Probate Litigation

Probate heir has no property right in conservatorship estate (Ga.)
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Opal Stewart was appointed as her father’s conservator. After her father died, she was also his personal representative. Under Georgia law, a conservatorship terminates upon the death of the ward, but the conservator must still petition for discharge. Where the conservator also serves as personal representative, a guardian ad litem must be appointed due to the potential conflict of interest. In this case, Opal petitioned for discharge, the guardian ad litem was appointed and, after reviewing the matter, had no objection. Notice of the petition to discharge was given by newspaper publication. The probate court entered an order finding that Opal was fully discharged. Nineteen months later, Opal’s sister, Brenda, filed a petition to set aside the judgment discharging Opal. Brenda argued that failure to give her actual notice of the discharge proceeding violated her due process rights. The probate court disagreed, finding that Brenda had no property interest, whether inchoate or vested, in the conservatorship. For that reason, her constitutional challenge to the discharge statute, which did not require actual notice to all heirs of the ward, was rejected. On appeal the Supreme Court of Georgia agreed. Brenda has a legally protected interest in her father’s probate estate, but not in the conservatorship. The assets of the conservatorship are protected by the guardian ad litem for the ward. The court went further, finding that Mullane v. Central Hanover Bank & Trust, 339 U.S. 306 (1950) does not require a different result. While Mullane requires actual notice to known individuals who are directly affected by the outcome of litigation, Brenda was neither directly affected nor did she have a legal protected interest in the discharge proceedings. Accordingly, constructive notice by publication was permitted.
Ray v. Stewart, 2010 Ga. LEXIS 604 (9/20/2010)

Gifts to caregiver found to be valid (Cal. App.)
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Prior to his death, Donald Austin made gifts to Debra, the daughter of Donald’s former wife. The gifts, six checks, totaled $185,000. Donald’s daughter, Dawn, sought to have those gifts invalidated using California Probate Code Section 21350; that section invalidates certain gifts to caregivers. Dawn argued that Debra was a care custodian and, therefore, was disqualified from receiving the checks. The way section 21350 works, if it is proven that a gift recipient is a disqualified person, then the burden shifts to that person to show by clear and convincing evidence that the gifts were not the product of fraud, menace, duress or undue influence. The initial burden, however, is proving that the recipient was a disqualified person and the trial court found that Dawn failed to meet her burden. Although Debra provided Donald with limited care prior to his nursing home admission, all of the gifts were made while he was in the nursing home and there was no evidence that Debra was a caregiver at that time.
Estate of Austin v. Simpson, 2010 Cal. App. LEXIS 1602 (9/15/2010)

Probate exception to federal jurisdiction refined (D. Mass.)
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Evageline executed a Will in 1980 which established a trust. The trust was funded with a commercial office building in Connecticut. The trust provided for payment of 75% of the income to her daughter, Gloria, during life and payment of 25% to her other daughter, Jean, during her life. The Will provided that upon the death of either daughter, their respective income interest would be paid to their female issue. Jennifer Dumas claimed entitlement to an income and remainder interest after Gloria’s death, filing her claim in federal court. The Defendants moved to dismiss the claim arguing that it fell within the probate exception to federal jurisdiction. The court rejected that argument, finding that Jennifer sought a declaration which would be no more than an “interference” in the probate. Further, Jennifer sought damages against the trustee which did not interfere with any pending probate matter. The Defendants also argued that the court should abstain. The court rejected that argument because there was no contemporaneous state court proceeding where the same or similar issues were presented.
Dumas v. Snow, 2010 U.S. Dust. LEXIS 86292 (8/23/2010)

Poor drafting results in evidentiary hearing (Mass. App.)
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Gwendolyn Wilder left real estate to the Boston Chapter of Hadassah which, according to the parties, does not exist as a separate identifiable legal entity. The executor brought a complaint to determine who should receive the bequest. The parties were in agreement that Hadassah, the Women’s Zionist Organization of America, is a New York not-for-profit, which builds hospitals and schools throughout the world, including Boston. They agreed that the Boston chapter was not separately incorporated, but that it has its own chapter president and has an office. Without holding an evidentiary hearing, the judge hearing the case found that the bequest failed since there was no Boston chapter and that the real estate passed to the issue of Gwendolyn’s cousin under a residuary clause. On appeal, the court vacated the decision below, holding that an evidentiary hearing was required to determine whether the Boston Chapter existed as an unincorporated association. If the court finds that it exists as such, then the court would also be required to determine the manner in which contributions come into its hands and whether a trustee should be appointed.
Pritchard v. Attorney General, 2010 Mass. App. LEXIS 1144 (8/27/2010)

