Wills, Trusts & Estates Prof Blog

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

Wednesday, December 9, 2015

A Joint Revocable Trust Is Not A Contract Not To Revoke Wills

GavelSpouses created a joint revocable trust which included a provision preventing the survivor from amending or revoking the trust after the first to die. The trust terms included a statement that the spouses’ wills executed at the same time were not to be construed as contractual. Those wills poured over each testator’s estate to the trust. After the first death, the surviving spouse executed a will distributing her estate to individuals, a distribution differing from that under the trust. One of the couple’s children objected to the probate of the will on the grounds that the trust terms forbidding revocation or amendment after the first death created a contract not to revoke the pourover will. The trial court agreed but on appeal, in Butler v. Butler, 1140683, 2015 WL 5511244 (Ala. Sept. 18, 2015), the Supreme Court of Alabama reversed, holding that while a lifetime trust could be a writing signed by the decedent evidencing a contract not to revoke, nothing explicit or implied in the trust terms prohibited the surviving spouse from revoking the will referenced in the trust.

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

December 9, 2015 in New Cases, Trusts, Wills | Permalink | Comments (0)

Tuesday, December 8, 2015

Dependent Relative Revocation Requires Only Broad Similarity Between Failed Disposition And Revoked Disposition

GavelThe testator executed six wills in five years. The last three wills divided the residuary estate among three persons found to have exerted undue influence over the testator in the execution of her final will. The trial court held that the undue influence meant that the residuary clause was invalid and that the estate would therefore pass in intestacy. The third will was the latest will to give any portion of the residuary to a beneficiary who was not found to have exerted undue influence. This beneficiary urged the trial court on remand to admit that will to probate based on DRR. In In re Estate of Murphy, No. 2D14–4107, 2015 WL 6777216 (Dist. Ct. App. Fla. Nov. 6, 2015), the intermediate Florida appellate court reversed and ordered the third will admitted to probate, holding that the application of DRR requires only a “broad similarity” between the invalidated instrument and an instrument it revoked, that any admissible extrinsic evidence may be used in determining the extent of similarity, and that once the presumption of no revocation of the prior instrument arises, the burden of proving revocation falls on the opponent of the use of DRR.

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

December 8, 2015 in New Cases, Wills | Permalink | Comments (0)

Monday, December 7, 2015

Exculpatory Clause Does Not Apply To The Trustee’s Decision On Whether Beneficiaries Violated A No Contest Clause

GavelThe settlor’s revocable trust made his spouse the sole beneficiary for her life after his death and postponed any distributions to his descendants of his first marriage until the spouse’s death. After he died, his children sent a letter to his attorney requesting that the attorney preserve all documents related to the trust and also sent a letter to their stepmother suggesting that they agree to terminate the trust and divide the trust property equally among them. Unbeknownst to the children, their father had amended and restated the trust shortly before his death to include a no contest clause and language making the trustee’s decision that a beneficiary had violated the clause final absent “proof of fraud, dishonesty, or bad faith.” The trustee determined that children’s letters had violated the clause and in subsequent litigation the children prevailed. A divided Virginia Supreme Court in Rafalko v. Georgiadis, No. 141533, 2015 WL 6746821 (Va. Nov. 5, 2015), held that the exculpatory type clause did not prevent a court from deciding whether a decision by the trustee with regard to violation of the no contest clause was consistent with the purposes of the trust or arbitrary, that there was sufficient evidence for the lower court’s finding that the trustee’s decision that the children had violated the no contest clause was made in bad faith, and that the children’s letters were not an attempt to interfere with the administration of the trust.

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


December 7, 2015 in New Cases, Trusts | Permalink | Comments (0)

Wednesday, November 4, 2015

New Case On Informed Consent When Representing Two Or More Family Members

GavelA women set up a trust that made her and her son life beneficiaries with a remainder interest to her son and daughter. However, a dispute arose over the trust which resulted in the son, while acting under a power of attorney, to seek assistance from attorneys which represented both the son and mother in changing the trust. As a result, disciplinary authorities were called in to investigate potential conflicts of interest by the attorneys in their dual representation but the attorneys were absolved by the board.

In In Re Szymkowicz, the D.C. Court of Appeals ruled that there was substantial risk of conflicting interest by the attorneys representing both the mother and son. It was held that even if two family members’ interests are “generally aligned,” there can be significant risk of later conflict so informed consent is required. The court did not make a determination if there was informed consent given for the dual representation and remanded the case back to the disciplinary board to make the determination.

Special thanks to Karen E. Boxx for bringing this case to my attention.

November 4, 2015 in Estate Administration, New Cases, Professional Responsibility | Permalink | Comments (0)

Tuesday, October 27, 2015

Discretionary Spendthrift Trust Is Subject To Equitable Distribution In Divorce

GavelIn dividing property on divorce, Massachusetts is one of the very few common law marital property states that does not draw a distinction between separate and marital property. Accordingly, a spouse’s interest in a trust created by a family member of that spouse with the family member’s assets is part of the marital estate subject to division on divorce if the spouse’s interest is not too remote or speculative or purely discretionary.

