• Blog Post

    Breach of Trustees’ Fiduciary Duty – Part 1: General Considerations

              This is the first of a four-part series examining trustee’s fiduciary duties and the circumstances that could result in litigation.  To begin, we will discuss basic principles that will lay a groundwork to inform our larger discussion.     What is a Trust and a Trustee?[1]             A trust is a financial instrument or tool through which people can transfer their assets to others over time.  People who create trusts are called “settlors,” because they “settle” or initially put assets into the trust.  Those who stand to benefit from the assets in the trust are known as “beneficiaries.”  The person…

  • Blog Post

    Accelerating Estate Disputes: The Living Probate Option

              North Carolina joins four other states in providing a path to ensure decedents’ assets are distributed according to their wishes upon death.[1]  The North Carolina General Assembly recently enacted legislation amending statutes regarding estate administration by adding a procedure for “living probate.”  This action is usually commenced by a testator – the author of a will – prior to his or her death where he or she anticipates a challenge to the will’s validity.  The court can now declare a will is valid while the testator is alive, thereby preventing potentially more expensive litigation after the testator’s death, when he or she is unable to…

  • John C Lindley III
    Blog Post

    Six Ways to Challenge a Will’s Validity

              Wills must meet several basic requirements to be valid and enforceable under state law.  If any of the below factors are at work, then a will’s validity may be challenged.   (1) Undue Influence              Undue influence exists when a person uses coercion to influence the testator (the person creating a will) into executing a will that does not accurately reflect the testator’s true wishes.  There are several red flags to keep in mind if you are suspicious a loved one’s will is the product of undue influence.  Unusual dispositions of property, sickness and vulnerability of the testator to undue influence,…

  • Blog Post

    Caveat to a Caveat to a Will: North Carolina Court of Appeals Offers Non-Binding Opinion

              In October the North Carolina Court of Appeals issued an unpublished opinion addressing the circumstances under which it is appropriate to grant a motion to dismiss in the context of a will caveat.[1]  A caveat is a legal challenge to the probate of a will when there is confusion or disagreement as to the interpretation of the will.  The three issues addressed were: (1) can a caveat challenge only a part of a will; (2) can an executor who presents a will for probate later file a caveat; and (3) can one who accepts a benefit under a will later challenge its validity via caveat?…

  • Blog Post

    N.C. Court of Appeals: Caveators Were Not Prejudiced By Dead Man’s Statute Since the Jury “heard the gist of caveators’ evidence.”

              In 1960 Charles Pickelsimer (“Charles”) inherited significant stock holdings in a family telecommunications company.[1]  Over the next 45 years, Charles gave his children and grandchildren stock certificates as gifts.  When he sold the company in 2008 for $65 million, Charles and his children received significant cash distributions.  In 2009, Charles and his wife executed an estate plan to protect their assets, and their children were the primary beneficiaries.  Charles was diagnosed with mild dementia and memory loss in January 2010, and his wife died in March of that year.  His condition continued to subsequently decline. Charles executed a new estate plan in August 2010 (“2010…