Forgery of will discovered too late (Tex. App.)
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Powell Coburn died in 2005. His second wife, Juanita Coburn, offered a 2002 Will for probate that left her everything. Powell’s daughter, Karen Haisler, filed a will contest, but later signed a Family Settlement Agreement, receiving some of her father’s property. The will was then admitted to probate. Some time later, one of Juanita’s daughters died and her widower then told Haisler that the will was a forgery. Haisler filed an equitable action, a bill of review, to set aside the order admitting the will for probate; she also filed an action for tortuous interference with inheritance rights. The trial court rejected Haisler’s claims and she appealed. On appeal, the Court distinguished extrinsic fraud, essentially conduct that prevents a party from having her day in court, from intrinsic fraud. Intrinsic fraud relates to the merits of the issues presented and does not support a bill of review because each party must guard against adverse findings on the issue presented. The tortuous interference claim was rejected because the limitations period had run and was not saved by the discovery rule; Texas courts do not apply the discovery rule in probate cases in most instances even in the face of allegations of fraud.
Haisler v. Coburn, 2010 Tex. App. LEXIS 6050 (7/28/2010)

Agreement in mutual wills enforced (Iowa App.)
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Ralph and Elaine Lawson were married in 1971. Following the marriage, Elaine’s mother conveyed almost 12 acres to them as joint tenants with rights for survivorship. In 1987, Ralph and Elaine executed a wills, agreeing on a distribution of assets among their children from prior marriages and providing that neither would change the wills without the consent of the other. Following Ralph’s death, Elaine quitclaimed the land from her mother to one of her children, Lonnie, reserving a life estate. Elaine also changed her will. Following Elaine’s death, the other heirs under the 1987 wills sued Lonnie. The other heirs sought imposition of a constructive trust, which the trial court imposed. On appeal, the court affirmed, finding that the 1987 wills prevented Elaine from alienating the land without consent and that the language in the mutual wills should be enforced.
Cunningham v. Lawson, 2010 Iowa App. LEXIS 758 (7/14/2010)

Probate court reversed for being too informal (Fl. App.)
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Nancy Fernandez filed a petition to determine incapacity of her mother. When the case went to trial, the court swore the witnesses, but denied the daughter’s motion to exclude witnesses from the courtroom until called. The court did not allow either party to make opening or closing statements. The court called and questioned the witnesses, affording almost no opportunity to examine or cross-examine witnesses. Nancy appealed. On appeal, the court found, respectfully, that the trial court failed to follow proper procedure. The rules provide that probate court proceedings “as nearly as practicable, shall be conducted similar to suits of a civil nature and the Florida Rules of Civil Procedure shall govern.” This means parties should be given the opportunity to open, exam and cross-examine witnesses, and close. It also means the rule regarding witness exclusion applies.
Fernandez v. Guardianship of Fernandez, 2010 Fla. App. LEXIS 7604 (6/2/2010)

Evidence of decedent’s intent relevant in determining whether account passed by right of survivorship (Mn. App.)
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Patrick and Viola Butler had eight children between them from prior marriages. They executed reciprocal wills in 1996, designating each other as sole beneficiary and providing for equal distribution to all eight children after both were deceased. Viola predeceased Patrick. When Patrick died, he owned five certificates of deposit held with rights of survivorship with Maureen Kissack. One CD was subject to a lien; after counsel advised her the CDs were not part of the estate, Kissack cashed out the remaining CDs and used them to pay down her mortgage. When Kissack failed to include the CDs in Patrick’s estate, one of the other children moved to have Kissack removed as personal representative of Patrick’s estate. The court denied that motion, but found that the CDs were estate assets, required that bond be posted and that the CD proceeds be placed in the estate account. Kissack moved for a new trial, demanding a jury. The court granted her motion and impaneled a jury. After hearing evidence regarding Patrick’s intent, the jury found that the CDs were part of his probate estate. On appeal, the court affirmed, finding that the evidence was sufficient to support a verdict that Patrick did not intend the CD proceeds to pass solely to Kissack.
In re Estate of Butler, Appeal No. A09-1208 (5/25/2010)

