WILL CONTESTS
1. Represented niece in an action to set aside the Last Will and Testament of her uncle. It was alleged that the uncle prepared a new Will, disinheriting the niece as a result of an insane delusion. The uncle falsely believed that his niece had stolen from him. In addition, it was demonstrated that the decedent suffered from dementia and, therefore, was incompetent to execute the Will. Nieces received substantial settlement.
2. Represented daughter in a suit against her brother to set aside the Last Will and Testament of their mother. The mother executed a Will following diagnosis of a brain tumor but had made a videotape explaining why her daughter was being disinherited. Confidential settlement.
3. Represented children of a man who executed a Last Will and Testament, disinheriting his children shortly after being diagnosed with brain cancer. Their father had created a Will extensively cutting out the children in favor of the children's stepmother who had married their father after he had been diagnosed with terminal cancer. Children received substantial settlement.
4. Represented brother seeking to set aside the Will of his brother. The Will was written while his brother was in the hospital having been diagnosed with terminal lung cancer. The Will benefited his brother's long-time girlfriend and was written by a lawyer upon instruction of the girlfriend's daughter. Client received substantial settlement.
5. Represented spouse in defense of a Will brought by the spouse's child from a previous marriage. Settled for costs of defense.
6. Represented nephew in pursuit of action to set aside the Will of uncle. During course of discovery, determined that Will was not executed in the presence of witnesses resulting in a substantial portion of the estate being distributed to the nephew.
7. Represented son in an effort to set aside a codicil (an amendment) to the Last Will & Testament of the decedent. During the course of discovery, it was learned that the codicil was written on the computer of the client's brother and other evidence of undue influence was obtained. By agreement, the codicil to the Will was set aside and held void.
8. Represented the Executrix and sole beneficiary of the Last Will and Testament of sister. Her sister was blind and suffering from substantial ailments when the Executrix brought the sister to an attorney who prepared a Last Will and Testament naming the Executrix as the sole beneficiary.
9. Represented nieces in action to set aside Last Will and Testament of their aunt. The original Will had been written in the 1960's. The Will had markings on it that, if proven to have been made by the decedent, demonstrated she revoked her Last Will and Testament. The nieces sued the named beneficiaries listed under the markings on the will in an effort to obtain a determination that the Will was revoked thereby causing probate assets to pass to the nieces. The nieces obtained substantial settlement in resolution of the claim.
10. Represented niece as sole beneficiary/Executor of decedent aunt's will. Decedent aunt suffered from terminal cancer and was in car accident. While recovering from the car accident, aunt met with her long time lawyer to ensure that niece received all of her assets and that decedent aunt's sister did not receive anything. Prior to car accident, decedent aunt's sister did not speak to aunt for many years despite aunt suffering through cancer. Upon decedent aunt's death, estranged sister filed Will Contest lawsuit arguing that niece was not entitled to anything since Will could not be valid for lack of testamentary capacity and undue influence exerted by niece on aunt. Evidence demonstrated aunt was of sound mind, in good health (despite cancer) and was adamant to lawyer during 3 separate meetings that aunt wanted niece to have everything. Case was settled with a substantial percentage of the Estate remaining with niece.
11. Represented son of decedent in Will Contest action that challenged Will signed after client's mom was whisked away from hospital care by estranged daughter from Cleveland to rural county in Ohio. Mother told authorities she wanted to be with daughter because son wanted to put her in a nursing home. Upon arrival in rural county, mother changed her Estate plan that was in existence for 10+ years benefiting son. Changes resulted in entire Estate going to estranged daughter and a $350,000 annuity going to daughter upon mother's death. Daughter deprived family members access to mom after changes were made and did not even advise son and his family of decedent's death. Client learned of mother's death through luckily seeing newspaper notice. Client filed Will Contest and challenged the change of beneficiary for the annuity. Case was settled prior to trial with a substantial portion of the Estate and annuity going to the son/client.
