- Greetings
- Recent Court Decisions
- Comments, Notes and Announcements
- Steering Committee
Greetings From the Steering Committee
Cochairs
It is now the end of another year and we wish to express our appreciation to the members of the steering committee, the members of the section and the bar staff for their assistance throughout the year. Some items of note:
Chief Judge Rufus King, Jr. has announced his retirement at the end of his current term, which ends September 30, 2008.
The probate division is making plans for public access through the court’s Web site to the docket codes for all small and large estates, and this access is scheduled to begin this summer. The Web site is www.dccourts.gov, click on remote access icon for access to both the civil division and probate division dockets.
The steering committee is currently discussing the possibility of publishing a legal services directory and is interested in your input. A survey of the members is being prepared to measure the level of interest and the content if such a directory is prepared.
The steering committee will be meeting in mid-June to decide on the programs for the upcoming year, which begins in September. The programs presented during the past year, such as “How to Stay Out of Trouble,“ “Problems and Solutions of Long Term Care and Assisted Living,” and “International and Foreign Administration of Trusts” have been extremely well-attended and informative, and we hope that the section members continue to support these programs. The final program of the year, District of Columbia, Maryland and Virginia Updates, will be held on June 19, 2008.
The Office of the Register of Wills is in the process of hiring a social worker to serve as program manager of the Guardianship Assistance Program, which will be a joint effort with area universities. Under the program, students seeking a master’s degree in social work may be appointed by the court as visitors to visit wards under the supervision of the court, review guardianship reports, review services provided to the court wards and prepare reports to the court as needed. It is anticipated that these student visitors will work together with the court-appointed guardians to enhance the services provided to wards.
A new Probate Rule 6.1, Disclaimers, took effect on March 18, 2008, together with changes to Rule 308, Compensation of Guardians, Conservators, Attorneys, Guardians Ad Litem, Examiners and Visitor. See Rule Promulgation Order 08-03 reproduced in full on the court’s website.
It has been a very busy and productive year. The work of the steering committee during the past year includes the filing of two public comments on legislation relating to guardianships; submission of a report recommending a change in the level of compensation paid to probate attorneys from the Guardianship Fund; contributing the pro bono services of a probate attorney each month at Bread for the City; and sponsoring the Wills Project, a permanent exhibit of the wills of notable Washingtonians on display at the Office of the Register of Wills, 515 5th Street, NW, Washington, DC.
Wishing you all an enjoyable spring and summer.
Morris Klein and Anne Meister, steering committee cochairs
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Recent Court Decisions
Conservatorships:
In Re Tena Rips, ;D.C.App.No. 06-PR-1130 (May 15, 2008) (J. Burgess, Trial Judge).
The appellant, Tena Rips, appealed the lower court order appointing
a guardian and conservator, claiming, among other things, that the court
committed reversible error when it failed to apprise her of what she
argued to be her “right to remain silent.” The D.C. Office
of Adult Protective Services filed a “Petition for a General Proceeding”
alleging that the appellant was incapacitated and requesting the appointment
of a guardian and conservator. The court scheduled an initial hearing
and the appellant was notified of the hearing by being given a copy
of Form II-J1 which listed the subject’s “[h]earing [r]ights”
, including the right to “remain silent”. Appellant attended
the hearing and testified but neither she nor her counsel objected or
asserted a right to remain silent. After a second hearing, relying
on evidence adduced at both hearings, including appellant’s testimony,
the court appointed a permanent guardian/conservator. In affirming the
lower court, the court of appeals found that the mention of a “right”
in a court form of uncertain provenance cannot create an enforceable
substantive right. No provision of the Guardianship Act mentions such
a right [to remain silent] nor is it recognized in the superior court
probate rules governing intervention proceedings. The court then noted
that this opinion is published for one purpose - to put to rest the
claim, advanced by appellant and others before her that Form II-J1 in
itself creates a right “to remain silent”. Because the appellant
did not raise, and the parties did not brief, the broader issue, the
court of appeals declined to consider whether there is a constitutional
right to remain silent in these circumstances. See In re McMillan,
940 A.2d at 1038 n. 10 (“we have no occasion to consider
whether, absent statutory authority, the subject of an intervention
proceeding has a right not to testify.”)