In Pfannenstiehl v. Pfannenstiehl, 37 N.E.3d 15 (Mass. App. Ct. 2015), a divided Massachusetts intermediate appellate court affirmed the trial court’s inclusion of one spouse’s interest in a trust created by that spouse’s father. The trust terms stated the trustee “shall” make distributions in such amounts as the trustee may decide “in its sole discretion” to provide for the “comfortable support, health, maintenance, welfare and education” of all of the settlor’s descendants. The trustees made substantial regular distributions to the settlor’s three children but ceased making distributions to the spouse on the eve of the divorce. This pattern of distributions coupled with the ascertainable standard showed that the spouse had a present, enforceable interest in the trust which must be included in the marital estate.

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



October 27, 2015 in New Cases, Trusts | Permalink | Comments (0)

Monday, October 26, 2015

Killer Determined To Be Insane At Time Of Killing Not Subject To Disqualification Under Slayer Statute

GavelThe Mississippi slayer statute disqualifies anyone who “willfully” causes or procures the death of another from taking that person’s property under any “will, testament, or codicil.” In Estate of Armstrong v. Armstrong,  a case of first impression, the Mississippi Supreme Court held that the statute does not apply to a person who was insane at the time of the killing.

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

October 26, 2015 in New Cases | Permalink | Comments (0)

Sunday, October 25, 2015

Children Of Slayer Are Not Disqualified

GavelWife was convicted of the murder of her husband and therefore treated as having predeceased him under Florida’s slayers statute. Under the terms of the victim’s will, the residue passed to the slayer and if she predeceased, to the victim’s mother and the slayer’s daughter and grandsons. In Fiel v. Hoffman, the intermediate Florida appellate court affirmed the trial court’s holding that the statute bars only the slayer from taking the estate of the victim and does not disqualify the slayer’s relatives who took no part in the crime, but reversed the dismissal of that portion of the complaint alleging that the will was the product of undue influence by the slayer because the complainants must have the opportunity to show that the entire will and not just the provision benefitting the slayer was tainted by undue influence.

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


October 25, 2015 in New Cases | Permalink | Comments (0)

Saturday, October 24, 2015

Acts Performed On Photocopy Of A Will Do Not Revoke The Will

GavelThe testatrix crossed out phrases in a photocopy of her properly executed will, handwrote additions to the document which she initialed, and then wrote on the photocopy that the will was void and replaced with the copy with the written changes. The testatrix then attempted to create another will on a preprinted form which was not executed with testamentary formalities. After her death, the original will, the photocopy, and the preprinted form were offered for probate. The trial court denied probate to the copy and form and invoked dependent relative revocation to admit the will to probate. In In re Estate of Sullivan, the Minnesota intermediate appellate court affirmed, holding that revocatory acts on a photocopy of a will cannot effect a revocation of the will no matter what the testatrix’s intent and that the only way to create a will under Minnesota statutes is strict compliance with the formalities of execution. In effect, the court rejected the harmless error doctrine. The court also held that because the will was never revoked, the doctrine of dependent relative revocation was irrelevant.

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

October 24, 2015 in New Cases, Wills | Permalink | Comments (0)

Friday, October 23, 2015

Unambiguous Will May Be Reformed Because Of Mistake

GavelThe testator’s holographic will gave his estate to his spouse and if he and his spouse died at the same time, to certain charities but there was no provision in the case his spouse predeceased him. Spouse predeceased testator and testator never wrote a new will. After the testator’s death, the charities petitioned for probate and the decedent’s heirs filed a counter petition. The trial court held that the testator’s estate passed by intestacy and the intermediate appellate court affirmed. In In re Estate of Duke, the California Supreme Court reversed holding that an unambiguous will may be reformed if there is clear and convincing evidence of a mistake in expressing the testator’s intent at the time the will was drafted and establishing the testator’s specific intent at that time.

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

October 23, 2015 in New Cases, Wills | Permalink | Comments (0)

Thursday, October 22, 2015

Challenge To The Trustees’ Administration Of Testamentary Trusts Does Not Violate No Contest Clause

GavelMother’s will included a no contest clause requiring forfeiture by any beneficiary who contests the validity of the will or who attempts to prevent “any provision thereof from being carried out” and also contained a condition precedent to “every benefit conferred herein” requiring all beneficiaries to “accept and agree” to all the terms and provisions of the will. Daughter brought suit against her brothers as trustees of her testamentary trust and of a trust under their father’s will and sought a preliminary injunction prohibiting the trustees from taking certain action with respect to the trusts and specific trust property and asked for the appointment of a receiver. The trial court granted the trustees’ summary judgment motion for forfeiture of daughter’s interests in the trust for violation of the no contest clause and of the condition precedent.

In Ard v. Hudson, an intermediate Texas appellate court reversed, stating that no contest clauses are to be strictly construed, that they cannot be violated by a beneficiary’s exercise of “the inherent right” to challenge a fiduciary, and that the beneficiary may seek injunctive and other relief such as seeking the appointment of a receiver without violating a no contest clause.

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


October 22, 2015 in New Cases, Wills | Permalink | Comments (0)