Wills, Trusts & Estates Prof Blog

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

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)

Wednesday, October 21, 2015

Failed Payable On Death Account Valid As Tentative Trust Account

GavelThe decedent attempted to create a payable on death account with his daughter as beneficiary but because of an error by an employee of the credit union, the decedent did not complete the paperwork required by statute to create a payable on death account. After the decedent’s death, his other two children sued the credit union and the daughter who was the named beneficiary. In Nelson v State Employee Credit Union, the trial court gave summary judgment for the credit union and the North Carolina intermediate appellate court affirmed, agreeing with the trial court that the decedent had created a common law tentative (Totten) trust.

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


October 21, 2015 in New Cases, Trusts | Permalink | Comments (0)

Tuesday, October 20, 2015

One Witness Does Not Substantially Comply With Statutory Requirement Of Two.

GavelShortly before his death, the decedent handwrote two documents purporting to give his estate to a beneficiary. Both documents were signed by a different witness, but the first document could not be located. In Estate of Burton v. Didricksen, the trial court held that Burton died intestate and the intermediate Washington State appellate court affirmed, holding that without knowing the contents of the first document, the two documents could not be considered counterparts that formed one will signed by two witnesses, and that even assuming the doctrine of substantial compliance applied, it was inapplicable because the two witnesses signed different documents.

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

October 20, 2015 in New Cases, Wills | Permalink | Comments (0)

Friday, October 16, 2015

Court Clarifies Florida Rules On Probate Evidence Of Ownership

GavelFlorida law allows the personal representative of an estate to take possession of all property of the decedent in order to distribute the property to the proper beneficiary. However, the state also allows a beneficiary already in possession to challenge the personal representatives request on two basis; that the property is not actually that of the decedent or that someone other the representative has a right to the property.

In Delbrouck v. Eberling, the 4th District Court of Appeals ruled that the determination must be made in an evidentiary hearing as opposed to a non-evidentiary hearing which was what took place and triggered the lawsuit. The court rejected the personal representatives argument that Fla. Stat 733.607(1), which states that the need of the personal representative for the property is conclusively established by the request itself, grants a conclusive right to the property. In short, the right to property must be established in a evidentiary hearing although the need is simply established by a request.

See Jordan Hammer, Evidence Required to Determine Possession of Property During Florida Probate, Clark Skatoff, October 14, 2015.

October 16, 2015 in Estate Planning - Generally, New Cases | Permalink | Comments (0)

Tuesday, October 13, 2015

Florida Supreme Court Clarifies Rules On Notice To Creditors Of Estate

FloridaWhen Harry Jones died, his estate published the required notice to creditors in a local paper but never served his ex-wife who was a creditor of the estate. Within two years of the publication, she learned of his death and filed a claim but was denied on the basis that the statute of limitations started to run on publication of notice to creditors and had expired. However, the ex-wife countered that she was a creditor that was reasonably ascertainable and since service had not been given, a different statute of limitations applied.

In Jones v. Golden, the Florida Supreme Court clarified a circuit split and ruled that the relevant statute created two obligations on the estate, one to publish notice for unknown creditors and another to provide direct service to every creditor whose claim should reasonably have been known. The limitation period of 3 months to bring a claim under 773.702 applies only to unknown creditors reliant on publication or known creditors that have been provided service. Since no service had been provided than the two year limitation period under 733.710 applies and the ex-wife's claim was valid.

See Anya Van Veen, Florida Known Creditors Denied Notice Have Two Years To File Claims, Clark Skatoff, October 2, 2015.

October 13, 2015 in Estate Administration, New Cases | Permalink | Comments (0)

Monday, October 12, 2015

Article On Proposed Taxonomy for The Absurdity Doctrine

ArticleHillel Y. Levin (University of Georgia Law School), Joshua M. Segal (Jenner & Block LLP), &  Keisha N. Stanford  (Jenner & Block LLP) recently published an article entitled, Beyond Absurd: Jim Thorpe and a Proposed Taxonomy for The Absurdity Doctrine, 68 Administrative Law Review, Forthcoming; UGA Legal Studies Research Paper No. 2015-28. Provided below is an abstract of the article:

In light of the Third Circuit's recent decision interpreting the Native American Graves Repatriation Act, this Article argues that the Supreme Court must clarify the Absurdity Doctrine of statutory interpretation. The Article offers a framework for doing so.

October 12, 2015 in Articles, New Cases | Permalink | Comments (0)

DNA Evidence To Be Considered In Dispute Over British Title

ArticleA battle over an ancient British title is heading to the the Supreme Court for the justices to decide if DNA can be used to resolve a controversy over the true heir. The dispute revolved around the Pringle of Stichill baronetcy, a hereditary title beneath that of a peer, with the son of the last holder being challenged by a Utah man who claims that DNA evidence shows that the current line is not actually related to the family. As a result,the Utah man wants the title to pass to himself instead of the son of the 10th baronet the since he has undisputed genetic decent from the family. However, there is doubt as to whether the court will allow DNA evidence to be used due to the problems it could create with all other hereditary titles that could be challenged on the basis of non blood decent. As of now, no date has been set for the court to decide the issue.

See Martin Beckford, Who's the real aristocrat? Queen demands DNA to be tested in court to settle dispute over 330-year-old baronet title (...but could ruling mean a Utah Mormon is our king?), The Daily Mail, October 10, 2015.

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

October 12, 2015 in Current Affairs, Current Events, New Cases | Permalink | Comments (0)

Thursday, October 8, 2015

Judge Makes Texas First In Nation To Recognize Same Sex Common Law Marriage

TexasA Texas probate judge has ruled that a common law marriage existed between two women as part of a battle over an estate. Stella Powell died intestate in 2014 which resulted in her estate passing to her family under Texas intestacy laws but this was challenged by her long term partner who argued they qualified as married under common law. Although same sex marriage was banned during the entire course of their relationship, it was argued that Obergefell v. Hodges should be applied retroactively to allow a common law marriage to exist. This ruling is likely to face multiple challenges on appeal with embattled Attorney General Ken Paxton already participating in the case arguing that the couple should not be granted the status. This case will be closely watched going forward due to the wide ranging implications of the ruling on many estates that were barred from passing to a same sex partner in intestacy.

See Lane Moore, Texas Just Did Something Huge for Lesbians That No Other State Has Done, Cosmopolitan, October 7, 2015.

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

October 8, 2015 in Current Affairs, Current Events, Intestate Succession, New Cases | Permalink | Comments (0)

Tuesday, October 6, 2015

Kentucky Supreme Court Rules Against Nursing Home Arbitration Agreement

GavelMandatory arbitration agreements are a hot topic in all areas of contract law but few areas excite as much vitriol as agreements signed as part of admittance to a nursing home. In three Kentucky cases, nursing homes were seeking to compel arbitration over tort actions by family members of residents. However, the families fought back ultimately asking the Kentucky Supreme Court to invalidate the agreements.

In Extendicare Homes, Inc. v. Whisman, the court held that a constitutional right to a jury trial cannot be waived by a holder of a general power of attorney. The court recognized that there was language in the power of attorney forms which could have authorized the agents to agree to arbitration but that express and unambiguous language must be used to grant the power. Going forward, this could be a big win for nursing home residents who will have somewhat easier access to juries in order to recover from negligence.

See Liz Kramer, Kentucky Supreme Court compares giving up jury trial to giving up parental rights; refuses to enforce arbitration, Lexology, September 28, 2015.

October 6, 2015 in Elder Law, New Cases | Permalink | Comments (0)