- Greetings from the Section Co-Chairs
- 2006-2007 Program Series
- Community Outreach
- Register of Wills Vacancy
- Superior Court Relations
- New Legislation
- Recent Court Decisions
- Comments, Notes and Announcements
- Steering Committee and Standing Committee Contact Information
- D.C. Superior Court Probate Division Directory
Greetings from the Section Co-Chairs
Happy Autumn. The 2006-2007 D.C. Bar year is well underway and a full agenda of programming, new initiatives and a variety of community outreach opportunities lies ahead for the Estates, Trusts and Probate Law Section. We invite you to participate to the fullest extent.
Ten very interesting and practical programs are planned for this year. Please review the Program Series schedule listed below and mark you calendars. Many thanks to all of our speakers and to Paul Pearlstein and Andrea Sloan, our Program Chair and Vice-Chair, for such a great series offering. Last year, the Steering Committee received many positive comments that having lunch on-site saved time and added value. We are therefore keeping our new tradition: lunch will be served at all ten programs.
In response to urgings of Section members, the Steering Committee plans to jump-start two very important and distinct initiatives this year: updating the Estates, Trusts and Probate Law Digest and pursuing a Guardianship Fund rate increase. The Digest was last updated more than a decade ago and the Guardianship Fund rate has been at the same level at least as long. Although both initiatives have unique challenges, we are energized to take on the tasks. Section members who are interested in working on either of these initiatives should communicate with the Steering Committee Co-Chairs as soon as possible. Please see our contact information included in this Newsletter.
Our Section regularly participates in a variety of outreach efforts and the Steering Committee will continue with this strong tradition of service to the Bar and the greater community. We invite you to peruse the Community Outreach opportunities announced in this newsletter and contact Gilles Stucker, our Section’s Community Outreach Coordinator, at (202) 659-6500, to volunteer. There are numerous ways to be involved in Community Outreach and we appreciate the suggestions, time and talent of our Section members. Let’s have a great year.
Kim Turner and Anne Meister,
Section Co-Chairs
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2006-2007 Program Series
To keep members abreast of legal concepts and current developments, our Section offers a lunchtime program series. All programs will be held in the D.C. Bar Conference Center, 1250 H Street, NW, B-1 Level, from 12 noon– 1:45 pm. A light lunch will be served at each program.
Thursday, September 21, 2006:
Charitable Giving With Real Estate
Jerome Ostrov, Friedlander, Misler, Sloan, Kletzkin & Ochsman, PLLC
(Program Co-sponsored by the Taxation Section Estate Planning Committee)
Thursday, October 19, 2006: The End: What Guardians Need to Know
About Death and Funerals
Sharlene Williams, General Counsel, Office of the Chief Medical Examiner
Roger Kleintank and Joan Davis, Hines-Rinaldi Funeral Home, Inc.
Andrea J. Sloan, Esq., Law Office of Andrea J. Sloan
Thursday, November 16, 2006: Litigation: Presenting Your Case in the Probate Division
James Larry Frazier, Esq., Law Offices of James Larry Frazier
Christopher G. Hoge, Esq., Crowley, Hoge & Fein
Edward G. Varrone, Esq., Law Offices of Edward G. Varrone
Thursday, December 21, 2006: Nuts and Bolts of Practice in the Probate Division
Renee I. Fox, Attorney at Law
Anne Meister, Attorney at Law
Thursday, January 18, 2007: Fiduciary Accounting
P. Allen Butler, III, Branch Manager, Auditing & Appraisals Branch, Probate Division, D.C. Superior Court
Tom Burns, Estate Accounting Services
Thursday, February 15, 2007: What’s New in Advance Directives
Matthew G. Kestenbaum, M.D.
Andrea J. Sloan, Esq., Law Office of Andrea J. Sloan
Thursday, March 15, 2007: Investing Fiduciary Funds
The Honorable A. Franklin Burgess, Jr., Deputy Presiding Judge, Probate Division, D.C. Superior Court
Christine M. Sorge, Esq., Shulman, Rogers, Gandal, Pordy & Ecker, PA
Bill Keller, C.F.A., Director of Investments, Greater Washington Region, PNC Bank
Thursday, April 19, 2007: New Developments In Probate
Panelists to be announced
Thursday, May 17, 2007: Everything You Ever Wanted to Know About Revocable Trusts,
But Were Afraid to Ask
Julia L. O’Brien, Esq., Furey, Doolan & Abell LLP
Catherine Mary Rafferty, Esq., Law Offices of Catherine Mary Rafferty
Thursday, June 21, 2007: District of Columbia, Maryland and Virginia Update
William E. Davis, Esq., Ross, Marsh & Foster (DC)
Charles S. Abell, Esq., Furey, Doolan & Abell, LLP (MD)
Virginia Speaker TBA
(Program Co-sponsored by the Taxation Section Estate Planning Committee)
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Community Outreach
Pilot Project in the Probate Division
At the September Steering Committee meeting, Section members working with the D.C. Bar Pro Bono Program made a presentation regarding a work-in-progress pilot project to provide legal assistance to individuals with probate related legal issues. The Steering Committee looks forward to working with the D.C. Bar Pro Bono Program as this project develops.
