✩ Craig M. Frankel speaks to probate judges about the Georgia Civil Practice Act

Posted: January 29th, 2008 by Gaslowitz Frankel LLC

Craig Frankel gave a presentation today to the Probate Court judges of Georgia that summarized and explained how the Georgia Civil Practice Act (i.e., the rules for trials) apply to probate and estate disputes. The following is the power point presentation that he used to explain the rules to the judges.

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Biggers v. Crook - Joint tenancy with right of survivorship

Posted: January 28th, 2008 by Gaslowitz Frankel LLC

A man and his sister inherited land from their mother. They owned the property as joint tenants with a right of survivorship (meaning that upon the death of one of them the survivor would inherit the other’s interest and thus own the property outright). When the man borrowed money from his sister-in-law, he executed a promissory note and a deed giving his interest in the property as security for the debt. When the man died, his sister-in-law sought repayment of the note and claimed that the deed to secure the debt had severed the joint tenancy with right of survivorship. The trial court declared the man’s sister to be the sole owner of the property, and the sister-in-law appealed.

The Georgia Supreme Court decided1 that a “security deed” such as this one was nothing more than a lien, conveying legal title only for the purposes of security, not ownership. The court held that a deed to secure debt did not sever a joint tenancy with right of survivorship, and thus the effect of the man’s death was that his sister, as surviving joint tenant, became the sole owner, and the property did not go to his estate. The man’s death terminated his interest in the property, and thus extinguished the security interest held by his sister-in-law.

1 656 S.E.2d 835 (Ga. 2008)

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✩ Welcome to our new website

Posted: January 28th, 2008 by Gaslowitz Frankel LLC

Gaslowitz Frankel LLC welcomes you to the redesign of our website. Please take your time to look at the additional news, podcast, and feed content we have added, and be sure to check back regularly as we plan to add more.

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Estate of Christiansen v. Comm’r - Charitable lead trusts and disclaimers (U.S. Tax Court)

Posted: January 24th, 2008 by Gaslowitz Frankel LLC

In this complex case decided by the United States Tax Court, a woman left her entire estate to her only daughter. The daughter disclaimed (renounced) a portion of the estate assets. The will provided that any disclaimed assets would pass in part to a charitable foundation and in part to a charitable trust that would pay an annuity to the foundation for twenty years, after which time the assets remaining in the trust would pass to the daughter (known as a contingent remainder, because she would get the remaining assets if there were any left after the twenty-year annuity period had passed).

The daughter disclaimed only the assets that went to the foundation and the trust annuity; she did not disclaim the contingent remainder in the property passing to the trust. On the estate’s tax return, it deducted as charitable contributions the disclaimed property passing to the foundation as well as the present value of the annuity interest passing to the charitable trust. The Tax Court held1 that the estate could deduct the entire value of the property passing to the foundation because that was an effective “qualified partial disclaimer” in conformity with the provisions of Internal Revenue Code Section 2518.

The court also agreed that the charitable deduction could encompass a higher valuation than was first reported on the estate tax return, because the parties agreed that the value of the property had increased substantially since the date of the mother’s death. However, the court allowed no deduction for property passing to the trust, because the partial disclaimer of that property was not effective, since the daughter disclaimed only the annuity portion and not the contingent remainder portion.

1 130 T.C. 1 (2008)

Related News   Civil Appeals, Trust Disputes, Will and Estate Disputes

The Georgia Personal Representative Handbook

Posted: January 21st, 2008 by Gaslowitz Frankel LLC

Duties and Responsibilities of Personal Representatives of Decedants’ Estates in Georgia [pdf]

Prepared and presented by: Georgia Council of Probate Court Judges and the Fiduciary Law Section of the State Bar of Georgia.

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Cruver v. Mitchell - Probate court’s incorrect analysis was an abuse of discretion

Posted: January 21st, 2008 by Gaslowitz Frankel LLC

In Cruver v. Mitchell 1, two daughters petitioned to be appointed guardians and conservators of their elderly mother, who was suffering from end-stage Alzheimer’s disease. The petitioners had removed their mother from the Medicaid program, fearing that the State would take possession of the mother’s real property under Medicaid’s estate recovery program. They planned to sell some of the mother’s property to a relative to generate funds for her care, thus keeping the property in the family. The probate court appointed the county conservator and denied the guardianship. The Court of Appeals upheld the determination to appoint the county conservator but reversed on the guardianship. O.C.G.A. § 29-5-3(b) establishes an order of preference for conservator appointments, and though the adult children would have preference, the probate court had discretion to disregard that preference order. Here, there was no evidence that the Medicaid opt-out was financially wise or that the mother would have sufficient funds without Medicaid, and further, the petitioners, as heirs-apparent, had a conflict of interest in the matter. On the matter of the guardianship, the probate court judge determined merely that the petitioners had taken care of their mother’s affairs thus far without a guardianship, so none was needed. Under O.C.G.A. § 29-4-1, however, the inquiry must focus on the condition and best interest of the adult, not on whether the adult’s family to date has acted successfully on her behalf. The Court of Appeals held that the probate court’s incorrect analysis was an abuse of discretion and remanded the case for further consideration of the guardianship issue.

