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Wills and Trusts

Products (Total Items: 89 )
Control from the Grave
Estate of Feinberg; control from the grave trust; deceased controlling using trust document. A testamentary disposition that does not discourage marriage or encourage divorce is not void as against public policy.
Attorney Fees
Estate of Stevenson; estate administrator; contingency fee agreement; greedy lawyers.
Beneficiary Designation
Change beneficiary designations; Lincoln Life and Annuity Company of New York v. Caswell; life insurance benficiary designation controls over will.
How to Change a Will
Revoking will; Ward-Allen v. Gaskins; destroy will; original will; new will; old will.
Draft a Will
Nunnenman v. Estate of Grubbs; change a will; change benficiary; designate beneficiary.
Change Beneficiary Designation
QDRO; Beneficiary designations; Kennedy v. Plan Administrator for DuPont Savings and Investment Plan; divorced spouse retirement benefits; ERISA.
Fiduciary Liability
Trustee liability; administrator liability; executor liability; beneficiary lawsuit.
Community Property
Estate of Borghi; Separate property or community property.
Professional Trustee
McGinley v. Bank of America, N.A.; trustee fiduciary duties may be modified by the trustor.
Designation of Beneficiary
Araiza v. Younkin; changing beneficiary; living trust; totten trust.
Contest a Will
Estate of Ellis; charitable giving; give to charity instead of family.
Revoke Will
Gushwa v. Hunt; revoke will; some states require a revocatory act to be done on an original of the will.
Probate
Oliva-Foster v. Oliva; second marriages may create problems for children of the first marriage; conditions under which a destroyed or revoked will may be revived.
Frivilous Lawsuits
Rudnick v. Rudnick; litigious beneficiaries; attorney fees.
Draft Will
Morse v. Sharkey; plain language; a court will give effect to the intent of the drafter of a will as indicated in the plain language of the will itself.
Spendthrift Trust
Estate of Gist; Medicaid payments owed to state after death of beneficiary of spendthrift trust
Intestate
In re Estate of Burden; children born in and out of wedlock may share equally in the estate if the parent held out the child as his own.
Demand for Accounting
Johnson v. Johnson; trust agreement cannot eliminate trustee's fiduciary duties.
Removal of Trustee
Kappus v. Kappus; court discrection to remove executor or trustee.
Woodward v. Commissioner of Social Security
A posthumously conceived child will be considered issue if there is genetic relationship between child and decedent and proof that decedent consented to conception and to support of any resulting child. lawful issue; posthumous child.
In Re Estate of Wright
Subscribing witnesses have duty to be satisfied of testator sanity before they subscribe will. Contest; testamentary capacity; unsound mind.
Stevens v. Casdorph
Decedent signature must be in presence of two competent witnesses, both of whom acknowledge decedent signature in presence of each other. Attesting witness.
In re Snide
Under narrow circumstances, will can be validated through reliable evidence of valid testamentary scheme, although formalistic requirements are lacking. Guardian ad litem; mistake; reformation; testamentary intent.
In re Estate of Hall
Although will generally requires two attesting witnesses, document may be validated with clear and convincing evidence that decedent intended document to be his will. Notary public.
In re Estate of Kuralt
When document evinces present testamentary intent, court will honor testator intent. Codicil; holographic will.
LaCroix v. Senecal
Doctrine of dependent relative revocation sustains revoked gift if testator cancels or destroys will with present intention of making new one immediately but new will is not made or, if made, fails of effect for any reason. Residuary clause; revocation.
Egelhoff v. Egelhoff
When federal and state statutes conflict, federal statute preempts state requirements. Employee benefit plan; Employee Retirement Income Security Act; pension; ERISA; preemption; slayer rule.
Bush v. Schiavo
Judiciary is coequal branch of government vested with sole authority to exercise judicial power and legislature cannot reallocate balance of power expressly delineated in Constitution. Separation of powers.
Arnheiter v. Arnheiter
Court has no power to correct or reform will or change any of language therein by substituting or adding words, but may disregard obviously mistaken references when necessary. Mistake vitiatie.
Lambeff v. Farmers Co-operative Executors & Trustees Ltd.
By statute omitted child who has been left without adequate provision for her proper maintenance, education, or advancement in life may claim provision from her parents estate. Preterrmitted heir.
Scheffel v. Krueger
Statute authorizing spendthrift trusts creates absolute prohibition against attaching assets in those trusts. Attachment; spendthrift fund.
Federal Trade Commission v. Affordable Media, LLC
When trust is self-funded, was set up specifically to take advantage of laws shielding trust from courts, and is subject to control by beneficiaries, trust is subject to court order to turn over assets. Asset protection trust; ponzi scheme.
Smithers v. St. Luke Roosevelt Hospital Center
If trustees of charity commit breach of trust, donor or his heirs have standing to enforce conditions placed on use of charitable donations. Charitable bequest.
In Re Estate of Janes
Prudence of trustees investments must be considered in light of circumstances of entire trust, not merely with regard to individual investment. Diversification; prudent.
