Fiduciary Litigation Update

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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Circumstances

Non-Probate Transfers

Lifetime Asset Transfers

Fraud

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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

[email protected]

Contact Information

617-384-8386

[email protected]

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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.