Entertainment at Washington Nursing Facility
The Steering Committee recently voted to make a donation to “Glamour Girls,” a volunteer group that coordinates a “day of beauty” to raise the spirits of residents at the Washington Nursing Facility. The donation will be used to purchase cosmetics to provide residents with manicures and makeovers.
Future Opportunities
The Steering Committee is exploring an initiative to develop a program on estate planning for first responders in the District of Columbia. If you have a community outreach idea, would like to volunteer, or have questions about our Section’s Community Outreach activities, please contact Gilles Stucker, our Section’s Community Outreach Coordinator, at (202) 659-6500.
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Register of Wills Vacancy
Due to the retirement of Constance G. Starks as Register of Wills in June, the Court issued Administrative Order 06-08 on, June 2, 2006, to establish the Committee on the Selection of the Register of Wills, consisting of five judges and the Clerk of the Court, to recommend a candidate for the position of Register of Wills on behalf of the Board of Judges. On August 29, 2006, the Court created the Advisory Merit Selection Committee by Administrative Order 06-14. The Advisory Merit Selection Committee, consisting of nine members of the probate bar, will review candidate applications and provide comments to the Judicial Committee for its consideration. Ed Varrone is coordinating the work of the Advisory Merit Selection Committee.
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Superior Court Relations
Our Steering Committee strives to actively maintain and improve working relationships between the Probate Division and the practicing bar. We greatly appreciate the efforts of Judges López and Burgess to participate in our Section programs and to include the input of practitioners in various court initiatives.
Probate Bench-Bar Conference – The Probate Bench-Bar Conference, coordinated by Judge López and co-sponsored by our Section, is scheduled to be held on December 7, 2006 in the Juror’s Room at D.C. Superior Court. Please mark your calendar and look for more information later this Fall.
Voucher Program – D.C. Superior Court is in the process of developing an electronic voucher program to handle attorney compensation paid from the Guardianship Fund. Members of the Steering Committee have participated in several work-group meetings with Judges López and Burgess and the Office of the Register of Wills on the voucher program project.
Luncheon Program Invitation – Probate Judges and representatives from the Office of the Register of Wills are invited to attend our Section’s luncheon programs and give updates on new initiatives in the Probate Division.
Judicial Reception – Our Section hosted the 14th Annual Judicial Reception in April 2006. A great opportunity to mingle and chat, the Judicial Reception was well attended by judges and attorneys. Information on the 15th Annual Reception will appear in early Spring 2007.
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New Legislation
D.C. Law 16-0079, the "Domestic Partner Equality Amendment Act," amends various provisions of the D.C. Code to give domestic partners equal standing with spouses. The new law applies to portions of family law (Chapter 16), intestate succession law (Chapter 19), appointment of a personal representative (Chapter 20), priority of appointment of guardian, notices of conservatorship plan and inventory, voidable transactions of a conservator, and revision of the model power of attorney form (Chapter 21), and the Uniform Premarital Agreement Act of 1995 (Chapter 46). The legislation became effective April 4, 2006.
The D.C. Council passed and sent to the Mayor emergency (B16-899) and temporary (B16-900) legislation that changes various provisions of the intervention statute, some of which have part of previous temporary laws. All who practice in intervention proceedings need to read this legislation if it becomes law. Some of the proposed changes are: expansion of the definition of emergency care, expansion of circumstances allowing for the appointment of temporary guardians, standards a guardian must use in making health care decisions, designation through execution of a will or other writing of an adult sibling to serve as guardian under certain circumstances, and requiring certification of incapacity by a physician and by either a psychiatrist or a "qualified psychologist." The legislation also makes changes to the Mentally Retarded Citizens Constitutional Rights and Dignity Act. Emergency legislation does not require review by Congress and can only be in effect for up to 90 days. Temporary legislation can be effective for up to 225 days.
