Wills, Trusts & Estates Prof Blog

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

Wednesday, July 15, 2020

Vermont Supreme Court: Contract For Mutual Wills Does Not Impact Allowance of Subsequent Will

Wills-estate-battleIn the July 2020 Vermont Supreme Court case of In re Estate of Patricia Bixby, the Court reviewed the probate court's allowance of a decedent's will, which was challenged on the ground that a contract for mutual wills rendered the subsequent will invalid. 

Decedent and her ex-husband had three children together before they divorced in 1978. In 1997, decedent and her ex-husband each executed a mutual will in Arizona. 

Each will provided for the establishment of a testamentary trust to support the other former spouse during their lifetime. After both former spouses have died, each will provided for the remaining assets to be divided equally among three children. 

In 2006, decedent executed a will in Vermont revoking the 1997 will. The 2006 will divides most of the decedent's estate between two of her children. The 2006 will excludes decedent's ex-husband and third child, who is the appellant in this case. 

Decedent's ex-husband died in 2010 and decedent died in 2016.

After decedent's death in 2016, a special administrator was appointed. The special administrator filed a motion to allow Decedent's 2006 will. Appellant (the third child) objected to the motion. 

In April 2018, Appellant filed a motion to allow the 1997 will and disallow the 2006 will. Appellant argued that the 2006 will was invalid, because decedent had entered a valid and enforceable contract for mutual wills with her ex-husband. 

The Vermont court, probate division, determined that decedent's execution of the 2006 will revoked the 1997 will. The court reasoned that under Vermont law, a will may be revoked by executing a subsequent will that expressly revokes the previous will, and there is no exception for mutual wills. 

The Vermont Supreme Court noted that even if the decedent executed an enforceable contract for mutual wills in 1997, the existence of that contract has no impact on the allowance of the later will.

See, Vermont Supreme Court: Contract For Mutual Wills Does Not Impact Allowance of Subsequent Will, Probate Stars, July 13, 2020.

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

Monday, July 13, 2020

Nebraska Supreme Court: Decedent’s Real Property Remained In Estate And Was Not Validly Purchased Under Option Contract

RealestateIn the June 2020 case of Arnold v. Walz, the Nebraska Supreme Court determined that decedent's real property remained in the estate, and had not been validly purchased because the purported seller did not own the property. 

Beverly Freiden died on December 8, 2012. The Nebraska probate court appointed Arnold and Jon Frieden as co-personal representatives of decedent's estate.

Decedent's will stated that her real property located in Omaha, Nebraska "may either be sold or retained by my personal representatives as they shall determine, and upon sale... my son shall receive the first $25,000 from the sale and the remainder.. to my grandson Bart Arnold for his care." 

The co-personal representatives did not sell the property. Instead, they filed an informal closing by verified statement which stated that Arnold and Jon Freiden's appointments as co-personal representatives "shall terminate one year after the firing hereof."

Walz had leased the property from decedent and was interested in buying the real property — an option to purchase provision was included in the lease between decedent and Walz. Walz did not exercise the option during the original tenancy. 

In August 2014 (after the expiration of the option), Walz and Freiden purported to modify the lease/purchase agreement to extend the option to purchase to July 31, 2015. 

In August 2015, Walz and Jon Freiden entered into another agreement in which set forth the "balance owed for the purchase of the property." As a result of that agreement, Walz claimed he purchased the property from Jon Freiden. 

In January 2017, the decedent's estate was reopened and Arnold Freiden was reappointed as personal representative. Arnold filed a complain to quiet title to the property, alleging that Walz had not timely exercised his option to purchase, and that there was no enforceable modification to the lease/purchase agreement. 

Under Nebraska law, options to purchase are strictly construed and not extended beyond their express provisions. The Nebraska Supreme Court ultimately held that Walz did not exercise the option before it expired in 2014. 