Affirmed.
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In re Madalene Elaine Wilkins Evans, An Adult, INTV 387-2007 (J. Wolf) (February 28, 2008)
The petitioner (meaning the original intervention petitioner seeking to have a guardian and conservator appointed for the subject, his mother) basically objected to payment of all fees and expenses from the subject’s estate and, in effect, sought to have the taxpayers of the District of Columbia pay them through the Guardianship Fund. Petitioner claimed that the subject’s estate would be “depleted” by payment of such fees. The court, however, found his
argument to be misplaced. “Depleted” means “emptied” or “exhausted” and the petitioner made no such claim but only claimed that the subject’s assets should be preserved for her future needs, and that payment from the Guardianship Fund is the means to do so. The court emphasized that the Guardianship Fund is not a catch-all for payment of participants’ fees and expenses in an intervention case when those fees and expenses are inconvenient, or, as here, turned out to be tactically unnecessary.
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In re Veronica Tucker , An Adult, INTV. No. 187-2006 136 DWLR 859 (J. Wolf) (April 2, 2008).
Following the ward’s death in April, 2007, her father and sister, seeking to become personal representatives of her probate estate, petitioned to open a small estate proceeding, listing net assets of about $2,277 and only court costs and funeral expenses as debts. Following notice by publication to all potential creditors, the court-appointed examiner, visitor, and counsel were compensated from the Guardianship Fund by order of a different judge. The final guardianship report was filed early, but without any accompanying claim for compensation, and the estate was closed by court order in July, 2007. Four months later, the guardian late-filed her petition for compensation from the Guardianship Fund. It was clear to the court that, after all other court-appointed personnel had been compensated, the personal representatives knew or should have known that the guardian herself was also a creditor but she had not been given proper notice [actual notice] of the pending small estate. The court reaffirmed its previous ruling that it was “not inappropriate” for the guardian ‘to suffer
the consequences of her lengthy delay in petitioning for fees and that “it was correct” that she not be fully compensated from the Guardianship Fund to the extent funds were available from the small estate. Noting that other avenues remained available to her, such as moving to re-open the small estate case or filing suit against the personal representatives, the court concluded that “the fund was not set up for the convenience of lawyer,” even when an attorney who had provided diligent services found herself a “victim of circumstances.”
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Decendents’ Estates:
In re Estate of Lizzie Wilson, On Petition for Rehearing, D.C.App.No. 05-PR-248 (November 1, 2007) 135 DWLR 3037 (November 23, 2007) (J. Lopez, Trial Judge).
The appellant appealed the trial court’s order requiring him to pay to decedent’s estate a portion of the attorney’s fees paid to him by the estate’s personal representative from her personal funds for services that he rendered in connection with real property belonging to the estate. The court of appeals affirmed the trial court in D.C. App.No. 05-PR-428, which was reported in the Winter, 2008 Newsletter. Upon rehearing, the court of appeals reversed and remanded the case to the trial court with instructions to vacate the order imposing sanctions upon appellant. Citing In re Estate of Grealis, 902 A.2d 821 (D.C. 2006) in which the court rejected the position that the Guardianship Act required prior court approval before fees could be paid to attorneys from private or personal sources, the court held that the same principles should control the result in this case. Having determined that the Probate Act does not require attorneys to await court approval prior to accepting attorney’s fees from a client’s personal funds, the court concluded that the trial court erred in imposing sanctions against the appellant in this case. The judgment of the trial court was reversed and the case remanded with instructions to vacate the order imposing sanctions on the appellant.
Reversed and Remanded.
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In re Estate of Lucille Pinkett, Alma C. Roland, et al. v. Martin E. Pinkett, Individually and as PR., Adm. No. 993-06 (March 6, 2008) (Judge Burgess).
