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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:

Doctors Who Disobey Health Care Agents in California May Be Liable for Elder Abuse

by Downey Brand LLP on

A recent California appellate case, Stewart v. Superior Court (2017) 16 Cal.App.5th 87, validates the primacy of medical powers of attorney and (as they are more currently known) advance health care directives. Medical...more

Missing the trust issue: Litigators beware

by Charles E. Rounds, Jr. on

In 2017, South Carolina’s Supreme Court decided The Protestant Episcopal Church in the Diocese of South Carolina [the “Disassociated Diocese”] v. The Protestant Episcopal Church of the United States of America [the...more

Could seeking judicial enforcement of a trust's no-contest clause implicate the state's anti-SLAPP statute?

by Charles E. Rounds, Jr. on

On January 1, 2013, I posted on JDSUPRA some content entitled "Trial lawyers beware of the in terrorem trust clause: A nasty trap that can keep on springing," which is still accessible. The focus of the piece is the lawyer...more

Does a removed trustee have a duty to see to it that the fiduciary reins are assumed by a qualified successor?

by Charles E. Rounds, Jr. on

A removed trustee retains myriad residual fiduciary duties and liabilities. The most obvious is the duty not to betray the confidences of the entrustment going forward. Less self-evident is the removed trustee’s residual...more

Legal Malpractice Claims Against Estate Planning Attorneys in Virginia: Post-Thorsen Legislation

by LeClairRyan on

The legal landscape in Virginia regarding claims for legal malpractice against estate planning attorneys changed significantly this past year when the Virginia General Assembly adopted legislation to address the issues raised...more

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

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