Confidential relationship is insufficient to invalidate Will without evidence of dominion over testatrix (Ga.)
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Harriet Harms died at age 93 after executing a will on September 13, 2005. Her 2005 Will revoked a 1976 Will, changing the disposition of her estate. The new Will left her home to her son and divided the remainder of her estate among four daughters, whereas the 1976 Will divided her estate equally among all children, leaving a life estate for a handicapped daughter in a small house on the family property. Two daughters filed a caveat alleging the Will was the product of undue influence. The evidence showed, however, that while the son lived with Harriet, he was not present when the will was executed. Although he had discussed receiving the homeplace from her, there was no evidence that Harriet had been isolated; there was evidence that she had frequent contact with family, friends and neighbors before and after execution of the 2005 Will and that she discussed the contents of the Will. The attorney who prepared the Will testified that she was competent and executed it freely and voluntarily. Thus, even if there was a confidential relationship between Harriet and her son, the caveators failed to he exercised dominion over her that deprived her of her own free agency. Further, since the evidence entitled the son to believe he propounded a valid Will, he was entitled to have attorney’s fees paid from the estate.
Simmons v. Harms, 2010 Ga. LEXIS 397 (5/17/2010)

Estate left to “lawful children” excludes illegitimate child (Ga.)
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Apparently John Buffington had an affair resulting in the birth of Regina Todd. After Buffington died in 2006, his Will was probated. The left his estate to his children, defining the term “child” as “lawful blood descendents.” Todd, claiming to be Buffington’s biological daughter, claimed entitlement to a child’s share. She instituted proceedings seeking a declaration of her beneficiary status which were transferred from superior court to the probate court. However, those proceedings had no bearing on the outcome because, even if Todd was Buffington’s biological daughter, he disinherited her. A testator may make any disposition of his property he shooses so long as it is not contrary to law or public policy; here, the Will named Buffington’s children from his marriage, made no distribution to Todd, and limited distribution of his estate to his “lawful” children. The court found that Buffington’s use of the defined term, together with other language in the Will, reflected his intent to exclude Todd.
Hood v. Todd, 2010 Ga. LEXIS 407 (5/17/2010

Fraudulent concealment tolls probate limitations period (Tenn.)
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Mary Reeves Davis died in 1999. In 2001, a Will dated September 10, 1976 was admitted for probate; that Will named her second husband (Terry Davis) as a beneficiary along with other individuals. In 2005, Terry filed a later holographic Will, dated in 1996, with the court seeking to have it probated. The 1996 Will named Terry as the sole beneficiary. Terry claimed that the 1996 Will was fraudulently concealed by Mary’s conservator and her nephew, preventing earlier discovery. The administrator filed a motion for summary judgment alleging that the second petition was time-barred and subject to a two year limitations period. The Supreme Court affirmed the trial court’s finding that a genuine issue of material fact remained concerning whether fraudulent concealment occurred and that, if it occurred, then the limitations period was tolled.
In re Estate of Davis, 2010 Tenn. LEXIS 407 (4/23/2010)

Innocent purchaser for value not liable for alleged fraud of Executor (Ga)
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Elnora Maxley left 2 residential properties to Sean Hall, a ward of the State. Following Maxey’s death, in 1996, Anthony Cooper petitioned to be appointed executor; the petition was opposed by Hall’s guardian. During the hearing on that issue, an altercation ensured and Copper was removed from the courtroom. Hall’s guardian was appointed administrator with will annexed of Maxey’s estate and served in that role until she died. Hall died intestate in 1998. The property, meanwhile, remained in Maxey’s estate. In 2007, Cooper again petitioned to probate Maxey’s estate, but failed to serve other interested parties. He also petitioned to sell the properties for $20,000 each to Savant Properties and Partners, LLC (“Savant”). An order was entered approving the sale. Less than a month later, Savant sold the properties to JSD Properties for $190,000. Litigation followed, fraud was alleged and quiet title was sought because Cooper fraudulently obtained letters testamentary and breached his fiduciary duties by selling the property for a fraction of its value. Without addressing the fraud case against Cooper and Savant, the court held that JSD was “undisputedly” an innocent purchaser for value. Notwithstanding the allegation that Cooper committed fraud in securing an order, the order approving the sale was valid and the sale did not violate the terms of the order. Thus, the trial court correctly granted JSD’s motion for summary judgment, notwithstanding the alleged fraudulent action in securing letters testamentary.
Witcher v. JSD Properties, LLC, 2010 Ga. LEXIS 232 (3/15/2010)

