2017 All-Ohio Legal Forum. Video Replay Probate Litigation from a Plaintiff s Perspective

Transcription

1 2017 All-Ohio Legal Forum Video Replay Probate Litigation from a Plaintiff s Perspective 1.0 General CLE Hour/1.0 NLT Hour August 23 August 25, 2017 Cleveland

2 Speaker Biographies John P. Lewandowski Heban Sommer, & Murphree LLC Toledo, Ohio Mr. Lewandowski received his BS (cum laude) from The Ohio State University and his JD (magna cum laude) from Dequesne University School of Law. He is a member of the American Bar Association, Ohio State Bar Association, Toledo Bar Association, Lucas County Bar Association, and the Wood County Bar Association. Mr. Lewandowski practices in the areas of civil litigation, probate litigation, estates and trusts, commercial and business law, and municipal law. He devotes his practice to civil matters, primarily probate and business litigation. He is licensed to practice law in Ohio, as well as the U.S. District Court for the Northern District of Ohio and the Eastern District of Michigan. Mr. Lewandowski has argued cases before U.S. District Court judges, Ohio Appellate courts, and the Supreme Court of Ohio. He often lectures on topics related to probate litigation. For additional information, please visit

3 Probate Litigation from a Plaintiff s Perspective John P. Lewandowski Heban, Sommer & Murphree, LLC Rossford, Ohio Table of Contents Probate Litigation from a Plaintiff s Perspective PowerPoint Presentation... 1 Probate Litigation from a Plaintiff s Perspective i

4 ii Probate Litigation from a Plaintiff s Perspective

5 PROBATE LITIGATION From a Plaintiff s Perspective John P. Lewandowski, Esq. Heban, Sommer & Murphree, LLC LITIGATION: WHEN THINGS GO SIDEWAYS Aging Population. Frail physical and mental health. Vulnerable. Wealth. Came out of the Great Depression. Savers w/ good retirement plans. Difficulty diagnosing mental impairment. Probate Litigation from a Plaintiff s Perspective 1

6 Case Evaluation Smell test for every case (It is about the $) Attorney Involved? Who cares. Fact intensive case, encompass life story. Client Questionnaire. Independent witnesses, doctors, records Amount in Dispute: Is it worth taking? (Expensive) Red Flags: end of life changes; the neighbor; the caregiver ; the long lost niece; attorney/financial planner; sibling rivalries; unnatural dispositions Will or Trust Contest Type of Action to be Filed Incompetency (Niemes v. Niemes (1917) 97 Ohio St. 154) Understand making Will/Trust Understand nature and extent of assets Understand relationship to natural heirs Undue Influence (West v. Henry (1962) 173 Ohio St. 498) Susceptibility Opportunity to exert influence Improper influence exerted/attempted The result of such influence 2 Probate Litigation from a Plaintiff s Perspective

7 Will or Trust Construction Types of Actions Cont. Action to Produce Will/Trust (R.C ; R.C ) New in 2017 (House Bill 432) Intentional Concealment of Will = disinherited Administration Related Actions: Removal of a Fiduciary (R.C discusses standards); Request for Accounting POA related actions; breach of fiduciary duty (R.C ) Breach of Trust Types of Actions Cont. Exceptions to Inventory & Concealment Actions Declaratory Judgment Actions (R.C ) Use to contest inter vivos transfers (deeds, gifts, beneficiary designations) Undue influence and/or incompetency Probate Litigation from a Plaintiff s Perspective 3

8 Types of Actions Cont. Contest Ante Nuptial Agreement (R.C. 2106) Determination of Heirship (R.C ) Intentional Interference with Inheritance (Firestone v. Galbreath (1993), 67 Ohio St.3d 87) Claims against Estate (R.C ) Constructive Trust/Equity (Cowling v. Cowling (2006), 109 Ohio St.3d 276) Pre death Will Contest (R.C ) Contested Guardianships Pre Filing Considerations Statute of Limitations Will Contest 3 months from the date Certificate of Notice of Probate of Will is filed Trust Contest 2 years from DOD or 6 months if certain notice provided (R.C ) Warning Savings Statute does NOT apply to most probate actions; Cannot dismiss w/o prejudice and re file outside of SOL (Will contest = 3 months) Can NOT waive nor toll Will contest either, even if in agreement Wisner v. Wisner, 2016 Ohio Probate Litigation from a Plaintiff s Perspective

