• Blog Post

    Holographic Wills and Statutory Requirements to Modify Them

    The law distinguishes between typewritten wills, typically prepared by an attorney, and those which are handwritten by oneself. Handwritten wills, known as holographic wills, must meet the statutory requirements set forth by N.C Gen. Stat. S 31-3.4 (2015). These requirements include: (1) the will must be written entirely by hand by the testator; (2) must be subscribed by the testator;  and (3) must be found among the testator’s valuable papers or effects. In some cases after a will is drafted, whether by hand or typewritten, the testator my wish to make modifications. An addition or supplement that explains, modifies, or revokes a will, or part of a will, is a…

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    Breach of Trustees’ Fiduciary Duty – Part 3: Duty to Administer Trusts Prudently and Duty to Inform, Report, and Maintain Adequate Records

              In Part 2 of this series, we examined trustees’ duties of loyalty and impartiality.  This post will examine the duty to administer trusts prudently and Part 4 will discuss the duty to delegate – or not delegate – in more depth.  The duty to administer trusts involves the basic values of good faith, while the duty to inform, report, and maintain adequate records involves the reasonableness of a trustee’s actions.  While these principals seem straight forward, they are a bit nuanced in practice.     Duty to Administer Trusts Prudently             The duty to administer trusts prudently mandates trustees carry…

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    Changing Domicile: How Mental Capacity Factors In

                Domicile is a relatively straight forward legal concept that combines the place where a person permanently resides with where he intends to remain.  However, what happens when a person who has been adjudicated incompetent desires to permanently move. Can he possess the requisite intent to change his domicile in legal terms?               The Georgia Court of Appeals recently took up this question in Estate of Milton Theophilus Pond, II.  In the case, a probate court granted Milton Pond guardianship of his son, M.P., who was an adult man with autism.  Since M.P.’s childhood, he lived with his mother,…

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    A Twenty-Year Statute of Limitations for Challenges to Easement Encroachments

              Easements in North Carolina just got a little easier to maintain and, if necessary, litigate. The Supreme Court of North Carolina ruled in August 2016 that easement holders have twenty years within which to file a suit for the removal of easement encroachments.  This overruled previous case law requiring easement holders to file a suit within six years.[1]  There are many different types of easements, but put simply, easements are a right to traverse or otherwise use someone else’s land for a specified purpose.  For example, one could have an easement to cross over their neighbor’s land to access a home or a fishing pond.…

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    Legal Standing: As Illustrated by an Indonesian Monkey Named Naruto

              To bring a lawsuit in the United States, one must have “standing.”  This legal principle essentially requires the person or company filing a lawsuit have an interest in a dispute.  That interest could involve a piece of property subject to an easement, a Constitutional right, or an injury suffered at the fault of another.  In an ongoing U.S. Court of Appeals case nicknamed the “monkey selfie” case, defense attorney Andrew Dhuey argues a monkey cannot satisfy the requirement of standing, saying, “monkey see, monkey sue is not good law – at least not in the Ninth Circuit.”  Despite the fact that the case was dubbed…

  • Blog Post

    Prescriptive Easements and Claim of Right

              If your neighbor’s driveway runs over your property, is it a permissible to dig a large ditch over the drive if the ditch impedes your neighbor’s access to their own land? Easements for neighboring properties are often necessary to access one’s own land, particularly in rural parts of the country. However, the law regarding one’s right to an easement can be complicated and difficult to navigate, especially if neighbors are at odds with one another.             Several years ago, Jack Myers decided he wanted to use his property as a commercial paintball field, but Stanley and Ruby Clodfelter, did not…