The decedent and her husband executed wills on January 30, 1992, in
which each left his or her entire estate to the other. In the event
the other predeceased, the entire estate of the survivor passed to members
of his or her own family. They had no children. On June 17, 1999, they
executed new wills, revoking their prior wills and changing their distribution
scheme upon the death of the second to die. Each will divided the estate
of the surviving spouse into five parts, with three parts bequeathed
to the family of the decedent’s husband and two parts bequeathed
to the family of the decedent. The 1999 wills appointed the nephew of
the decedent’s husband as the successor personal representative.
The decedent’s husband died in March, 2001. The decedent died
on June 11, 2006 and her 1999 will was admitted to probate. Plaintiffs,
the decedent’s relatives, filed a complaint to invalidate the
1999 will of the decedent alleging that she did not have the capacity
to execute a new will on June 17, 1999. There was evidence that the
decedent was suffering from the onset of Dementia of the Alzheimer’s
Type (“DAT”) as early as 1996 and that in the period 1995-1998
she had developed DAT. She was diagnosed with the disease on August
16, 1999, two months after the execution of the 1999 will. Experts testified
that the decedent was in the moderate-to-severe range of DAT on June
17, 1999 and that she did not have the mental capacity to execute her
will “with judgment and understanding”. The testimony of
the scrivener of the will that the decedent was “fully competent,
able to know exactly what she wanted in her will, [and] understood the
changes” was found by the court to be unpersuasive. The court
held that the plaintiffs satisfied their burden of proving that the
decedent did not have the capacity to execute her will on June 17, 1999
and entered a judgment accordingly.
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VCRT Trust v. Stinnette, 136 DWLR 1019 (April 17, 2008) (Zeldon, J.)(D.C. Sup.Ct.)
The decedent’s will, probated in 1977, granted a beneficiary a life estate in her real property and upon termination of the life estate the property was to be sold and the proceeds divided among three residuary beneficiaries. In 1997, the life tenant died but the property was not sold as provided in the will. Real property taxes remained unpaid for six years and the property was sold at tax sale to the trust plaintiff herein. The trust then filed suit to foreclose the rights of the residuary beneficiaries and discovered that two of the three residuary beneficiaries were deceased. A general notice was published in a local legal newspaper whereupon, in March, 2006, a magistrate judge granted judgment to the plaintiff, and based upon that judgment, the District of Columbia executed a deed conveying the property to the plaintiff. A beneficiary of the original will was then discovered living at an address which was available in the local telephone directory as well as in the superior court probate office. She died shortly thereafter, however, and the personal representative of her estate filed a Motion to Vacate the judgment and to void the tax deed based on Rule 60(b). The court held that the due process clause of the Fifth Amendment, applicable to the District, requires “that persons having an interest in property be given notice reasonably calculated, under all the circumstances, to apprise them of the pendency of the action and afford them an opportunity to present their objections.” The court found that the last beneficiary had not received proper notice either of the pendency of the tax sale or of the instant law suit, despite the fact that it was “reasonably, practically, and realistically possible” to have done so. Finding that “any prejudice that may exist does not outweigh the plaintiff’s duty to provide the defendants constitutional notice,” the court vacated the judgment, nullified the deed, and ordered the case reopened.
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In Re Estate of Naomi Virginia Bates, Marsha Karim v. Denise Gurley, PR. D.C.App.Nos. 06-PR-46 and 06 PR-589 (May 22, 2008) (J. Burgess, Trial Judge).
The decedent died intestate and left, as her sole heirs and next-of-kin,
her three daughters, Ms. Tilghman, Ms. Karim (the appellant), and Ms.