Pour Over Will Conveying Farm to Trust Trumps Executor’s Motion to Sell (Iowa App.)
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Florence died owning an eighty acre farm in Iowa. She had executed a revocable trust which listed the farm as a trust asset, and had made other transfers to the trust, but died owning the farm in her own name. Her daughter, Evelyn, was the successor Trustee. Her other two daughters were appointed co-executors of the estate and a pour-over Will was admitted for probate. The co-executors sought permission to sell the farm alleging it was in the “best interests of the estate.” Evelyn, as trustee, opposed that motion, contending there was no reason to sell the farm and that it should be transferred to the trust. The trial court agreed with the co-executors, finding that the co-executors and the trustee cannot get along and that it was impractical to oversee an 80 acre farm. On appeal, the court found that Florence’s intent was to place the farm into the trust. Thus, barring any legal requirement mandating retention in the estate, and the court found none, the farm should be transferred to the trust. The decision below was reversed.
Estate of McDowell, 2010 Iowa App. LEXIS 150 (3/10/2010)

Conveyance to caregiver child not product of undue influence (Mass. App.)
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Constance Patterson executed a Will on July 18, 2001, leaving her estate to two of her children, Linda and Sharon, disinheriting her other children (including the Plaintiff) and her husband. A few days later, on July 27, 2001, Constance was taken to another attorney, Robert Smith, where she executed a substantially similar Will, as well as a power of attorney and advance directive. While there, Smith explained that Constance could protect her home from a Medicaid lien is the property was transferred to a family member who lived with her. In 2002, Linda moved in with Constance and later that month, Constance met with Smith again, executing a deed conveying the remainder interest to Linda. Constance died in 2004. One of the disinherited children argued that the conveyance was the product of undue influence. In affirming the trial court’s finding that there was no undue influence, the court noted that Linda held a power of attorney, it was not used to effect the transaction. Further, Smith’s testimony was accepted that Linda did not exercise undue influence over Constance’s decision and that the purpose of the transaction was to avoid a Medicaid lien.
Patterson v. Patterson, 2010 Mass. App. Unpub. LEXIS 191 (3/1/2010)

Assessment made by legal secretaries insufficient to prove lucid moment (Mich. App.)
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The guardian of Thelma Ford, a 79 year old Alzheimer’s patient, brought suit to set-aside two real estate conveyances; allegations of undue influence and conversation were also made. The guardian ought to set aside two deeds and the conveyance of several certificates of deposit to one of Thelma’s six children. The defendant countered, arguing that Thelma had the requisite legal capacity to execute the deeds and also defended the CD transfers. A vast amount of medical evidence was offered to show that Thelma lacked capacity. To counter this evidence, the defendant attempted to show that Thelma received independent advice prior to executing the deeds in question. However the deeds, while executed in a law office, were executed after Thelma was counseled for 15 minutes in a public lobby by two legal secretaries; Thelma never met with the attorney. The court found it significant that neither secretary was aware of Thelma’s dementia diagnosis or behavioral history; the court seemingly restrained itself from commenting on the propriety of allowing secretaries to perform the assessment in the first place. Following a bench trial, the trial court held that Thelma lacked capacity to make the conveyances, but declined to rule on undue influence and conversion claims; the transactions were voided and set-aside. After reviewing detailed findings of fact, the decision below was affirmed.
Maedel v. Ford, 2010 Mich. App. LEXIS 372 (2/23/2010)

Codicil revoked prior Will even if codicil could not admitted for probate (DC App.)
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Anna Creech executed a Will in 1992 and a codicil in 1995. The codicil revoked certain items of her original Will, including the residuary clause, replacing those items with new terms. When her estate was probated some five years after her death, a copy of the 1995 codicil was presented. Objections were filed and the trial court refused to admit the copy since the whereabouts of the original were not explained. The court went on to admit the 1992 Will for probate. On appeal, the court found that although there might be evidentiary issues regarding whether the 1995 codicil was itself revoked, it served as a revocation of certain items of the 1992 Will from the time it was executed. Therefore, it was improper to admit the 1992 Will, in its entirety, for probate. On remand, the trial court instructed to make findings regarding whether the 1995 codicil was revoked and, if so, to treat Anna’s estate as partially intestate.
Estate of Anna Creech, 2010 D.C. App. LEXIS 79 (2/18/2010)

Failure to pay for caregiving did not support unjust enrichment claim (ME)
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Robert Anderson filed a claim against the estate of his mother, Joan, after serving as her caregiver. Robert, a carpenter by trade, began caring for his parents in 2006 when their health started declining. He performed day-to-day household chores, including laundry, running errands and cooking. He also declined jobs that took him too far away to assist his parents. After his father died, Robert was added to his mother’s joint accounts, but his mother executed a Will indicating that was for convenience and the accounts were to be split evenly among her children. After Joan died, Robert filed a claim in Joan’s estate arguing that the joint accounts were his and that the estate would be unjustly enriched if he was not paid for his caregiver services. On appeal, the lower court was reversed on the joint account issue; an account held with rights of survivorship passes to the survivor unless there is clear and convincing evidence of a different intention at the time the account was created – a contrary intention stated in a Will is ineffective. Thus, the joint accounts belonged to Robert. Regarding the unjust enrichment claim, however, the trial court correctly found that although Joan benefited from caregiving, the benefit did not require compensation and did not result in an injustice. Thus, there was no unjust enrichment.
Estate of Anderson, 2010 Me. 10 (2/16/2010)

