ALI-CLE: Hot Topics in Estate, Trust & Conservatorship Litigation

While researching potential fact patterns to use in my Wills, Trusts and Estate exam (which the students have now taken, although I remain in the Valley of Doom, for those grading essay exams), I came across a recent American Law Institute-CLE course with a very useful outline of “hot” topics in estate, trust and conservator litigation, prepared by Los Angeles attorneys Terrence Franklin and Robert Sacks.  Also available on Westlaw as SW037 ALI-CLE 923, from June 2015, their list of hot topics includes:

• Legal Standards for Lack of Mental Capacity: contrasting the standards used for assessment of capacity to make wills and revocable trusts, versus more immediate lifetime gifts, and pointing to the Commentary to Uniform Trust Code Section 601 that observes that “Given [the] primary use of the revocable trust as a device for disposing of property at death, the capacity standard for will rather than that for lifetime gifts should apply.”
• Legal Standards regarding Undue Influence: noting that “will and trust contests rarely rely on either a lack of capacity or undue influence claim alone. Usually, these claims are filed together, on the theory that even if the testator had the minimum level of capacity necessary to execute a valid will, her capacity was so diminished that she was more susceptible to the undue influence alleged. And California cases for decades have shown the tough burden a contestant has in contests on grounds of lack of capacity and undue influence.”
• Pre-Death Contests:  discussing standards used for decision-making by appointed guardians or conservators, including “substituted judgment,” as well as states that have adopted statutory procedures that “expressly allow for pre-death determination of the validity of a will or trust,” including Arkansas, Alaska, North Dakota and Ohio.  See e.g., Ohio Rev. Code Ann. Section 2107.081 to 085.
• Intentional Interference with Expected Inheritance: summarizing the influential 2012 case of Beckwith v. Dahl, recognizing the tort of IIEI in California.    

In the outline linked above, the authors also addressed practical estate planning topics, such as the importance of asking “why” when crafting dispositive provisions in estate documents,  whether to videotape execution of testamentary documents, and whether to use “no contest” clauses.