Gurley (the appellee and personal representative). Ms. Karim sought
appointment as personal representative of her mother’s estate
by attempting to file a Petition for Probate on which she estimated
the value of the estate to be $127,000+; however before she was able
to secure a bond for the estate, Ms. Gurley filed a petition to probate
the estate, which included an $81,000 bond, secured a bond in that amount,
and was appointed personal representative. Ms. Gurley filed an estate
inventory which listed the total appraised value of the decedent’s
property as $152,411.70, and included real property owned by the decedent
on Adrian Street, SE, valued at $114,320, and $38,091.70, the value
of the decedent’s bank accounts. The Inventory did not include
the value of the contents of the decedent’s safe deposit box nor
her part interest in real property which the decedent was to inherit
upon settlement of her father’s estate on Lee Street, NE. After
receiving the inventory, Ms. Karim filed a petition to remove Ms. Gurley
as personal representative and substitute herself alleging that Ms.
Gurley had (1) misrepresented material facts prior to her appointment
because she had failed to include the Lee Street property and various
joint bank accounts on the Petition for Probate; (2) mismanaged property
by failing to amend the 2004 tax return; and (3) failed to have the
Adrian Street property and the personal property located therein appraised.
On December 19, 2005, the trial court found that there had been no material
misrepresentation with the proceeding leading up to the establishment
of the estate; that the tax return was perhaps a mistake that did not
amount to mismanagement; and there was nothing to suggest that Ms. Gurley
should be removed. Ms. Karim’s petition for removal was denied
and the administration of the estate was ordered to be supervised. Ms.
Karim filed a Notice of Appeal on January 13, 2006. On March 8, 2006,
Ms. Gurley filed a petition to sell the decedent’s Adrian Street
property and Ms. Karim filed a petition requesting the court to stay
the sale of the property pending her appeal. The court denied Ms. Karim’s
petition to stay the sale and granted Ms. Gurley’s petition to
sell the Adrian Street property. Ms. Karim appealed. The court of appeals
found that the trial court properly denied Ms. Karim’s petition
to remove Ms. Gurley as personal representative. The court of appeals
agreed that Ms. Gurley did not misrepresent material facts leading up
to her appointment as personal representative because she was not required
to schedule joint accounts separately on her petition since they were
not estate assets. Furthermore, there is no requirement that the personal
representative file a verified and complete inventory of estate assets
at the time of the initial probate petition. The court of appeals also
agreed that Ms. Gurley had not mismanaged estate property by failing
to include the contents of the safe deposit box (which was leased jointly
by the decedent and Ms. Gurley) as estate property. While there is no
indication in the statute or case law whether a survivorship right on
the safety deposit box lease would also apply to the contents of the
safety deposit box, Ms. Gurley’s actions with regard thereto did
not amount to mismanagement. The court of appeals also found that Ms.
Gurley’s failure to amend the 2004 tax return in a timely manner
did not amount to mismanagement since no penalties and interest were
incurred and Ms. Karim had not provided Ms. Gurley with information
which she had to amend the return for a larger refund. Since the decedent’s
prospective interest in the Lee Street property (an interest she would
inherit upon the settlement of her father’s estate) had not yet
vested in her, the court of appeals held that Ms. Gurley had not failed
to effectively discharge her duties because the decedent was not the
owner of that property at the time of her death. While it is unclear
whether an expectancy interest is actually “owned” by the
decedent for purposes of scheduling estate assets on the inventory,
the court found no indication in the record that Ms. Gurley had unreasonably
delayed or failed to act appropriately with respect to the Lee Street
property warranting her removal. The court of appeals also held
that the trial court properly denied Ms. Karim’s petition to stay
the sale of the Adrian Street property noting that Ms. Gurley’s
actions were authorized by the general statutory grant of powers to
a personal representative and was not convinced that it would unreasonably
jeopardize the interests of the heirs who had equal shares in the property.
Affirmed.
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Trusts:
In re Charles T. Durosko Marital Trust; Charles T. Durosko, Appellant, D.C. Appellate No. 06-PR-1292 (May 7, 2008).