Trial Court lacks Discretion to Limit Surviving Spouse’s Waiver of Decedent’s Attorney-Client Privilege (OH App.)
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Decedent and surviving spouse signed a prenuptial agreement. After the surviving spouse filed an action to void the prenuptial agreement, the court ordered the decedent’s attorney, who had drafted the prenuptial agreement, to testify at deposition and to bring with him all files of the decedent. The appellate court held that a surviving spouse may waive attorney client privilege on behalf of deceased spouse, that the trial court had no discretion to impose policy limitations on the spouses waiver and said waiver is not limited by communication made during the marriage.
Estate of Hohler v. Hohler, 2009 Ohio App. Lexis 5878 (December 31, 2009)

Limitations period not tolled where attempt to influence Will was known (Tenn. App.)
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Maynie Morris died in 1980. Prior to that time, Maynie’s daughter-in-law, Anita, influenced Maynie to change her Will; originally it left a life estate to Maynie’s son, remainder to the grandchildren. The change gave Maynie’s son a fee simple interest. The grandchildren were minors when Maynie died, but took no action after their majority until March, 2007. Originally, the grandchildren thought Anita had influenced Maynie to make the change by claiming financial hardship. However, a conversation shortly before their father’s death revealed that Anita told Maynie she could have Maynie’s son, Anita’s husband, killed for $200. The grandchildren argued the threat amounted to undue influence and that concealing the threat to their father was constructive fraud tolling the statute. Anita defended the suit claiming the grandchildren had no standing and that the limitations period had expired. The trial court found the grandchildren had standing, but ruled against them on the limitations period; specially, the court found that the limitations period was not tolled by concealment of the threat. Affirming the trial court, the court of appeals found it significant that the grandchildren knew Maynie had been influenced to change her Will; discovery of a different reason for the alleged influence did not toll the limitations period. Further, the court of appeals found that the Plaintiffs were fully aware during the limitations period that their father would take all of Maynie’s estate; what they were unaware of was that their father failed to devise Maynie’s property to them upon his death.
In re Estate of Morris, 2009 Tenn. App. LEXIS 818, Appeal No. W2009-00573-COA-R3-CV (12/9/2009)

Limitation on power to change estate planning documents without lawyer’s consent did not violate public policy (Ill. App.)
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Attorney Lawrence Patterson was sued by his former clients, Charles and Charlotte Dunn, after they sought to modify their estate planning documents. The documents, executed 2006, a trust, powers of attorney and living wills, included a provision requiring that the Dunns either secure Patterson’s consent or that they secure a court order before any modification or revocation. In 2007, the Dunns hired McJoynt to modify their estate plan. McJoynt sent a letter to Patterson demanding his consent to the modifications. Patterson responded in writing stating he would have to meet with the Dunns before agreeing to the modifications. The Dunns refused the meeting and litigation followed; the Dunns argued that an attorney must follow the direction of his or her client even if the attorney deems the client action to be unwise, ill-conceived or imprudent. Patterson argued that the consent requirement was designed to protect the Dunns from undue influence or other abuse as they age. The trial court agreed with the Dunns, found the consent requirement void as violating public policy and imposed sanctions. On appeal, the Court of Appeals reversed. The limitation was a reasonable measure designed to protect the Dunns from abuse as they age. Where the lawyer has no financial stake in an estate, there is no public policy reason why he or she cannot also serve as a fiduciary. Further, as a fiduciary, it was not unreasonable for Patterson to insist on a meeting with the Dunns before consenting to modification of their estate plan. The consent requirement was not void and the imposition of sanctions was reversed. In light of the expense Patterson incurred, other estate planners must determine for themselves whether to include such provisions; even so, the court found Patterson’s conduct “admirable and consistent with the highest ideals of the bar.”
Dunn v. Patterson, 2009 Ill. App. LEXIS 1112, Appeal No. 3-07-0881 (11/18/2009)

