Greetings from the Steering Committee Cochairs
Welcome to the latest edition of the Estates, Trusts and Probate Section newsletter!
As the year comes to a close, we would like to thank Judge Burgess, Judge Reid Winston, and the Office of the Register of Wills for their ongoing support, as well as you, the Section members, for participating in the Section’s many programs, either as speakers, organizers, or attendees.
We have had a busy year with another outstanding monthly luncheon program series, Guardianship Support meetings, five CLE courses, a new Holiday Gift Drive, our 19th Annual Judicial Reception at the Embassy of the Republic of Indonesia, participation in the monthly Advice & Referral Clinic at Bread for the City, two Bench-Bar Conferences, and our bonus educational course on the Uniform Trust Code. We hope you were able to join us at many of these events.
We are pleased to advise that the compensation rate for certain services paid from the Guardianship Fund has been increased to $90/hour. We are grateful to Myrna Fawcett and her committee for their hard work to increase the rate. There’s a link to the letter from the District of Columbia Courts Joint Committee on Judicial Administration on this topic later in this newsletter for more details.
Before we close out the year, we would like to thank Andrea Sloan and Ed Varrone for their service on the steering committee. They have both worked tirelessly and were the force behind many of our initiatives. We welcome the newly elected members, Leroy Fykes and Ellen Klem.
We have started planning for next year. Please let us know of any program ideas or other ways in which our Section can serve you.
Our luncheon programs will continue to be held on the third Thursday of the month. You will receive more detailed information in August. We are offering a CLE on “The Administration of Decedent’s Estates in the District of Columbia” taught by Bill Davis on July 14th.
We have started to update the Probate Practice Digest, an invaluable resource for every practitioner. We hope to complete this project next year.
With Judge Reid Winston’s guidance, we are developing a panel to educate the public about estate planning and the probate process. If you are interested in being a speaker on this panel, please contact us. We plan to have the first panel this Fall.
We encourage you to stay involved with the Section and to let us know how we can serve you better. We wish you a rejuvenating summer and look forward to seeing you in the Fall!
Morris Klein and Catherine Mary Rafferty,
cochairs, steering committee of the Estates, Trusts and Probate Law
Section
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Guardianship Fund Rate Increase
On June 9, 2009, the Joint Committee on Judicial Administration increased the hourly compensation rate for attorneys entitled to be compensated from the Guardianship Fund to $90.00 per hour. The new compensation rate will be effective for new cases filed on or after March 11, 2009 and for certain services associated with existing cases. The steering committee thanks the ad hoc committee, headed by Myrna Fawcett, that worked to have the compensation rate increased, for all of its efforts.
Guardianship Fund Memo
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Medicaid Long-term Support and Services Available in the Community
By Morris Klein
D.C. residents do not have to live in a nursing home to have Medicaid help pay for long-term support and services. The Elderly and Persons with Physical Disabilities (“EPD”) program allows persons 65 years or older and persons with disabilities aged 18 to 64 to receive care in their homes. These services include, in addition to usual Medicaid services, case management, personal care aide, homemaker, chore aide, respite, personal emergency response system, environmental accessibility adaptations and consumer-directed attendant care. The EPD program is also available for assisted living services, and at least one facility participates in the program.
The eligibility requirements are similar to nursing home eligibility. The applicant must be a U.S. citizen or an alien legally in the U.S. (but aliens entering the U.S. on or after August 22, 1996 face additional eligibility barriers) and living in the District. The applicant must have a medical need for nursing home care, even if the applicant is seeking care at home rather than a nursing home. In general, the applicant must have deficiencies in at least two activities of daily living (feeding, transferring, dressing, bathing, bathroom and continence).
Financially, the applicant cannot have more than $4,000 in countable assets. For an EDP applicant who is married, both spouses’ combined countable assets cannot exceed $6,000. The assets excluded for determining nursing home eligibility are also excluded for the EPD program. The income eligibility rules are more stringent than for nursing home eligibility (which requires monthly income to be less than the cost of the nursing home), although the applicant does not have to contribute to the cost of care. Monthly income cannot exceed three times the federal SSI payment rate. In 2009, this amount is $2,022 per month for an individual and $3,033 for a married couple. Persons with higher incomes are not eligible for any EPD services. Persons receiving federal civil service pensions may ask the Office of Personnel Management to reduce the pension in order to meet the income cap test.