Per Stirpes
Estate of Locke, Intestacy, intestate, per capita, per stirpes.
Equitable Adoption
Bean v. Ford, equitable adoption, de facto adoption.
Unwitnessed Wills May Be Probated
Estate of Hall, unwitnessed wills may be probated.
Constructive Trust
Garrett v. Read, constructive trust, joint will, mutual will, scrivener.
Insane Delusion Invalidate Will
Dougherty v. Rubenstein, monomania, must specifically relate to the questionable disposition.
Tortious Interference With Expected Inheritance
Peralta v. Peralta, not all estate related claims must be brought in probate court.
Asset Not Removed from Trust By Change In Title
Heaps v. Heaps, conversion, laches. Trust assets.
Vested Remainder Interests Are Transferable
Uchtorff v. Hanson, a remainder is contingent only if its existence depends on some dubious circumstance.
Publicity Rights
Shaw Family Archives v. CMG Worldwide; Legislation enacted after decedent's death cannot increase the property that makes up estate; right of publicity.
Lawyer Disclosure of Confidential Information
A v. B; A lawyer may disclose confidential information about one client to another client if the matter is an exceptional case with a compelling reason for disclosure.
Posthumously Conceived Children are Issue
In re Martin B; If the governing instrument is silent, posthumous children conceived through in vitro fertilization with the consent of the parent are treated as part of their father's family for all purposes; en ventre sa mere.
Alzheimer's Effect on Testamentary Capacity
In re Estate of Washburn; Every person is presumed to be sane, unless there is evidence produced to rebut the presumption of capacity; testamentary capacity.
Eccentricity Is Not Testamentary Incapacity
Wilson v. Lane; Testamentary capacity; eccentricity or strange beliefs do not mean that a person is incapable of making a will, provided the person can form a rational desire regarding the disposition of his or her property; incapacity.
Insane Delusion Must Relate To The Will
Breeden v. Stone; An insane delusion invalidates a will only if the delusion materially affected the disposition in the will.
Tortious Interference With An Expectancy
Schilling v. Herrera; To bring action for tortious interference with expectancy, plaintiff must show the existence of an expectancy, intentional interference with expectancy through tortious conduct, causation, and damages; durable power attorney.
Witness Disqualification From a Will
Estate of Morea; The requirement that a witness have nothing to gain by admission of the will to probate is met if the witness receives less from the will than he or she would receive if the will were not admitted to probate.
Preprinted Will Forms Show Testamentary Intent
Estate of Gonzalez; Preprinted language in blank will forms may be used to establish the context of handwritten words.
Anti-Lapse Statute Is Presumed To Apply
Ruotolo v. Tietjen; If a testator wishes to avoid the application of the anti-lapse statute, he or she must either unequivocally express that intent, or provide for an alternate bequest.
Ademption Not Apply If Sale of Property by Agent
Estate of Anton; Ademption will not occur if specifically devised property is sold by a testator's attorney-in-fact after the will was executed; adeem.
Inter Vivos Trusts May Not Be Challenged
Linthicum v. Rudi; Beneficiaries of a revocable living trust have no standing to challenge amendments to the trust, but may challenge the settlor's capacity through the guardianship statutes; inter vivos trust.
Deposits Paid on Death Are Testamentary
In re Estate of Atkinson; Deposits that are payable on the death of the depositor are testamentary and are included in a decedent's estate.
Joint Bank Accounts Are Presumed A Gift
Varela v. Bernachea; When a joint bank account is established with the funds of one person, a gift of the funds is presumed; donative intent.
Scope Of Power Of Attorney Is Determined By Principal's Intent
In re Estate of Kurrelmeyer; The scope of a power of attorney is determined by the principal's intent when the power was created; fiduciary duty.
Prenuptual Agreement Validity
Reece v. Elliott; An antenuptial agreement is valid if a fair disclosure is made of a spouse's assets and the other spouse had the opportunity to ask questions and learn the extent of the other's holdings, even if he or she did not do so.
Presumption That Marriage Revokes Prior Will Is Rebuttable
In re Estate of Prestie; An amendment to an inter vivos trust in favor of a spouse is insufficient to rebut the presumption that marriage revokes a prior will; pour-over will.
Children Born After a Will Is Executed
Gray v. Gray; A child born after the execution of a will may not claim a share of the estate if the will left substantially all of the estate to the surviving parent, and the testator had another child when the will was drafted who was omitted from the will.
Pretermitted Heirs Laws Do Not Apply To Trusts
Kidwell v. Rhew; The pretermitted heir statute applies only to heirs omitted from wills, and does not apply to an heir omitted as a beneficiary of an inter vivos trust; donative; special administrator.
Trusts May Be Oral
In re Estate of Fournier; An oral trust may be established by clear and convincing evidence that the conditions for creation of a trust are met; declatory judgment.
Equitable Deviation of Trust
In re Riddell; Equitable deviation allows the court to modify the administrative or distributive provisions of a trust if circumstances not anticipated by the settlor mean that modification or deviation will further the purposes of the trust.