B16-421 establishes an organ and tissue donor registry in conjunction with information provided to the D.C. Department of Motor Vehicles. D.C. Law 16-031, Organ and Tissue Donor Registry Establishment Act of 2006, became effective July 25, 2006.
B16-923 (emergency) and B16-924 (temporary) have been introduced to continue the $1 million threshold for estate taxes for decedents in the District of Columbia who die on or after January 1, 2003.
The D.C. Council passed the Uniform Disclaimers of Property Act (B16-707) on October 3, 2006. It was sent to the Mayor, and then Congress will have a 30 legislative day period for review.
Click here to see the text of the above-referenced bills before the D.C. Council.
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Recent Court Decisions
Conservatorships:
In Re ESTATE OF TAQUA O. TRESCOTT, An Adult, INTVP 188-05 (J. López, August 16, 2006). Myrtle Banks, stepdaughter of Taqua Trescott, filed a petition seeking to be appointed guardian and conservator. Sandra Barnhart, Ms. Trescott’s great-niece, opposed the petition. Ms. Banks had been involved with the care of Ms. Trescott for some time prior to the filing of the petition and held a power of attorney executed by Ms. Trescott on July 28, 2004. At that time, Ms. Trescott also executed a Will, which the attorney decided she should have. In October, 2004, Ms. Barnhart became dissatisfied with the care Ms. Banks was providing Ms. Trescott. Ms. Barnhart moved into Ms. Trescott’s home in September 2004, during Ms. Trescott’s hospitalization without any formal agreement for the payment of rent. While Ms. Banks was on vacation, Ms. Barnhart took Ms. Trescott to the office of same attorney who had prepared the July 2004 power of attorney and had another power prepared for Ms. Trescott appointing Ms. Barnhart attorney-in-fact which Ms. Trescott executed on November 17, 2004. The Court found that Ms. Trescott was not making her own decisions by July 2004 and that she was incompetent to execute either Power of Attorney. The testimony of Ms. Barnhart was discredited and the Court found Ms. Banks to be a suitable and proper person to appoint as guardian.
In Re ESTATE OF GREALIS, ROBERT BULLOCK, Appellant, No. 03-PR-963 (July 13, 2006) Before the Court were three consolidated appeals by attorneys retained to represent persons in the Probate Division of the Superior Court. Each appeal presented the question of whether approval by the court is required before an attorney may receive payment of attorney’s fees for representation in guardianship or other protective proceedings where the fees are paid, not from the ward’s estate, but from personal funds of the guardianship petitioner or third party. In each case, the petitioners had retained an attorney and paid him with their own funds to help prepare and submit a petition for a guardianship and/or conservatorship, which was subsequently granted. In each case, the Superior Court ordered the fee payments returned (and referred the attorney to Bar Counsel), concluding that receipt of such fees without prior court approval was improper although the fees had not been paid out of estate funds. The Court of Appeals held to the contrary that when attorney’s fees are not paid from the estate of a protected individual (or from the court’s Guardianship Fund) but rather from private funds, no statutory basis exists for requiring court approval and the judicial intrusion that entails into what ultimately is a private contractual arrangement. The orders requiring repayment of attorney’s fees in these cases is REVERSED.
In Re ESTATE OF ROBERT STAMPS, An Adult, INTVP 327-01, TRP 8-04 (J. Burgess, June 30, 2006). The court-appointed guardian and conservator of the ward filed a Petition for Compensation for her services. The liquid assets of the conservatorship estate were not sufficient to compensate the Petitioner; however, a trust that qualified as a supplemental or special needs trust under 42 USC §1396p (d)(4)(A) (“Stamps SNT”) was created for the ward’s benefit in March 2004, and it had sufficient assets to pay the fees sought. Petitioner requested that her fees be paid from the Stamps SNT. The trustee of the trust responded that the Stamps SNT did not authorize her to make such payments, a position with which the Court agreed. At the request of the Court, the Attorney General of the District of Columbia opined that “if the trust’s funds were used to pay for the conservator’s expenses, the purpose of the trust . . . would be defeated” and that “[p]ayment to [the guardian and conservator] from the SNT could deplete the estate, because this type of payment is not covered by the Medicaid statute and could possibly void the trust.” The Court, however, held that it had the authority to modify the Stamps SNT pursuant to § 19-101.01 et seq. to permit compensation of a court appointed guardian and that paying a ward’s guardian from a special needs trust of which the ward is the beneficiary will not make the assets of the special needs trust “available assets” for purposes of disqualification for benefits under Medicaid.