The EPD program is not an “entitlement” and is available only to a limited number of persons on a “first come-first served” basis. About 2,000 of the available 3,180 waiver slots for 2009 are filled.
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Transfer on Death Deed Legislation: A Uniform Act is Near
By Ellen M. Klem*
In February 2007, the Uniform Law Commission (ULC, formerly known as the National Conference of Commissioners on Uniform State Laws or NCCUSL), established a drafting committee to prepare a uniform revocable transfer on death deed statute, known as the Uniform Real Property Transfer on Death Act (Act).
A revocable transfer on death deed statute provides an asset specific mechanism for the non-probate transfer of land. The concept is simple – an owner designates a beneficiary or beneficiaries to receive the property at the owner’s death without waiting for probate and without the beneficiary designation needing to comply with the witnessing requirements of wills.
Because the property passes by operation of law, individuals whose only significant asset is the home they live in may find the process for transferring property simple and inexpensive.
Since 1989, twelve states (Arizona, Arkansas, Colorado, Kansas, Minnesota, Missouri, Montana, Nevada, New Mexico, Ohio, Oklahoma and Wisconsin) have passed laws authorizing the transfer of real property by a transfer on death deed, and other states, including California and Oregon, are currently considering their own versions.
The object of the project is to draft a uniform act that all states and territories will consider adopting. The drafting committee Web site, includes links to all the memos and drafts before the committee.
The current draft addresses many of the formal and substantive issues concerning transfer on death deeds and includes suggested statutory forms. Key provisions of the draft include:
•The capacity required to make or revoke a transfer on death deed is the same as the capacity required to make a will.
• A transfer on death deed must contain the same essential elements and formalities as are required for a properly recordable inter vivos deed under state law. This includes the requirement that the deed be acknowledged by the transferor before a notary public or other individual authorized by law to take acknowledgments.
• The transferor on death deed must be recorded before the transferor’s death in the county where the land is located.
• A transfer on death deed is effective without notice or delivery to or acceptance by the designated beneficiary during the transferor’s life; or consideration.
• The transferor retains full ownership rights until death, including the right to revoke the transfer during his or her life.
• A transfer on death deed creates no beneficiary rights until transferor’s death.
• The property is subject to the transferor’s creditors during his or her lifetime.
• The property is not subject to the beneficiary’s creditors during the transferor’s life.
• After the transferor’s death, the beneficiary takes the property under a transfer on death deed subject to the transferor’s encumbrances.
• A transfer on death deed, during the transferor’s lifetime, does not affect the transferor’s or designated beneficiary’s eligibility for any form of public assistance, including Medicaid.
The drafting committee is preparing to present the Act for final approval at the July ULC meeting in Santa Fe, New Mexico. Once the Act is approved, it is likely that the statute will be widely adopted.
If you would like to submit comments about the Act, receive additional information or have any questions, contact ULC at nccusl@nccusl.org or (312) 450-6600.
* Ellen M. Klem is a staff attorney for the American Bar Association Commission on Law and Aging. She serves as an observer to the drafting committee on the Uniform Real Property Transfer on Death Act. She can be reached at (202) 662-8689 and kleme@staff.abanet.org.
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Community Outreach and Pro Bono Opportunties
D.C. Bar Pro Bono Program Advice & 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 (orientation at 9:30 a.m.) at Bread for the City, 1525 Seventh Street NW. The D.C. Bar Pro Bono Program Advice & Referral Clinic is designed to provide brief services by offering pro se individuals the opportunity to discuss with volunteer attorneys certain kinds of matters governed by D.C. or federal law, including bankruptcy/debt collection, consumer law, employment law, family law, health law, housing law, immigration/asylum, personal injury, probate, public benefits, and tax law. All services are provided free of charge. The clinic is limited to providing general information, advice, and brief services, and does not provide representation. To volunteer, contact the D.C. Bar Pro Bono Program at (202) 737-4700, ext. 3380. Volunteers are especially needed for September and October 2009 and May and June 2010.