12. Represented nieces in Will Contest lawsuit seeking to set aside their reclusive aunt's Will which named elderly aunt's landlord as sole beneficiary. Litigation revealed landlord made promises of affection to aunt, had landlord's lawyer draft will for the aunt, and landlord had history of seducing women for financial gain. Case was settled giving nieces 100% of what they would have gotten if the will had been set aside.
TRUST DISPUTES / DECLARATORY JUDGMENTS
1. Represented a major hospital in defense of declaratory judgment action brought by regional bank seeking a determination that a charitable bequest had lapsed and seeking to eliminate the bequest to the hospital. In summary judgment, the court determined that a merger with the specifically identified predecessor hospital and change of hospital name did not destroy the bequest and, therefore, the hospital received full distribution by order of the court.
2. Represented an attorney who prepared a trust on behalf of his client. His client named the attorney as trustee. Following the funding and execution of the trust, the client began exhibiting signs of mental incompetence. The client, under suspicious circumstances, sent a letter to trustee purporting to revoke the trust. Subsequently, client was declared incompetent and a guardian was appointed over the decedent. The trust substantially reduced the share of assets to be distributed to the settlor's daughter. The daughter sued. In defense of the trustee, we successfully argued the case should be dismissed.
3. Represented bankruptcy trustee in action to set aside an alleged qualified personal residence trust executed by a bankruptcy debtor and funded with a $2 million parcel of real estate. During the proceedings, we obtained and presented evidence demonstrating that the so-called trust was a sham and that the act of funding the trust with the debtor's real estate was a fraudulent conveyance. The case was settled whereby the bankruptcy trustee recovered a substantial percentage of the value of the real estate upon its sale.
4. Represented son in a complex trust/breach of fiduciary duty and asset transfer case. Several years before their deaths, mother and father each executed amendments to their trusts. The amendment reduced the son's share so that the son would only receive real estate. Brother took over as trustee and also held power of attorney over his parents. Thereafter, various parcels of real estate were gifted and/or sold for cash, reducing further son's share of the trust. In addition, bank accounts were designated with new survivor beneficiaries further diminishing the share of assets available to son in the event that the trusts of mother and/or father were set aside. Through fact discovery and the use of handwriting analysis, son leveraged a confidential settlement.
5. Decedent created a living trust and demonstrated intent to fund that trust with all of her assets. Prior to her trust, several of the beneficiaries of the trust "assisted" the decedent with the titling of the assets. The assets ended up titled survivorship and payable on death to the beneficiaries assisting the decedent. We represented two beneficiaries of the trust whose share of the trust was eradicated by the conduct of the other beneficiaries. By agreement, our clients received their fair share of the inheritance.
6. Represented several children seeking to set aside the amendment of a trust executed by their mother. After the children had grown, mother remarried and began exhibiting signs of dementia. Mother was under the control of the stepfather and was forced to execute a trust amendment that provided first for the stepfather and then, second, if stepfather predeceased, to the stepfather's adult children. Children received settlement representing their fair share of the trust proceeds.
7. Represented trustee and beneficiaries under trust in effort to declare rights and obligations as to whether the estate and beneficiaries of assets, received through survivor designation and/or gift, were required to pay a fair portion of estate taxes generated in excess of $2,000,000. Action resulted in third party beneficiaries agreeing to pay the fair share of the generated estate taxes.
8. Represented second wife in action brought by children from previous marriage of the decedent. The decedent left a will and trust which provided for the surviving spouse and the children. Children brought suit against the surviving spouse alleging that the share of proceeds to be distributed to the surviving spouse were to be reduced by monies received by the surviving spouse outside of probate, including the payment of certain debt obligations. Parties agreed to a distribution of assets in an equitable fashion.
9. Represented grandchildren in a contest against their grandfather's trust amendment. Several weeks after grandson's father passed away, the grandson's uncle and aunt prepared an amendment to the decedent's Trust, cutting out the grandchildren. Grandchildren received a large cash settlement approximating the value they would have received but for the execution of the amendment to the trust.