1 2008 WL 81307 (Ga. App.)

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Smith v. Wyatt - Presumption of the probate court’s correctness in the absence of a hearing transcript

Posted: January 21st, 2008 by Gaslowitz Frankel LLC

Smith v. Wyatt 1

The decedent’s sister filed a caveat alleging that the decedent lacked testamentary capacity and had been unduly influenced by the executor. The caveat also claimed that the person named as sole heir was neither the natural nor adopted child of the decedent, thereby making the caveator the decedent’s sole heir-at-law. After a hearing that was not transcribed, the probate court issued an order dismissing the caveat because the caveator failed to prove that the child was not the decedent’s heir-at-law and thus the caveator lacked standing to caveat the will. Upon appeal, the Supreme Court held that in the absence of a hearing transcript, there was a presumption of correctness to the probate court’s determination.

1 2008 WL 65452 (Ga.)

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Morrison v. Morrison - Caveat claiming undue influence and revocation

Posted: January 21st, 2008 by Gaslowitz Frankel LLC

Morrison v. Morrison1

The caveators, sons of the testator, raised claims of undue influence and revocation. The undue influence claim was based on the role the executor, another son, played in selecting the attorney who drafted his father’s 1998 will and his alleged participation in preparing the will. The trial court excluded much evidence the caveators attempted to present, including evidence of the testator’s conduct years later, since it was not probative of whether the will was a product of undue influence when it was executed. Further, the trial court denied a request to charge the jury that there was a presumption of undue influence, since the caveators introduced no evidence showing either that the testator was weak, and hence susceptible to undue influence, or that the executor occupied a dominant position with regard to his father. On appeal, the Supreme Court upheld the trial court’s rulings on the admissibility of evidence and jury instructions. The revocation claim was based on documents showing that the testator planned to execute a new will. The testator had marked up a copy of his will, making changes and noting specific bequests, and had sent a letter to the executor requesting that the new bequests be given effect if he died before his new will was executed. The Supreme Court held that O.C.G.A. § 53-4-44 permits a presumption of revocation only if the original will or a material portion of the original will suffers destruction or obliteration. (A predecessor statute allowed for the destruction of “the original will or a duplicate.”) Thus, the testator’s markings on a copy did not raise the presumption of revocation.

1 2008 WL 65261 (Ga.)

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✩ FAQ: What is a Will Contest

Posted: January 3rd, 2008 by Gaslowitz Frankel LLC

A will contest (called a caveat in Georgia) ensues when someone brings a legal challenge to a will filed for probate. When probate is initiated, the probate court allows interested parties an opportunity to object to the will. The challenger (called a caveator in Georgia) seeks to overturn the entire will or one or more provisions of the will because he or she believes the will is invalid in some way. State statutes determine how the will contest proceeds in the judicial system and mandate that a will challenge be brought within certain time limits.State statutes also provide the grounds for contesting a will. Normally, the grounds include incapacity, undue influence, fraud, improper execution, or the existence of a later valid will.

Incapacity

A testator must have “testamentary capacity” in order to make a valid will. Generally that requires that the testator be of “sound mind,” as shown by the testator’s capacity to (1) understand the nature and extent of his or her property, (2) know the persons who would naturally benefit from the will, and (3) realize that the will he or she is executing does indeed makes a disposition of his or her property. A testator may be shown to lack testamentary capacity if it can be proved that at the time of executing the will he or she exhibited signs of dementia or mental illness or was under the influence of alcohol or drugs. Generally, the mere fact that a testator shows signs of advancing age, feebleness, or eccentricity is not enough, in and of itself, to prove testamentary incapacity invalidating a will.

Undue Influence

A will can be overturned if the challenger proves that at the time the will was made, the testator was subjected to such strong influence by another that the testator made a disposition of estate property that he or she otherwise would not have done. Coercion and duress are examples of undue influence.

Fraud

To invalidate a will on grounds of fraud, the challenger generally must show that the testator relied on a fraudulent misrepresentation and was deceived by it when he or she executed the will. Evidence of only the opportunity or motive for fraud, without showing that the fraud had an effect on the testator, is not enough to invalidate the will.

Improper Execution

Each state has procedural requirements for the execution of a will, generally including a number of required witnesses. Many states also require that the will be in writing or that the signatures of the testator or witnesses be notarized. A will that does not conform to statutory requirements may be held to be invalid.

Existence of a Later Will

Generally, a validly executed later will is presumed to revoke any prior wills.You should consult an experienced probate attorney if:

  • You are the executor of a will that is the subject of a will contest;
  • You are the beneficiary of a will that is the subject of a will contest; or
  • You want to challenge a will that you believe is invalid.
Related News   Caveat, FAQs, Testator, Will Disputes, Will and Estate Disputes