In Re ESTATE OF PAUL O. RICHARDSON, An Adult, INTVP 183-02-04 (J. Burgess, June 29, 2006). The Conservator filed an Emergency Petition to Permit the Making of a Gift from the Ward’s estate. The Ward was suffering from a terminal medical condition with the prognosis for survival less than a month and he had no living relatives or friends. The Conservator asked the court to permit him to make a gift to a “charity that helps those, like him [the Ward] afflicted by the ravishes of a stroke.” The Department of Veterans Affairs opposed the Motion. Making a gift is not one of the powers that a conservator may exercise without authorization of the court; however, the court has “directly or through a conservator” the “[p]ower to make gifts” D.C. Code § 21-2055 (b)(2)(B), if the gift “is in the best interest of the protected individual and the individual either is incapable of consenting or has consented to the proposed exercise of the power.” D.C. Code § 21-2055 (b). The Court concluded that while charitable or other gift-giving would be within its power to authorize, it could not authorized the proposed gift because the conservator offered no evidence that the ward would have wanted to make a gift to charity. A pattern of giving, or other evidence of the ward’s presumed intent would be required in order for the Court to authorize the gift. Without evidence of what the Ward would have wanted, the Court could not determine that it was in his best interest, and for his benefit, to make the gift. The Petition was denied.
In Re ESTATE OF LICHIA ATCHISON, An Adult, INTVP 327-02 (J. Burgess, December 7, 2005). In his Report, the Auditor-Master found that the removed conservator failed to account for the proceeds of sale from the subject’s home and for all of the social security and civil service payments the subject should have received during the tenure of the removed conservator. The Auditor-Master concluded that the conservator and the surety were jointly liable for $55,064.37 in unaccounted for assets plus interest at the rate of 6% [the rate provided in D.C. Code § 28-3302(a)] from the time the removed Conservator received the proceeds of the note on the sale of the home through the date of the Report. The surety objected to the 6% rate arguing that it was greater than the rate that could have been received for investing the funds at a bank and urged the Court to use a 3% rate. The Court found that In re Huber, 709 A.2d 259 (D.C. 1998), which stands for the proposition that an attorney who either misappropriates client funds or takes a retainer and neglects his client in breach of his fiduciary duty owes restitution to the client with interest at 6%, is applicable to conservators who deprive a ward of the use of his own funds. The Court concluded that the prejudgment interest on the unaccounted for assets should be assessed at the rate of 6%, the rate provided by D.C. Code § 28-3302(a).
Gabriel Gomez v. Maria E. Liston-Hooper, et al., CA No. 02-8395 (J. Blackburne-Rigsby, September 13, 2005). The Plaintiff obtained an interest in the real property owned by the Defendant in a tax sale on July 21, 2000. Defendant failed to file an answer or otherwise respond to the Plaintiff’s Motion for Default Judgment to remove the cloud on title on the said property and, on April 19, 2004, the Court issued an order declaring Plaintiff the fee simple owner of the property. On November 1, 2004, the Superior Court declared the Defendant to be an incapacitated adult and appointed a member of the Bar to serve as her Guardian and Conservator. The Conservator then filed a Motion to Vacate the Default Judgment on the grounds that the Defendant was incapacitated at all relevant times during the tax sale proceedings, including the time the Motion for Default Judgment was filed. The Court found that the Defendant was, in fact, under a legal disability at the time of the tax sale to Plaintiff, which extended the time she would be able to redeem the property to one year after the removal of that legal disability, i.e. to one year from the date of the appointment of her Conservator and Guardian. The Default entered was held to be null and void and vacated pursuant to D. C. Super. Ct. R. 60(b)(4).
In a subsequent Order entered on November 1, 2005, the Court voided the tax deed issued to the Plaintiff and granted summary judgment in favor of the Defendant dismissing the civil action to remove cloud of title.
Decedents’ Estates
In Re ESTATE OF DOUGLAS ALLEN JOHNSON, Deceased, 134 DWLR 1703 (June 21, 2006) (Judge Burgess) In this case the Court held that a DNA test conducted after the death of the alleged father is admissible to determine paternity for purposes of inheritance and that where the deceased testator executed a will before the birth of his child, even out of wedlock, and where the will does not disclose an intent to disinherit any after-born children, the will is revoked by implication of law and the estate is treated as if the decedent died intestate.
