KEEPING CURRENT P R O B AT E CASES JOINT TENANCIES: Execution of a contract of sale does not sever a joint tenancy. The decedent and one of the decedent’s children owned real property as joint tenants with the right of survivorship. They entered into a contract to sell the property about a month before the decedent’s death, and the sale closed seven days after the decedent’s death. The probate court ruled that the agreement to sell severed the joint tenancy and thus the decedent’s estate was entitled to one-half of the purchase price. In Matter of Estate of Moore, 869 S.E.2d 868 (S.C. Ct. App. 2022), the South Carolina intermediate appellate court reversed, holding that severance does not automatically occur on entering into a sales contract, absent an indication in the contract or the circumstances that the parties intend severance. In the absence of any such evidence, the surviving joint tenant is entitled to all of the sale proceeds. NO-CONTEST CLAUSES: No violation by objection to ministerial acts. The decedent’s will and trust both contained no-contest clauses. The clause in the trust required forfeiture on the part of any beneficiary who objects to any action the trustee takes in good faith. One of the beneficiaries objected to the trustee’s inclusion of certain property in the estate’s Connecticut estate tax return. Another beneficiary filed a complaint alleging that the objection violated the nocontest clause. Both the Probate Court and the Superior Court found that the objecting beneficiary did not violate the no-contest clause. In Salce v. Cardello, 269 A.3d 889 (Conn. App. Ct. 2022), the appellate court affirmed, holding that although the objecting beneficiary’s objections were technical violations of the no-contest clause, to enforce Keeping Current—Probate Editor: Prof. Gerry W. Beyer, Texas Tech University School of Law, Lubbock, TX 79409, gwb@ProfessorBeyer. com. Contributors: Claire G. Hargrove, Paula Moore, Prof. William P. LaPiana, and Jake W. Villanueva.
Keeping Current—Probate offers a look at selected recent cases, tax rulings and regulations, literature, and legislation. The editors of Probate & Property welcome suggestions and contributions from readers.
the clause in this instance would violate public policy because it would penalize objections to ministerial acts not involving the fiduciary’s exercise of judgment and limit judicial oversight of the fiduciary. TRUST CONTEST: Tort action is not a trust contest. The Massachusetts version of U.T.C. § 604, Mass. Gen. L. 203E § 604, requires contests over the validity of a revocable trust to be brought within the earlier of one year of the settlor’s death or 60 days after receiving notice of the existence of the trust and information about how to contact the trustee. The Massachusetts Supreme Judicial Court held in Sacks v. Dissinger, 178 N.E.3d 388 (Mass. 2021), that the code provision does not apply to claims based on intentional interference with an expectancy and unjust enrichment brought against persons alleged to have exerted undue influence on the settlor, resulting in the plaintiffs’ elimination as beneficiaries. The court decided that these claims involved not the validity of the trust but rather harm to the plaintiffs from the actions of other persons. TRUST CONVEYANCE: Trust terms prevent the settlor-trustee from conveying property in own name. The individual who was both the surviving settlor and trustee of a revocable trust conveyed trust real estate by a deed signed in the individual’s personal capacity. The successor co-trustees brought an action to invalidate the deed and were granted summary judgment by the trial court, which was affirmed by the Arkansas intermediate appellate court in Leavell v. Gentry, 636 S.W.3d 794 (Ark. Ct. App. 2021). The
court agreed with the trial court that trust terms forbidding the transfer of trust property by the settlor in the settlor’s own name meant the deed was invalid. In addition, because the trust terms did not set forth a method of revocation or modification, the settlor may do so by any method that manifests clear and convincing evidence of the intent to do so under Ark. Code § 28-73-602(c)(2)(b) (identical to U.T.C. § 602). Execution of the deed did not provide the needed evidence because the settlor had made transfers of trust property by executing deeds as a co-trustee to herself and then executing deeds as an individual. TRUST JURISDICTION: Court has jurisdiction even though principal place of administration was in another state. In Allen v. Campbell, 499 P.3d 1103 (Idaho 2021), the Idaho Supreme Court held that a proceeding alleging breach of duty by trustees of a trust created by Idaho residents could be heard in the Idaho courts, even though the principal place of trust administration was moved to Indiana after the settlors’ deaths. The court reversed the grant of a motion to dismiss based on the lack of subject matter jurisdiction, holding that the relevant statute, Idaho Code § 15-7-203 (identical to former U.P.C § 2-703) is concerned only with the issue of forum non conveniens and not with subject matter jurisdiction, disavowing Rasmuson v. Walker Bank & Trust, 625 P.2d 1098 (Idaho 1981), in which the court had held that the statute did indeed deal with jurisdiction. UNDUE INFLUENCE: Child’s co-trusteeship of parent’s trust and authority as parent’s agent under power of attorney does not give rise to a confidential relationship. In Matter of Williams, 162 N.Y.S.3d 9 (App. Div. 2022), the New York intermediate appellate court affirmed the Surrogate’s dismissal after trial of allegations by settlor’s stepchildren of undue influence on the settlor of a revocable trust by settlor’s child. The court expressly
Published in Probate & Property, Volume 36, No 4 © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
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