9 PRE FILING CONSIDERATIONS Statute of Limitations Cont. Breach of Fiduciary Duty (i.e., v. POA) General rule is 4 years (R.C ) Breach of Trust (v. Trustee) 2 years if sent notice of potential breach 4 years after first of following to occur: removal/resignation termination of interest in trust termination of trust knew/should have known PRE FILING CONSIDERATIONS Statute of Limitations Cont. Tort Actions 4 years (R.C ) Fraud, conversion, intentional interference with inheritance Exceptions to Inventory 5 days before scheduled hearing Claims Against the Estate 6 months from DOD If claim rejected, 2 months from date of Rejection Dec Action Not sure. 4 years from discovery Probate Litigation from a Plaintiff s Perspective 5

10 Notice to Fiduciary R.C : Beneficiaries of Estate can file suit 30 days after issuing demand upon Executor Read the Documents If a pour over will incorporates terms of Trust, must contest both Will & Trust Does pour over clause accomplish this? Gehrke v. Senkiw, 2016 Ohio 2657 Escape Route? R.C ; Hayes Mem. United Methodist Church v. Artz, 2011 Ohio 3847 Surviving Spouse: Election to take against Will might be more beneficial 5 months from date Fiduciary appointed No Contest Clause Prior Will? How many? Must contest one at a time. (Corron v. Corron (1988), 40 Ohio St.3d 75) 6 Probate Litigation from a Plaintiff s Perspective

11 Jurisdiction Will Contest exclusive jurisdiction in probate court Trust Contest concurrent jurisdiction (inter vivos trust) / exclusive jurisdiction (testamentary trust) Dec Action/inter vivos transfers concurrent jurisdiction (R.C (B)(1)(c)) Rejected claim against Estate General Division only Intentional Interference General Division, must first exhaust probate remedies New Probate Court Jurisdictional Code (R.C (B)(1)(b)) concurrent Everything can be brought in Probate Court (anything that touches a Decedent s/principal s Estate, Trust, or POA) Parties Standing real interest in the litigation (will plaintiff receive more money if successful?) 1. Would inherit under descent and distribution 2. Named in the prior will Executor can NOT contest Will in which they are designated Executor Has Plaintiff received distribution? Give it back. Probate Litigation from a Plaintiff s Perspective 7

12 Necessary Parties Will Contest named beneficiaries next of kin fiduciary Attorney General (if charity named) When in doubt, name everyone John Does & Unknown Heirs of Decedent Name Banks (freeze money & cheap discovery) Discovery Paper Discovery RFPs: all other Wills, Codicils, Trusts, Amendments to Trusts, Ante Nuptial Agreements, Powers of Attorney, Living Wills, Durable Powers of Attorney for Health Care; all material in the file of the attorney who drew or was involved in the preparation of the instrument at issue; the decedent s tax returns, check ledgers, account statements, diaries, calendars, Christmas card list, address books, photos of the decedent; videotapes and audiotapes of the decedent; all other writings of the decedent impacting on the instrument; all estate tax returns and gift tax returns; and all medical records. 8 Probate Litigation from a Plaintiff s Perspective

13 Paper Discovery Cont. Rogs: a description of all conferences the decedent had with the attorney involved; a list of all assets the decedent owned at certain periods of time; a description of any gifts and loans to and from the decedent; all assets and monies received by any person on account of the decedent s death; the names and addresses of all of the decedent s physicians and the name of all hospitals, nursing homes, hospices and visiting nurse services; the names of all witnesses, both lay and expert; and the reason(s) for the preparation of the instrument. Discovery Cont. Get Releases From Fiduciary HIPPA Legal Atty Cl privileged waived (R.C ) Get estate planning attorney s file General Financial Show your cards; nothing should be excluded. Probate Litigation from a Plaintiff s Perspective 9