D.C. Bar Pro Bono Program Probate Resource Center
The D.C. Bar Pro Bono Program operates the Probate Resource Center to
provide free legal services to unrepresented parties or potential parties
in the Probate Division of D.C. Superior Court. The Probate Resource
Center represents a continuum of services currently offered by the Pro
Bono Program’s Advice and Referral Clinics, with the capacity
to provide customers with an extended level of analysis, advice and
brief services. Volunteer attorneys are not expected to retain clients
served through the Resource Center. Volunteers should have experience
in estate administration. Attorneys interested in volunteering for the
Probate Resource Center should contact the D.C. Bar Pro Bono Program
at (202) 737-4700, ext. 3292.
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Superior Court News
19th Annual Judicial Reception
The Estates, Trusts and Probate Law Section hosted its 19th Annual Judicial Reception at the Embassy of the Republic of Indonesia to honor Judge A. Franklin Burgess, Jr., Judge Rhonda Reid Winston, and other Probate Division judges, both past and present, on April 29, 2009. Chief Judge Satterfield, staff members from the Office of the Register of Wills, the Probate Court, and the DC City Council joined Section members for an evening of Indonesian culture and cuisine. The Embassy occupies the former Walsh Mansion on Embassy Row and is listed in the National Register of Historic Places. At one time, it was the home of the Hope Diamond. More than 150 people attended this cultural event.
The evening included a program featuring a speech by Judge Burgess in which he shared his travels through Indonesia and thanked the Section for their camaraderie and cooperation with the judiciary; a welcome by Section Co-Chair Morris Klein and by His Excellency Ambassador Sudjadnan Parnohadiningrat; an exchange of gifts between His Excellency and Section Cochair Catherine Mary Rafferty; the Bhakti Marga Dance, a Balinese dance performed by the Wrhatnala Dance Group, to welcome guests and at the same time bless them through the prayers given; the presentation of Certificates of Appreciation by Anne Meister, DC Register of Wills, to Section members who participated in testing the online probate forms; and the presentation of plaques to outgoing steering committee members Andrea Sloan and Ed Varrone for their tireless work on behalf of the Section. Guests enjoyed authentic Indonesian food and the opportunity to mingle while admiring Indonesian artwork and the Beaux-Arts Mansion’s original paintings, sculptures, detailed wood carvings, ornate moldings, and Tiffany skylight. All guests received a gift from the Embassy as they departed. A memorable evening was enjoyed by all!
1st Row: His Excellency Ambassador Sudjadnan Parnohadiningrat; Judge
A. Franklin Burgess, Jr.; and Judge Rhonda Reid Winston; 2nd Row: Kate
M. H. Kilberg; Morris Klein, Cochair; and Catherine Mary Rafferty, Cochair;
3rd Row: Kimberly K. Edley; Kimberly Martin Turner; Archie Palmore;
Andrea Sloan; and Anne Meister, DC Register of Wills; 4th Row: Paul
Pearlstein, Edward G. Varrone, and James Larry Frazier
Judge A. Franklin Burgess, Jr.; Morris Klein, Section Cochair; and Aidan
Jones
Renee Fox, Kisha Woolen, Karla Saguil, Judge Jose Lopez, Cassandra Signifis,
and P. Allen Butler III
His Excellency Ambassador Sudjadnan Parnohadiningrat with Cochairs Catherine
Mary Rafferty and Morris Klein
Balinese dancers entertain the guests.
New Guardianship Forms Beginning July 1, 2009
For all semi-annual reports and plans due to the Court on or after July
1, 2009, new forms are to be used. The new Guardianship Report form
is more detailed and requests more specific information. The new Guardianship
Plan form is not required for Intervention Developmentally Delayed cases
or for Intervention cases with a guardian appointed on or before June
30, 2009. See new
forms.
Superior Court Rules of the Probate Division
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Other Notes and Announcements
Join the Estates, Trusts, and Probate Law Section of the D.C. Bar!
Joining the Section can provide you with opportunities to advance your skills and interests and network with colleagues. Non–D.C. Bar members may subscribe to the Section. Subscribers and Section members receive mailings, newsletters, e-mail announcements, and special discounts on events and publications, including our popular lunch programs and CLE courses. Join online at www.dcbar.org.