See, Nebraska Supreme Court: Decedent’s Real Property Remained In Estate And Was Not Validly Purchased Under Option Contract, Probate Stars, June 25, 2020.

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

Sunday, July 12, 2020

Alabama Supreme Court: Alabama Circuit Court Lacks Subject Matter Jurisdiction Over Claims Against Georgia Executor

AlabamaThe Alabama Supreme Court, in Ex Part Nancy T. Beamonaddressed the issue of subject matter jurisdiction in an Alabama court over an executor of an estate pending in another state. The Alabama Supreme Court determined that an Alabama circuit court lacks subject matter jurisdiction over claims against a Georgia executor. 

Donovan Arnott, Jr. was married to Lois Arnott, and Bruce is their son. Lois had two children from a prior marriage — Nancy Beamon and John Terry. Donovan adopted Nancy, but did not adopt John. 

Donovan tied test on May 1, 2014, owning a house, lots, and several tracts of land. Donovan's will left the house and two lots to his surviving spouse Lois. 

Donovan devised a remainder fee-simple interest in a tract to Bruce, as well as a remainder fee-simple to both Nancy and John. 

Lois died testate in July 2017, and her estate was probated in Lee County, Georgia. Nancy was appointed as executor of the estate. In October 2018, Bruce filed a complaint against Nancy, as personal representative of Lois's estate in Washington County, Alabama. 

The complaint alleged that Nancy, as personal representative, was responsible for carrying out the timber regeneration of the Atchison tract which was given to Bruce; and that the estate was required to pay for the cost of the timber regeneration on the tract. 

Nancy moved to dismiss the complaint, arguing that the circuit court did not have subject matter jurisdiction. 

The Alabama Supreme Court ultimately held that an executor appointed in another state does not have authority to prosecute or defend suits in Alabama. 

The court stated, When persons are sued in their capacity as executor of an estate, they are not personally a party, but are only involved as a “commissioned representative of the court making the appointment, and for the limits of its jurisdiction, so that beyond that jurisdiction he can exercise no authority, or do or omit any act which will affect the due administration of the trust by the local authorities.”

See, Alabama Supreme Court: Alabama Circuit Court Lacks Subject Matter Jurisdiction Over Claims Against Georgia Executor, Probate Stars, June 29, 2020. 

July 12, 2020 in Estate Planning - Generally, New Cases, Trusts, Wills | Permalink | Comments (0)

Friday, July 10, 2020

The Inside Story of Why Mary Trump Wrote a Tell-All Memoir

UnknownPresident Trump's nice was a family outcast. Her new book casts a cold light on the relatives she describes as dysfunctional.

For most of her life, Mary L. Trump has been outcasted and put aside by her own family. Her uncle, President Trump, for years looked down on her father — Fred Trump Jr., an alcoholic who died when she was a teen. Her Grandfather, Fred Trump Sr., hated her mother, whom he blamed for Fred Trump Jr.'s drinking, court papers say. Her aunt, the president's sister, once accused Ms. Trump and her brother in a legal disposition of being "absentee grandchildren."

Ms. Trump's grandfather was often annoyed by what he took to be her disrespectful nature. Her crime, court papers say: She showed up wearing a baggy sweater. 

Ms' Trump's status as an outcast culminated in 1999 when Fred Trump Sr. died, and she discovered that she and her brother had been cut out of his will, depriving them of what they believed was their rightful share of untold millions. A dispute over the will lead to a court fight, the details of which shielded by a confidentiality agreement that Ms. Trump has followed for nearly 20 years. 

However, Ms. Trump has written a memoir which unfolds the details of that fight as well as other allegations. The book, along with a number of court documents that have never been reported, sheds new light on a decades-long saga of greed and betrayal, laying out what Ms. Trump has described as her family's legacy of darkness and dysfunction. 

The book, "Too Much and Never Enough: How My Family Created the World's Dangerous Man," which is set to be released next week, has ended up in court itself, as the Trump family has sought to stop its publication. Ms. Trump has countered that the secrecy provision that has kept her silent until now is unenforceable and based on financial fraud.

