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Wills, Trusts, & Estate Planning Professional Malpractice

Read Wills, Trusts, & Estate Planning updates, articles, and legal commentary from leading lawyers and law firms:

Be Careful With That Power of Attorney!: Arbitration Clauses and Nursing Home Lawsuits

by LeClairRyan on

On May 15, 2017, the Supreme Court of the United States handed down its opinion in Kindred Nursing Centers, L.P. v. Clark. This case addressed the issue of whether an agent acting pursuant to a power of attorney could bind...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

Speculation, Estate Planning, and Legal Malpractice

by Farrell Fritz, P.C. on

In some will contests, lawyers will speculate that the decedent may have misled people as to his true estate plan, either out of weakness, to keep the peace, to measure reactions, to avoid uncomfortable conversations, and...more

Residual liability in the trust context of excluded fiduciaries

by Charles E. Rounds, Jr. on

Some states by statute have introduced into their trust jurisprudence the concept of the excluded fiduciary: In the case of a trust the terms of which allocate fiduciary functions between the trustee and, say, a trust...more

UPDATE: Can an Intended (and Disappointed) Beneficiary Still Sue a Will’s Drafter?: The General Assembly of Virginia Enacts a...

by LeClairRyan on

Back in the summer I wrote a post discussing the impacts of the Thorsen decision by the Supreme Court of Virginia. In Thorsen, a testator wanted to leave her estate to a charity if her daughter did not survive her. The...more

Appellate Court Notes

by Pullman & Comley, LLC on

Supreme Court Advance Release Opinions: SC19586 - Harrington v. Freedom of Information Commission - The Court started off by saying..... We have not previously had occasion to squarely address..... [this]...more

Plaintiff Who Could Not Afford to Pay for Arbitration Was Allowed to Pursue Her Malpractice Action in Court

by Hinshaw & Culbertson LLP on

Tillman adv. Rheingold Firm, No. 13-56624, 2016 BL 190432 (9th Cir. June 15, 2016) - Brief Summary - A former client who had agreed to arbitrate disputes with her lawyers, but ultimately could not afford to pay the...more

Another rejection of the intent-defeating, sole-benefit-of-the-beneficiaries principle, the policy centerpiece of the Uniform...

by Charles E. Rounds, Jr. on

In §6.1.2 of Loring and Rounds: A Trustee’s Handbook (2016), the authors report on the ongoing academic debate between Prof. John H. Langbein and Prof. Jeffrey A. Cooper over the merits of the sole-benefit-of...more

Colorado Supreme Court Upholds the "Strict Privity Rule" When Interpreting Attorney-Client Relationship

by Hinshaw & Culbertson LLP on

Baker v. Wood, Ris & Hames, Professional Corporation, 364 P. 3d 872 (January 16, 2016) - Brief Summary - Colorado Supreme Court, en banc, analyzed whether dissatisfied beneficiaries of a testator-client's estate...more

Employing the term "family" in trust instruments and trust-related legislation is asking for trouble

by Charles E. Rounds, Jr. on

Employing the term “family” in trust instruments and trust-related legislation is asking for trouble. In §8.15.6 of Loring and Rounds: A Trustee’s Handbook (2016) the authors explain why the meaning of the term in a given...more

Avoiding the Upsurge in Trust, Probate and Estate Planning Malpractice

by Hinshaw & Culbertson LLP on

The number of lawsuits against trust, probate and estate planning attorneys has significantly increased over the last several years. Today, trust, probate and estate planing attorneys are charged with legal malpractice and...more

Beware of conflating power of appointment doctrine and merger doctrine in the trust context

by Charles E. Rounds, Jr. on

Assume a trust that was initially for the benefit of its settlor (who is now dead) has the following additional terms: All net trust-accounting income to settlor’s surviving spouse (X) for life; trustee may invade principal...more

A permissible beneficiary's equitable property interest under an irrevocable discretionary trust is contingent, not vested, the...

by Charles E. Rounds, Jr. on

A permissible beneficiary’s equitable property interest under a discretionary trust is contingent, not vested. The critical condition precedent that renders the interest contingent is that the trustee must exercise his...more

Insurance for Professional Fiduciaries

by K&L Gates LLP on

In an important decision for professionals operating in the trust and asset management sector - and their employers - the English Court of Appeal has recently provided guidance in the case of Rathbone Bros Plc and Paul...more

Solicitors’ negligence – loss for intended beneficiary under a will

by DLA Piper on

The NSW Court of Appeal has found that the fact that a person has reached a great age does not necessarily mean they are at death’s door or about to lose their marbles....more

Appellate Court Notes

by Pullman & Comley, LLC on

AC35507 - State v. Wright - ?AC35289, AC36395 - Southport Congregational Church-United Church of Christ v. Hadley - The doctrine of equitable conversion did not apply when the decedent contracted to sell real...more

The fiduciary exception to the attorney-client privilege: A recent development

by Charles E. Rounds, Jr. on

In a suit by the beneficiary against the trustee, is the trustee entitled to assert the attorney-client privilege against the beneficiary, or is there a fiduciary exception to the attorney-client privilege? As to...more

The enforceability of a trust accounting clause’s failure-to-object provision (the non-judicial settlement of trustees’ accounts)

by Charles E. Rounds, Jr. on

It is common for the accounting clause of an inter vivos trust instrument to contain a provision along the lines of the following: “The written approval of such an account by the person or persons thus entitled to such...more

The confusion being engendered by the Uniform Trust Code’s default trust-revocation methodologies (§ 602(c)).

by Charles E. Rounds, Jr. on

In the pre-Uniform Trust Code UTC), unless the terms of a revocable inter vivos trust provided otherwise, the trust could not have been revoked by the settlor’s will. A will speaks at the time of the testator’s death, an...more

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

by Charles E. Rounds, Jr. on

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

by Charles E. Rounds, Jr. on

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)...

by Charles E. Rounds, Jr. on

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

Old Doctrine Misunderstood, New Doctrine Misconceived: Deconstructing the Newly-Minted Restatement (Third) of Property’s Power of...

by Charles E. Rounds, Jr. on

Old Doctrine Misunderstood, New Doctrine Misconceived: Deconstructing the Newly-Minted Restatement (Third) of Property’s Power of Appointment Sections In was in the course of preparing the 2013 edition of Loring and...more

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

by Charles E. Rounds, Jr. on

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

Is Honesty Always the Best Policy? Illinois Appellate Court Holds Attorney’s Ethical Obligations Trump Professional Liability...

by Cozen O'Connor on

In a case of first impression, the Illinois Appellate Court considered whether a professional liability insurer can deny a defense to its insured, an attorney who admits he erred in providing legal services. Ill. State Bar...more

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