Thank You, Volunteers!
The steering committee thanks the following individuals who gave presentations at our February, March, April, May and June lunch programs:
Auditor Master Louis Jenkins
Deputy Auditor Master Sandra Arrington
Anne Coventry, Esq. of Pasternak & Fidis, P.C.
Bruce Hoffmeister, JD, CPA of Wachovia Wealth Management
Sharon A. Mills, RN, SMQT of the D.C. Department of Health
Tamara Ann Freeman, RN, SMQT of the D.C. Department of Health
Carmen Johnson, Esq. of the Office of the Attorney General
James Larry Frazier, Esq. of the Law Office of James Larry Frazier
Charles S. Abell, Esq. of Furey, Doolan & Abell, LLP
Kimberly Martin Turner, Esq. of the Law Office of Kimberly Martin Turner, PLLC
We also thank the following individuals who taught CLE courses and our bonus educational course on the Uniform Trust Code in February, March, April, May and June:
Paul D. Pearlstein, Esq.
Lewis J. Saret, Esq. of Moore & Bruce, LLP
George P. Levendis, Esq. of Levendis Law Group, PLLC
Kimberly Martin Turner, Esq. of the Law Office of Kimberly Martin Turner, PLLC
Catherine Mary Rafferty, Esq.
Deborah A. Cohn, Esq. of Paley Rothman
Calvin H. Cobb III, Esq. of Craighill, Mayfield, Fenwick, Cromelin & Cobb, LLP
I. Mark Cohen, Esq. of Cohen & Burnett, P.C.
William E. Davis, Esq. of Ross, Marsh & Foster
Nancy Fax, Esq. of Pasternak & Fidis, P.C.
Anne J. O’Brien, Esq. of Arnold & Porter, LLP
We also thank the following individuals who volunteered as probate mentors for the D.C. Bar Pro Bono Program's Advice and Referral Clinics in February, March, April, May and June:
Archie L. Palmore, Esq.
Paul Pearlstein, Esq.
Gina Lynn, Esq. of the Law Office of Giannina Lynn
Kimberly K. Edley, Esq.
Andrea J. Sloan, RN, Esq.
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Legislative Developments
Domestic Partnership Judicial Determination of Parentage Act of 2009
On May 20, 2009, the D.C. City Council enacted the Domestic Partnership
Judicial Determination of Parentage Act of 2009 (A18-0084), which grants
broader rights to the domestic partner of a parent, including the right
to be listed as a parent on a child's birth certificate. The act also
clarifies that domestic partners may hold property as tenants by the
entirety.
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Recent Court Proceedings
The steering committee thanks William E. Davis, Esq. of Ross, Marsh & Foster for providing the following case summaries for publication in this edition of our newsletter:
Intervention Proceedings
In Re JOYCE T. HUGHES, An Adult, INTVP No. 227-2007 (J. Wolf, April 3, 2009).
Court appointed counsel for the subject petitioned the Court for compensation
for services and left it to the court to determine whether her compensation
should be paid from the Guardianship Fund at the hourly rate of $80
or from the subject's assets at the petitioner's normal hourly billing
rate. A previous Order had awarded fees and expenses to the court-appointed
examiner payable from the subject's assets. Motions for Reconsideration
of that Order were pending at the time this matter came before the Court.
A second previous Order had awarded fees to the court-appointed guardian
ad litem for the subject payable from the Guardianship Fund.
