Estate Planning

Claims - Due to lack of notice of estate administration, Medi-Cal reimbursement claim was not time-barred.

A personal representative's failure to give timely notice to the Department of Health Care Services (DHCS) of an estate administration prevented the running of the four-month limitations period for DHCS to present a claim for reimbursement of Medi-Cal benefits provided to the decedent. The Court of Appeal explained that the specific notice and limitations statutes for creditor's claims by public entities controlled over the provisions governing creditors' claims in general. Under the statutes governing public entity claims, the only limitations period that applied in the absence of notice to DHCS was the general three-year statute of limitations. Shewry v. Wooten, (Cal.App. 1 Dist.)

Trusts - A trustor cannot, by including limitations in trust instrument, circumscribe trustee's duty to account to beneficiaries.

A trustor cannot, by including limitations in the trust instrument, circumscribe the trustee's duty to account to beneficiaries. In so holding, the appellate court found that permitting a trustor to eliminate the duty to account to beneficiaries would be contrary to appellate court decisions regarding who is entitled to an accounting. This decision may not yet be released for publication. Johnson v. Johnson,(Md.App.)

Wills - Witness' initials in bottom corner of every page of document did not meet statutory attestation and subscription requirement.

The scrivener's initials found on the lower corner of every page of a purported will were insufficient to meet the statutory requirements that the will be attested and subscribed in the presence of the testator by two or more competent witnesses, who saw the testator subscribe or heard the testator acknowledge the will. Thus, given that the will was only subscribed by one competent witness, the will was invalid. In re Estate of Leavey,(Kan.App.)

Trusts - New trial was warranted based on discovery of memorandum in deceased settlor's cluttered home.

A trial court did not abuse its discretion in granting a motion for a new trial, on the basis of a newly discovered memorandum concerning a settlor's intentions, on the issue of whether an oral trust set up by the settlor was solely for the benefit of one of his sisters. The memorandum was hidden and difficult to find in the settlor's very cluttered home following his death, and there was no reason to suspect that the memorandum might exist at all. The memorandum constituted evidence strong enough to change the outcome of the case. This decision may not yet be released for publication. In re Estate of Fournier,(Me.)

Trusts - Alleged beneficiary of duPont trust did not show good cause to unseal records of purported grantor's incapacitation proceeding.

An alleged beneficiary of a trust in the estate of an heir to the duPont chemical company fortune did not show good cause to unseal the records from the heir's incapacitation proceeding. The alleged beneficiary claimed that access to the records would help his claim of an interest in a trust. However, the alleged beneficiary presented no evidence that there would be anything in the records that would help his claim, which arose seven years after the records were originally sealed and only after his monthly stipend from the heir was terminated. This case involved an issue of first impression. In re Estate of duPont,(Pa.Super.)

Trusts - No-contest clause in a trust agreement was unenforceable, where there was probable cause for challenging the trust.

The Michigan Court of appeals held that the Michigan statute which renders no-contest provisions in wills unenforceable reflects public policy that no- contest clauses in trust agreements are also unenforceable, if there is probable cause for challenging the trust. As applied in a trust contest case, a trust that failed to include a provision for the distribution of the trust corpus after the death of grantor's dogs or grantor's grandson violated the rule against perpetuities on its face in that it was not certain to vest or terminate within 21 years after grantor's death or within 90 years after the creation of the trust. Therefore, there was a substantial likelihood that the grandson's challenge to the trust as violating the rule against perpetuities would be successful so that the no-contest provision in the trust was unenforceable against the grandson. In re Mary E. Griffin Revocable Grantor Trust, (Mich.App.)

Trusts - Trustee had right to an equitable lien on distributed trust assets in order to compensate attorneys involved in accounting dispute.

The former trustee of a terminated trustee had right under the Probate Code to an equitable lien on the distributed trust assets in order to compensate attorneys involved in completing and defending an accounting of the trust. The probate court had terminated the trust and distributed its assets, but later ordered the trust beneficiaries to return a portion of the trust to provide a fund from which to pay the trustee's attorney fees and costs in completing and defending the accounting. The court had authority to impose an equitable lien on the distributed trust assets under the section of the Probate Code which authorizes such a lien in connection with advances made for the protection of the trust and for expenses, losses, and liabilities sustained in the administration of the trust. As the trust assets had been distributed, that section allowed the court to impose an equitable lien to pay trustee expenses. The issue was one of first impression. Kasperbauer v. Fairfield,(Cal.App. 2 Dist

Wills - Invalidation of will was not warranted in absence of evidence that beneficiary exerted influence on testator in drafting will.

The invalidation of a will that left the testator's entire estate to only one of her five daughters was not warranted in the absence of evidence that the daughter, who was the will beneficiary, exerted any influence on the testator in the making of the will. Although she drove the testator to her attorney's office and was present when the will was executed, there was no evidence that she had any involvement in the decision to create the will or any input into its contents. Given the absence of evidence that the daughter attempted to exert any influence specifically with respect to the will, the fact that the testator might have been in a fragile emotional state at the time of the will's execution was of little relevance. Lipscomb v. Young,(Ga.)

Estate Administration - Final accounting of funds received by daughter who was guardian of incapacitated mother was inaccurate and incomplete.

The amounts set forth in a daughter's final accounting as the guardian of her incapacitated mother, who later died, were inaccurate and incomplete, in proceedings for the accounting of all funds received and expended by the daughter as guardian and to discover property of the mother's estate withheld by the daughter. The mother's successor guardian detailed a number of substantial assets that were not contained in the daughter's final accounting. The daughter's trial testimony confirmed the existence of many of these assets. These included a certificate of deposit and two bank accounts totaling approximately $430,000 and an annuity contract from which the daughter withdrew approximately $56,000 and from which she was ultimately paid approximately $300,000 after representing falsely that she was her mother's only surviving child. In re Campione,(N.Y.A.D. 3 Dept.)

Wills - Bequest of contents of brokerage account did not adeem by extinction despite transfer of contents to another brokerage firm.

A decedent's bequest of the contents of a brokerage account identified by its account number and brokerage firm, which the decedent described as the "Municipal Bond fund which represents 95% of the entire account valued at $340,000," as well as the "Cash and mutual funds," did not adeem by extinction, even though the decedent subsequently arranged an "in-kind" transfer of all the contents of the account to another brokerage firm which assigned a new account number. Notably, the contents of the new account were the same as the contents of the old account. Therefore, the appellate court found that there was no change in the substance or essential nature of the property, and the real nature and identity of the thing given had been substantially preserved. This decision may not yet be released for publication. In re Estate of Geary,(Tenn.Ct.App.)