10. Represented bank, as Trustee over several million dollars in Trust, in defense of lawsuit filed by Trust beneficiaries alleging that Trustee breached its fiduciary duty by retaining, rather than selling, family company stock thereby causing the Trust not to make as much profit/gain over 30 years of Trust management. In light of language in Trust giving authority to retain stock and release of liability for doing so, we obtained dismissal of lawsuit, as affirmed by the Court of Appeals, on the basis that Trustee made plenty of money for the Trust over the years and was within its discretion to hold stock in light of the Trust's explicit language indicating a preference to hold the stock. Also we were successful in having the trial court order the beneficiaries and Trust pay the Trustee's substantial attorney fees in their entirety.
11. Decedent lived in Southern Ohio and ultimately executed a Trust with a lawyer to whom the decedent's banker directed him. Rather than give decedent's money to family members, upon his death, the Trust provided for the decedent's bank to receive substantial discretion to forever manage the Trust assets for charitable purposes. Several years later, after decedent moved back to Northeast Ohio to be closer to family, decedent changed his Will and amended his Trust with assistance of a reputable estate planning attorney. The changes modified decedent's estate plan by naming a family member as Trustee and Executor, giving 30 relatives shares of the Trust, and naming a local charity as a remainder beneficiary. The Southern Ohio bank, claiming the new Trust was not valid, denied the family member/Trustee/Executor's demand that the Southern Ohio bank transfer the decedent's $3+ million dollar in assets to new Trustee/Executor. We filed a lawsuit on behalf of the family member/Trustee to declare as valid the new Trust benefiting the decedent's family and the local charity. A settlement was reached distributing a substantial sum to the new Trust thereby benefiting the decedent's family and the local charity.
12. Represented a bank Trustee in a declaratory judgment lawsuit seeking to determine what the deceased grantor of a Trust meant and intended when he established a trust in 1934 for the benefit of his children and grandchildren. Use of somewhat antiquated language in the Trust created a question whether the grantor's use of Trust language evidenced the intent to include in the class of grandchildren an adopted child of the decedent's child. The Court entered judgment that included the adopted person in the class of beneficiaries thereby resulting in the adopted person receiving a substantial inheritance.
CHALLENGES TO ASSET TRANSFERS/BENEFICIARY DESIGNATION AND MISUSE OF POWERS OF ATTORNEY
1. Represented executor of the estate of a decedent who had retirement assets in excess of $140,000 that would have been distributed to the estate and ultimately the beneficiaries under the will of the decedent but for a change of beneficiary executed while the decedent was in the hospital. Upon research, it was determined that the change of beneficiary form was executed by the paid caregiver of the decedent acting as power of attorney. The caregiver had taken the decedent, prior to death, to her own attorney, bypassing the decedent's attorney, and her attorney prepared a power of attorney naming the caregiver as the attorney-in-fact. The power of attorney did not contain the power to gift. Nonetheless, the caretaker executed a change of beneficiary form as power of attorney naming herself as the beneficiary on death of the retirement assets. We successfully recovered on behalf of the estate more than 90% of the assets improperly transferred.
2. Represented daughter in action against her brother to set aside transfers of real estate made by mother. Mother was beginning the early stages of dementia/Alzheimer's and became angry with her daughter. The mother spoke English as a second language and relied heavily upon her son to care for her. The mother executed two deeds to real estate of which the daughter would receive one parcel of real estate but for the execution of the deed. The deeds to real estate were executed in favor of son but the attorney was instructed not to deliver the real estate or record the deed. Shortly before the mother passed away, the son instructed the attorney to record the deeds. During discovery, it was learned that son had forged his mother's name to substantial asset transfers and checks and cash withdrawals. On the grounds of undue influence and failure of delivery, daughter received a fair share of the estate, including the parcel of real estate she would have received but for her brother's conduct.
3. Defended ex-husband in action brought by the executrix and beneficiary under the will of the decedent in an action to set aside multiple asset transfers and beneficiary designations occurring after ex-wife was diagnosed with terminal liver cancer. In the three-month period following the diagnosis of terminal cancer, the decedent named her ex-husband as the beneficiary of her life insurance policy, named her ex-husband as joint tenant with rights of survivorship of multiple bank accounts with combined assets approximating $500,000. The executrix argued that the ex-husband has unduly influenced the decedent into executing the documents and also breached fiduciary duties owed to the decedent. Following trial, Court entered order in favor of our client, the ex-husband.