The appellant appealed the trial court’s order imposing a constructive trust over the assets of the Charles T. Durosko Marital Trust (the “CTD Trust”) asserting that the trial court erred in excluding an expert witness from testifying and that the court’s finding that he intended to create an irrevocable trust is plainly wrong. The court of appeals had previously determined that appellant’s trust contained an ambiguity and remanded the case to the trial court to determine his intent through extrinsic evidence. In re Charles T. Durosko Marital Trust, 862 A.2d 914, 924 (D.C. 2004). In that opinion the aourt noted that “[s]uch evidence may include, among other things, the relationship and financial positions of the parties, the motives or
purpose for the trust agreement, and scrivener error, if any.” On remand the trial court found that “at the time [appellant] executed the CTD Trust, he intended the CTD Trust to become irrevocable on [his wife’s] death.” The court of appeals found that the record supported the finding of the trial court and affirmed the trial court.
Affirmed.
William E. Davis, editor
NOTE: The editor wishes to thank the judges assigned to the probate
division, Robert Bunn, Robert Gazzola and other members of the probate
bar for making cases available for inclusion in this edition of Recent
Court Decisions.
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Comments, Notes and Announcements
Ethics Opinion 336 Addresses Lawyer’s Role as Court-Appointed Guardian of Incapacitated Individual
Section members are encouraged to review a 2006 opinion by D.C. Bar counsel outlining a lawyer’s fiduciary role when appointed by the court as a guardian for an incapacitated individual. A bar member appointed as a guardian learned that the ward, who has never been able to communicate with his guardian, used a false identity, and the guardian subsequently used the false social security number and other information to obtain benefits for the ward. The bar member asked for guidance on how to proceed. The opinion provides that because the ward has never had the ability to communicate with the guardian or participate in decisions about his welfare, no lawyer-client relationship existed. However, Rules of Professional Conduct are still applicable to the bar member’s conduct notwithstanding the fact that he is not acting as the ward’s counsel. Rule 3.3(a)(1) provides that a “a lawyer shall not knowingly…make a false statement of material fact or law to a tribunal.” The Rules define “tribunal” broadly enough to include regulatory agencies that render decisions of a judicial or quasi-judicial nature, such as those that determine entitlement to benefits. Accordingly, the bar member has an affirmative duty to reveal the fraud to the tribunal according to DC Rule 3.3(d). For the complete opinion, access the DC Bar’s Web site at www.dcbar.org.
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Guardianship Monitoring Program Underway in the Probate Division
by the Honorable Rhonda Reid Winston, deputy presiding judge
Plans are in progress in the probate division to begin a Guardianship Assistance Program (GAP). The program will implement a recommendation of the 2004 Probate Task Force that the superior court establish a guardianship monitoring program to ensure the well-being of wards under its supervision. Under the program, the court will serve as a field instruction site for
masters’ degree students in social work at area universities, who will help the court identify any unmet needs of its wards. The students will be assigned cases based on the court’s review of guardianship reports filed in the probate division. They will visit the wards in their homes or in the medical or residential facilities where they are located, identify their unaddressed needs, and work with the court-appointed guardians to address them. The students’ work will be coordinated by a program manager, a licensed social worker, whose office will be located in the Probate division. The program manager will supervise the students’ work and will be their point of contact with the court. The probate division anticipates that the Guardianship Assistance Program will begin in late August of this year.
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From the Desk of the Auditor-Master:
by Louis Jenkins, Auditor-Master, D.C. Superior Court
Perhaps the first burning question on most inquisitive minds is: Just what is an auditor-master? As a practical definition, I should be considered a court-employed standing special master whose essential role is to assist the court in monitoring and safeguarding the assets of minors and incapacitated adults.
The position of the auditor-master was created in accordance with D.C. Code §11-1724 on July 29, 1970. That section states that the Auditor-Master shall execute orders of reference referred by the superior court, in accordance with superior court Rule of Civil Procedure 53, and perform such other functions as may be assigned by the superior sourt.
