Wednesday, August 12, 2015
In Estate of Duke, the California Supreme Court changed the rules for altering a will after the death of the testator. Before Duke, only an ambiguous will could be amended by the court using extrinsic facts. Now a court may alter an unambiguous will if there is clear and convincing evidence that the testator had specific intent to make a bequest that mistakenly omitted when the document was drafted and executed. This change, as the court noted, puts wills construction on the same level as trusts which, in California, have long been alterable using extrinsic evidence. The court expressed doubt the change will provoke a torrent of lawsuits because suits are usually based on the size of the estate rather than availability of legal routes to challenge a gift. Going forward, the results of this change will be watched nationwide as other states potentially consider a similar change.
See Ryan D. Cunningham & Allonn E. Levy, Duke Blazes a New Trail in Estate Law, Wealth Management, August 11, 2015.
Special thanks to Jim Hillhouse for bringing this article to my attention.
Tuesday, August 11, 2015
Narcy Novack was convicted of the murder of her husband Ben, as well as his mother, to ensure her daughter from a previous marriage would inherit instead of two cousins of Ben. However, the cousins challenged the will in court arguing that the slayer statute prevented Narcy's family from inheriting since it would indirectly benefit Narcy and, in addition, that she exercised under influence over him to change his will. The trial court rejected both of these arguments and the case was appealed.
In Fiel v. Hoffman, the court of appeals held that the plain language of the statute only caused the murderer to be considered predeceased and did not affect the ability of a family member of the murderer from inheriting. The fact that the beneficiary is a descendent of the murderer without a blood relationship to the victim does alter the analysis as was claimed by the plaintiffs. However, the court held that the trial court improperly dismissed the undue influence claim and remanded the case for a determination if Novack was coerced into changing his will by Narcy.
Special thanks to Professor Naomi Cahn for bringing this case to my attention.
Monday, August 10, 2015
Under a proposed settlement the families of the Sandy Hook Elementary School shooting victims would split the $1.5 million estate of the shooter’s mother, Nancy Lanza. The suit against the estate alleges that Nancy Lanza failed to properly secure the Bushmaster AR-15 rifle that she owned. The $1.5 million would come from Nancy Lanza’s homeowners insurance, and each of the 16 families would get $94,000 under the settlement. Joshua Koskoff, a lawyer for the families, has stated that he and other attorneys are representing the families for free. There is also a pending lawsuit against the gun maker Remington that alleges that the Bushmaster AR-15 rifle should not have been sold for civilian use.
See Dave Collins, Proposal: Families of Newtown victims would split $1.5M from estate of gunman's mother, Associated Press, August 5, 2015.
Tuesday, August 4, 2015
When Austin Hardy died, he left behind a retirement plan that was administered by his employer but did not have a named death beneficiary. As a result, his employer followed the plan's procedure and transferred the proceeds to Hardy's biological daughter. However, Hardy's sisters challenged the distribution arguing that since his daughter had been adopted by her stepfather, she was no longer his child under the plan rules.
Monday, August 3, 2015
When Wanchetta Reese went to the local Alfa Life Insurance office to sign up her husband, she followed all the procedure that was required including answering all health questions truthfully. However, the two agents that sold her the policy did not follow procedure and when informed that the husband suffered from serious health problems told Mrs. Reese not to worry and never included the information in the application. When Mr. Reese died a few months later, Alfa denied the claim stating Mrs. Reese lied in the application and signed the agreement knowing the proper health information had been intentionally omitted which voided the agreement.
In Alfa Life Insurance Corporation et al.v.Wanchetta Reese, the Alabama Supreme Court held that Mrs. Reese failed to properly disclose the health issue which voided the policy under the terms of the contract. A proper verbal disclosure by Reese of the health conditions to the agents was not enough to overcome the contract provisions and the fact that she relied on the representations by Alfa's agents instead of reading the agreement did not change the issue. While it is always a good idea to read a contract, this case shows that residents of Alabama will need to take extra precautions to protect themselves when signing a life insurance agreement and never rely on verbal promises. In the end, the words in the agreement will always prevail.
Special thanks to Turney Berry for bringing this article to my attention.
Friday, July 31, 2015
A Florida appellate court has held that the States Slayer Statute is to be strictly construed. In Fiel v. Hoffman, the wife of the decedent was convicted of murdering both her husband and his mother. The wife had a daughter from a previous marriage and that daughter had two sons. The case centered on whether the decedent’s step-daughter and two step-grandsons were barred from inheriting under the States Slayer Statute. The Court held that the statutes clear and unambiguous language did not extend the prohibition to inheriting property to anyone other than the murderer of the decedent. The court’s ruling means that the decedent’s step-children would not be precluded from inheriting. The court also rejected the undue influence claims because there was no evidence that the step-children and step-grandchildren were involved.
See Anya Van Veen, Florida’s Slayer Statute and Undue Influence Statute Strictly Construed, Clark Skatoff PA, July 31, 2015.
A probate court has approved a $1.25 million settlement in a law suit filed against Tony Scott’s estate by Creative Artists Agency (CAA). Tony Scott is well known for directing movie “Top Gun.” According to the order signed by Las Angeles Superior Court Judge David Cunningham the funds for the settlement will come out of Tony Scott’s estate. The director passed away in 2012 when he plunged to his death off the Vincent Thomas Bridge in San Pedro. The complaint alleges that Scott still owed the CAA commission for a number of different film projects. There are 11 movies that are covered in the settlement agreement.
See Staff Report, Judge Approves $1.25 Million Settlement Agreement Against Estate Of Tony Scott, Santa Monica Mirror, July 29, 2015.
Thursday, July 30, 2015
Irving Duke never intended for his estate to pass intestate and produced a holographic will and codicil to make sure of it. In the documents, he provided his estate was to pass to his wife and to a group of charities if they were to die at the same time. However, no contingency was in place if he survived his wife and, when he died, his heirs under intestacy challenged the executor granting the estate to the charities. The trial and appellate court found that the will was unambiguous and, as a result, could not be reformed using extrinsic evidence even though it appeared that Duke intended the alternative gift in the will to apply if he outlived his spouse.
In Radin v. Jewish National Fund, the California Supreme Court overturned the lower courts and ruled that an unambiguous will may be reformed in certain circumstances. If, by clear and convincing evidence, it can be established the testator made an error in in the will, and specific intent can be established, then the will may be reformed to comport with the testators true wishes.
Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.
Monday, July 27, 2015
A 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.