In Re ESTATE OF ANNA M.G. WILLARD, Deceased, Cephas, et al. v. Witherspoon, et al. Admin. No. 362-05 (J. López, June 15, 2006). The Decedent died on February 3, 2005 at the age of 97, leaving a Will dated July 15, 1999 and a Codicil dated January 31, 2001. Her nearest relatives were nieces and nephews among whom her closest relationship was with Mary Pearce ("Pearce”) whom she had designated her alternate attorney in fact. The Decedent had a close relationship with Ella Witherspoon, whom she met in the late 1960’s and with her husband and son, Carnell and David Witherspoon. Ella Witherspoon was her attorney in fact both for her financial affairs and for health care. Under the Decedent’s 1991, 1993 and 1995 Wills, prepared by a disinterested attorney, Ella Witherspoon, Carnell Witherspoon and Pearce were to share equally the proceeds from the sale of her home. After Carnell Witherspoon’s death, the Decedent told Ella Witherspoon that she wished to revise her will and asked Ella’s son, David Witherspoon, an attorney, to assist her. The revisions consisted mainly in replacing Carnell Witherspoon’s name with David Witherspoon. The Will was signed on June 15, 1999. It was republished by a Codicil executed on January 31, 2001, which changed the bequests of some of her personal effects. The Codicil was signed before three witnesses and a notary at a car dealership and neither the Witherspoons nor Pearce had prior knowledge of it or were present at its signing. The Will and Codicil were admitted to probate and the disinherited nieces and nephews filed a complaint seeking to invalidate the Will and Codicil on the grounds of testamentary incapacity, undue influence and fraud.
The fraud claim was dismissed because the Plaintiffs failed to allege facts which would reveal the requisite elements of fraud as required by D.C. Super.Ct.Civ. R. 9(b). On a Motion for Summary Judgment the Court found that the evidence was not enough to conclude that the Decedent lacked the necessary testamentary capacity to make the will. On the claim of undue influence the Plaintiffs asked the Court to impose the burden of proof on the Defendants since they had a fiduciary relationship (attorneys-in-fact) with the Decedent. Citing Robert Douglas v. Meares, 624 A.2d 405, 420 (D.C. 1992), the Court found that “[c]onfidential relations existing between the testator and beneficiary do not alone furnish any presumption of undue influence” and that the burden remains with the person challenging a testamentary gift to show that the special relationship weighs in to give rise to undue influence. The Court found no evidence of undue influence exerted by Ella Witherspoon or Pearce. However, the will drafted by David Witherspoon, by virtue of his profession as an attorney, is presumed fraudulent and void and the burden is on him to show by clear and convincing evidence that there was no undue influence or deception, regardless of the nature of the gift, especially when the decedent had not been independently advised. The Court found that David Witherspoon met his burden and found that he did not fraudulently induce or unduly influence the Decedent in making her testamentary bequests. HOWEVER, the Court found that David Witherspoon violated Rule 1.8(b) of the Rules of Professional Conduct and sanctioned him for his misconduct by imposing the disinheritance of his entitlement under the Will without referring the matter to Bar Counsel.
In Re ESTATE OF LOUISE O. GREEN, Deceased, Admin. No. 2882-90, DCCA No. 03-PR-910 (April 13, 2006) The Appellant, who had been appointed special master, appealed the order of the trial court denying her compensation for defending an appeal before the Court of Appeals. The special master challenged the trial court’s determination that request for compensation for defending an appeal should have been sought in the Court of Appeals pursuant to D.C. App.R. 39(d)(1). The special master argued that the Superior Court, pursuant to Super. Ct.Civ.R. 53(a), is the proper venue for court appointed special masters to seek awards of supplemental compensation. The Court of Appeals agreed with the special master and reversed the trial court.
In Re ESTATE OF DOROTHY OWENS REILLY, Deceased, Admin. No. 177-02 John F Reilly, et al. v. Robert W. Alvord, Per. Rep. of the Estate of Dorothy Owens Reilly and Trustee of the Dorothy Owens Reilly Revocable Trust. (J. Burgess, February 21, 2006). This matter came before the Court on Plaintiffs’ Motion for a Protective Order seeking a ruling that payment of attorney fees from a fund (in a so-called Residence Trust), over which they seek to have the Court impose a constructive trust, would be an improper use of the assets of the trust and directing the trustee of the Residence Trust to return to the fund money already used to pay his fees. The Court denied the motion to the extent that it sought an order declaring use of the funds for attorney fees improper and requiring Alvord (the trustee) to return to the fund money already paid for attorneys fees and granted the motion to the extent it requested a restraint on the trustee’s future use of money to pay the attorney fees.