The auditor-master is responsible for investigating and conducting hearings in cases referred by the court, thus placing upon him certain quasi-judicial functions. The auditor-master sits as a master of the court and presides over hearings making such rulings as are necessary to conduct the hearings and to admit evidence. The auditor-master takes testimony and admits documents in order to issue proposed findings of fact and conclusions of law in a report to the court. The Auditor-Master issues subpoenas as needed.
Cases referred to the auditor-master have historically included various probate, civil, domestic relations, and tax matters involving complex financial analysis and computation. Such matters encompass the stating of accounts for fiduciaries in default (conservators, guardians, executors and trustees), audits of fiduciary accounts, assignments for the benefit of creditors, dissolutions of business entities and real estate partitions. Currently, the majority of the cases are referred from the probate division. These matters are assigned to the office through Orders of Reference.
I enjoy serving the judges, the court and ultimately the residents of the District of Columbia as Auditor-Master. I am ably assisted by Sandra Gustave Arrington, Esquire, my attorney-advisor. She brings a wealth of knowledge and experience in stating accounts, along with an unmatched drive to fight onward, no matter what the odds. In my opinion, this is one of the best jobs in the superior court and the natural culmination of my sixteen years of experience as a litigator, seasoned with my eight year stint in the probate division.
The job is extremely challenging. Each case that we handle is unique. Many are extremely complex and demanding given our limited resources. The office of the auditor-master consists of three staff members: the Auditor-Master, an attorney–advisor, and an administrative assistant. We have several multi-million dollar cases that seem to have just as many transactions—most without adequate documentation.
If you have a case where you have been appointed to replace and state
an account for a removed fiduciary and you have discovered that documentation
is inadequate, you may want to seek an order referring the matter to
our office— especially if it is a case in which there are few
assets and it is unclear whether the estate can pay your costs. I advocate
this work being performed by a special master where the estate has adequate
assets to bear the costs. However, in cases involving the assets of
incapacitated adults and minors where the assets are nil or modest,
you might want to consider referring the case to our office to avoid
taxing the estate. We are here to help you and your client, and
to serve the court. Please let me know if there are ways we can be of
greater assistance.
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New and Amended Probate Rules
New SCR Probate Rule 6.1 took effect on April 18, 2008 and addresses disclaimers required to be filed with the court. The new rule provides that any disclaimer required to be filed with the court pursuant to DC Code §19-1512 must be filed with the Register of Wills and shall declare the disclaimer, describe the specific interest or the power disclaimed, be signed by the person making the disclaimer, and include the telephone number and address of the disclaimant.
Amended SC Probate Rule 308 also took effect on April 18th and speaks to compensation of guardians, conservators, attorneys, guardians ad litem, examiners and visitors. The amended rule adds new language regarding petitions for compensation by conservators filed after the death of the ward. In this instance, the conservator may estimate the number of hours that will be required to complete the administration of the ward’s estate.
Amended SC Probate Rule 308 also addresses when a guardian’s petition for compensation should be filed (30 days from the anniversary date of the guardian’s appointment) and when a conservator’s final petition should be filed (no later than 30 days after the filing of the final account).
Both rules can be reviewed on the Court’s website.
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Election Results
Congratulations to James Larry Frazier, Anne Meister, and Paul Pearlstein, who have been elected to serve on the Estates, Trusts and Probate Law section steering committee for the 2008-2011 term! Thank you to all who ran. If you are interested in becoming more involved with the section, we encourage you to contact one of the steering committee members.
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Estates, Trusts, and Probate Law Section Steering Committee
The 2007-2008 Estates, Trusts and Probate section steering committee members are Anne Meister, cochair; Morris Klein, cochair; Kimberly Edley; Kate Kilberg; Paul Pearlstein; Catherine Mary Rafferty, Andrea Sloane; Kimberly Martin Turner; and Edward Varrone. The standing committee chairs are William E. Davis, case editor and Archie L. Palmore, community outreach.
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If you have questions or comments, or wish to write an article for an upcoming newsletter, please contact Kimberly Edley, Newsletter Editor.
