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Wills, Trusts, & Estate Planning Civil Remedies

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

Cash Value of Life Insurance Policy Exempt From Garnishment

by Dickinson Wright on

DC Mex Holdings LLC v Affordable Land LLC and Dale Fuller, ___ Mich. App. ___ (July 25, 2017), Case no. 332439 - Michigan’s Court of Appeals recently issued an opinion interpreting a statutory provision exempting insurance...more

Trust Protectors, Trust Directors, and the Uniform Directed Trust Act

by Charles E. Rounds, Jr. on

The Uniform Directed Trust Act (the “Act”), approved July 19, 2017 by the National Conference of Commissioners on Uniform State Laws, purports to govern irrevocable directed trusts. For purposes of the Act a directed trust is...more

Recent case law update: Treatment of Trust Assets — Akers (and others) v. Samba Financial Group (2017)

by Latham & Watkins LLP on

The English Supreme Court has delivered a ruling that provides helpful guidance on the enforceability of trusts in respect of assets located in foreign jurisdictions that do not recognise trusts. The ruling also highlights...more

Serial Suers and Vexatious Litigants: Can Courts Prevent Someone From Filing a Lawsuit?

by LeClairRyan on

The vexatious litigant is a problem that civil litigation attorneys very likely encounter at least once during their careers. It is a well-accepted precept that courts exist, in part, for citizens to seek redress for their...more

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

Court Declines To Quash Subpoena Issued To South Carolina Department Of Insurance In Companion Property Case

by Carlton Fields on

We previously reported on this case on January 5, 2016, June 28, 2016, July 20, 2016, and December 14, 2016. The case concerns Companion Property and Casualty Insurance Company’s participation in a fronted insurance program...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

May a vindicated trustee be reimbursed personally from the trust estate even for those defense costs that were covered by his...

by Charles E. Rounds, Jr. on

As to whether the vindicated trustee’s claim against the trust estate for defense counsel’s fees should be offset by payments made to defense counsel by the trustee’s personal liability insurance carrier, at least one court...more

Two layers of photo ownership in conflict in street photography case

by Thompson Coburn LLP on

“I own the photos.” It seems like a simple statement, but in copyright law, ownership isn’t simple. One person can own physical photographs, but not have the right to use them, because someone else owns the copyrights....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

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

Constructive Trusts Can Catch Wayward Trust Assets

by Downey Brand LLP on

Trustees in California trust disputes should not overlook the power of the constructive trust remedy as a way to recover errant trust assets. That’s a takeaway from Higgins v. Higgins (2017) __ Cal.App.5th __, an opinion in a...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

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

IRS Issues Guidance Regarding Estate Tax Lien Discharge Process

by Charles (Chuck) Rubin on

When an individual dies, an estate tax lien attaches automatically to all of the property included in the gross estate. It arises prior to tax assessment, and is not recorded....more

Court Enforces Release Agreement Between Trustees/Executors and A Beneficiary

by Winstead PC on

In Harrison v. Harrison Interests, a beneficiary of an estate and multiple trusts had a dispute with the executors and trustees. No. 14-15-00348-CV, 2017 Tex. App. LEXIS 1677 (Tex. App.—Houston [14th Dist.] February 28, 2017,...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

Ferri v. Powell-Ferri

Ferri v. Powell-Ferri: A trust decanting decision that is less than meets the eye

by Charles E. Rounds, Jr. on

The Supreme Court of Connecticut (SCC) certified three trust-decanting questions of law to the Supreme Judicial Court of Massachusetts (SJC) incident to a divorce proceeding. On March 20, 2017, the SJC rendered its answers to...more

Statute of Limitations and Collections Process Against Executrix and Agent for Estate Tax Deficiency

United States v. Holmes - 2016 WL 4363398 (SD Tex. Aug. 16, 2016) Summary - Summary judgment was sought by both the taxpayers and the Government for an estate tax liability. The taxpayers contended that the...more

Court Affirms Ruling That Adopted Adult Children Were Beneficiaries Of A Trust

by Winstead PC on

In Andresakis v. Modisett, the trustors signed trust agreements in 1976 and 1981, and each agreement created three trusts, one for their daughter, one for their son, and a third trust for their only grandchild, Andresakis....more

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

by Winstead PC on

Today, the Texas Supreme Court granted a petition for review in Jackson Walker, LLPO v. Kinsel, No. 07-13-00130-CV, 2015 Tex. App. LEXIS 3586 (Tex. App.—Amarillo April 10, 2015, pet. granted). The Court’s staff attorney...more

Court of Appeals Granted Mandamus Relief To Transfer Venue To County Where A Trust Was Administered

by Winstead PC on

In In re Green, a beneficiary filed suit against a trustee for breach of fiduciary duty and misappropriation of corporate funds. No. 08-16-00233-CV, 2016 Tex. App. LEXIS 12830 (Tex. App.—El Paso December 2, 2016, original...more

Federal Court Dismisses Beneficiary’s Breach Of Fiduciary Duty Claim For Lack of Jurisdiction

by Winstead PC on

In Strouse v. Strouse, a beneficiary sued an executor of an estate for breach of fiduciary duty. No. 4:16cv707, 2016 U.S. Dist. LEXIS 155630 (E.D. Tex. September 27, 2016). Federal district courts are courts of limited...more

The public policy case against retroactively applying new trust law

by Charles E. Rounds, Jr. on

The Supreme Court of Bermuda by statute amendment (Dec. 11, 2015) has been granted a power to declare that the rule against perpetuities shall not apply to a trust instrument executed before the amendment’s effective date,...more

Court Affirms Finding That Will Was Lost And Not Revoked

by Winstead PC on

In In the Estate of Burrell, a trial court admitted a copy of will to probate, and a contestant appealed. No. 09-14-00345-CV, 2016 Tex. App. LEXIS 10421 (Tex. App.—Beaumont September 22, 2016, no pet. history). This case was...more

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