Wills, Trusts & Estates Prof Blog

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

Thursday, August 13, 2020

New York Surrogate’s Court Reviews Will Contest Basics In Granting Summary Judgment Against Will Challenger

SjIn Matter of Tsinopoulos, the Rockland County Surrogate's Court showed that "it is possible to defeat a New York will contest on summary judgment."

Pat Tsinopoulos passed away in 2015 and was survived by a son and a daughter. Her daughter was the petitioner in the case while her son was the objectant. 

Petitioner found a will in a chest in decedent's bedroom about a month after decedent's death. The Will was "a two-page pre-printed form with blanks for the testator to fill in." The Will leaves a majority of the estate to the petitioner, aside form an $11,000 bequest to Objectant. 

After Petitioner offered the will for probate, Objectant challenged the will arguing " (i) the failure to adhere to proper execution formalities of EPTL 3-2.1 (ii) lack of testamentary capacity and (iii) fraud and undue influence." After discovery, Petitioner moved for summary judgment. Objectant opposed the motion, asserting that there was a genuine issue of material fact that remained unsolved.

Petitioner denied playing any part in preparing the Will or writing anything on the will. Petitioner also argued that she provided the original document to her attorney without altering it. 

In the opinion, the court provided a detailed overview of the analysis for summary judgment in a New York will contest, which is as follows:

First, the proponent of the will must introduce facts showing both due execution and the competency of the testator.

To defeat the motion, the Objectant must either (1) identify material facts that contradict the showing on due execution or competence; or (2) identify material facts that tend to show undue influence, fraud and/or coercion.

The allegations must not be mere conclusions, but should be specific and detailed.

The New York Surrogate Court granted Petitioner's motion for summary judgment, holding that the will was duly executed and that the decedent "possessed the basic requisite testamentary capacity. . ." 

See, New York Surrogate’s Court Reviews Will Contest Basics In Granting Summary Judgment Against Will Challenger, Probate Stars, July 29, 2020.

August 13, 2020 in Estate Administration, Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0)

General Disinheritance Clause Defeats Omitted Child Claim Under California Probate Code

InheritanceHugh O'Brian, best known for his role as Wyatt Earp in the 1950's ABC Western television series, The Life and Legend of Wyatt Earp, died in September 2016. 

In Rallo v. O'Brian, the Court of Appeal of California, Second Appellate District, Division Three, the court considered claims raised by O'Brian's allegedly omitted children under the California Probate Code. One of the issue before the court was "whether a general disinheritance clause could defeat omitted child claims by unknown children born before the execution of a testamentary instrument."

O'Brian established the Hugh O'Brian Trust in January 1992. O'Brian married his long-time girlfriend Virginia in 2006. The Trust was mended multiple times and Virginia was the trustee of the Trust. 

O'Brian's death spurred inheritance litigation. "Adam, James Venverloh, Donald Etkes, and Kimberly Rallo brought claims seeking to receive an intestate share of O'Brian's estate as his unintentionally omitted children under section 21622 of the California Probate Code."

The trustee demurred to both Adam and Kimberly's separate petitions and Venverloh's jointly filed petition on the ground that the failed to state a claim for relief. "The trial court sustained the demurrers as to Kimberly and Adam with leave to amend, and they both filed separate petitions", while Venverloh and Etkers decided not to pursue their claims. 

Kimberly alleged that she was entitled as an omitted child to a share of O'Brian's estate equal to what she would have received if he had died intestate. Adam made the same argument. 

Omitted children are generally children who are born after the execution of a decedent's testamentary documents and who are not provided for in those documents. 

Kimberly and Adam argued that a general disinheritance clause cannot defeat an omitted claim under the California Probate Code, but can only defeat a claim brought by an unknown child born after the execution of a will or trust. The California appeals Court disagreed. 

There court found that, under California law, " a general disinheritance clause can be used to disinherit known and unknown children, born both before and after the execution of the testamentary documents, if the intent to exclude the children is shown in the documents."

See, General Disinheritance Clause Defeats Omitted Child Claim Under California Probate Code, Probate Stars, August 6, 2020.

August 13, 2020 in Estate Administration, Estate Planning - Generally, New Cases, Trusts | Permalink | Comments (0)

Wednesday, August 12, 2020

Pennsylvania Supreme Court: Parent With No Legal Duty To Support Deceased Child Does Not Forfeit Share of Intestate Estate

CashIn Estate of Small v. Small, the issue involved the alleged forfeiture of a parent's share in his child's estate where his child died without a will. The question before the Pennsylvania Supreme Court was "whether an adult decedent, who became disabled after reaching the age of majority, was a dependent child for purposes of the Pennsylvania Probate, Estates and Fiduciaries Code's forfeiture statute."

