Tag Archives: Probates

Caselaw Update: Court Addresses Undue Influence in Estate of Melter

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Estate of Melter, 167 Wn. App. 285, 273 P.3d 991 (2012) is an interesting case, well authored by both the majority, and the separate concurrence.  It’s a must read for Washington trust and estate lawyers.  We think it is important because it addresses one beneficiary’s confidential relationship with the decedent and how that can affect his (or his opponent’s) burden of production and proof in a will contest where undue influence is alleged.

The case is also important in that it emphasizes testamentary capacity as an important factor in distinguishing mere influence, which is nugatory, from undue influence, which is consequential.  Here are the basic facts: Continue reading →

Inheritance Disclaimer Conundrum

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This question was presented on Oregon Bar Association’s probate/estate listserv.  We thought it deserved some attention.  Here’s the question:

Listmates:

I represent wife of deceased husband. Wife and husband had numerous joint accounts. The accounts were all joint accounts (right of survivorship). The total assets are in the approximate amount of two million dollars. Wife wants to disclaim the sum of one million dollars in order to use deceased husband’s one million dollar Oregon exemption. I recently learned that wife placed the joint accounts solely in her name shortly after husbands death. Other than placing the accounts solely in her name I do not believe that she has taken any other activity as to the accounts. We are still well within nine months from date of death.

Here are the thoughtful (unattributed) responses :

1. Too late. She accepted the survivorship interest by exercising dominion and control over the accounts when she transferred the funds.  Great example of why disclaimer trust planning is very risky and should be avoided whenever feasible.

2. Right on, …. Does Oregon have a counterpart to the Washington Trust and Estate Dispute Resolution Act (TEDRA) RCW 11.96A? We use this to create a court order to overcome many errors, like make irrevocable trusts revocable, defog ambiguities, etc….quite remarkable, in fact….both a judicial and non-judicial (stipulation) methods….please advise, not that I would use one in Oregon due to the garlic wreath I have around my neck when it comes to court… Continue reading →

Will Susan Cox Powell’s Death be Presumed?

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This is one issue that will be addressed in the recent case, New York Life Insurance Company v. Powell, et al., where the Powell and Cox heirs may fight it out over Josh’s, Susan’s and the kids’ life insurance proceeds.

The answer is that death will be presumed if/when Susan has been missing for more than seven years, with no finding of her remains.  That said, it could be determined that she died earlier.  Two settled principles apply:

1.  a person who was alive when last seen is presumed to continue living until the contrary is shown; and

2.  one who disappears and remains unheard of for seven years, and whose absence is unexplained, is presumed to have passed away.

Where the proof shows that the absentee encountered some specific peril to which it may reasonably be thought he/she had succumbed, death may be inferred short of the expiration of the seven-year period.  See Occidental Life Ins. Co. v. Thomas, 107 F.2d 876 (9th Cir. Idaho).  If that is the case, it will be up to a judge or jury to make that determination.

If it is determined that Susan passed away before Josh, then arguably her estate should pass to Josh, her surviving spouse (assuming there are no Slayer Statute issues that prevent Josh from inheriting).  And because Josh then passed away, his estate would pass to his heirs  (or beneficiaries named in a will or trust, if one exists).    It works in reverse order if it is determined that Susan passed away second.

It seems simple, but things get complicated quick when we consider (1) the life insurance policies, which have beneficiary designations; (2) effect of those policies being community property (Josh may only be able to control his one-half of the policies); and (3) the Slayer Statute (Josh will be treated as having predeceased his kids because he intentionally caused their deaths; he will also be treated as having predeceased Susan if it is proved he intentionally caused her death).  These considerations complicate things.  TEP will post more as things unfold.  Stay tuned.

Josh Powell’s Siblings May Claim Life Insurance Proceeds

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It is being reported that Josh Powell’s siblings have claimed life insurance proceeds – $1 million on Josh’s life, $500,000 on his kids’ lives, and $1 million on Susan’s life.  Here’s a link to the story on Yahoo.

This is not quite accurate.  The insurance company, New York Life, alleges that the Powell siblings inquired about how to make a claim, but it is not alleged that they actually claimed any proceeds, at least not yet.  It is also alleged – and here is the crux of the issue – that the siblings’ claims, if any, compete with Susan Powell’s heirs’ claims and the issues are sufficiently complex that New York Life prefers handing the money to the court, and letting it decide, rather than risk making a wrong decision and ending up liable to somebody for deciding wrong.

The question of who will receive the policy proceeds is complicated.  Washington State is a community property state, and thus Susan’s estate may have a community property interest in the policy on Josh’s life.  (Utah law may also apply.)  Further complicating things is that technically, Susan Powell remains a missing person; it has not been adjudged that she is deceased.  She is named in the lawsuit as, Susan Powell an absentee person; or her successors in trust, as Trustee of the Joshua S. Powell and Susan M. Powell Revocable Trust.

Josh’s estate may be disinherited from receiving anything from Susan’s death under Washington’s “Slayer Statute,” RCW 11.84.020.  But here, it is not Josh who is claiming the proceeds, but his siblings.

In any event, New York Life is faced with difficult questions about who is entitled to the proceeds.  So it is suing both Susan’s heirs and Josh’s heirs for a determination of who gets the funds.  Here’s the complaint.  So far, only Susan’s heirs – her parents – have appeared in the lawsuit.  They are represented by attorney Anne Bremner of the Stafford Frey Cooper firm.

We hope this sad story can be resolved quickly.

King County Probate Gone Wild!

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When a court opinion begins, “…. what should have been a simple estate and trust matter became protracted and contentious,” you know you’re in touble.

The Court of Appeals recently published Estates of Foster, 165 Wn. App. 33 (2011).  In this case the Executor and his brother teamed up to distribute from their parents’ estates disproportionately to themselves rather than to the parents’ grandchildren trust beneficiaries as set forth in the parents’ trust documents.

The case is significant for a couple reasons.  First, the court confirms that the Executor was not entitled to a jury trial because, while his fiduciary breach was the gravamen of the case, it was still a probate/trust matter, and restoration of the stolen funds, as opposed to general damages were sought.  The former types of cases don’t get juries; the latter do.

The case is also significant becuase of how the court treats the statute of limitations.  The grandchildren brought their claim more than three-years after the alleged breach.  The statute of limitations for fiduciary breach claims is three-years.  The court allowed the claim, applying the “discovery rule” without much analysis other than finding that the breach could not have been discovered earlier because of the Executor’s failure to cooperate when the grandchildrens’ early information requests.

Withdrawing from a Probate; Attorneys Fees Lien

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The question posed this morning on the Oregon Bar Association’s estate and probate listserv was this:

(1) Does anyone who’s had to withdraw on a Washington probate have pleadings for that purpose they can share?  Anything unusual I should be aware of?

(2) Is there some way I can attempt to protect my fees and costs, such as liening the case? …

First, here are examples in a case, filed in Pierce County Washington. TEP just obtained these from the court’s website.  TEP is not affiliated with the case, so it takes no ownership/responsibility for their correctness. Withdrawal with Substitution here; Withdrawal without Substition here; Lien Claim here; another Lien claim here.

Second, the applicable rule is CR 71.  Pay particular attention to the service requirements and timelines in CR 71, and also in CR 5 and 6 (when mail service is made/had).

Third.  As for a lien for attorneys’ fees, see the links above.

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