Tardy Will was time-barred (Mo.)
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Harold Unnerstall died in 2006. He was survived by his spouse, Luanne, who was under a conservatorship. On the first anniversary of Harold’s death, the conservator filed a petition to administer Harold’s estate. Harold’s nephew responded, producing a Will that purported to convey Harold’s estate to a trust. The nephew explained that he had not previously presented the Will because he thought all of Harold’s assets were in the trust. Luanne’s conservator objected to the Will since Missouri law requires that a Will be presented for probate within one year after death. The trial court admitted the Will over her objection. On appeal, the Court explained that there is no inherent right to dispose of property by Will and that the legislature may limit that right. Here, the Will was admitted beyond the one-year period provided for in the statute and was, thus, time-barred. Harold’s property would be distributed as though he died without a Will.
Unnerstall v. Berkemeyer, 2009 Mo. LEXIS 532, Appeal No. SC89982 (11/17/2009)

Court and jury leave decedent’s lover extramarital unsatisfied (Georgia)
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Harvey Strother had an extramarital relationship with Ann Melican. While involved in the affair, he executed 3 codicils to his Will, leaving income and assets to Melican. The first gave Melican $7,900 per month for life. The second gave her a Florida condominium if her still owned it at his death. The third would have paid the mortgage on a Cape Cod home and given Melican’s son business property in Florida. Stother’s family filed caveats when the codicils were offered for probate, alleging they were invalid because the codicils were not executed properly, that Strother lacked capacity and that the codicils were the subject of undue influence. The jury found for Melican on the first two codicils, but that the third was invalid. All parties appealed. On appeal, the court reversed the jury’s findings regarding the first codicil because one witness to the codicil unequivocally testified that she did not witness Strother sign the document. The attestation clause did not help Melican because it did not recite compliance with all formalities required for a valid Will. However, even if the attestation clause had alleged compliance with the required formalities, it merely creates a presumption which was overcome with clear proof that the codicil was not properly executed. The court affirmed the jury’s findings regarding the third codicil notwithstanding a charge that caveators had no burden of proof. Under Georgia law, the propounder has the burden of persuasion as to the validity of the document. The caveators did not assert an affirmative defense; instead they simply denied the propounder’s allegations. In the absense of an affirmative defense, the only burden on the caveators was to present evidence rebutting the propounder’s prima facie case. Thus, the jury instruction was not error.
Parker v. Melican, 2009 Ga. LEXIS 646, Appeal No. S09A0677 (10/19/09)

Jury’s finding of undue influence affirmed (Tenn. App.)
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Lucille Schisler owned a 110 acre farm in Maryland that she operated with her family until her health declined. In 2004, she left Maryland and moved to Tennessee to live with one of her six children. In 2005, she moved from her son’s home in Tennessee to the home of her daughter, Linda, who also lived in Tennessee. Mrs. Schisler’s trust, which owned the farm, provided that Mrs. Schisler had income for life, that her son Carroll would operate the farm, that after Carroll, another son could operate it, and that after both died or ceased operaring the farm that the trust would terminate. Her Will provided for a per stirpes distribution of all assets to five of her six children. While Mrs. Schisler was in Tennessee, Carroll came there where he persuaded Mrs. Schisler to deed him the family farm and another property; that transaction is the subject of separate litigation in Maryland. Carroll and Linda also took Mrs. Schisler to a lawyer to have the Will changed in a manner that bequeathed everything except one property to Carroll and Linda. When Carroll and Linda presented the Will for probate, the other children contested the Will. A jury found that the Will was invalid because it was the product of undue influence. In affirming the jury’s findings, the Court found substantial evidence that Linda had a confidential relationship with Mrs. Schisler because she was dependant on Linda for caregiving. Similarly, Mrs. Schisler had a confidential relationship with Carroll because she was financially dependent on him to operate the farm and pay her the income. In light of the suspicious circumstances surrounding how the Will was changed, and their presence in meetings when Mrs. Schisler sought legal advice (which deprived her of indepedent advice), they failed to overcome the presumption of undue influence. The trial court did not err in admitting Carroll’s conviction for cruety to animals for the limited purpose of showing motive or intent to influence Mrs. Schisler since it could be relevant in showing Carroll ran the risk of losing his right to operate the farm.
In re Estate of Schisler, 2009 Tenn. App. LEXIS 699, Appeal No. M2008-02479-COA-R3-CV (10/19/09)

