Archive for August, 2010

What is Testamentary Capacity? (2010-8-29)

Whether a person has sufficient mental capacity to make a will can be a difficult question.  Historically the law has set a low bar for capacity to make a will. The recent decision in In re Estate of Manuel focused on a fight over attorney’s fees.  The dispute under the discovery laws involves a thorny […]

A Fiduciary Duty for All Investment Professionals? (2010-8-22)

Wading hip deep into the debate over the standard of conduct applicable to investment advisors, author Kristina A. Fausti brings helpful insight in A Fiduciary Duty for All? Ms. Fausti is the Director of Legal and Regulatory Affairs for Fiduciary360, and is knowledgeable about the investment world. What she demonstrates is that the investment world […]

Court Permits 35 Year Delay in Filing Claim for Breach of Trust (2010-8-15)

Here’s an awkward fact pattern  Grandfather establishes a testamentary trust, which trust was confirmed in 1971 court order.  The trust provides for distributions to the “grandchildren.”  A decade later, an individual (Mr. Quick) learns that he is a grandchild, and strikes up a friendship with his father, who is also a trustee of the trustee. […]

Stiff Penalty for Looting Assets From Decedent’s Estate (2010-8-6)

A recent case emphasizes that the probate court has broad powers to prevent the looting of a decedent’s estate, and can award penalty damages, as well. In Estate of Kraus (April 27, 2010) 184 Cal.App.4th 103, the decedent’s brother used an invalid power of attorney to clean out her bank accounts in the hours before […]

Transfer of Property Deemed Invalid Years After Deed Was Recorded (2010-8-2)

In the recent decision in Estate of Hastie, the court invalidated a transfer of real property made several years before Mr. Hastie’s death.  In a matter of first impression under Probate Code section 21350, the court held that the gift to a caretaker was could be challenged years after the deed was recorded.  This, surely, […]