See Alan Feuer, Michael Rothfield & Maggie Haberman, The Inside Story of Why Mary Trump Wrote a Tell-All Memoir, N.Y. Times, July 7, 2020.

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.

July 10, 2020 in Books, Estate Planning - Generally, Wills | Permalink | Comments (0)

‘Wicked' widow of French Elvis Johnny Hallyday pockets assets of up to €34 million after a two-year battle with his older children who were written out of the 73-year-old’s will - but she's also inherited his €30 million debt

UnknownAfter a bitter legal battle that lasted more than two years, the widow of the 'French Elvis' who died in December of 2017 from lung cancer, aged 74, has inherited the singer's properties, to the estimated value of €28 to €34 million, and an undisclosed amount of cash. 

The singer's eldest children decided to contest his will, which left his entire estate to Laeticia, excluding his son David Hallyday and Laura Smet. The will was drafted in the U.S., where Hallyday was living with Laeticia and their two adopted daughters, and did not comply with French law, where children have automatic succession rights. 

A grudging legal battle ensued, with Laeticia provoking further outrage last year by announcing plans to have the singer exhumed and placed in her family vault — a move that saw her branded the "wicked stepmother" by French magazines. 

However, Laeticia's lawyers announce on July 3rd, that a "definitive agreement" had been reached between Hallyday and her late husband's children. 

Laura Smet received a settlement of €2.4 million in exchange for renouncing any further legal action and recognizing the American will, which excluded her and David. David, said he did not want any money, but instead was granted the "moral rights" to his father's musical estate, meaning he will oversee how his musical legacy is used from now on. 

It appears that Laeticia won the battle, however, she inherited Johnny's tax debts, which are estimated to be around €30 million. 

It appears that all parties involved are finally ready to "move on."

See Clair Toureille, ‘Wicked' widow of French Elvis Johnny Hallyday pockets assets of up to €34 million after a two-year battle with his older children who were written out of the 73-year-old’s will - but she's also inherited his €30 million debt, Daily Mail (UK), July 6, 2020.

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

July 10, 2020 in Estate Planning - Generally, Music, Wills | Permalink | Comments (0)

Wednesday, July 8, 2020

Montana Supreme Court: Alleged Fraud Did Not Toll Probate Time Limitations To Challenge Will

Probate-image2-1In the June 2020 case of Estate of Swanbergthe Montana Supreme Court upheld the denial of a petition to reopen a probate estate based on alleged fraud. The Montana Supreme Court held that the allegations of fraud did not operate to toll the applicable probate time limitations and did not permit a belated will contest. 

Tristan and Taylor Swanberg are there children of Chandler Swanberg, decedent. Decedent executed a will and trust in 2006, and died in 2012. Decedent was survived by three children: Taylor and Tristan (the Swanbergs) and Jennifer Wilson. Wilson filed a petition to formally probate decedent's 2006 will, determine testacy and heirs, and to appoint a personal representative. 

The 2006 Will and trust left almost all of decedents real and personal property to Wilson, including his holdings in Swanberg Farms in north-central Montana. Wilson provided the requisite notice of the probate proceedings to the Swanbergs. The Swanbergs did not appear at any hearings or file any objections. This will was admitted to probate and Wilson was appointed as personal representative. The order setting and distributing the estate was entered in November 2016. 

Two years later, in. November 2018, the Swanbergs petitioned to reopen Decedent's estate, alleging that Decedent lacked the requisite mental capacity to execute the 2006 will and trust, and that the documents were the product of undue influence exerted by Wilson. The Swanbergs maintained that a prior will left decedent's estate to the three children in equal shares. 

The Swanberg's sought a declaratory judgment providing that the trust was invalid or void. 