Gift letter support finding that gift was complete (Ohio App.)
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Bertha and Harry Goldman were concerned about protecting assets in case either of them needed to apply for Medicaid. With that in mind, they conveyed assets to Harry’s son, Gondon. They signed a gift letter stating that if they desired the return of any funds, then they would be returned “in the form of gifts.” After Bertha died, her estate sued Gordon seeking return of the funds, alleging conversion. Gordon defended on several gounds, including that (1) that the gift was complete and (2) Harry was still alive and that Harry was the sole beneficiary of Bertha’s estate and did not support the action. After reviewing the evidence, the court found that the gift was complete and found the language in the gift letter compelling since it indicated that any return of assets would be in the form of a gift.
Estate of Goldman v. Goldman, 2009 Ohio 5186, Appeal No. L-09-1003 (9/30/09)

Donative transfer to caregiver spouse allowed (Cal. App.)
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Comedian Richard Pryor had six children, including his daughter Elizabeth. Richard married Jennifer in 1981, divorcing her in 1982. In the mid-80’s Richard was diagnosed with multiple sclerosis. Thereafter, Jennifer became his caregiver; in 2001 Richard and Jennifer entered into a confidential marriage – apparently they told no one they were married. Richard died in 2005, after he revised his estate plan to leave substantial gifts to Jennifer rather than his children. When Elizabeth discovered the altered estate plan, she filed suit; she argued that California law presumes donative transfers to caregivers are the result of undue influence or fraud. Although there is an exception for donative transfers to spouses, Elizabeth argued it did not apply because Jennifer’s marriage to Richard was the product of undue influence and fraud. The court rejected Elizabeth’s argument, finding no support within the statute or the legislative history for the proposition that donative transfers to a spouse are void simply because the marriage was allegedly the product was undue influence or fraud. Although the risk that a family member may exercise undue influence on an elder is well known, the legislature chose not to address this policy issue by creating an exception for the circumstances presented in this case
Estate of Richard Pryor, 2009 Ca. App. LEXIS 1609, Appeal No. B207402 (9/29/09)

Marriage could not be annulled after spouse’s death (Cal. App.)
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In an action related to the one above, Elizabeth Pryor sought to have her father’s marriage annulled after his death. The 2001 remarriage between Richard and Jennifer was not discovered by other family members until after Richard’s death in 2005. On July 13, 2007, Elizabeth petitioned to have it annulled on the grounds of fraud. Jennifer moved to quash the petition on grounds that Elizabeth lacked standing and that the petition was timed barred. The trial court granted Jennifer’s motion and Elizabeth appealed. The court found that Elizabeth did not have standing to pursue the action. Ordinarily an annulment action must be brought by a party to the marriage. Although a relative or conservator may petition to annul a marriage if one spouse is of unsound mind such actions does not survive the spouse’s death. The decision below, that Elizabeth had no standing to bring the annulment action, was affirmed.
Pryor v. Pryor, 2009 Cal. App. LEXIS 1608, Appeal No. B207398 (9/29/09)

To my grandchildren who marry Jewish spouses, I leave … (Illinois)
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Max Feinberg died in 1986, survived by his wife, two children and five grandchildren. Prior to his death, Max established a trust and executed a pour-over Will. The trust provided that his wife, Erla, was the life beneficiary of both an A and B trust; following her death, 50% of the remaining trust balance would be distributed per stirpes to Max’s grandchildren; provided, however “any such descendent who married outside the Jewish faith or whose non-Jewish spouse did not convert to Judaism within one year of married would be deemed deceased.” The trust instrument gave Erla a limited testamentary power of appointment and a limited lifetime power of appointment. Erla exercised the lifetime power of appointment directing that, upon her death, each child and each grandchild who was not deemed deceased would receive $250,000. Erla’s disposition of the trust assets altered the distribution by adding the children and from a per stirpes distribution to per capita; however, it retained Max’s restriction on who could inherit. The record suggested that Erla’s gifts would deplete the trust, leaving no additional assets for future distribution. At the time of Erla’s death, all of the grandchildren were married, but only one met Max’s restriction. One of the non-complying grandchildren argued the restriction was against public policy; the trial court and court of appeals agreed. The Supreme Court held otherwise, reversing the decision below. While a restriction that discourages marriage or encourages divorce is generally against public policy, that was not the effect of the distribution here. First, the Supreme Court found that Max’s original plan of distribution created a mere expectancy and, thus, was not the operative distribution plan; the real distribution scheme was the one created when Erla exercised her power of appointment. Under Erla’s distribution scheme, the trust did not operate prospectively to encourage the grandchildren to make decisions about whom to marry; instead, it operated on the date of her death to determine which of her grandchildren qualified for a distribution on that date. Thus, it did not violate public policy. In reaching this conclusion, the court found three factors significant: (1) Illinois policy favors freedom of testation; (2) the grandchildren had no vested interest in the trust at the time of Max’s death; and (3) Erla’s changes in the distribution prevented it from having any prospective application.
In re Estate of Feinberg, 2009 Ill. LEXIS 1299, Appeal No. 106982 (9/24/09)