The original Petition to declare the subject incapacitated was filed despite the subject's having prepared for her financial and health care assistance by execution of durable and health care powers of attorney and the case was ultimately dismissed "due to insufficient evidence of incapacity." The record did not indicate that it was dismissed because of an existing health care power of attorney. Since the intervention case was of no benefit to the Subject and was, in fact, of significant detriment to her and to her finances, the holder of the Subject's health care power and the court-appointed examiner objected to payment of fees from her assets. The Court held even if the original petition was improvidently brought or simply not sustained at trial, it does not follow that the Guardianship Fund "picks up the tab". The Court cited the Court of Appeals holding in Orshansky II, 952 A.2d. 199 that the DC statute requiring that "compensation shall be paid from the estate of the ward" applies unless such an interpretation would be "patently wrong or absurd". The trial court rejected the distinction made by counsel in the instant case who argued that Orshansky applied to a court-appointed fiduciary other than to counsel or to the examiner. Even though the subject's minimal liquid resources of $10,000 would be almost exhausted by payment of the fees from her estate, the Court held that the governing statute does not provide for anything but payment from the subject's estate, unless the estate would be "depleted" (i.e. "emptied" or "exhausted"). Payment does not come from the Guardianship Fund simply because the subject may have a future need for liquid resources.
The Court noted D.C. Law 17-249 which became effective October 22, 2008, amending D.C. § 21-2060 to describe instances when the estate of a person or ward "shall be deemed or presumed depleted for purposes of warranting payment from the Guardianship Fund" and providing for proof satisfactory to the Court of the inability of the subject to pay any costs without substantial financial hardship to himself or herself or to his or her family. The Court ordered that the Petition for Compensation be held in abeyance pending the filing of any further motion for reconsideration offering proof satisfactory to the Court that the payment of fees from the Subject's assets would impose substantial financial hardship to himself or herself or his or her family, but failing the filing of any such motion the Petitioner's fees shall be paid from the subject's assets.
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Estate Administration Proceedings
Albert D. Studevant, Co-Trustee of the Elise Jones Welden Trust, et al. V. John Blynn North, AKA John Blynn Welden, IV, et al, 2007 TRP 32 (Judge Reid Winston, 10/20/08).
This case involved a proceeding to determine whether the Defendant/Counter-Plaintiff, Laura Michelle Kee Seal, was a "descendant" of John Welden, III ("Weldon"), and as such, entitled to a share of the Elise Jones Weldon Trust (the "Trust"). Without conceding that she was formally adopted by her maternal grandparents, Seal claims that, even if she was legally adopted by her grandparents, subsequent to that adoption she was "equitably adopted" by Weldon. The Co-trustees of the Trust argued that Seal's legal adoption by her grandparents permanently severed her legal relationship with the Welden family.
The District of Columbia does not recognize equitable adoption and the Co-trustees claim that even if the Court applies Maryland law which does recognize equitable adoptions, Seal still would not receive a share of the Trust proceeds because Maryland law does not permit "equitably adopted" children to inherit through their adoptive parents (i.e. from relatives of their adopted parents). In this case, Seal claimed that she was entitled to a share of the trust proceeds because she was Welden's descendent. She conceded that she was attempting to inherit through Welden rather than from him. Her claim was that she was attempting to inherit from Welden's relative, the settlor of the Trust. The Court granted the trustees' Motion to Dismiss Seal's Counterclaim seeking to have the Court "take judicial notice" that she was the descendant of Welden and entitled to a share of the Trust.
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In Re ESTATE OF JOSEPH WASHINGTON, Adm. No. 1383-99 (J. Burgess, November 25, 2008).
The Successor Personal Representative filed a Petition for Court Resolution to determine the status of a beneficiary for purposes of distribution. All interested persons entered into a settlement agreement in connection with litigation over the validity of the decedent's will. The settlement agreement provided that the decedent died intestate and that the decedent's estate was to be divided equally among the seven (7) siblings. By "siblings" the Court clearly meant, among others, Sallie Hines. After the order was entered and a personal representative appointed, the personal representative raised the issue of whether Sallie Hines was indeed a "sibling". Hines had lived with the decedent and his wife since childhood, grew up with the decedent's other children, and was considered a member of the family. She was told by the decedent and his wife that she had been adopted but she was unable to produce any proof that she was legally adopted and the Court proceeded on the presumption that she was not. In the District of Columbia it is clear that a person claiming to be the child of a decedent cannot inherit by way of intestate succession unless the person is the natural child of the decedent or was adopted by the decedent. However, in this case there was an order, agreed to by all interested persons, that requires a distribution to Sallie Hines and the Court concluded that the Order previously entered determined that Sallie Hines was an heir, even though premised on an error to which no interested person objected or appealed from. Even if a judgment is wrong, the overriding policy of finality requires that it be followed absent a miscarriage of justice where a motion to vacate was not timely filed.