4. Decedent died leaving multiple trusts, each trust modifying beneficiaries and percentage of distribution entitlements. Prior to decedent's death, decedent executed a deed transferring his home to himself as trustee. Decedent failed to identify the particular trust to which the real estate was to be distributed. We were appointed administrator of the decedent's estate and brought suit against the various trustees of the multiple trusts and through resolution successfully resolved the ownership issues of the real estate.
5. Represented executor of estate in action against the brother of the decedent seeking to recover assets transferred by the decedent into a joint account with rights of survivorship prior to the decedent's death. After trial, court determined that decedent had been incompetent and unduly influenced into entering into the transactions complained of and issued an order requiring the assets to be returned to the estate of decedent.
6. Represented sister in action to set aside various transfers of assets manipulated by brother with regard to mother's estate. Brother was a lawyer and had handled mother's finances for many years following the mother's diagnosis of dementia. The brother obtained rubber stamps bearing the signature of mother and used the stamps to transfer multiple CDs valued at $100,000 each into his own name and the name of his son. Matter resolved in favor of client.
7. Represented executor of estate against regional bank. Decedent allegedly transferred assets by way of survivor designation to a charitable organization. The bank could not produce the signature card or contract of survivor account. Action resulted in 100% of the assets being distributed to the estate.
8. During his lifetime, our client and his brother owned two pieces of real estate worth a substantial sum of money. Our client's brother died first. At the brother's death, the two pieces of real estate transferred to a Trust for the benefit of the deceased brother's wife and upon the wife's death, went to the lawyer who drafted the Trust to distribute for charitable purposes of the lawyer's choice. Surprised by this arrangement, an examination of the deeds of transfer evidenced that impropriety and/or fraud had taken place in the execution of the deeds. We filed a Declaratory Judgment lawsuit for our client in Probate Court to set aside the deeds and remove the drafting lawyer as Trustee. We obtained a settlement of the case that resulted in removal of the lawyer as Trustee, a substantial portion of the real estate being returned to the our client, and the remainder of the real estate being transferred to a new Trust written for the benefit of the deceased brother's wife with the remainder of the Trust benefiting the brother's wife's family.
INTENTIONAL INTERFERENCE WITH EXPECTANCY OF INHERITANCE
1. Represented long-time live-in girlfriend of decedent. Previous to the decedent's last illness, the decedent had named his long-time girlfriend as beneficiary of his life insurance proceeds. When the decedent became ill, his daughters moved in and obtained a power of attorney. Using the power of attorney, the daughters changed the beneficiary of life insurance proceeds to themselves. We brought an action against daughters for the intentional interference with an expectancy of inheritance on behalf of girlfriend. We received substantial settlement in favor of our client.
2. Lawyer was sued for conspiring to interfere with expectancy of inheritance by virtue of estate planning documents he executed. We represented lawyer and obtained dismissal of claims on his behalf.
REMOVAL OF EXECUTORS AND TRUSTEES
1. Represented daughter of decedent in an action to remove his sister as trustee of the trust. Daughter resided out of state and sister was named trustee under the trust created by the decedent prior to her death. The sister, however, was not providing information to the daughter and refused to provide fair share of rents on the real estate owned by the trust to the daughter. Obtained order removing the trustee and securing the appointment of our client daughter to serve in the position as successor trustee.
2. Brother brought action against daughter to remove her as executor alleging that daughter had unduly influenced the decedent into executing a will benefiting the executor's son. Action resolved whereby daughter continued to serve as executor and completed the administration of the estate.
3. Represented beneficiary under trust in effort to seek removal of trustee who refused to provide information regarding the administration of the trust and pre-death asset transfers. Through the course of litigation, obtained an agreement by the trustee to provide information and upon review of information determined that the trust was properly being administered. Motion to remove trustee was voluntarily withdrawn.
