TRUSTS & ESTATES: FIDUCIARY LITIGATION AND DISPUTE RESOLUTION February 4, 2015 NC Bar Center Cary, NC. Table of Contents
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1 TRUSTS & ESTATES: FIDUCIARY LITIGATION AND DISPUTE RESOLUTION February 4, 2015 NC Bar Center Cary, NC Table of Contents I. CERTAIN TRENDS IN FIDUCIARY LITIGATION Janice L. Davies Charlotte INTRODUCTION... I-1 DEMOGRAPHICS SHAPPING TRENDS... I-2 Life Expectancy; Dementia and Alzheimer s Diseases... I-2 Changes in Domicile, Mobility and Transience... I-3 Marriages, Stepfamilies, Stepparents... I-5 DEVELOPMENTS INFLUENCING TRENDS... I-6 Technology... I-6 Digital Assets... I-6 Reproductive Technology... I-10 Alternative Dispute Resolution... I-12 Decanting... I-13 POTENTIAL FOR ABUSE; CERTAIN DOCUMENTS... I-14 Wills... I-14 Trusts... I-16 Powers of Attorney... I-17 PRIVACY CONCERNS... I-18 Reporting during Lifetime... I-18 Trustee s Duty to Inform and Report... I-19 CONCLUSION... I-28 II. CAVEAT PROCEEDINGS IN NORTH CAROLINA Stephen J. Grabenstein Asheville INTRODUCTION...II-1 STATUTORY ORIGINS...II-1 INTERESTED PARTIES...II-2 TIME LIMITS...II-3 IN REM PROCEEDING...II-4 BOND...II-5 NOTICE TO INTERESTED PARTIES/ALIGNMENT...II-5 MULTIPLE WILLS...II-6 ESTATE ADMINISTRATION...II-7 Statutory Requirements for Execution of a Will...II-7 Lack of Testamentary Capacity...II-8 Undue Influence...II-12
2 Duress...II-14 Revocation...II-15 SUMMARY JUDGMENT AND DIRECTED VERDICT...II-17 FAMILY SETTLEMENT AGREEMENTS...II-18 TRIAL AND TESTIMONY...II-20 Drafting Attorney as Witness...II-20 Dead Man s Statute...II-22 FEES AND COSTS...II-23 BE CAREFUL OUT THERE. FINAL THOUGHTS...II-24 III. ELECTIVE SHARE STUDY OF LITIGATED ISSUES Rebecca L. Smitherman Winston-Salem INTRODUCTION... III-1 SAMPLE CASE... III-1 TIMING OF CLAIM... III-3 FILING THE CLAIM... III-4 MOTIONS PRACTICE BEFORE THE CLERK 28A... III-5 MOTION FOR A STANDSTILL ORDER (b)... III-8 ESTATE vs. SP... III-8 What is the Difference?... III-8 Elective Share is E Matter... III-9 HEARING/EVIDENCE... III-9 Rules of Evidence... III-9 Factual Issues to be Proven... III-9 Issues of Law... III-12 Settlement of Elective Share Claim... III-13 APPEAL... III-15 When to File... III-15 Who Can Appeal?... III-15 Contents of Notice... III-15 Who Hears Appeal and Standard of Review... III-16 Preservation of the Record... III-16 PAYMENT AND RECOVERY OF ELECTIVE SHARE... III-17 TAX ISSUE MARITAL DEDUCTION... III-18 MARITAL RIGHTS IN DECEDENTS ESTATES... III-21 SCOPE NOTE... III-21 HISTORY OF THE ELECTIVE SHARE STATUTE... III-21 The Law of Dissent before 1960 Dissent/Dower... III-21 The Law of Dissent from 1960 to III-22 The Elective Share Statute III-26 In re Estate of Pope, 192 N.C. App. 321, 666 S.E.2d 140 (2008)... III-30 THE 2009 REVISIONS TO THE ELECTIVE SHARE STATUTE... III-31 Total Assets... III-32 Total Net Assets... III-35
3 Property Passing to the Surviving Spouse... III-36 Valuation of Property... III-38 Elective Share as a Value... III REVISIONS TO ELECTIVE SHARE STATUTE... III Applicable Share... III-39 Uniform Probate Code... III Applicable Share... III-40 PROCEDURE... III-41 Filing a Claim for an Elective Share... III-41 Interim Matters... III-43 Determining Value... III-44 Hearing... III-45 Satisfaction of the Elective Share... III-45 Alternative Ways for the Surviving Spouse to Take from Deceased Spouse... III-46 WAYS TO PREVENT OR PLAN FOR AN ELECTIVE SHARE CLAIM... III-47 Waiver... III-47 Marital Trust... III-47 Gifts... III-47 Irrevocable Trusts... III-48 Choice of Assets and Alternative Planning... III-48 OTHER STATUTORY