 The are remedies for fraud perpetrated in connection with probate proceedings provided under section 72-11, MCA. However, the section does not apply to remedies relating to fraud practiced on a decedent during the decedent's lifetime that affects succession of the estate. 

In this case, Montana law did not provide any recourse for the Swanberg's to bring what was, in effect, a belated will contest.

See Montana Supreme Court: Alleged Fraud Did Not Toll Probate Time Limitations To Challenge Will, Probate Stars, June 23, 2020. 

July 8, 2020 in Estate Planning - Generally, New Cases, Trusts, Wills | Permalink | Comments (0)

Tuesday, July 7, 2020

Where’s the Will? Indiana Court of Appeals Reverses Trial Court’s Presumption of Revocation for Lost Will

Legal-wills-revokedRecently, the Indiana Court of Appeals decided the case of Trowbridge v. Estate of Trowbridge. The case involved a man, Everett (E), who remained on good terms with his ex-wife, Christal, despite their divorce. After the divorce, E executed a will in which Christal and Michael Trowbridge (Trowbridge), who was E's brother, were named as co-executors. 

The will left to Christal: (a) the former marital home, which E received according to the dissolution order; (b) the entirety of one retirement account; (c) 25% of another retirement account, and (d) all E's personal property. The will left Trowbridge the other 75% of the second retirement account. 

E died six years after executing the new will. A week after E's death, Trowbridge petitioned to open an intestate estate, asserting that E had no will. Christal then called the estate's attorney, Michael, and told him that she had E's will. According to Christal, she told Michael during a meeting that E gave her his original will in 2012 after he executed it. 

Michael contends that Christal told him that E gave her a copy of his will and left the original in his home's safe. Michael contends that he told Christal he needed to research whether a copy of a will could be used for probate. According to Michael, his research uncovered the rule that where a testator retains possession or control of a will, and the will isn’t found at the testator’s death, a presumption arises that the will was destroyed.

In its analysis, the Court of Appeals first easily affirmed the trial court’s finding that Trowbridge maintained possession of the will. Accordingly, Trowbridge properly received the benefit of the presumption that Everett revoked his will. But this presumption, the Court of Appeals explained, is not the end of the inquiry.

Again, it’s ultimately up to the person contesting the copy of the will to show that it was revoked, and the trial court ignored the evidence supporting Christal’s argument that it was not revoked. In particular, the Court of Appeals noted, among other things, that:

  • Everett didn’t execute his will until after he and Christal were divorced.
  • Everett continued to list Christal as the beneficiary of his accounts as recently as the year before he died.
  • Everett never enforced the dissolution order requiring Christal to deed the former marital property to him.

Accordingly, the Court of Appeals reversed and remanded to the trial court with instructions to consider the evidence rebutting the presumption to determine whether Trowbridge, not Christal, has satisfied his burden of showing that Everett revoked his will.

See Sarah Jenkins & Jason M. Rauch, Where’s the Will? Indiana Court of Appeals Reverses Trial Court’s Presumption of Revocation for Lost Will, Faegre Drinker, June 22, 2020.

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

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

Sunday, July 5, 2020

How Covid-19 Has Gotten More Animal Owners To Consider Creating Pet Trusts

PetThe rapid spread of the Coronavirus has sparked an interest in people all over the world to make sure their affairs are in order in case of sudden death or incapacitation. Many pet owners consider their pets as part of the family, so it only makes sense that they want to make sure their pets will be taken care of when they can no longer provide care. Creation of a pet trust will allow pet owners to ensure their precious loved ones are cared for even if they cannot be the ones to care for them.

A pet trust is a legal arrangement providing for the care and maintenance of a pet (or pets) in the event of the owner’s death or incapacitation. This allows pet owners to name a pet guardian and allocate funds in the estate to provide continued care for their pet. 

An owner can create a testamentary pet trust in his will by designating portions of his estate to be used for the benefit of his pet.

The testator should elect a pet guardian to care for the pet. This person can be the same as the trustee, or someone else who is familiar with the pet’s routine.