In Re ESTATE OF HOWARD EQUITZ, Deceased, Admin. No. 191-05 (134 DWLR 299) (Jan. 26, 2006) (J. Burgess). The claimant filed a claim against the Decedent’s estate seeking damages for a breach of contract by the Decedent when he changed the beneficiary of his life insurance from the claimant to his second wife (the Personal Representative of the Decedent’s estate) contrary to a property settlement agreement executed by the Decedent and the claimant at the time of their divorce. The insurance company had paid the life insurance proceeds to the second wife. The Personal Representative filed a Petition to Disallow Claim arguing (1) that the Probate Court did not have jurisdiction over the payment of the life insurance proceeds since they were a non-probate asset and (1) that the San Diego County Court which entered the judgment dissolving the marriage had exclusive authority over the enforcement of the settlement agreement. The Court rejected the first argument stating that the claim was for a breach of contract against the Decedent for which the claimant seeks to recover legal damages from the estate, not the insurance proceeds. The Court then held that the San Diego County Court did not have exclusive jurisdiction over a breach of contract claim arising out of the agreement. The Court also rejected the argument of the Personal Representative that the claim should be disallowed because the estate lacked assets to pay the claim holding that an inventory indicating insufficient assets to pay the claim was not a basis on which a claim may be disallowed. The Personal Representative also argued that the claim was preempted by ERISA but the Court disagreed holding that ERISA’s preemption provision did not prohibit the claimant’s contract action.
In Re MABLE F. W. HENDERSON, Deceased, Admin. No. 117-96 (J. Burgess) (January 9, 2006). Objections to the Account of the Unsupervised Personal Representative and Petition to Review Compensation of the Personal Representative were filed with Court. The Personal Representative was appointed on January 29, 1996 and among the assets scheduled on his Petition for Appointment was the decedent’s residence valued at $115,000. Following his appointment, the Personal Representative proceeded to liquidate the tangible personalty and to prepare the residence for sale. After several contracts for sale failed to settle when contingencies were not met, the house was finally sold in February, 1999 for $109,000. The proceeds of sale were placed in a non-interest bearing account. A final account was not filed because there was real estate in another jurisdiction, which required an ancillary proceeding. The Personal Representative filed two requests for Extensions of his appointment. The Court found that the Personal Representative violated his fiduciary duty by failing to place the proceeds of sale into an interest-bearing account and imputed interest on the evidence offered by the objector, based on the yield if the proceeds of sale had been invested in U. S. Treasury bills. The Court found no breach of fiduciary duty in the sale of the house. The Court agreed with the objector that the Personal Representative breached his fiduciary duty by an unreasonable delay in settling the estate once the house had been sold but held that the surcharge of imputed interest assessed against the Personal Representative compensated the estate for the delay. The Court reviewed the reasonableness of the compensation of the Personal Representative and his first attorney as well as the attorney’s fees claimed for assistance with the preparation of the final account and in responding to the objections and made some adjustments; however, the Court denied the compensation request of the objector’s counsel in connection with the litigation over his objections to the account.
In Re ESTATE OF ELISE DERRICOTE, D.C.App. No. 01-PR-1210, 133 DWLR 2275, November 14, 2005 (Decided October 27, 2005, J. Washington). This appeal arose from the aftermath of litigation in which the Court of Appeals previously affirmed the removal of two brothers who had fraudulently usurped the role of personal representatives of the Decedent’s estate from the rightful heir. The Court of Appeals had previously ruled that the brothers were required to repay the funds that they had improperly taken from the estate but a collateral issue remained outstanding: whether the brothers’ attorney was required to reimburse the estate for the fees he had earned for his assistance in probating the estate prior to the brothers’ removal. The Trial Court initially issued an Order in favor of the attorney permitting him to keep the fees he had received on the basis that the fees had been paid by the removed Personal Representatives out of monies that were their own inheritance, after they had completed estate administration. Upon a Motion for Reconsideration, however, the Court found that the fees were paid simultaneously with the closure of the estate and therefore, the attorney was not entitled to keep those fees because he had not received court approval prior to payment. [This was a pre-July 1, 1995 Estate.]. On appeal, the attorney contended that the trial court erred in granting the motion for reconsideration because (1) it treated the Successor’s renewed motion as unopposed when, in fact, he had noted an opposition; (2) that the motion was not based on one of the seven exclusive grounds set forth in Super. Ct. Prob. R. 130 justifying relief from an order; (3) a number of appeals had already been noted in the matter at the time the Successor filed his motion for reconsideration, so the Successor, too, should have noted an appeal in order to preserve his rights; and (4) the doctrine of laches prevented the trial court from granting the Successor’s motion for reconsideration. The Court of Appeals rejected each of the attorney’s arguments and affirmed the judgment of the Trial Court.