4. Represented executor/trustee in action to remove surviving spouse as executor/trustee brought by children. Children argued that surviving spouse breached her fiduciary duties owed to the children who were also beneficiaries of the trust and acted in a manner that served surviving spouse's own interest to the exclusion of the children. The issue of removal went to trial and court agreed with our client and refused to remove her as executor or trustee.
5. Represented grandchildren who were beneficiaries of the trust created by their grandfather. The grandchildren's uncle, who was a child of the decedent, served as successor trustee of the trust. The grandchildren were not receiving information regarding the administration of the trust and on behalf of grandchildren we pursued an action to remove the trustee and for surcharge. During the course of litigation, it was discovered that the trustee had taken out loans against trust assets which loans he used for his personal benefit. It was also learned that the trustee had squandered other assets for his benefit. Trustee was removed and grandchild/client was appointed as successor trustee.
6. Trust was established by decedent with income to a niece for her lifetime. Trust was written by lawyer who named himself as Trust Advisor in the document with a bank to serve as Trustee. Trust Advisor had to approve all investments proposed by bank Trustee. Niece requested bank to change investment strategy and lawyer/Trust Advisor either delayed response or unreasonably withheld consent to niece's request for changed investment strategy. As a result, Trust did not grow in value as fast as it should have and annual income to niece was not as much as she needed for her day to day living. We represented bank and niece in filing to have lawyer/Trust Advisor removed for breaching his fiduciary duty and acting in self-interest. The case was tried to the Probate Court with a judgment ordering the removal of the lawyer/Trust Advisor. A new Trust Advisor was appointed to work with the bank Trustee to better satisfy the needs of our client as the current Trust beneficiary.
7. Son of decedent had a volatile personality and made numerous demands on the Executor of mother's estate to make distributions and file lawsuits against mother's caregiver. Executor continued to administer the estate in the manner it deemed reasonable and elected to not pursue litigation against the caregiver.
GUARDIANSHIP DISPUTES
1. Father was in his 80's and had four children. One child lived in Florida. The remaining children resided in Ohio. The children in Ohio learned that the son in Florida was manipulating the father and his assets. One of the sons in Ohio filed an application for guardianship seeking to secure the appointment of a guardian over their father. I represented the son in his application for guardianship. The father, in conjunction with the son in Florida, retained counsel and sought dismissal of the guardianship application for lack of jurisdiction claiming that the father was a domicile or resident of Florida. Shortly before trial, the son in Florida removed the father from the jurisdiction of the Ohio courts against court order and brought the father to Florida. We successfully obtained the appointment of the Ohio son as guardian and successfully secured the return of the father to Ohio.
2. Represent guardian in an action against ex-son-in-law seeking to recover real estate obtained by ex-son-in-law through purchase contract. It is alleged that the ex-son-in-law, while the ward was suffering from dementia, forced the ward to sell the real estate for a price substantially less than fair market value. It is alleged that he convinced his mother to sell the real estate for less than fair market value by convincing her that she would otherwise lose the house due to Medicaid issues. Trial is scheduled in an effort to set aside the real estate transaction on the grounds of fraud, incompetence, and undue influence.
3. Represented son who was a California resident in an action to remove daughter as guardian for the reason that guardian refuses to allow mother to return home. The mother has sufficient assets to pay for home care and wants to return home. The guardian has taken the position that, because mother is incompetent, the incompetent ward has no right and it would be too expensive to remove mother to her home. Resolved removal by agreement whereby mother would be moved home.
4. Mother sought guardianship over her husband and sought to force husband to stay in a nursing home against his will. Represented daughter in action to seek the appointment of guardian in an effort to secure the return of father to his home or discharge from assisted living facility.
5. Represented niece in competing application against grandson for guardianship over the proposed ward. Niece was appointed power of attorney by her aunt. Competing applications were tried and the appointment is pending. Nonetheless, it was argued that because the power of attorney was being appropriately handled, that the court was required to consider the less restrictive alternative to the guardianship and, rather than appoint a guardian, allow the powers of attorney to remain in effect.