The decedent was 18 when he was shot and became a paraplegic. The decedent died almost twenty years later at the age of 37, with no spouse and no children. Decedent's mother was granted letters of administration. The decedent's estate was made up of only a $90,000 wrongful-death award. 

Decedent's mother filed a forfeiture petition, arguing that decedent's father forfeited his share of the estate by failing to perform his duty of support.

The main issue was whether decedent was considered a "dependent child". The evidence presented showed that decedent was able to perform all of the ordinary life activities, except for walking. Witness testimony provided showed that decedent was mostly self-sufficient.

The Pennsylvania Orphan's Court denied decedent's mother's petition for forfeiture, finding that decedent was not a dependent child. Decedent's mother appealed arguing that the Orphan's Court "narrowed the scope of the phrase 'dependent child'." The Superior Court affirmed and the Pennsylvania Supreme Court granted further review. 

The Pennsylvania Supreme Court affirmed, holding that the mother failed to demonstrate that the decedent was a dependent child and that the father had a duty of care. 

See, Pennsylvania Supreme Court: Parent With No Legal Duty To Support Deceased Child Does Not Forfeit Share of Intestate Estate, Probate Stars, July 31, 2020.

August 12, 2020 in Estate Planning - Generally, Intestate Succession, New Cases | Permalink | Comments (0)

Sunday, August 9, 2020

En Garde! A Trust’s Revocation Method May Not Be Enforced Unless It Explicitly States It’s the Exclusive Means of Revocation

Two-men-fencingCreators of trusts usually put a lot of time and effort into planning how their property should pass in the event of their death. Trustors or their lawyers typically use protective safeguards to shield themselves from their now indecision and undue influence should they become vulnerable. 

The California Legislature has codified its own "default" method of revocation, which allows "a trust to be revoked by a writing signed by the trustor and delivered to the trustee during the trustor’s lifetime." 

In Cundall v. Mitchell-Clyde (2020), the Second District Court of Appeals held that "for a trust’s revocation procedure to be the exclusive revocation method, it must expressly specify that it is the only such method."

John and Robert were neighbors in West Hollywood and met in 2007 and became friends. In February 2009, "John retained Frances -an attorney and fellow neighbor- to prepare a trust, naming himself as trustee, and Robert as the sole beneficiary and successor trustee." The trust contained a revocation procedure which allowed it to be revoked by delivering a written revocation to John and Robert. However, both John and Frances would then need to sign the document. 

John had a "falling out" with Robert, so he created a new trust in May 2009, which named his friends Vanessa and Ronald as beneficiaries. John also retained a new estate planning attorney, Paul, to prepare his trust. John executed the new trust including the revocation. The trust was not properly revoked under the trust's revocation procedure because Frances never signed the revocation.

Robert, Vanessa, and Ronald filed dueling petitions concerning the validity of the February trust and May trust. The Los Angeles Superior Court found that the February trust did not provide an exclusive means of revocation and that John's revocation was proper.

The Court of Appeal affirmed the trial court's decision. The court reasoned that the theoretical distinction between a “method” and “authority” was mere semantics, section 15401(a)(2) addresses the authority to revoke a trust anyway, and that its terms plainly provided that the default revocation method could be used unless the trust provided an “exclusive method of revocation.”

See Christopher Miles Kolkey, En Garde! A Trust’s Revocation Method May Not Be Enforced Unless It Explicitly States It’s the Exclusive Means of Revocation, Trust on Trial, July 29, 2020.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

August 9, 2020 in Estate Planning - Generally, New Cases, Trusts | Permalink | Comments (0)

Friday, August 7, 2020

Co-Trustees Can Sue To Remove A Co-Trustee Due To Hostility

FdIn the Texas Court of Appeals case, Ramirez v. Rodriguez, three co-trustess used a fourth trustee to have him removed "due to his hostile actions: he has engaged in a pattern of creating hostility and friction that impeded and/or affects the operations of the trust."

The fourth trustee (defendant) moved to dismiss the suit,. however, the court of appeals affirmed the lower court's decision and denied the dismissal.