Selecting two different people to act as the trustee and as the pet guardian will help prevent misappropriation of the trust property and ensure the terms of the pet trust are being adhered to. It will be hard to ensure the pet is adequately being taken care of if only one person is both the trustee and pet guardian. 

See Nancy E. Halpern, How Covid-19 Has Gotten More Animal Owners To Consider Creating Pet Trusts, Fox Rothschild LLP, June 25, 2020.

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

July 5, 2020 in Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Thursday, July 2, 2020

5 Ways to Mess Up Estate Planning

Estate-planning-chalkboard-750In order to ensure the efficient and orderly dispersion of assets after death, maintaining a valid and current estate plan. Even small mistakes can have disastrous results that can be impossible to correct. There are several key errors that can make an estate plan defective, most of which can be easily avoided by reviewing your or your client's plan periodically and keeping up to date. 

A list of these common errors include:

Failing to Update Your Beneficiaries

Marriage, divorce, birth and death can affect who will receive your assets. Whenever one of these changes occurs, make sure you update all financial, retirement and insurance accounts and policies as well as in your wills, trusts and other legal documents.

Omitting Legal Documents

Your will may be in perfect order, but it won’t exempt your assets from the probate process in most cases if the dollar value of your estate exceeds a certain amount. Also, having only trusts without a will can be just as big a mistake, as the will is the primary document used to name the guardianship of children and other dependents if something should happen to you and/or your spouse or partner. 

Poor Recordkeeping

The ultimate key to any successful estate plan is a concise letter of instruction that tells your executor or executrix where everything is located, the names and contact information of everyone they will have to deal with, such as your banker, broker, insurance agent, financial planner, attorney, landlord or tenants, etc.

Poor Communication

If your situation is complex, it would be helpful to write a simple letter of explanation that outlines your intentions or tells them why you changed your mind about something.

Failing to Create a Plan 

History contains many stories of very, very wealthy people who lost virtually all of their estates to court fees and legal costs because they failed to plan ahead in this area. Having a plan is especially important for those who may have to pay estate taxes. 

See Mark P. Cussen 5 Ways to Mess Up Estate Planning, Investopedia, September 30, 2018. 

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

July 2, 2020 in Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Wednesday, July 1, 2020

California Powers of Appointment: Follow Instructions When Exercising

HouseIn California, a truster (person who creates a trust) can confer a "power of appointment" on trust beneficiaries, empowering them to designate to whom they want to give their shares of the trust. Further, the truster can require trust beneficiaries to specifically exercise and refer to the power of appointment in any will they create to designate who should get their shares of the trust. 

What would happen if a trust beneficiary creates a will that gives away his or her shares without first referring to the power of appointment as required by the trust? Can a California probate court address and fix the the defect by amending or reforming the will?

In Estate of Elmers (2020), the California Court of Appeal answered this question in the negative. The Court held that, although reforming a will is permissible if extrinsic evidence establishes a testator's intent, a will cannot be reformed if it acted as a loophole to get around the power of appointment requirements in the Probate Code. Essentially, a court cannot reform a will when the testator fails to follow directions exercising a power of appointment. 

The main take away is that a California Probate Court, generally speaking, has the power to amend or reform a will to conform with the testator's intent. However, the court will not reform a will to comply with requirements for exercising a power of appointment if, in doing so, the express provisions of the Probate Code are circumvented. 

Elmers, is a perfect example of why it is important to follow directions when it comes to exercising powers of appointment. When granted a power of appointment under a trust, the beneficiary must look at the trust and specifically follow the directions provided, including whether the power of appointment needs to be referenced or just the trust. Failing to follow directions and specifically reference the power or trust, as appropriate, will invalidate any attempt to exercise the power.

See N. Aaron Johnson, California Powers of Appointment: Follow Instructions When Exercising, Trust on Trial, June 8, 2020.

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

July 1, 2020 in Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)