Wills, Trusts & Estates Prof Blog

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

Friday, February 26, 2016

Florida Appeals Court Says Estate Not Indispensable Party To Suit

GavelShortly before Joe Parker died, he transferred, in conjunction with his wife, multiple properties to his son personally as well as a business entity set up by the son. But there was a problem, there were multiple children from a previous marriage who felt cheated by their sibling so they filed suit to overturn the inter vivos transfer. While doing so, the estate of their father was never named as a party which was focused solely on their stepbrother and the court threw out the suit with prejudice. On appeal in Parker v. Parkerthe court held that the estate was not an indispensable party to this suit since the property had been conveyed away before the estate came into existence. As a result, the estate has no interest in the dispute even though it may be a beneficiary if the suit is successful and the property is returned. This case is a good example of how property ownership at the time of death dictates who must be part of a suit when disputing a transfer. 

See Brian Spiro, Decedent’s Estate Held Not To Be An Indispensable Party, Clark Skatoff, February 24, 2016.

February 26, 2016 in Estate Planning - Generally, New Cases | Permalink | Comments (0)

Monday, February 8, 2016

New Case On Nursing Home Arbitration Agreements In California

GavelIn 2012, Marjorie Fitzpatrick entered an assisted living center due to her advancing dementia and was sign in by her daughter Valerie acting as her mothers representative. However, in 2013, Marjorie suffered a fall outside the facility while unsupervised and was left on the ground for over half an hour and suffered numerous injuries which contributed to her death. Valerie, acting as a representative of Marjorie's estate, filed suit for wrongful death but the facility argued that Valerie and the estate was bound to the arbitration agreement that Valerie signed when she placed her mother in the facility. In Monschke v. Timber Ridge Assisted Living LLC, the appellate court affirmed the trial court and held that the estate was not bound by the agreement since the suit was brought on behalf of the children of Marjorie, rather than the decedent herself, and that they were not bound by the agreement.

Special thanks to Stacie Strong (Manley O. Hudson Professor of Law, University of Missouri School of Law) for bringing this article to my attention.

February 8, 2016 in Elder Law, New Cases | Permalink | Comments (0)

Wednesday, February 3, 2016

Recent Court Case Makes Illinois Slayer Statute Application Unclear

GavelSlayer statutes exist in various incarnations throughout the nation and usually make it where the killer cannot inherit from their victim. In Illinois, the statute prohibits the killer from receiving property or any benefit from the death of the killer and to to treat the guilty party as predeceasing the victim. Until recently, an older court case had allowed trial courts to look into the future and decide if a relative of the killer could also be disinherited if the killer would still receive benefits from the murder. But the recent ruling In re Estate of Irene Opalinska has changed the dynamic. The court held that the daughter of a murder victim could inherit even if she lied to police about her husbands involvement with the killing though she had no part in arranging the murder. Any benefit arising for the killer would come indirectly from his wife which the statute does not specifically disallow. The court distinguished this case from the old rule where a mother was going to be the actual guardian of the estate for a minor child which the court still felt would have given her enough of a direct benefit to trigger the statute. Going forward it is unknown what affect this change in the application of the slayer statute will have in Illinois since the old rule has only been narrowed in scope rather than overturned.

See John T. Books & Jena L. Levin, Public Policy and the Boomerang Inheritance, Wealth Management, February 2, 2016.

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

February 3, 2016 in Estate Planning - Generally, New Cases | Permalink | Comments (0)

Tuesday, February 2, 2016

Arizona Court Overturns Home Arbitration Agreement

GavelOne of the biggest changes when it comes to nursing homes in recent years has not been related to the care received but the agreement that gets someone into the facility. Arbitration agreements are now boiler plate language in nursing home contracts and severely constrict the ability of aggrieved residents or family from pursuing relief in court where the potential remedies are often more robust. But a recent Arizona case showed that the agreements are not ironclad. A man entered his mother into the home and signed the agreement on her behalf but had no power of attorney or other authority which the court held made the contract unenforceable. In addition, the court noted that agreements might be attacked using the doctrine of "contract of adhesion" which essentially means the term is void since a party to the contract has no choice but to sign with the offending term. However, the only surefire way to protect yourself from the arbitration agreement is to cross out the provision before signing which many agreements allow and an increasing number of states permit by law. But always make sure that the arbitration agreement can be waived before signing in order to avoid any unpleasant revelations down the line.

See Robert Fleming, Nursing Home Arbitration Provision Voided in Arizona Case, Fleming & Curti, February 1, 2016.

 

February 2, 2016 in Disability Planning - Health Care, Elder Law, New Cases | Permalink | Comments (0)

Friday, December 18, 2015

Statute Does Not Apply To Non-Slayer Nor Does Lack Of Clean Hands Prevent Inheritance

GavelDaughter’s husband was convicted of first-degree murder of the daughter’s mother and the daughter was convicted of perjury and obstruction of justice in connection with the investigation. The public administrator was appointed to administer the victim’s estate and moved to disqualify the daughter from taking under the victim’s will under the Illinois slayer statute because (1) the murderer would “indirectly” benefit from the inheritance and (2) under the equitable doctrine of unclean hands, daughter had attempted to frustrate the investigation of the murder. The trial court denied the requested relief and the intermediate Illinois appellate court, in In re Estate of Opalinska, No. 1–14–3407, 2015 WL 6940100 (Ill. App. Ct. Nov. 5, 2015) affirmed, holding that the statute did not apply. Daughter was not the slayer, and if the murderer did receive any of the inheritance it would be because the daughter gave it to him and not by “reason of the death.” The equitable doctrine could not change the operation of the law of wills nor is daughter receiving her mother’s estate because of her acts of perjury and obstruction of justice. In re Estate of Opalinska, No. 1–14–3407, 2015 WL 6940100 (Ill. App. Ct. Nov. 5, 2015).

Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.

December 18, 2015 in New Cases, Wills | Permalink | Comments (0)

Tuesday, December 15, 2015

SCOTUS Puts Hold On Alabama Court's Ruling In Same-Sex Adoption Case

GavelYesterday, the United States Supreme Court put a hold on the enforcement of an Alabama Supreme Court decision which stripped the parental rights of a women that had adopted the biological children of her same-sex partner. The couple had set up a temporary residence in Georgia in order to proceed with the adoption since that state was viewed as being more likely to approve the adoption. However, the couple split which resulted in the adoptive mother losing her rights when the Alabama court refused to grant full faith and credit to the Georgia ruling. As of now, no visitation rights have been restored and the hold only applies to the complete removal of parental rights that was order by the state court.

See Lyle Denniston, Temporary win for lesbian parent; Court to rule on Indian rights, SCOTUS Blog, December 14, 2015.

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

 

December 15, 2015 in Current Affairs, Current Events, New Cases | Permalink | Comments (0)

Monday, December 14, 2015

A Notarial Will Was Not Admissible To Probate Because It Was Not Signed By Testator

GavelUnder Florida law, the will of nonresident may be admitted to probate in Florida even if it does not meet Florida requirements if it is valid under the law of the state or country where executed. Fla. Stat. § 732.502(2). However, under the same statute, a holographic or nuncupative will created by a nonresident may not recognized as valid. In Malleiro v. Mori, No. 3D14–95, 2015 WL 5714701 (Fla. Dist. Ct. App. Sept. 30, 2015), the Florida intermediate appellate court held that a notarial will, dictated to a notary who reduced it to writing and signed by three witnesses but not by the testator, while valid under the laws of Argentina where it was created, was not entitled to probate in Florida because it was not signed by the testator and is therefore a nuncupative will.

Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.

December 14, 2015 in New Cases, Wills | Permalink | Comments (0)

Sunday, December 13, 2015

A Notarial Will Was Not Admissible To Probate Because It Was Not Signed By Testator.

GavelUnder Florida law, the will of nonresident may be admitted to probate in Florida even if it does not meet Florida requirements if it is valid under the law of the state or country where executed. Fla. Stat. § 732.502(2). However, under the same statute, a holographic or nuncupative will created by a nonresident may not recognized as valid. In Malleiro v. Mori, No. 3D14–95, 2015 WL 5714701 (Fla. Dist. Ct. App. Sept. 30, 2015), the Florida intermediate appellate court held that a notarial will, dictated to a notary who reduced it to writing and signed by three witnesses but not by the testator, while valid under the laws of Argentina where it was created, was not entitled to probate in Florida because it was not signed by the testator and is therefore a nuncupative will.
 
Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.

December 13, 2015 in New Cases, Wills | Permalink | Comments (0)

Saturday, December 12, 2015

Co-trustee Of A Joint Revocable Trust Had Authority To Make Deed Transferring Home To Himself Individually

GavelSpouses created a joint revocable trust which contained terms which could be read to require them as co-trustees to act either in concert or separately. After the couple separated and one spouse withdrew several hundred thousand dollars from trust accounts and placed them in her own name, the other spouse deeded the family home to himself individually. Under the terms of the trust, the home was his “separate” property to which he was entitled while both spouses were alive.  After his death, litigation over the home ensued between the surviving spouse and his executor. The trial court held that the house was trust property. On appeal, in Matter of Estate of Hyde, No. CV-15-236, 2015 WL 6742198 (Ark. Ct. App. Nov. 4, 2015), the intermediate Arkansas appellate court reversed, holding that in the light of extrinsic evidence heard at trial, the co-trustees were authorized to act independently and that the deed was therefore valid. 

Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.

December 12, 2015 in New Cases, Trusts | Permalink | Comments (0)

Friday, December 11, 2015

Inherited IRA Not Exempt Property In Bankruptcy Under Montana Exemption Statute

GavelIn In re Golz, No. OP 15–0302, 2015 WL 6954893 (Mont. Nov. 10, 2015), the Montana Supreme Court answered a certified question from the federal Bankruptcy Court by determining that under Montana’s exemption statute, Mont. Code § 25-13-608(1)(e), an inherited IRA is not exempt property in bankruptcy. The statute’s reference to IRAs as defined in the Internal Revenue Code excludes inherited IRAs which have been excluded from the definitional sections by the Supreme Court of the United States in Clark v. Rameker, 134 S. Ct. 2242 (2014). 

Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.

December 11, 2015 in New Cases, Non-Probate Assets | Permalink | Comments (0)