Court May Appoint New Trustee
Davis v. U.S. Bank National Association; A court may remove a trustee upon the request of all of the qualified beneficiaries if the removal of the trustee best serves the interests of all.
Trustee Duty To Diversify
Wood v. U.S. Bank, N.A.; A trustee has a duty to diversify unless the trust contains specific language authorizing or directing the trustee to retain in a specific investment a larger percentage of trust assets than would otherwise be prudent.
Duties of Trustee Are Determined By Trust Instrument
Howard v. Howard; A trustee owes a duty to the remainder beneficiaries as well as to the income beneficiary, but those duties must be carried out in light of any preference expressed in the trust instrument.
Presumption In Favor of a Unitrust Election
Professional trustee; In re Matter of Heller; A unitrust election that benefits a trustee will be scrutinized with extra care by the court, but there is no prohibition against such an election;
Trust Transactions
Allard v. Pacific National Bank; A trustee must inform trust beneficiaries of all material facts for non-routine transactions that significantly affect the trust estate and the interests of the beneficiaries before the transactions take place.
Revocable Living Trust
Brown v. Miller; transfers of assets to a revocable living trust are the same as transfers of assets outright to the person owning the trust.
Divorce Effect On Trust
Clymer v. Mayo; In the absence of an expressed contrary intent, a divorce will revoke the provisions of a living trust that benefit a spouse.
Life Insurance Beneficiary Designation
Cook v. Equitable Life Assurance Society; changing a beneficiary designation by will alone is ineffectual, but strict compliance with life insurance policy will not be required if the insured has done all within his powers
Undue Influence or Lack of Capacity
Estate of Lakatosh; Undue influence is the existence of a confidential relationship, the person enjoying the relationship received the bulk of the estate, and that the decedent's intellect was weakened.
Assets Payable Upon Death
In re Estate of Myers; the assets available to satisfy a surviving spouse's elective share of the decedent spouse's estate do not include assets that are payable on death to others
Extrinsic Evidence of Testator Intent
In re Estate of Cole; When construing contradictory provisions of a will, a court may consider direct evidence of a testator's intentions.
Reform A Will
In re Estate of Herceg; A will may be reformed to reflect the intention of the testator if there is clear and convincing evidence that there was a mistake in drafting the will, and of what the intention of the testator was.
Pretermitted Heir Statute
In re Estate of Jackson; the pretermitted heir statute applies only to wills, and not to revocable trusts.
Presumption of Undue Influence
In re Estate of Reid; to overcome the presumption of undue influence, the proponent of a will must show good faith, grantor's full knowledge, and the grantor's independent consent and action.
Testator Intent
In re Estate of Rigsby; extra instruments offered for probate will be admitted only if it is readily apparent that the testator intended that the sheets together would constitute the last will and testament of the testator. Holographic will.
Intent To Revoke Will
In re Estate of Stoker; a will may be revoked if the testator executes a subsequent inconsistent will, or if he or she burns or destroys the will. Holographic will. Burn a will.
Extrinsic Evidence Admissable
In re Gibbs' Estate; Where details of identification are involved, courts should receive evidence tending to show that a mistake has been made. Will. Legatee misake. Reformation.
Trustee Self Dealing
In re Gleeson's Will; a trustee cannot deal with trust property in his individual capacity. Absolute bar. No exception for good faith or fair dealing.
Will Formation
In re Probate of Will and Codicil of Macool; for a writing to be admitted into probate as a will, must show, by clear and convincing evidence, that the decedent actually reviewed the document and thereafter gave consent to the writing.
Reciprocal Wills
Keith v. Lulofs; Reciprocal wills do not create irrevocable contracts unless there is clear and satisfactory evidence to establish an agreement between the testators. Mirror mage wills.
Settlor's Intent
Ladysmith Rescue Squad, Inc. v. Newlin; for wills and trusts the testator's or settlor's intent prevails over the desires of the beneficiaries; intent is ascertained by the language the testator or settlor used in creating the will or trust.
Contingent Beneficiary of Revocable Trust
Moon v. Lesikar; A contingent beneficiary of a revocable trust does not have standing to contest the settlor's disposition of trust assets.
IRA Beneficiary Designation
Nunnenman v. Estate of Grubbs; a change in beneficiary can be accomplished in a will so long as the language of the will is sufficient to identify the account involved and an intent to change the beneficiary. designate beneficiary.
Revoke A Trust
Patterson v. Patterson; a trust may be revoked either by complying with a method for revocation set out in the trust or by any method manifesting clear and convincing evidence of the settlor's intent.
Interest In A Trust
Tait v. Community First Trust Co.; the interest of a beneficiary in an inter vivos trust vests when the trust is created and thus does not lapse if the beneficiary predeceases the settlor.
Dictionary Definition
Timmons v. Ingrahm; in determining the intent of the settlor, a technical term in a trust instrument will be accorded its legal definition, unless it is obvious that the settlor used the term in a different sense. Ordinary legal meaning.