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In Re ESTATE OF NANCY L. PELLETREAU,
Adm. No. 29-07 (J. Burgess, March 23, 2009).
The Personal Representative filed a Petition to Construe the Decedent's
Will to Determine Disposition of Property Rights. The Decedent's Will
provided that if her mother Ave L. Pelletreau, survived her, she devised
her New York Apartment in trust for use as a residence for her mother
to be sold only with the written consent of her mother or for the purpose
of providing her mother with another, more suitable residence. Upon
the mother's death, the trust was to terminate and all trust property
was to be distributed to the decedent's sister, Ave Murphy. She devised
her residuary estate in equal shares, to her sister, Ave Murphy (the
daughter of Ave L. Pelletreau), and to a friend, Monica Yasunaga. The
decedent's mother did not survive the decedent. The issue was how the
personal representative should dispose of the New York apartment. The
sister/Personal Representative argued that she should deed title to
herself, contending that the decedent intended that she get the property
after the mother's death. The friend argued that the property should
be disposed of pursuant to the residuary clause of the will. Absent
a contrary intent, the weight of authority in this country holds that
"if the life beneficiary of a trust predeceases the author of the
will, the remainder beneficiary takes as if the provision for the life
estate was not made." However, both the District of Columbia anti-lapse
statute, D.C. Code § 18-308 and the majority rule contain an important
caveat: the deceased's issue takes, or "acceleration" occurs,
only if there is no contrary intent expressed in the Will. In the present
case, the Court concluded that there was a contrary intent. The decedent
gave her apartment to her mother, in trust, if her mother survived.
Since her mother did not survive her, the gift lapsed and was included
in her residuary estate to be divided equally between the decedent's
sister and the decedent's friend.
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In Re ESTATE OF HERBERT B. JORDAN, Calvin Brooks, et al Appellants, D.C.App.No. 07-PR-68, (September 18, 2008) (J. Burgess, Trial Judge).
Counsel for the Personal Representative of the Decedent's estate appealed from the trial court's denial of their Petition to order the Personal Representative to pay their outstanding attorneys fees. In November, 1996 the Personal Representative retained counsel to represent him as personal representative of the estate. After probate of the estate, the Personal Representative, without assistance of counsel, filed a final accounting with the Register of Wills on January 3, 2005. A Notice of Audit was sent to the Personal Representative and to Counsel. In June, 2006, Counsel sent the Personal Representative an invoice for attorney fees totaling $8,177.50. The Personal Representative responded that he had already sent them a check for the amount they had listed as the only outstanding balance on the Statement of Account. He also responded that the estate was closed. In July, 2006, Counsel filed a Petition to Order the Personal Representative to pay the $8,177.50 in attorney fees they claimed he owed. At a hearing on the Petition, the trial court found that the estate was closed and noted that the estate had no money because all distributions had been made.
The Court of Appeals noted that § 20-1303 provides that Aall claims
against the estate based on the conduct of or a contract with a personal
representative (as opposed to a claim of personal liability) shall be
barred unless an action is commenced against the estate within 6 months
of the date the claim arose. Since the claim was based on breach of
the parties' retainer agreement, and was not one for personal liability,
the claim was time-barred by the 6 months limitations period. It doesn't
matter whether Counsel first became aware of the dispute regarding fees
in October, 2003, when they sent the Personal Representative the invoice
which he disputed, or in March 11, 2005 when they received the Notice
of Audit notifying them that the estate had been closed and that the
Personal Representative had not paid their fees because both dates were
beyond the six-months limitations period. Affirmed.
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Dana Richard, et al, Appellants, v. Sally McGreevy, Personal Representative, Appellee, D.C.App.Nos. 06-CV-1056, O6-CV-1057 & 07-PR-1411, (July 24, 2008, J. Reid-Winston, Probate Judge; J Alprin, Trial Judge).