Trusts:
In Re ESTATE OF MARY CALOMIRIS, Deceased, Admin. No. 2175-00, 134 DWLR 611 (March 2, 2006) (J Fisher). Trustees of a marital trust filed cross-claims for removal of each other as trustee. Appellant filed a motion for summary judgment arguing that the claims should be dismissed because a provision in the will directed that any material difference of opinion among the trustees be resolved by arbitration. The trial court denied appellant’s motion for summary judgment finding that the trust did not give an arbitrator the power to remove trustees. Appellant filed a pretrial appeal. The Court of Appeals issued an order directing appellant to show cause why the appeal should not be dismissed for lack of jurisdiction as having been taken from a non-final order. The Uniform Arbitration Act treats as a final (appealable) order an “order denying an application to compel arbitration made under section 16-4302.” D. Code § 16-4317 (a)(1) (2001). An application under that section must show “an agreement described in section 16-4301" which requires “[a] written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties.” The Court of Appeals held that the arbitration clause in the instant case was not contained in a written agreement or contract. Rather it was contained in the will establishing the trust and therefor the provisions of the Uniform Arbitration Act were not controlling. The Appeals Court had no jurisdiction to hear the appeal from the order denying a motion to compel arbitration between parties not under a written agreement to arbitrate and dismissed the appeal for lack of jurisdiction.
William E. Davis, Editor
NOTE: The Editor wishes to thank the Judges assigned to the Probate Division, and Robert Bunn, Esq., Robert A. Gazzola, Esq., Evan J. Krame, Esq. and Barbara R. Miller, Esq. for making cases available for inclusion in this edition of Recent Court Decisions.
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Comments, Notes and Announcements
Intervention and Elder Law Support Group
The Intervention and Elder Law Support Group will hold its next meeting on November 17, 2006, from 12:00 noon to 2:00 p.m in the Sixth Floor conference room at the D.C. Bar. This informal group meets several times a year to share information and to discuss legal and practical issues related to guardianship and conservatorship cases. Participants supply their own lunch and beverage. Meeting dates in 2007 include: January 19th, March 16th, May 18th, and June 15th.
Advice and Referral Clinic
Section members are encouraged to participate in the D.C. Bar Pro Bono Program’s Advice and Referral Clinics held on the second Saturday of each month from 10:00 a.m. to 12:00 noon at Bread for the City, 1525 Seventh Street, N.W., and at the Max Robinson Center, 2301 Martin Luther King Jr. Avenue, S.E. To volunteer, contact Mark Herzog with the D.C. Bar Pro Bono Program at (202) 737-4700, ext. 206.
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The Estates, Trusts and Probate Section Newsletter is produced four times a year and is available online at the Section’s web page. The paper version is sent via third-class mail. The Newsletter always welcomes material on recent developments in District of Columbia, Maryland and Virginia law. Send newsletter materials to Catherine Mary Rafferty or Rachel Burke, Co-Editors. Call or write us with any suggestions you may have on the operation of the Section, programs, or this Newsletter. For your convenience, Steering Committee and Standing Committee contact information is listed below:
Click here for Estates Trusts and Probate Law Section Steering Committee 2006-2007 Roster and Contact Information
Steering Committee Officers/Committee Assignments
Co-Chairs: Kimberly Martin Turner and Anne Meister
Secretary: Catherine Mary Rafferty
Programs Chair and Vice-Chair: Paul D. Pearlstein and Andrea Sloan
Financial Officer: Archie L. Palmore
Community Outreach Coordinator: Gilles Stucker
CLE Coordinator: Paul D. Pearlstein
Newsletter: Catherine Mary Rafferty and Rachel D. Burke
D.C. Digest: Anne Meister and Bill Davis
Probate: Andrea Sloan
Elder Law Chair and Vice-Chair: Morris Klein and Robert Bullock
Intervention and Elder Law Support Group: Archie L. Palmore
Legislation: Morris Klein
Internet Coordinator: Gilles Stucker
Nominating Committee Chair: Ed Varrone
Standing Committee
Rachel Burke, Esq.
Sutherland, Asbill & Brennan, LLP
1275 Pennsylvania Avenue, NW
Washington, DC 20004
(202) 383-0673
(202) 637-3593 (Fax)
rachel.burke@sablaw.com
William E. Davis, Esq.
Ross, Marsh & Foster
2001 L Street, NW, Suite 400
Washington, DC 20036
(202) 721-5520 (Direct dial)
(202) 822-8888 (Reception)
(202) 775-9330 (Fax)
wdavis@rossmarshfoster.com
Gilles A. E. Stucker, Jr., Esq.