The court stated:

Sonia, Victor, and Javier sought to have Santiago removed as a co-trustee under section 113.082(a)(4) of the Texas Trust Code, which allows a trial court to remove a trustee based on a finding of “other cause for removal.” Tex. Prop. Code Ann. § 113.082(a)(4). “Ill will or hostility between a trustee and the beneficiaries of the trust, is, standing alone, insufficient grounds for removal of the trustee from office.” Akin v. Dahl, 661 S.W.2d 911, 913 (Tex. 1983). However, a trustee will be removed if his hostility or ill will affects his performance. Id. at 914. Furthermore, “[p]reservation of the trust and assurance that its purpose be served is of paramount importance in the law.” Id. For this reason, hostility that impedes the proper performance of the trust is grounds for removal, “especially if the trustee made the subject matter of the suit is at fault.” Bergman v. Bergman-Davison-Webster Charitable Tr., No. 07-02-0460-CV, 2004 Tex. App. LEXIS 1, 2004 WL 24968, at *1 (Tex. App.—Amarillo Jan. 2, 2004, no pet.) (mem. op.). Removal actions prevent a trustee “from engaging in further behavior that could potentially harm the trust.” Ditta v. Conte, 298 S.W.3d 187, 192 (Tex. 2009). “Any prior breaches or conflicts on the part of the trustee indicate that the trustee could repeat her behavior and harm the trust in the future.” Id. “At the very least, such prior conduct might lead a court to conclude that the special relationship of trust and confidence remains compromised.” Id.

See David Fowler Johnson, Co-Trustees Can Sue To Remove A Co-Trustee Due To Hostility, Winstead: Texas Fiduciary Litigation, July 25, 2020.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

August 7, 2020 in Estate Planning - Generally, New Cases, Trusts | Permalink | Comments (0)

Thursday, July 30, 2020

Idaho Supreme Court: Mom Owed Son Fiduciary Duties Under Trust Agreement

DutyIn Ferguson v. Ferguson, the Idaho Supreme Court addressed "the fiduciary duties of a trustee who has discretion to spend the trust's principal, the scope of records available to a trust beneficiary, and the enforceability of a trust instrument's no contest provision."

Roger and Sybil Ferguson created the Ferguson Family Revocable Trust in 1994. Their son Michael, was not included as a beneficiary in the original trust.

Roger died in 2012. The remaining assets were split between three sub-trusts. Sybil exercised her right to serve s trustee of the sub-trusts. In 2013, Sybil executed a Will and exercised power of appointment granted to her by the trust. This time, Sybil named Michael as a beneficiary, as well as various grandchildren. 

As a result of the new will, Michael became entitled to a share of the principal and undistributed net income remaining in the Survivor's Trust at the time of Sybil's death. As trustee of the Survivor's Trust, had the right to distribute as much of the principle as the trustee "may determine is necessary or advisable for any purpose" and as much of the principal as the surviving Grantor may request "for any reason."

Sybil died in 2015. Following Sybil's death, Michael requested financial information regarding the Original Trust and the sub-trusts dating back to Roger's death in 2012. A dispute arose over the scope of trust information available to Michael. 

The Idaho Supreme Court held that where a trustee maintains discretion to spend the trust's assets, the trustee is still subject to basic fiduciary duties under Idaho law. Also, fiduciary duties are not limited to those duties stated in a trust agreement. 

See Idaho Supreme Court: Mom Owed Son Fiduciary Duties Under Trust Agreement, Probate Stars, July 22, 2020. 

 

July 30, 2020 in Estate Planning - Generally, New Cases, Trusts, Wills | Permalink | Comments (0)

Thursday, July 23, 2020

North Dakota Supreme Court: Failure To Overcome Presumption of Undue Influence Results In Void Bill of Transfer

UndueIn the June 29, 2020 opinion in Zundel v. Zundel, the North Dakota Supreme Court affirmed the district court's finding of undue influence related to a bill of transfer of various items of farm equipment. 

Stephen Zundel sued his brothers , Loren and Richard, seeking possession of personal property subject to a May 2013 bill of transfer signed by their father, Edwin Zundel. 

The bill of transfer gave Stephen Zundel a slew of vehicles and multiple other items. The bill of transfer also included "anything remaining at the farm."

Loren, the personal representative of Edwin's estate, sought a declaratory judgment alleging that the bill of transfer was invalid due to undue influence and also because the document was falsely notarized by Stephen, who was not a notary public.

After a bench trial, the North Dakota district court found that Stephen had obtained his father's signature on the bill of transfer through undue influence and that it had not been signed by a notary. The North Dakota district court applied a four-factor test to determine whether there had been undue influence. 

The North Dakota Supreme Court affirmed the district court's decision finding that Stephen failed to rebut the presumption of undue influence. 

See, North Dakota Supreme Court: Failure To Overcome Presumption of Undue Influence Results In Void Bill of Transfer, Probate Stars, July 15, 2020. 

