Wednesday, November 27, 2013

Originally posted on bryancavefiduciarylitigation.com

Testators may want to keep careful track of who has copies of their will and where those copies are.  If only a copy of a will – and not the original – is found, it may raise a question about whether the testator destroyed the original in an attempt to revoke it.  Such was the argument made by the caveators in Johnson v. Fitzgerald.  Let’s see why the Georgia Supreme Court felt like a copy was good enough to admit to probate in solemn form.

The executor of an estate offered a copy of a will for probate in solemn form, requesting that it be admitted to probate upon proper proof.  The original could not be found.  The testator’s heirs at law filed a caveat alleging that the will had been revoked by the testator’s destruction of it.

Under Georgia law, if the original of a will cannot be found for probate, there is a presumption that the testator intended to revoke the will.  But this presumption can be overcome if a copy is established by a preponderance of the evidence to be a true copy of the original and if it is established by a preponderance of the evidence that the testator did not intend to revoke the will.  Here, there was “ample evidence” that the testator intended for provisions in his will to continue in force.

Under the propounded will, $50,000 was bequeathed to a church for the use of its cemetery fund, $50,000 was bequeathed to an individual, and the will named a trust which benefited a foundation as the residuary beneficiary.  The Georgia Supreme Court highlighted the following evidence that supported a conclusion that the testator did not intend to revoke the will:

– The testator executed a document guiding the trust referenced in the will, and he later amended the trust;

– In discussions with his attorney about the trust amendment, the testator understood that his assets had grown to a point that the church named as the primary beneficiary of the trust might not have need for the full amount, and he wanted to give the trustees of the trust the flexibility to fund charitable contributions from the money that would pour over from the estate to the trust;

– The testator told the pastor of the church that he was leaving money for the cemetery fund in his will;

– The testator expressed disdain for what he considered his relatives’ greed, stating that he did not wish for them to have his money; and

– Prior wills were consistent with the propounded will insofar as they left money for the cemetery fund and excluded the caveators.

Wednesday, November 20, 2013

The 7520 Rate for December 2013 is holding steady at 2.0%.

The December 2013 Federal interest rates can be found here.

December2013

Friday, November 15, 2013

Six of Bryan Cave’s attorneys are featured in a special publication of The Best Lawyers in America for having achieved “Best Lawyer” status in each of the list’s 30 years of publication.  St. Louis Partner Lawrence Brody; St. Louis Partner John Michael Clear; Atlanta Of Counsel William Linkous Jr.; DC Partner Stanley Marcuss; St. Louis Partner Michael Newmark; and Atlanta Of Counsel Joe Thompson all have been featured in Best Lawyers since the first directory was published in 1983. Best Lawyers is the oldest lawyer-rating publication in the United States. The 30-year list of honorees ran in numerous regional outlets recently, including The New York Times and The Washington Post.

Congratulations to our Private Client attorneys, Lawrence Brody, William Linkous, Jr., and Michael Newmark for being three of those six!

Friday, November 15, 2013

Denver Partner Michael Bland was recognized in the November issue of 5280 Magazine and ColoradoBiz Magazine as one of Denver’s 2013 Five Star Wealth Managers, as rated by Five Star Professional – an independent research organization that recognizes professionals in the legal, financial services and accounting industries who provide exceptional service to their clients. Bland was selected for the third year in a row as a Five Star Wealth Manager, an award given to less than 7 percent of wealth managers in the Denver area.

Congratulations Michael!

Friday, November 1, 2013

On Tuesday, the House approved legislation that would delay a Labor Department regulation that would impose fiduciary standards for financial advisors.  The measure, sponsored by Rep. Ann Wagner, R-Mo., would prohibit DOL from proposing its regulation until 60 days after the Securities and Exchange Commission finalizes a similar rule to raise standards for brokers providing retail investment advice. The bill attracted the support of 30 Democrats.  On Monday, the Obama administration threatened to veto the legislation, saying that it undermines DOL efforts to protect workers and retirees from conflicted investment advice for 401(k) plans and individual retirement accounts.  Supporters of the bill say the SEC must go first to ensure coordination between the agencies and avoid duplicative and costly fiduciary-duty requirements that would ultimately limit access to investment advice for smaller investors.  Opponents say it would effectively kill the DOL rule if the SEC declines to propose its own regulation.

The legislation, which also would require the SEC to prove that investors are being harmed by the differences between the advice standards governing investment advisers and brokers before it proceeds with its own rule, faces an uncertain future in the Democratic-led Senate.  The DOL is expected to repropose the fiduciary rule which was originally proposed in 2010 and withdrawn amid fierce financial industry backlash. 

Friday, November 1, 2013

Originally posted on bryancavefiduciarylitigation.com

Individual trustees who must administer real property often attempt to save the trust money by personally making certain improvements, repairs, or maintenance to the property.  They then charge the trust for the work they performed.  As the Nebraska Court of Appeals points out in In re Estate of Robb, however, these acts – however well-intentioned – may be self-dealing and can put the trustee in a position of a conflict of interest, which can warrant removal from that fiduciary position.

When Mason D. Robb died, his son, Theodore, became the personal representative of his estate and the trustee of the inter vivos Mason D. Robb Revocable Living Trust.  The trust contained three pieces of real estate.

Under the terms of the trust, the trustee was to hold and use the trust property to pay administrative costs and the debts of the settlor and for the benefit of the Mason D. Robb QTIP Family Trust.  The trust directed the trustee to separate the funds in the family trust into two equal shares: one for Theodore’s benefit and one for the benefit of his sister, Linda.  Theodore’s share was to be delivered to him outright while Linda’s share was to be held in trust.  Linda was also entitled to income distributions from her share of the family trust. (more…)