Kass, Mitek & Kass, PLLC
1050 17th Street, NW, Suite 1100
Washington, DC 20036
(202) 659-6500
(202) 293-2608 (Fax)
gstucker@kmklawyers.com
D.C. Superior Court Probate Division Telephone Directory
(2006-2007)
Office Information: (202) 879-1499
Fax: (202) 393-5849
Auditing Section Fax Number: (202) 879-1452
OFFICE OF THE REGISTER OF WILLS
ACTING REGISTER OF WILLS
Karla S. Spottiswood (KSS)
Room 5008
879-4800
ADMINISTRATIVE ASST. TO THE REGISTER OF WILLS
Iris D. Joyner (IDJ)
Room
5008
879-1449
DEPUTY REGISTER OF WILLS (Filing of Pleadings)
Vacant
Room
5002
879-4815
ASST. DEPUTY REGISTER OF WILLS (Filing of Pleadings)
Tenisha N. Jiggetts (TNJ)
Room
5006
879-4802
L. Elaine Kennell (LEK)
Room
5009
879-7800
Christopher P. Sinks (CPS)
Room
5006
879-7802
PROBATE DIVISION SYSTEMS ADMINISTRATOR
Nguyen, Dung T.
Room
5020
879-1462
ADMINISTRATIVE ASSISTANT
Jonathan Motley (JM)
Room
5000
879-0434
PROBATE OPERATIONS BRANCH
BRANCH MANAGER
Joseph A. Kerrick (JAK)
5000-A
879-7801
(Detailed until further notice)
Small Estates Section
SUPERVISOR
Constance O. Hill (COH)
Room
5122
879-1429
SPECIALISTS
Michael L. Barnes
Room
5120-B
879-1432
Janice McDowell
Room
5120-A
879-1433
Decedents Estates & Guardianships Of Minors Section
SUPERVISOR
Bermel Paz
Room
5004
879-4833
DEPUTY CLERKS
Beatrice Barbour, Deputy Clerk III
Room
5121
879-1623
Philip Brown, Records Clerk
Room
5121
879-4894
Carolyn Johnson, Deputy Clerk III
Room
5121
879-1255
Carmen Mack, Calendar Coordinator
Room
5121
879-1595
Julisa N. Edwards-Marzan, Deputy Clerk I
Room
5121
879-1603
DeRon Richardson, Deputy Clerk I
Room 5121
879-7820
Celestine Robinson, Deputy Clerk II
Room
5121
879-1622
Stephanie Whittaker, Finance Clerk
Room
5000
879-7808
INTERVENTIONS & TRUSTS BRANCH
SUPERVISOR
Carmen Aponte-Ayala
Room
5108
879-1461
DEPUTY CLERKS
Mark Coble, Courtroom Clerk
Room 5119
879-1698
Andrea Downing, Courtroom Clerk
Room
5119
879-4634
Tifney Garey, Courtroom Clerk
Room 5119
879-7824
Toni D. King, Deputy Clerk I
Room
5119
879-7826
Tanya Rainey, Deputy Clerk III
Room
5119
879-7822
Allan Baylor, File Clerk
Room
5000
879-1497
AUDITING & APPRAISALS BRANCH
BRANCH MANAGER
P. Allen Butler, III (PAB)
Room
5010
879-1469
DEPUTY CLERK II
Mary E. Simon-Ford
Room
5012
879-7817
SUPERVISORY AUDITOR
Alicia A. Purkapile (AAP)
Room
5106
879-1485
AUDITORS (Account Audits & Reviews)
Diamante, Julieta D.
Room
5112
879-1464
Ferguson, Joyce A.
Room
5103
879-1472
Files, Herbert
Room 5114
879-1484
Hayman, Jacqueline E.
Room
5017
879-1476
Jackson, Erick L.
Room
5101
879-1513
Jones, Havard W., Jr.
Room
5022
879-1498
Kehinde, Hakeem B.
Room
5101
879-7827
Lilly, Bonita G.
Room
5016
879-1460
Lyons, Gloria B.
Room
5102
879-1453
Macanlalay, Luis D.
Room
5018
879-1487
Perry, Sean R.
Room 5021
879-1474
Spratley, Patsy V.
Room
5104
879-1451
Thomas, J. Edwin
Room
5014
879-1457
APPRAISER (Inventory & Appraisals)
Swann, Vandell B.
Room
5019
879-1494
AUDITING INFORMATION
Room
5019
879-1493
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