In a groundbreaking decision that could reshape the landscape of California estate law, the Court of Appeal in the Second District Division Four has ruled in favor of trustee David Henry Simon, affirming his right to seek a...more
Intro. The Uniform Trust Code (UTC) is a mere aggregation of tweaks to the corner of equity jurisprudence that long ago gave birth to and currently stewards the trust relationship, hereinafter “the background trust law.”...more
Section 17.3, comment f, of the Restatement (Third) of Property (Wills and Other Donative Transfers) explains the difference between a collateral power of appointment and a power of appointment in gross: “In traditional...more
The California Supreme Court recently addressed the complexities surrounding trust amendments in the case of Haggerty v. Thornton (2024) 15 Cal.5th 729. The case settled the confusion over potential conflicts between trust...more
A handwritten or scribbled will signed by the testator is technically known as a holographic will, and many people try to prepare their own wills in an attempt to be frugal. However, are holographic wills valid in...more
When an individual executes a Will near the end of their lives, or at a time that they are suffering from emotional or physical trauma, a question may arise whether the decedent had sufficient capacity to execute their Last...more
There is much to commend in O’Brien, Proposing a Model Antilapse Clause, 48 ACTEC L. J. 257 (2023), particularly its flagging of the doctrinal and practical flaws in Uniform Probate Code §2-707, which would apply the...more
In 2021 and 2022, I wrote about Surrogate’s Court decisions that addressed the admission of remotely witnessed wills to probate in New York State. Since then, Surrogate’s Courts have issued at least two more decisions...more
It is a standard requirement in Probate Court disputes that the parties strictly adhere to the rules regarding notice of relief sought to all potential heirs and beneficiaries. The recent decision of Bailey v. Bailey...more
Earlier this month, a Michigan jury considered whether handwriting in a spiral notebook found under a couch cushion at singer Aretha Franklin’s home constituted her valid last will. Franklin had written and signed the...more
Independence Day invites reflection on another form of freedom. How do we respect the autonomy of California’s elders who experience progressive forms of dementia while protecting them from potential abuse and other harm?...more
Typewritten wills in California generally require the signatures of two witnesses to be found valid, but the harmless error rule can save the day. Probate Code section 6110(c)(2), as recently discussed, provides that a will...more
We often see siblings litigate in California over the allocation of tangible personal property held in the family trust. When Mom and Dad have passed, the tug of war may involve jewelry, paintings, photos, firearms,...more
Financial powers of attorney give the named agent broad control over the principal’s assets and thus are a key component of estate planning. Such powers allow the agent to help if and when the principal becomes incapacitated....more
In the most recent installment of the McGuireWoods Fiduciary Advisory Services annual multipart series on recent fiduciary cases, developments in the law concerning various topics are examined through the following... ...more
This newsletter is intended to keep readers informed about developments in probate and fiduciary litigation in Massachusetts and New York. ...more
Who’s your father for inheritance purposes in California? Family Code section 7540(a) states that “the child of spouses who cohabited at the time of conception and birth is conclusively presumed to be a child of the...more
Here’s another reason (uno más in Spanish) to create and properly execute a will. If your spouse or other trusted designee lives out of the country when you die, he or she won’t be eligible to administer your California...more
What pea is in which pod? California probate disputes often involve questions of property ownership. Petitions filed under Probate Code section 850 allow judges to determine whether and to what extent an estate is the true...more
No contest clauses generally are not enforceable against beneficiaries of California trusts when there is “probable cause” to challenge the trust instrument. Yet the probable cause safe harbor may disappear if the contest...more
We write today about probate law, premarital agreements and the importance of doing your homework. In Estate of Eskra (2022) ___ Cal.App.5th.____, the First District Court of Appeal upheld a Humboldt County Superior Court...more
California trust disputes often involve the interests of parents and their minor children. Sometimes those interests conflict. When disputes are settled, who looks out for the interests of children under 18 years of age? Who...more
Can a California court stop others from changing an elder’s estate plan? Yes, in extreme circumstances, suggests a case arising from conflict in a blended family over which side would benefit from an elder’s trust....more
Recently, the Indiana Court of Appeals decided the case of Wilson v. Wilson. The case involved the last will and testament (“Will”) of decedent Terrel Wilson, Sr. (“Terrel Sr.”), which purported to create a trust....more
David F. Johnson presented “Trustee’s Obligation to Inform Beneficiaries: Avoiding Breach of Fiduciary Duty Claims” to a national audience on November 16, 2021, via Strafford publishing with his co-presenter Scott E. Rahn,...more