14 Discovery Cont. Witness Interviews (Family, friends, doctors, nurses) Secure affidavits up front to lock in testimony and use at depos Depositions (parties, independents, experts) Very important Take the parties first, prior to Experts and Independents Motion Practice Disqualify Opposing Counsel? Remove Fiduciary (R.C & ) Motion to preclude use of Estate/Trust funds? Good luck. TRO/Preliminary Injunction Anticipate responding to Summary Judgment Motions in Limine (Evid. R. 803(3)) 10 Probate Litigation from a Plaintiff s Perspective

15 Jury Trial Will Contest statutory right (R.C ) Trust & Inter Vivos Tranfers Discretionary Know your Court: Need a jury? Perhaps file in General Division Breach of Fiduciary Duty Jury Cundall v. U.S. Bank, 2007 Ohio 7067 It will take all week Trial Voir Dire is critically important Rural v. urban; family oriented pool? Religious? Medical Expert Psychologist or Psychiatrist Medical Records Automatic authenticity (R.C & ) Admissibility (Evid.R. 803(6) business record exception) Burton v. Dutiel, 2015 Ohio 4134 Financial Records Get stipulations; may have to call custodians Probate Litigation from a Plaintiff s Perspective 11

16 Evidentiary Issues Hearsay Issues Galore Evid R. 803(3); Brown v. Ralston, 2016 Ohio 4916 Always Circumstantial Evidence Best witness is dead; U/I exerted behind closed doors Opinion testimony allowed (Evid. R. 701) Burden shifting paradigm for self dealing fiduciaries When a fiduciary ends up with property originally in [the hands of the principal], bells ring and sirens wail. Cundall v. U.S. Bank, 2007 Ohio 7067 Burden shift applies to caretakers too, not just POAs. Burden shift also applies to POA/caretaker who becomes primary beneficiary of E/P Diamond v. Craeger, 2002 Ohio 916 Damages/Remedies Set aside contested instrument/transfers If successful, no guarantee Defendant can use Estate/Trust assets Common Fund Theory Pl can recover attorneys fees for enhancing estate for beneficiaries who did not participate Schiavoni v. Roy, 2012 Ohio 4435 Attorneys Fees? Self dealing fiduciary, Bad Faith (R.C ; R.C ; Ivancic v. Enos, 2012 Ohio 3639 Treble damages! Cartwright v. Batner, 2014 Ohio Probate Litigation from a Plaintiff s Perspective

17 Things to Know Jurors want to do what is right Medical Experts do not win cases (but PCPs might) Attorneys do not win cases Who is believable? Wide range of evidence for undue influence Isolation & control Mediation Family Relationships Highly Emotional Events Family Dirty Laundry Zero sum Game/Risk Time/cost/risk Someone else s money Flexibility in Resolution Take care of Personal Property first Probate Litigation from a Plaintiff s Perspective 13

18 Appeals Good luck Proper party appeal? Fiduciary or individual? Final, appealable order? Removal of executor/trustee is immediately appealable. HOW TO AVOID LITIGATION (You Can t) Pre death Will Contest Who is your client? Who made appointment? How involved is child/beneficiary? Ask for physician certificate if any doubt Make paper; have others leave room; meet client multiple times; videotape (smart phones); have witnesses sit in (i.e. staff); who is paying the bill?; correspondence to client POA/trustee needs to scrupulous receipts and an accounting Perhaps name 2? Check and balance. 14 Probate Litigation from a Plaintiff s Perspective

19 John P. Lewandowski 200 Dixie Highway Rossford, Ohio T: (419) F: (419) law.net Probate Litigation from a Plaintiff s Perspective 15