Following the Decedent's death, doctors and lawyers who alleged that
they provided medical and legal services to him prior to his death sought
payment for those claims by his estate. The Decedent died in his Maryland
home on June 7, 2005, and Ms. McGreevy became Executor of his Will and
Trustee of the Trust which was the residuary beneficiary of his pour
over will. On July 6, 2005, Ms. McGreevy opened a probate estate in
Montgomery County. On December 7, 2005, the Creditors presented their
claims in Maryland against the estate to Ms. McGreevy in her capacity
as Personal Representative. The estate disallowed those claims on January
10, 2006 and the claimants took no further action in Maryland to enforce
those claims. On March 6, 2006, Ms. McGreevy opened an ancillary probate
estate in the District of Columbia. On March 13, 2006, without knowledge
that an ancillary proceeding had been opened in the District, the Creditors
filed a complaint in the Civil Division of Superior Court seeking money
damages for breach of contract and the removal of Ms. McGreevy as Trustee
and Personal Representative. In April, 2006, the Creditors filed thirteen
Notices of Lis Pendens with the District of Columbia Recorded of Deeds.
Ms. McGreevy filed a Motion to Dismiss the Complaint filed in the Civil
Division on May 10, 2006 and a Motion to Strike Filing of Notice of
Lis Pendens on May 23, 2006. The Motion to Dismiss was granted and the
Recorder of Deeds was ordered to strike all thirteen Notices of Lis
Pendens. The Civil Division granted Ms. McGreevy's Motion on the grounds
that the Creditors were barred from asserting their claims in the District
of Columbia because they had failed to comply with the Maryland statute
requiring lawsuits be filed in Maryland after the disallowance of their
claims. The Creditors timely filed Notices of Appeal. The Creditors
also presented their claims against the ancillary probate estate in
the District of Columbia on September 21 and 25, 2006. The Probate Division
granted the estate's motion to dismiss the Creditors complaints, which
they filed after the disallowance of their claims on June 27, 2007,
and the Creditors appealed that Order. In dismissing the Creditor's
complaints, both the Probate Division and the Civil Division of Superior
Court relied on Maryland law. They reasoned that because the estate
had been opened in Maryland, the Creditors' claims had been denied there,
and no subsequent lawsuit had been filed there challenging the denials,
the Creditors were barred from presenting their claims and subsequent
lawsuits in the District of Columbia. The Appellants contended that
the Probate Division and Civil Division erred by applying the Maryland
statute, which would have barred their claims against the ancillary
estate in the District of Columbia. The District of Columbia statute,
which applied in this instance, would not have barred the claims. The
Court of Appeals rejected the argument of the Estate that a creditor
who has actual notice of a domiciliary probate proceeding in one jurisdiction
cannot file a claim in the ancillary jurisdiction after the time for
filing claims in the domiciliary probate proceedings had expired. There
is no provision in the District of Columbia statute that operates to
bar claims to the ancillary estate in the District in the event of a
lawsuit or time-barred claims in the domiciliary jurisdiction. Since
the Creditors did not file an action in the Maryland courts to contest
the disallowance of their claims by the domiciliary estate, there was
no final judgment from Maryland to which the District of Columbia court
would be required to afford Full Faith and Credit. The Court of Appeals
held that the Creditors stated claims upon which relief could be granted
because their claims were not "forever barred" and they may
be litigated here in the District of Columbia. Reversed and
Remanded.
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In Re ESTATE OF ADA LOUISE WATSON, PBM 1-08 (J. Burgess, November 24, 2008)
The Decedent, Ada Louise Watson, owned real estate as a tenant in common with Oscar Watson. Following her death, Madden offered to buy the property from Oscar Watson. Oscar Watson's attorney in fact and Madden then entered into a sales agreement. A reasonable inference with Madden's verified complaint was that Madden believed that Oscar Watson's power of attorney authorized his attorney in fact to sell the property to Madden. So believing, Madden expended significant resources to protect and maintain the estate property expecting that his monies and expenditures would be reimbursable. Oscar Watson was appointed Personal Representative of Ada Watson's estate in 2005. Madden filed a Mechanic's Lien on the property claiming he was owed $30,850 pursuant to his contract with Oscar Watson's attorney in fact. He also filed a claim against the estate of Ada Watson.
