Many remember the fictional town of Mayberry, the setting for The Andy Griffith Show. Less commonly known, however, is that Mayberry is modeled after Mt. Airy, a small North Carolina town near the Virginia boarder. Frances Bavier, the actress who portrayed Aunt Bee Taylor in the hit television show, recently passed away, and spent the last years of her life in Siler City, another small North Carolina town. Perhaps owing to a soft spot she felt for police officers due to her time on The Andy Griffith Show, Ms. Bavier established a trust with $100,000 in principal to ensure that every member of the Siler City police would enjoy a…
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Testamentary Capacity and Undue Influence
In 2015 and 2016, media magnate Sumner Redstone amended his trust, which was challenged by former companion Manuela Herzer. A California court recently ruled that Mr. Redstone possessed the required mental capacity to amend his estate plan. In North Carolina, whether an individual is a billionaire business mogul or anyone else, the requirements for testamentary capacity, or the required mental capacity to create a will or a trust, is the same. Testamentary Capacity To have testamentary capacity a person must be “of sound mind, and 18 years of age or over[.]” In practice, this means that the person creating the will, otherwise known as the testator, must be able to…
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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…
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Four Legal Documents Dementia Patients Should Have in Place
A diagnosis of dementia, which includes Alzheimer’s disease and other memory loss and/or cognitive reasoning disorders, is potentially devastating for both the patient and their family. Following a dementia diagnosis, it is important to execute these four essential planning documents to avoid further hardship in the form of costly court battles. (1) Durable Power of Attorney – A durable power of attorney allows the diagnosed person (the “principal”) to appoint another person (the “power of attorney”) to act on the principal’s behalf if and when the principal becomes incapacitated. A power of attorney can have a wide range of authority and discretion, from paying bills to selling…
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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,…
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What Happens if You Die Without a Will? Taking a Lesson from Prince
On Tuesday, Prince’s sister, Tyka Nelson, filed an emergency motion in Carver County District Court requesting that the Court appoint a special administrator to gather and protect Prince’s assets. She also claimed that, to the best of her knowledge, no will existed. The assets are estimated to be worth $100 – $500 million and are comprised of real estate holdings, including his Paisley Park Complex outside of Minneapolis; his music catalog, including licensing rights for television, film, and commercials; and album sales. It is estimated that in the week after his death, 2.8 million of his songs – and over 650,000 albums – were sold…
