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Civil Procedure Wills, Trusts, & Estate Planning

Read Civil Procedure updates, alerts, news, and legal analysis from leading lawyers and law firms:

Court Reviews Damages For Mental Anguish, Exemplary Damages, and Other Categories For A Trustee’s Breach Of Fiduciary Duty

by Winstead PC on

In Wells Fargo v. Militello, a trustee appealed a judgment from a bench trial regarding a beneficiary’s claims for breach of fiduciary duty, negligence, and fraud. No. 05-15-01252-CV, 2017 Tex. App. LEXIS 5640 (Tex....more

12 months' imprisonment for breach of disclosure order

by DLA Piper on

On 17 May 2017, the English Court handed down a 12 month prison sentence against an individual, Mrs Sandhu, for repeated breach of a disclosure order in Kimyani v Sandhu [2017] EWHC 1302 (Ch)....more

Transferring Property To A Trust: It’s Not What You Meant, It’s What You Said

by Bryan Cave on

When we put pen to paper, sometimes the words don’t come out right. If that happens, hopefully there’s an opportunity to explain what we meant. For example, we have seen how scrivenor’s errors can be explained. But, for the...more

Texas Supreme Court Will Decide Whether Texas Recognizes A Tortious Interference With Inheritance Claim

by Winstead PC on

In Anderson v. Archer, the trial court’s judgment awarded the plaintiffs $2.5 million in damages based on a tortious interference with inheritance claim. No. 03-13-00790-CV, 2016 Tex. App. LEXIS 2165 (Tex. App.—Austin March...more

Courts Hold That Fiduciaries Waived Complaints About Trial Court Orders

by Winstead PC on

In In re Estate of Roach, a trial court removed an executor for multiple grounds, including: (1) Texas Estates Code Section 404.0035(b)(5), which authorizes removal when an independent executor becomes incapable of properly...more

Courts Should Read Elder Abuse Act Broadly to Stop Wrongdoers

by Downey Brand LLP on

California’s Elder Abuse and Dependent Adult Civil Protection Act is elastic enough to encompass claims arising from sharp insurance sales practices, even when elders do not pay anything directly to the agents. So concluded...more

On Its Own Motion

by Farrell Fritz, P.C. on

While most decisions rendered by the Surrogate’s Court result from an affirmative request for relief, occasionally the court will address an issue on its own motion when justice or the exercise of its inherent or statutory...more

Ohio Court of Appeals Affirms Statutory Protections for Trustees

by Reminger Co., LPA on

Ten years after the first enactment of the Ohio Trust Code, in Zook, et al. v. JP Morgan Chase Bank National Association, et al., 10th Dist. No. 15AP-751, 2017-Ohio-838, the Tenth District Ohio Court of Appeals gave insight...more

Tax Refunds for Trusts With Minnesota Grantors? Minnesota Trust Income Tax Statute Ruled Unconstitutional

by Faegre Baker Daniels on

Certain irrevocable trusts created by Minnesota residents after 1995 may be able to claim income tax refunds as a result of the Minnesota Tax Court’s decision in Fielding v. Commissioner of Revenue, handed down on May 31,...more

Litigating trust matters in the federal courts (U.S.): A jurisdiction primer

by Charles E. Rounds, Jr. on

The diversity jurisdiction of the federal courts generally does not extend to state probate matters. However, this so-called “probate exception to federal diversity jurisdiction” does not apply to trust disputes. See...more

Joint Tenancy/Survivorship Property Now Severable by Unilateral Acts of Co-Owner

by Butler Snow LLP on

The Tennessee Supreme Court recently ruled that “a joint tenancy with an express right of survivorship can be severed by the unilateral actions of one of the co-tenants.” Darryl F. Bryant, Sr. v. Darryl F. Bryant, Jr., No....more

Case Law Precedent for an Award of Attorney Fees in Excess of Compensatory Damages for a Trustee’s Failure to Account

by Reminger Co., LPA on

Following up on the recent blog post on basic principles of trust reporting, the Fifth District Court of Appeals released a timely analysis involving a trustee’s failure to account and an award of attorney fees against the...more