EXCEPTIONS TO ACCOUNTS/INVENTORIES AND SURCHARGE ACTIONS
1. Represent various bonding companies, including St. Paul Travelers, AIG, Hartford Insurance Company, Liberty Mutual Insurance Company, Peerless Insurance Company, and private executors, trustees, and beneficiaries in actions revolving around the accountings and inventories of fiduciaries. Typical actions include the following:
- Guardian or executor fails to account for assets held in his possession. The court usually appoints a successor trustee, guardian, or executor who then sues the former executor, guardian or trustee in surcharge seeking to recover any assets for which the former fiduciary fails to account. The defense of these actions requires the investigation of assets and the attempt to account for the whereabouts of monies allegedly improperly withdrawn.
- The pursuit of actions for accountings and surcharge requires a significant investigation of the whereabouts of the assets in an effort to establish that monies were either improperly spent or fraudulently embezzled from the estate, guardianship and/or trust and seeking an order returning the assets to the estate.
2. Represented beneficiaries of Estate against Executor who failed to include several items of personal property including a valuable coin and stamp collection that Executor claimed decedent gifted to Executor's son in the months before decedent's death. Was successful in resolving the dispute on the basis that the beneficiaries of the Estate received the items instead of the Executor's son.
PROBATE OF LOST/SPOLIATED WILLS
1. Decedent died and believed to have left no probate assets. However, decedent left a trust and the attorney for the trustee recommended that the Will not be filed for probate. Several years later, the attorney died and the trustee found assets that needed to be administered through the estate and Will. The office of the deceased attorney could not locate the original Will. Following trial on the probate of the lost/spoliated Will of the decedent, the court admitted the lost Will to probate allowing for the assets to be properly administered in accordance with the terms of the Will.
2. Represented trustee for suit in action to probate the lost/spoliated Will of the decedent. Following trial, the court admitted the lost Will even though it was alleged that the Will had been destroyed by the decedent with the intent to revoke it.
3. Represented daughter in an effort to probate lost or spoliated Will of the decedent. The daughter had been named a beneficiary under the last Will of the decedent but the mother, who was the sole beneficiary in a predecessor Will, objected to the probate of the lost Will. Following trial, the probate court admitted the lost Will to probate even though it was alleged that the decedent destroyed the Last Will and Testament with the intent to revoke.
4. Successful in having the Probate Court admit a Last Will and Testament found cut up into equal pieces apparently using a paper-cutter. We were able to put the will back together making every word and signature on the will readable and legible. However, it was arguable that the cut-up will qualified as destroyed or spoliated and therefore would not be proper for probate. There was evidence that the will was cut-up after the decedent's death by a friend disappointed in not being given anything under the terms of the will. The drafting lawyer was deceased but we located the other signing witness to the will and secured her testimony for trial. After trial to the Probate Judge, the cut-up will was ordered admitted to probate as an original thereby resulting in our client, one of the decedent's next of kin, receiving a substantial bequest under the admitted Will.
MISC. PROBATE ACTIONS
1. Represented a female client in action filed in Probate Court to declare that client occupied a common law marriage with the male decedent. Ohio law does not recognize common law marriages in existence after the law's effective date in 1992. Evidence was presented to establish that the decedent and the client held themselves out as husband and wife openly in the community for over 15 years preceding 1992, filed joint tax returns, and conducted themselves as a husband and wife in private and amongst family. The Court found the client to have been in a common law marriage pre-dating 1992 thereby qualifying the client as a surviving spouse for purposes of probate inheritance and triggering the client's entitlement to the deceased spouse's pension benefits including a lifetime health insurance plan.
2. Represent banks, as Trustee, in cases seeking modification of Trust language where no successor Trustee is named and the family members seek to move Trust management across the country where the family resides. Have been successful in modifying the Trust language to allow new financial institutions to be named as Trustee thereby transferring management to where it is more geographically appropriate to deal with the beneficiaries needs on a day to day basis.