RIGHTS OF A SPOUSE... III-48 Life Estate... III-48 Year s Allowance... III-49 Intestate Share... III-50 CONCLUSION... III-51 EXHIBIT A... III-53 EXHIBIT B... III-57 IV. PATTERN JURY INSTRUCTIONS IN FIDUCIARY LITIGATION Mary E. Euler Asheville INTRODUCTION... IV-1 THE CHARGE CONFERENCE... IV-1 INSTRUCTIONS TO THE JURY... IV-2 APPLICATION OF PATTERN JURY INSTRUCTIONS TO TRUST, ESTATE AND FIDUCIARY CASES... IV-3 DEEDS... IV-3 WILLS... IV-3 PAROL TRUSTS... IV-3 A CLOSER LOOK THE PATTERN JURY INSTRUCTION ON UNDUE INFLUENCE... IV-4 FIDUCIARY DUTY... IV-6 CONCLUSION... IV-7 ATTACHMENT... IV-9
4 V. DISCOVERY IN FIDUCIARY LITIGATION Mary E. Euler Asheville DISCOVERY IN WILL CONTESTS... V-1 COMPELLING AND CHALLENGING FIDUCIARY ACCOUTINGS... V-2 Powers of Attorney... V-3 Trusts... V-3 Estates and Guardianships... V-5 DISCOVERY OF ASSETS... V-5 ATTACHMENT... V-7 VI. ATTORNEY AS FIDUCIARY AND REPRESENTATION OF FIDUCIARIES Christian L. Perrin Charlotte PART I GENERAL DISCUSSION... VI-1 PART II ATTORNEY AS FIDUCIARY - GENERALLY... VI-3 PART III DISCUSSION OF SPECIFIC RULES OF PROFESSIONAL CONDUCT... VI-7 PART IV REPRESENTATION OF FIDUCIARIES... VI-20 PART V OTHER CONSIDERATIONS AND CONTEXTS... VI-23 VII. BREACH OF FIDUCIARY DUTY: CAUSES OF ACTION AND DEFENSES Trey Lindley Charlotte SCOPE NOTE... VII-1 WHAT IS A FIDUCIARY?... VII-1 Two Types of Fiduciary Relationships... VII-1 Examples of Fiduciary Relationships... VII-2 Threshold Considerations... VII-2 Elements of a Breach of Fiduciary Duty... VII-3 The Clerk s Office or Superior Court: Where Does Jurisdiction Lie?... VII-3 KISSING COUSINS: BREACH OF FIDUCIARY DUTY, CONSTRUCTIVE FRAUD AND RELATED CLAIMS... VII-3 Elements of Constructive Fraud... VII-3 Difference Between Constructive Fraud and Breach of Fiduciary Duty... VII-4 Other Causes of Action Commonly Pled in Conjunction with Breach of Fiduciary Duty Claims... VII-5 BREACH OF FIDUCIARY DUTY: TRUSTEES... VII-13 General Considerations... VII-14 Duty to Administer Trusts and to do so Prudently... VII-14
5 Duty of Loyalty... VII-15 Duty of Impartiality... VII-16 Duty (Not) to Delegate... VII-17 Duty to Inform, Report, and Maintain Adequate Records... VII-19 Enforcement and Defense of Claims... VII-20 The Uniform Prudent Investor Act... VII-20 Breach of Trust v. Breach of Fiduciary Duty... VII-20 BREACH OF FIDUCIARY DUTY: PERSONAL REPRESENTATIVES... VII-25 Commencement... VII-25 General Duties... VII-25 Breach of Duty... VII-25 Sureties... VII-26 BREACH OF FIDUCIARY DUTY: GENERAL GUARDIANS AND GUARDIANS OF THE ESTATE... VII-26 Adjudication of Incompetence... VII-26 Guardians of the Person, Guardians of the Estate, and General Guardians... VII-26 Powers and Duties of Guardians of the Estates... VII-27 Guardian s Bond... VII-28 Clerk s Liability... VII-28 BREACH OF FIDUCIARY DUTY: ATTORNEYS-IN-FACT... VII-28 Powers of Attorneys-in-Fact... VII-28 Durable Power of Attorney... VII-28 Liability of Attorney-in-Fact... VII-28 ADDITIONAL EQUITABLE REMEDIES... VII-29 Constructive Trusts... VII-29 Accountings... VII-29 Unrealized Gains... VII-29 Injunctive Relief... VII-29 ADDITIONAL AFFIRMATIVE DEFENSES... VII-29 Equitable Estoppel... VII-29 Collateral Estoppel... VII-29 Laches... VII-30 Unclean Hands... VII-30 Accord and Satisfaction... VII-30 In pari delicto... VII-30 Contributory Negligence... VII-30 Intervening Negligence... VII-31 Assumption of Risk... VII-31 Failure to Mitigate... VII-31 Lack of Standing... VII-32 CONCLUDING REMARKS: LITIGATION TIPS... VII-32 Plaintiffs... VII-32 Defendants... VII-32
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