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Wills and Trusts

Products (Total Items: 89 )

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.

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.

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.

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.

Asset Not Removed from Trust By Change In Title

Heaps v. Heaps, conversion, laches. Trust assets.

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

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.

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.

Change Beneficiary Designation

QDRO; Beneficiary designations; Kennedy v. Plan Administrator for DuPont Savings and Investment Plan; divorced spouse retirement benefits; ERISA.

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.

Community Property

Estate of Borghi; Separate property or community property.

Constructive Trust

Garrett v. Read, constructive trust, joint will, mutual will, scrivener.

Contest a Will

Estate of Ellis; charitable giving; give to charity instead of family.

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.

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.

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.

Demand for Accounting

Johnson v. Johnson; trust agreement cannot eliminate trustee's fiduciary duties.

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.

Designation of Beneficiary

Araiza v. Younkin; changing beneficiary; living trust; totten trust.

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.

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.

Draft a Will

Nunnenman v. Estate of Grubbs; change a will; change benficiary; designate beneficiary.

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.

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.

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.

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.

Equitable Adoption

Bean v. Ford, equitable adoption, de facto adoption.

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.

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.

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.

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.

Fiduciary Liability

Trustee liability; administrator liability; executor liability; beneficiary lawsuit.

Frivilous Lawsuits

Rudnick v. Rudnick; litigious beneficiaries; attorney fees.

How to Change a Will

Revoking will; Ward-Allen v. Gaskins; destroy will; original will; new will; old will.

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 Janes

Prudence of trustees investments must be considered in light of circumstances of entire trust, not merely with regard to individual investment. Diversification; prudent.

In re Estate of Kuralt

When document evinces present testamentary intent, court will honor testator intent. Codicil; holographic will.

In Re Estate of Wright

Subscribing witnesses have duty to be satisfied of testator sanity before they subscribe will. Contest; testamentary capacity; unsound mind.

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.

Insane Delusion Invalidate Will

Dougherty v. Rubenstein, monomania, must specifically relate to the questionable disposition.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

Per Stirpes

Estate of Locke, Intestacy, intestate, per capita, per stirpes.

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.

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.

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.

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;

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.

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.

Pretermitted Heir Statute

In re Estate of Jackson; the pretermitted heir statute applies only to wills, and not to revocable trusts.

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.

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.

Professional Trustee

McGinley v. Bank of America, N.A.; trustee fiduciary duties may be modified by the trustor.

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.

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.

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.

Removal of Trustee

Kappus v. Kappus; court discrection to remove executor or trustee.

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.

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.

Revoke Will

Gushwa v. Hunt; revoke will; some states require a revocatory act to be done on an original of the will.

Scheffel v. Krueger

Statute authorizing spendthrift trusts creates absolute prohibition against attaching assets in those trusts. Attachment; spendthrift fund.

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.

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.

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.

Spendthrift Trust

Estate of Gist; Medicaid payments owed to state after death of beneficiary of spendthrift trust

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.

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.

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.

Tortious Interference With Expected Inheritance

Peralta v. Peralta, not all estate related claims must be brought in probate court.

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.

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.

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.

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.

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.

Unwitnessed Wills May Be Probated

Estate of Hall, unwitnessed wills may be probated.

Vested Remainder Interests Are Transferable

Uchtorff v. Hanson, a remainder is contingent only if its existence depends on some dubious circumstance.

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.

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.

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.