Wills, Trusts, & Estate Planning Professional Malpractice

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Appellate Court Notes

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

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...

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

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

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

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

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...

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

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

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

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

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)

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

Illinois Supreme Court Holds Wrongful Death Attorney Owes Duty to Decedent's Beneficiaries

A unanimous Illinois Supreme Court added a new complication for plaintiffs’ counsel handling wrongful death cases late last week, unanimously holding in In re Estate of Perry C. Powell that an attorney representing the...more

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

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

Argument Report: Illinois Supreme Court Likely to Find Wrongful Death Lawyer Owes Duty to Next of Kin

Based upon the especially heavy questioning directed at the appellant during the recent oral argument in Estate of Powell v. John C. Wunsch, P.C., the Illinois Supreme Court seems to be contemplating holding that counsel who...more

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

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

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

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

Illinois Supreme Court to Hear Five Civil Cases In May

On Tuesday, the Illinois Supreme Court announced its oral argument calendar for the May term, and it includes arguments in five civil cases. The cases, with the questions presented in each, are...more

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

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

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

IRS 6050W: Implications for Attorneys and Others Who Accept Credit Cards

This is a good analysis of the implications of IRS 6050W for attorneys and others who accept credit card payments; kudos to Lawpay.com for the analysis!...more

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