fiduciary litigation update
TRANSCRIPT
Fiduciary Litigation
Update
Presented by:
Steven B. Malech
Wiggin and Dana LLP
Robert H. Sitkoff John L. Gray Professor of Law Harvard University
Professional Education
Broadcast Network
May 4, 2015
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Overview
Interference with Inheritance
Circumstances and Examples
Practical Implications and Practice Tips
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INTERFERENCE WITH INHERITANCE CLAIM
Elements An expected inheritance or gift
Knowledge by Defendant of the expectancy
Tortuous conduct by Defendant
Damage suffered by Plaintiff
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Prior
Exhaustion
of
Adequate
Probate
Remedies
Before brining claim, in most states one must ….
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Where Can you Bring an Interference Claim?
*Source: John C.P. Goldberg & Robert H. Sitkoff, Torts and Estates: Remedying Wrongful Interference with Inheritance, 65 Stan. L. Rev.
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Longer SOL
Interested Witness
Testimony
Punitive Damages
Commence before donor’s death?
Advantages
Punitive Damages
Jury Trial
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Inconsistent with donor’s freedom of disposition
Uncertainty in recognition across states/weak doctrinal basis
Conflict with principled policies, specialized rules/remedies
Difficulty in determining true intent of donor
Disadvantages
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Fraud:
Concealment of a Probate Proceeding
Concealment or Destruction of a Will
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Recent Example in CT
Vechiola v. Fasanella
Facts: 2004:
Decedent executes Last Will and Testament
Residuary estate to 13 people.
Appoints Defendant as Power of Attorney
2005:
Decedent opens 4 Totten Trusts for benefit of Plaintiff
2010:
Defendant closes Trust accounts
Places funds - $427, 908.49 – in account for Defendant
Decedent passes away
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1. Plaintiff knew of the existence of Totten Trust accounts and had a reasonable expectation of the inheritance;
2. Defendant knew of the accounts and closed them;
Court found all elements of Interference
with Inheritance Claim were met:
3. Defendant knew his family and he
would inherit the funds;
4. Plaintiff only received $32,835.20
instead of $ 427, 908.49
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Result:
Plaintiff’s verdict
Value of Totten Trusts $427,908.49
Interest per CGS §37-3a $150,763.45
Interest per CGS §52-192a(c) $102,229.11
$680,901.05
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Practical Implication/Practice Tips
Know the law of your jurisdiction
If Permitted: help or hurt potential claims
• Statute of Limitations
• Evidentiary Concerns
• Types of damage/sources of recovery
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Facts:
Disinherited Child Procures Destruction of Will
Promises to pay terminally ill parent $10,00 per month
Pay’s attorney for parent
Claims:
Probate Copy of Destroyed Will
Interference Claim?
Whose Will Is It Anyway?
Last Will &
Testament
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212-551-2633
Contact Information
617-384-8386
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This presentation is a summary of legal principles.
Nothing in this presentation constitutes legal advice, which can only be
obtained as a result of a personal consultation with an attorney.
The information published here is believed accurate at the time of
publication, but is subject to change and does not purport to be a
complete statement of all relevant issues.