Spouse did not have absolute right to disinter and move decedent (NJ)
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Larry and Joan Marino were married at the time of Larry’s death. Larry had two children from a prior marriage and four with Joan. Apparently, they did not get along. When Larry died, his Will said nothing about his burial preferences. His children decided to bury him in Larry’s family plot, while Joan wanted him buried in her own family’s plots; each set of plots were in the same cemetery so the argument was over the forty feet separating them. The children prevailed over Joan’s wishes, but several months after the burial, she filed suit arguing she had been unduly pressured. Joan argued the children had threatened to prevent her from attending Larry’s funeral if she did not agree to their choice regarding the burial plot. Joan wanted Larry disinterred and moved. The trial court found that although, under New Jersey law, Joan had the right to decide on the burial site (absent contrary testamentary direction), her rights were not absolute regarding disinterment. On appeal, the Court of Appeals reversed. The rulings differed because the court of appeals read the interment and disinterment statutes in pari material, finding that Joan’s statutory protected right to select a spouse’s interment site was violated. The Supreme Court reversed. Agreeing with the dissenting opinion from the Court of Appeals, the Supreme Court found that interment and disinterment are not the same and, therefore, the expression of legislative policy in the interment statute could not be imported to the disinterment statute. The disinterment statute did not give absolute discretion to a surviving spouse; instead, it required consent from various parties. Because the parties identified as having a right to object to disinterment did not speak with a unified voice, the trial court was correct in finding that Joan’s preference was not absolute and was insufficient as a matter of law.
Marino v. Marino, 2009 N.J. LEXIS 981 (9/24/2009)

Promise to convey property upon death is a contract to make a Will and formalities must be observed (Mich. App)
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Eugene Arbib owned several businesses on Mackinac Island which had been in the family for three generations. Allegedly, in 1999, Eugene contracted to sell the family businesses to petitioners, his children, pursuant to an oral agreement. According to petitioners, under the agreement, Eugene assured them they would receive all family money used to operate the family businesses, the residence on Mackinac Island and the Victorian Lodge (a building used to house employees) if they agreed to purchase the family businesses. None of this was in writing. In 2003, Eugene executed a new Will, leaving money, the residence on Mackinac Island and a life estate in the Victorian Lodge, to his wife. After Eugene’s death, Plaintiffs sued for specific performance of the contract between themselves and their deceased father. Petitioners argued that the oral agreement was enforceable because they had fully performed their obligations under the contract. The trial court found that the agreement required the same formalities as a contract to make a Will (e.g. that it must be in writing) and, therefore, was unenforceable. On appeal, Petitioners argued that the contract was one to convey property rather than a contract to bequeath, devise or make a Will; under their theory of the case, they could avoid the formalities required of contracts to make a Will. The court of appeals affirmed the trial court because the testimony showed that petitioners expected to receive a substantial amount of money and all of the properties upon Eugene’s death, which brought the contract within the rule.
In re Arbib Estate, No. 282004, 2009 Mich. App. LEXIS 1839 (9/8/2009)

You can’t have your cake and eat it too (Wash. App.)
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Henrietta DeBruin died in 2006. Later, two of her children were appointed co-personal representatives of her estate. An order admitting the will to probate was entered, which included the declaration that “the decedent’s Last Will and Testament was executed at a time when decedent was of legal age and sound mind … .” The executors subsequently executed a deed conveying the property to Henrietta’s three children. Unfortunately, Henrietta’s children had not read the “fine print” in a lease giving Henrietta’s tenants an option to purchase property. In 2008, Henrietta’s tenants notified her children they intended to exercise the option. The children refused and a suit for specific performance was filed. Henrietta’s children countered, arguing her agents had no power to grant the option because she was incompetent to sign a power of attorney on July 2, 2004. The tenant’s lawyer, though, found that Henrietta’s will was signed the same day as her power of attorney. They argued that Henrietta’s children could not allege Henrietta’s competence in the probate case and then allege her incompetence in the specific performance proceeding. The trial court and the appellate courts both found that judicial estoppel prevents Henrietta’s children from asserting this inconsistent position.
Bedlington v. DeBruin, No. 62536-5-I, 2009 Wash. App. LEXIS 1739 (July 20, 2009)