Wills, Trusts, & Estate Planning Civil Procedure Civil Remedies

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

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

Debtor-trustees can run but they can’t hide behind the Fifth Amendment

Judgment debtors often try to use the Fifth Amendment’s privilege against self-incrimination to avoid post-judgment discovery of their assets and income. However, the U.S. District Court for the Eastern District of Missouri...more

T&E Litigation Newsletter - January 2015

As 2014 came to a close, Massachusetts state and federal courts issued decisions concerning a number of issues of interest to estate planning attorneys and probate litigation attorneys, including testamentary capacity,...more

The liability of a trustee who honors a fraudulent exercise of a power of appointment

A trustee who transfers trust property to a permissible appointee for the benefit of an impermissible appointee such that the fraud on a special power doctrine is implicated incurs no liability as a consequence, unless the...more

11th Circuit Certifies Questions Regarding Insured’s Breach of Consent to Settle Clause

In its recent decision in Piedmont Office Realty Trust v. XL Specialty Ins. Co., 2014 U.S. App. LEXIS 20141 (11th Cir. Oct. 21, 2014), the United States Court of Appeals for the Eleventh Circuit, applying Georgia law, elected...more

Timing of judgment creditor's entitled fee petition key to enforcement

In Conservatorship of McQueen the California Supreme Court decided a unique issue concerning the interpretation of Code of Civil Procedure Section 685.040. Under that statute, a judgment creditor is entitled to the reasonable...more

CERCLA Contribution and Trust Funds: A Matter for State Law

The Second Circuit Court of Appeals in New York recently held that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund, does not require contribution from...more

Does the settlor of a trust have standing to seek its enforcement in the courts?

As a general rule, any beneficiary of a trust would have standing to seek its enforcement in the courts. The Restatement (Third) of Trusts is sending mixed signals as to whether the settlor of a trust, qua settlor, would have...more

Life Insurance Unclaimed Property Litigation in 2014: Will Regulator Positions Withstand Judicial Scrutiny

Amidst ongoing multistate unclaimed property audits of many life insurers, and despite many regulatory settlements, the insurance industry and state regulators continue to disagree over the application of unclaimed property...more

Could it be that the Uniform Trust Code would effectively immunize the trustee of a revocable inter vivos trust from liability for...

Section 603 of the Uniform Trust Code provides that while a trust is revocable and the settlor has capacity to revoke the trust, rights of the beneficiaries, such as the equitable remaindermen, are subject to the control of,...more

Spendthrift & Discretionary Trusts in Florida: Further Analysis of Berlinger v. Casselberry

In Berlinger v. Casselberry, Case No. 2D12-6470, 6 (Fla. 2d DCA Nov. 27, 2013), the Florida Second District Court of Appeal upheld a writ of garnishment issued by a trial court against the trustee of a discretionary trust...more

Standing to Seek Enforcement of Charitable Trusts

“It is the duty of the king, as parens patriae, to protect property devoted to charitable use; and that duty is executed by the officer who represents the crown for all forensic purposes.” Jackson v. Phillips, 96 Mass. (14...more

Weekly Law Resume - August 15, 2013: A Homeowner’s Lawyer May Not Attend HOA Meetings Without HOA Approval

SB Liberty, LLC v. Isla Verde Association, Inc. - Court of Appeal, Fourth Appellate District, Division One (May 22, 2013) - In 2006, Gregg and Janet Short purchased a home in the Isla Verde residential community...more

C. Court Did Not Abuse Discretion In Denying Attorney's Fees To Successful Beneficiary In Declaratory Judgment Action

In Estate of Richardson, a remainder beneficiary of a trust filed a declaratory judgment action to declare that the trust would terminate five years after its creation. No. 14-12-00516-CV, 2013 Tex. App. LEXIS 2664 (Tex....more

The Impact of Death of Defendant Prior to Filing Claim for Injuries

This week's discussion looks at the potential timing limitations that can impact a claim filed against a defendant who has deceased. The discussion is done in the confines of Indiana's Probate Code and the recent Indiana...more

Attorney’s Fees In Probate

Litigating disputes in probate matters is just as expensive and time-consuming as litigation in other types of cases. However, because most probate lawyers do not handle contested matters in probate courts on a regular basis,...more

Sanctions Are Issued Where Court Determines That Special Motion To Strike Was Filed For Improper Purpose

In Kleveland v. Siegel & Wolensky LLP, 2013 DAR 4961(2013) the California Courts of Appeal for the Fourth Appellate District affirmed the denial of a special motion to strike and the award of costs and attorney fees as...more

Nowadays a Practicing Lawyer’s First Serious Exposure to Critical Unjust Enrichment Doctrine is Likely to be After Law School, Too...

This modified excerpt from Loring and Rounds: A Trustee’s Handbook (2013) is a primer on the wrong of Unjust Enrichment and its principal remedy, Restitution. Unjust enrichment doctrine is very much alive and well in the real...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

Interest Under Will Did Not Revert Back To Estate

In Roberts v. Wilson, the El Paso Court of Appeals ruled that the wife of a beneficiary under a will was entitled to her husband’s interest in real property because he survived his parents and the bequeath did not have a...more

The trustee is not relieved of the duty to defend the trust just because the beneficiary happens to be getting divorced.

The trustee's primary allegiance is to the beneficiary, not to the non-beneficiary spouse or ex-spouse, unless the express terms of the trust provide otherwise. Thus, when there is marital discord, the trustee must suppress...more

Exceptions: The New Waiver Trap

If a party is unhappy with the trial court's application of the law to the facts presented during an orphans' court matter, can the unhappy party bypass the exceptions process and go directly to the appellate courts?...more

An Order Compelling an Accounting is Not Appealable, Unless It Expressly or Implicitly Decides Other Issues That Could be the...

“In probate court, nothing speaks more eloquently or provides more insight into factual and legal issues than an accounting.” Christie v. Kimball (2d Civil No. B230286, January 26, 2012). Under Probate Code...more

Can the Language of a Will Prove Lack of Capacity?

We complete our preview of the new civil review grants at the Illinois Supreme Court with DeHart v. DeHart [pdf], a will contest which raises a range of issues from how do you prove lack of testamentary capacity, to undue...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

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