Civil Remedies Wills, Trusts, & Estate Planning Professional Malpractice

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The constructive general inter vivos power of appointment: A trap for the unwary trustee and his counsel

The constructive general inter vivos power of appointment is the product of the marriage of power of appointment doctrine and creditors’ rights doctrine. It is a topic that is taken up in §4.1.3 of Loring and Rounds: A...more

The Uniform Trust Code’s stealth attack on the Trustee’s time-honored duty to defend his trust

One of the critical duties of a trustee traditionally has been to defend his trust against internal attacks. By that I mean to defend the trust against those who, in contravention of the settlor’s intentions as expressed in...more

A valid Massachusetts testamentary trust may now arise under a will that was not fully executed (signed by the will witnesses)...

Massachusetts has broken new ground in allowing a will to be fully executed (signed by the will witnesses) after the death of the testator, with no time period specified. In the upcoming 2014 edition of Loring and Rounds: A...more

The Trust Being a Multi-Party Relationship, Whom Legal Counsel Represents Can Get Complicated

The trust being a multi-party relationship, it is not always that easy to discern at any given time whom legal counsel is representing, or should be representing, in matters relating to the trust’s creation and...more

Trial lawyers beware of the in terrorem trust clause: A nasty trap that can keep on springing.

An “in terrorem” or “no-contest” clause in a trust instrument provides for the forfeiture or reduction of the equitable property interest of a beneficiary who contests the arrangement. In a recent New Hampshire case, Shelton,...more

Does a trust beneficiary incur any personal liability?

As a general rule, one assumes no personal liability when one becomes a trust beneficiary. There are some exceptions, however. Charles E. Rounds, Jr. explains in Section 5.6 of Loring and Rounds: A Trustee’s Handbook (2012)....more

Oliveira v. Kiesler: Attorneys and Non-Attorneys May Be Joint Tortfeasors For Purposes of Offsetting Judgment After Good Faith...

The California Court of Appeal (Fourth Appellate District, Division 3) recently held that an attorney can be a joint tortfeasor with his or her client for purposes of California Code of Civil Procedure section 877. The...more

Shifren v. Spiro: Legal Malpractice Statute of Limitations Does Not Begin to Run Until Judgment or Settlement of Underlying Case...

The California Court of Appeal (Second Appellate District, Division 3) reversed a trial court’s grant of summary judgment in favor of a defendant law firm after concluding that the action was not time-barred by the running of...more

Mediation and Arbitration have their limitations when it comes to trust disputes.

Unless the fiduciary issues and the representation issues in a trust dispute are properly sorted out in advance, there is a very real risk that an ill-considered rush to mediate or arbitrate will prove an expensive and...more

Privity and the Role of Limited Letters in Legal Malpractice Actions

In a significant decision this summer, Schneider v. Finmann, 15 NY3d 306 (2010), the Court of Appeals loosened the privity requirements in legal malpractice actions. Specifically, in Schneider, the Court of Appeals held for...more

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