News
Gaslowitz Frankel LLC will not always make the news, but we will make sure you know when news happens.
✩ Gaslowitz Frankel wins $2 million verdict
Posted: March 4th, 2010 by Gaslowitz Frankel LLCGaslowitz Frankel won a jury verdict of nearly $2 million dollars, (including interest and and the return of attorney’s fees incurred by the Trust in defending the claim) in favor of their clients, members of the Candler family, after a six day jury trial in Fulton County, Georgia. The case involved claims brought by Gaslowitz Frankel on behalf of the Plaintiffs, the grandchildren of Charles Howard “Buddy” Candler, III, against Defendant Reliance Trust Company as Trustee of the Claire Clement Candler Revocable Trust, Marital Trust “B” for breach of fiduciary duties. Specifically, the Plaintiffs claimed that Reliance Trust Company authorized improper encroachments on the trust to the the detriment of the grandchildren, the remainder beneficiaries of the trust. After a short deliberation, the jury returned their verdict in favor of the Plaintiffs in the amount of nearly $2 million. The case was tried by Craig Frankel with the assistance of Brian Deutsch.
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✩ Adam Gaslowitz cited in Article in U.S. News and World Report
Posted: November 10th, 2009 by Gaslowitz Frankel LLCAdam Gaslowitz was interviewed and quoted extensively by U.S. News & World Report on article on the surge in estate disputes and tips on how to avoid them.
8 Tips to Avoid Nasty Estate Surprises – The Best Life (usnews.com)
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Land v. Burkhalter - Witnesses to a will
Posted: April 3rd, 2009 by Gaslowitz Frankel LLC
Three persons attempted to witness a will. One of them, a notary, signed on a line that was reserved for witnesses and also signed as a notary. The notary signed in the presence of the testator (the person who made the will); the second witness also signed in the testator’s presence; the third witness, however, signed the will in another room. Georgia law requires that a will be attested by two witnesses in the presence of the testator. A notary may not sign as both a notary and a witness, but since the will did not need to be notarized, the notary’s signature was valid as a witness signature, and the Supreme Court held that the will was executed properly.
283 Ga. 54 (2008)
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Cruver v. Mitchell - Adult guardianship and conservatorship
Posted: April 3rd, 2009 by Gaslowitz Frankel LLC
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 their 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. Georgia law 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 Georgia law, however, the court’s inquiry must focus on the condition and best interest of the adult, not only 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 it remanded the case for further consideration of the guardianship issue.
289 Ga. App. 145 (2008)
| Related News | Guardianship Disputes, Guardianships/Conservatorships |
Smith v. Wyatt - Presumption of the probate court’s correctness in the absence of a hearing transcript
Posted: March 25th, 2009 by Gaslowitz Frankel LLC
The decedent’s sister filed a caveat (objection to a will) alleging that the decedent lacked testamentary capacity and had been unduly influenced by the person named as executor in the decedent’s will. The caveat also claimed that the person named as sole heir in the will was neither the natural nor adopted child of the decedent, thereby making the caveator (person challenging the will) 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 (the right to make a legal claim) to challenge the will. Upon appeal, the Supreme Court held that in the absence of a hearing transcript, there was a presumption that the probate court’s determination was correct.
282 Ga. 902 (2008)
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Morrison v. Morrison - Undue influence and revocation
Posted: March 25th, 2009 by Gaslowitz Frankel LLC
A son, the named executor of his father’s will, filed the will for probate. Two other sons filed a caveat (objection) raising claims of undue influence and revocation. The caveators’ undue influence claim was based on the role the executor 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 of the 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, because 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 caveators’ claim of revocation (an invalidation of the will by the person who executed the will) was based on documents showing that the father planned to execute a new will. The father 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 Georgia law permits a presumption that a will was revoked only if the original will or a material portion of the original will is destroyed or obliterated. Thus, the testator’s markings on a copy did not raise the presumption of revocation.
282 Ga. 866 (2008)
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Deering v. Keever - Amending a caveat
Posted: March 23rd, 2009 by Gaslowitz Frankel LLC
A petition to probate a will listed a woman and her brother as the decedent’s heirs, though they were not named as beneficiaries in his will. Acting pro se (without an attorney), the woman filed a caveat (objection) to the petition, asserting that the will failed to identify her or other heirs as being disinherited. The caveat was filed on the last day of the ten-day period in which such objections can be filed. The following day, she filed an amendment to the caveat, claiming that the will was invalid due to undue influence and the testator’s lack of capacity. The propounder (person who filed the petition for probate) objected to the amended caveat, contending that because the first claim was not an allowable reason for objection, there was no valid caveat to be amended after the expiration of the objection period.
On appeal, the Supreme Court ruled that a caveat is amendable at all times and in every respect, even when it is the amendment that sustains the validity of the caveat. Additionally, the court ruled that amendments relate back to the original filing date of the caveat, so that an amendment filed outside the ten-day objection period is deemed to be filed as of the original date of the caveat.
282 Ga. 161 (2007)
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Booker v. Booker - Right to appeal probate court decision
Posted: March 23rd, 2009 by Gaslowitz Frankel LLC
After a man died intestate (without a will), his widow petitioned the probate court for year’s support. The probate court granted her petition. The decedent’s mother appealed to the superior court, but the court dismissed her appeal, finding that she had no standing (right to pursue the claim in court). The Court of Appeals affirmed that decision. Only a party to an action—a plaintiff or defendant—may appeal a decision in the probate court. Since the mother was not a party to the year’s support petition, she had no right to appeal the award.
286 Ga. App. 6 (2007)
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Baker v. Merrill Lynch Trust Co. - Charitable bequest and the “cy pres” doctrine
Posted: March 23rd, 2009 by Gaslowitz Frankel LLC
A testator (person who executes a will) left the bulk of her estate to a trust. Under the terms of the trust, some assets were to be distributed to named heirs with most of the remainder of her estate to go to a foundation. However, the testator died before she actually established the foundation. Merrill Lynch, as trustee, filed a petition asking the trial court to apply the “cy pres” doctrine, which provides that if a charitable bequest or gift cannot be effected in the exact manner provided by the testator or donor, the court can exercise its power to fulfill the intention of the testator as closely as possible. The issue here was whether the testator actually had a charitable intent. The trial court ruled that since the language of the trust did not include the word charity or any mention of a charitable purpose, the assets should go to the heirs.
The Court of Appeals, however, noted that the term “foundation” was ambiguous, because it may be a charitable or non-charitable entity, and thus the trial court should have considered evidence outside the language of the trust to determine the testator’s intent. The matter was sent back to the trial court for reconsideration.
286 Ga. App. 767 (2007)
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Anderson v. Westmorland - Year’s support award
Posted: March 19th, 2009 by Gaslowitz Frankel LLC
A widow filed a petition for year’s support, and the daughter of the decedent filed an objection. The probate court granted the award and the superior court affirmed the award, but the Court of Appeals held that the widow was not entitled to year’s support. The year’s support must be reasonably related to the amount needed by a surviving spouse for a period of twelve months to maintain the standard of living enjoyed prior to the death. It is a transitional allowance. In considering the amount to be awarded, the court must consider the income available to the surviving spouse from other sources. In this case, the widow testified that she “splurged” by taking trips and remodeling her home after the death. It appeared that her standard of living improved and she had independent resources to afford those improvements. The court held that when the surviving spouse’s income exceeds the expenses shown for the year after the death, the petition for year’s support must be denied.
286 Ga. App. 561 (2007)
| Related News | Probate and Estate Disputes, Year's Support |
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