You Can’t Pick Your Facts

by Fox Rothschild LLP on

Clients can pick their own attorneys but they cannot pick their own facts. A recent case decided by Master Ayvazian highlights the difficulties that unfortunate facts can present. Creditors have eight months to file a...more

The Lawyers' Lawyer Newsletter - Recent Developments in Risk Management - May 2017

by Hinshaw & Culbertson LLP on

Fee Splitting – Enforcement of Undisclosed Agreements – Need for Specificity - Marin v. Constitution Realty, LLC, 2017 N.Y. Slip. Op. 01019, 2017 WL 521504 - Risk Management Issue: Is an attorney fee-splitting agreement...more

Florida’s Fiduciary Lawyer-Client Privilege is on the Books, But is it Good Law?

In 2011, Florida’s legislature enacted section 90.5021, Fla. Stat., which provides for application of the lawyer-client privilege – even when the client is a fiduciary....more

Court Held That Settlor Had Standing To Assert Extra-Contractual Misrepresentation Claims Regarding Insurance Policies He...

by Winstead PC on

In Lee v. Rogers Agency, Lee purchased three whole-life insurance policies in the 1980s where each had a face value of $1,000,000. No. 06-15-00037, 2017 Tex. App. LEXIS 1069 (Tex. App.—Texarkana February 8, 2017, pet. filed)....more

Recent Cases of Interest to Fiduciaries

by McGuireWoods LLP on

Kroll v. New York State Dept. of Health, 39 N.Y.S.3d 183 (Oct. 5, 2016); see also In re Kroll, 971 N.Y.S.2d 863, 865 (Sur. Ct. 2013) - Court approves “decanting” of a trust to effectively remove a beneficiary’s future...more

IRS Issues Guidance For Administration of Estate Tax Lien Discharge Requests

by McNair Law Firm, P.A. on

In June of 2016, the Internal Revenue Service (IRS) changed its procedure for granting discharges of estate tax liens and implemented centralized handling of applications for discharge. Historically, Specialty Examination...more

Florida Alert: Can a Liability Carrier be Sued for Bad Faith when Its Insured Was Not Exposed to Liability In Excess of the Policy...

by Cozen O'Connor on

The Third District Court of Appeals finding recently held that in certain circumstances, a third party can maintain a bad faith claim against an insurer even if the insured is not exposed to liability in excess of the policy...more

Court Holds That Family Member Did Not Owe Fiduciary Duties To Other Family Member

by Winstead PC on

In Walker v. Walker, a son sued his father and brother regarding the ownership of a beach house. No. 14-16-00357-CV, 2017 Tex. App. LEXIS 2742 (Tex. App.—Houston [14th Dist.] March 30, 2017, no pet. history). ...more

If You Expect to Work in the Family-Owned Business for Life, Be Sure to Get It in Writing

by Murtha Cullina on

Family-owned businesses often employ multiple family members. Even if there is an expectation that employment will continue indefinitely, the company and the family member employees both usually reserve the right, explicitly...more

Allowing in parol evidence as to a trust-settlor's intent: Construing trust terms versus reforming them

by Charles E. Rounds, Jr. on

In the Missouri case of Mense v. Rennick, 491 S.W.3d 661 (Mo. App. 2016), the testimony of the settlor-beneficiary of an irrevocable trust as to what she had intended was not allowed in, the court having determined that the...more

California Courts Must Examine Outgoing Trustee’s Assertion of Attorney-Client Privilege

by Downey Brand LLP on

One challenge that California trustees face is the prospect that confidential attorney-client communications will pass to successor trustees if they resign or are removed from office. The attorney-client privilege belongs to...more

Court Affirms Sanctions Order Against Fiduciary Due To Discovery Abuses

by Winstead PC on

In Eng v. Kolbe, a mother sued her daughter for abusing a power of attorney document. No. 03-15-00409-CV, 2017 Tex. App. LEXIS 2680 (Tex. App.—Austin March 30, 2017). The daughter was assisting her aging parents with their...more

Standing Up to Your Siblings: Who Can Bring a Financial Elder Abuse Claim?

by Downey Brand LLP on

While financial elder abuse is a serious problem in California, not just anyone can sue to protect an abused elder. This is especially true if the elder does not want to bring suit in the first place. On April 19, 2017, the...more

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