✩ White v. Regions Bank - Testamentary Capacity and Undue Influence

Posted: March 5th, 2002 by Gaslowitz Frankel LLC

Our client filed a caveat (objection) to the probate of her father’s will, alleging that he lacked testamentary capacity to execute the will and that he had been unduly influenced to cut her out of the will by a manipulative grandson. The grandson was a signatory on several of his grandfather’s bank accounts, stayed at his grandfather’s home and cared for him, drove him to the attorney’s office to execute the will, and was present during the discussions concerning the contents of the will while the grandfather was taking medication that caused some impairment of reasoning ability and left him confused.

At the jury trial, the judge failed to give instructions to the jury regarding the existence of a confidential relationship between the grandson and the grandfather, pursuant to which there was a presumption of undue influence. Our client objected, and the Georgia Supreme Court subsequently ruled1 in our client’s favor, finding that the failure to give this instruction was a critical error. This case is one of a continuing line of cases in which the appellate courts have focused on the relationship between the parties and whether they were in a special relationship of trust, called a “confidential relationship,” because if they were, there is a presumption of undue influence and the burden of proof at trial shifts to the person who was in the confidential relationship with the decedent.

1 275 Ga. 38, 561 S.E.2d 806 (2002)

Related News   Caveat, Civil Appeals, Decedent, Firm News, Representative Cases, Testamentary Capacity, Undue Influence, Will Disputes, Will and Estate Disputes

✩ In re: Estate of Garmon - Reimbursement of Attorney’s Fees from Estate

Posted: March 1st, 2002 by Gaslowitz Frankel LLC

Our client, an heir under a will, filed an action to force the executor to provide an accounting of estate assets, alleging that the executor had breached his fiduciary duties and engaged in self-dealing with estate assets. The trial court entered an order requiring the executor to remedy the mismanagement, and the court granted our client’s motion to be reimbursed for her attorney’s fees. The court, however, refused to allow the executor to charge the estate for his attorney’s fees, reasoning that he should not be allowed to use estate assets to defend against his wrongful conduct.

The Court of Appeals agreed 1. An heir should be allowed to recover her attorney’s fees from the estate when the mismanagement of estate assets is remedied as a consequence of the heir’s lawsuit. Likewise, an executor should not be allowed to recover his fees from an estate where the lawsuit involves allegations that the executor mismanaged the estate assets and the executor loses the lawsuit.

1 254 Ga. App. 84, 561 S.E.2d 216 (2002)

Related News   Accounting, Civil Appeals, Executor, Firm News, Heir, Representative Cases, Self-Dealing, Will and Estate Disputes