on a lack of distributions made to the brother from two trust that were set up after the tragic death of Erceg in a aviation accident. Family members have been battling over the massive estate for ten years with a recent case involving Erceg's mother recently concluding. The judge cited confidentiality for the reason the documents will remain sealed.


See Hamish Fletcher, Judge denies look at Erceg documents, New Zealand Herald, May 25, 2015.


Special thanks to Jim Hartnett for bringing this article to my attention.


July 6, 2015 in Current Events, New Cases, Trusts | Permalink | Comments (0)

Clever Tactics No Get Around Florida Laws Concerning Post Divorce Wills

Florida_sign When Thomas Carroll died, the will left the estate to his wife and, if she were dead, the residuary to a trust created for the benefit of the wife's niece and nephew. However, he died a month after the couple divorced which, under Florida law, voided any provisions in favor of the spouse and treats the former spouse as having predeceased on the date of the dissolution. His mother sought to take Carroll's estate under intestacy but two lower courts ruled the wife legally predeceased the husband and the niece and nephew would inherit.

     In Carroll v. Israelson, the Court of Appeals reversed the trial court ruling that state law clearly voids any provisions in favor of the former spouse. A court will not be allowed to use the legal fiction created in the statute, which treats the former spouse as predeceasing, as a get around to a voided will provision. As a result, the niece and nephew would not be the beneficiaries of a trust and the estate would pass under other provisions of the will or intestacy.

See Brian Spiro, "Legal Gymnastics" Not Allowed to Re-Write Will After Divorce and Death, Clark Skatoff, July 2, 2015.

July 6, 2015 in Intestate Succession, New Cases, Trusts, Wills | Permalink | Comments (0)

Wednesday, July 1, 2015

9th Circuit Rules On Bob Marley False Endorsement Case

9th CircuitThe estate of legendary singer Bob Marley formed a company, after his death, with the intent to license his image for apparel and other merchandise. The estate issued a license for a company to have the exclusive right to use Marley's image. However, another company began producing merchandize with the image as well which triggered a lawsuit from the Marley estate. After a jury trial, damages were awarded to the estate as well as extensive attorney fees with the case being immediately appealed.

In Fifty-Six Hope Road Music, Ltd. v. A.V.E.L.A., Inc., the 9th Circuit Court of Appeals upheld the jury decision finding that the award was supported by the evidence and could not be overturned. However, it was noted by several justices that there were many meritorious defenses raised but, as they were raised for the first time on appeal, were barred from consideration. As a result, this decision does not appear to fully settle the future of using the image of deceased celebrity after death.

See Jennifer Insley-Pruitt, United States: Ninth Circuit Court Of Appeals: Use Of Deceased Celebrity's Image On T-Shirts Constitutes False Endorsement Under Lanham Act, Mondaq, June 10, 2015.

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

July 1, 2015 in Current Affairs, Estate Administration, New Cases | Permalink | Comments (0)

Tuesday, June 30, 2015

In Florida, A Lawyer For A Guardian Vicariously Liable To Ward

GavelKarim Saadeh was an elderly immigrant who had accumulated a sizable fortune when, in his old age, he lost control of his estate after making a series of gifts to a younger women.  The court appointed a guardian for Mr. Saadeh and the guardian in turn hired an attorney of their own who assisted in advising Mr. Saadeh to sign a trust instrument that had negative implications for the estate. As a result, the guardians attorney was sued, among others, for malpractice but the case was initially thrown out for a lack of privity between Saadeh and the attorney.

In Saadeh v. Connors, the Florida District Appeals Court held that the attorney was liable to the ward of a guardian that was a client. The duty of care owed by an attorney, in these situations, extends to a third party that was intended to benefit from any advise offered. The third party may sue for malpractice and the claim will not be barred due to a lack of privity.

See Brian Spiro, Florida Attorney for Emergency Temporary Guardian Owes Duty of Care to Temporary Ward, Clark Skatoff, June 26, 2015.

- See more at: http://www.clarkskatoff.com/news-resources/blog/florida-attorney-for-emergency-temporary-guardian-owes-duty-of-care-to-temporary-ward/#sthash.LV6NvW00.dpuf

June 30, 2015 in Guardianship, Malpractice, New Cases | Permalink | Comments (0)