 

July 23, 2020 in Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0)

Tuesday, July 21, 2020

Appellate Court Held That Judgment Construing A Trust Was Enforceable And Had Effect When The Trust Was Later Challenged

In Neal v. Neal, the court of appeals affirmed a trial court’s judgment resolving who were the correct beneficiaries of a trust. No. 05-19-00364-CV, 2020 Tex. App. LEXIS 4514 (Tex. App.—Dallas June 17, 2020, no pet. history). Provided below is a summary of the holding. Unknown

"The trial court’s judgment declaring the decedent’s sister’s children the remainder beneficiaries of his trust was in line with a prior agreed judgment and was proper because the estate’s assumption ignored the parties’ compromise settlement agreement and the agreed judgment, both of which clearly provided that the trust was amended. The court held: “We interpret an agreed judgment like a contract between the parties, seeking to harmonize and give effect to all its provisions so that none are rendered meaningless.” Id. The court then concluded that the earlier agreed judgment unambiguously stated that the sister’s children were the only remainder beneficiaries of the decedent’s trust. The trial court’s judgment was affirmed."

See David Fowler Johnson, Appellate Court Held That Judgment Construing A Trust Was Enforceable And Had Effect When The Trust Was Later Challenge, Winstead: Texas Fiduciary Litigator, July 15, 2020. 

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

July 21, 2020 in Estate Planning - Generally, New Cases, Trusts | Permalink | Comments (0)

Monday, July 20, 2020

Maryland Court of Appeals: Barclay v. Castruccio

In Barclay v. Castruccio from the September Term (2019), the Maryland Court of Appeals was tasked with deciding whether or not to recognize the tort of intentional interference with an inheritance or gift. 

Provided below is a brief summary of  holding: 

Darlene Barclay v. Sadie M. Castruccio, No. 30, September Term, 2019, Opinion by
Adkins, J.
 
TORTINTENTIONAL INTERFERENCE WITH AN INHERITANCE OR
GIFTCAUSE OF ACTION: Maryland recognizes as a cause of action the tort of
intentional interference with an inheritance or gift, and adopts the standards set forth in
Section 19 of the Restatement (Third) of Torts: Liability for Economic Harm.
 
TORTINTENTIONAL INTERFERENCE WITH AN INHERITANCE OR
GIFTTIMING OF INTERFERENCE: When one intentionally interferes with an
inheritance, one is interfering with the relationship between the testator and a potential
legatee. As such, the interference must occur before the end of the relationship, i.e., before
the testator’s death.
 
Special thanks to Matthew Bogin, (Esq., Bogin Law) for bringing this article to my attention.

July 20, 2020 in Estate Planning - Generally, New Cases | Permalink | Comments (1)

Wednesday, July 15, 2020

Maryland Court of Appeals Case Establishes an Independent Action for Breach of Fiduciary Duty

Below is a brief note by Booth, J., who wrote the opinion in Plank v. CherneskiThe note briefly explains the court's decision to establishes a breach of fiduciary duty as an independent cause of action: GettyImages-695596764-f85a2ca6141c41f7ba858ffb56e9b1fd

BREACH OF FIDUCIARY DUTY AS AN INDEPENDENT CAUSE OF ACTION.

"In Kann v. Kann, 344 Md. 689 (1997), and our jurisprudence that followed, this Court recognized a breach of fiduciary duty claim as an independent cause of action. To establish a breach of fiduciary duty, a plaintiff must show: (1) the existence of a fiduciary relationship; (2) breach of the duty owed by the fiduciary to the beneficiary; and (3) harm to the beneficiary. The remedy for the breach is dependent upon the type of fiduciary relationship, and the historical remedies provided by law for the specific type of fiduciary relationship and the specific breach in question, and may arise under a statute, common law, or contract. A breach of fiduciary duty cause of action should be analyzed on a case- by-case basis. If the plaintiff describes a fiduciary relationship, identifies a breach, and requests a remedy historically recognized by statute, contract, or common law applicable to the particular type of fiduciary relationship, the court should permit the count to proceed. The cause of action may be pleaded without limitation as to whether there is another viable cause of action to address the same conduct. To be clear, this does not mean that every breach will sound in tort, with an attendant right to a jury trial and monetary damages. The remedy will depend upon the specific law applicable to the specific fiduciary relationship at issue."

See, Plank v. Cherenski, Filed July 14, 2020. 

Special thanks to Matthew Bogin, (Esq., Bogin Law) for bringing this article to my attention. 

July 15, 2020 in Estate Planning - Generally, New Cases | Permalink | Comments (0)