The Court granted the petition of the heirs of the estate to have the sales contract declared void because the attorney-in-fact, acting on behalf of his father, did not have authority to sell a fee simple interest in the property. Madden then filed a complaint asserting a claim for reimbursement of his expenditures to preserve and improve the property. The successor Personal Representative filed a Motion for Summary Judgment arguing that Madden failed to satisfy all of the elements required to make out a claim of unjust enrichment and that the claim was barred by the statute of limitations. The Court held that the claim was not time barred since it did not accrue until the appointment of the personal representative and was filed within three years of that date.
In granting the Motion for Summary Judgment, however, Court reaffirmed
the traditional rule on restitution, citing Anderson v. Reid, 14 App.
D.C. 54 (1899) that equity will not allow restitution in a suit by the
improver seeking affirmative relief; rather restitution is granted only
where the owner seeks the court's aid by suit for ejectment or for profits
the improver gained from the land or where the owner approved or acquiesced
in the improvements made on the owner's land. Reid stands for the proposition
that restitution cannot be given by way of affirmative action but only
as a defense to a suit for ejectment or for profits. Even though the
Court was of the opinion that the rule established by Reid is too rigid
in today's world it nevertheless could not ignore "clear legal
precedent" and was obliged to follow the holding in Reid. The Court
also held that the mechanic's lien was unenforceable because the contract
between Madden and Oscar Watson's attorney in fact had been declared
null and void.
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In Re LORAINE BOLEY INGERSOL TRUST, D.C.App.No.
05-PR-263, 05-PR-337, 05-PR-756, 136 DWLR 1521, (July 15, 2008), (J.
Hamilton, Trial Judge).
The Decedent died after extensive efforts in preparing her will in which she made various provisions for her three adult sons and an adult daughter and created a multi-million dollar charitable trust for the benefit of her church. During her final years, she repeatedly expressed an intent to benefit all her children equally with the exception that the daughter with whom she shared her home, should have the residence and its contents. Upon the Decedent's death, the daughter was surprised to learn that her mother had created a substantial charitable foundation which received approximately 25 percent of the estate and the restricted circumstances by which she was to receive the residence. The daughter sued her brothers, alleging that the eldest had exercised undue influence over their mother to abandon her original estate plan and to deprive her of the residence by isolating her mother from her and from independent counsel and exposing her to the concerted efforts of the brother's business accountants and lawyers. During the trial, both sides presented witness testimony on the testator's intent vel non to establish a charitable trust. The Trial Court found by clear and convincing evidence that the eldest son had "abused and betrayed" his relationship with his mother through fraud, concealment, and intimidation and had substituted his own plans in place of her will, particularly in providing for the establishment of the foundation and in the mistreatment of his sister.
The Court of Appeals reversed holding that neither confidential nor
familiar relationship, nor the testator's advanced age or serious illness,
nor the disproportionate distribution of an estate necessarily constitute
undue influence. The Appellate Court also found that the Trial Judge
relied too heavily on presumptions about the son's relationship with
his mother that were not supported by the factual record particularly
in his putative control over her business and financial affairs. Rather
the Court found that the record revealed that the testator was sufficiently
aware of her testamentary actions, despite her age and illness, to sustain
her will as executed, there being no threats, force, restrictions, psychological
domination, or unnatural disposition in the matter. The court also found
that while the testator's intent was that her daughter receive the house,
the record was incomplete as to the terms upon which the distribution
was to be made, whether gratis, at fair market value, with or without
paying taxes on it, or under other conditions. The Court of Appeals
held that the mere opportunity to exercise undue influence, even coupled
with a substantial benefit derived, does not rise to the required level
of clear and convincing evidence of having actually exercised it. Reversed.
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In Re ESTATE OF GERALDINE B. McKENNY; Khalid
M. Eltaeb, Appellant, D.C.App.No. 05-PR-1271, (Decided July
24, 2008) 136 DWLR 2017, (September 16, 2008), (J. Hamilton, Trial Judge).
The Decedent died intestate on November 14, 1990, leaving her home as her only significant asset and her son, Joseph W. McKenney, Jr., as her sole heir. No probate proceedings were opened for more than a decade and the unpaid property taxes on the home accrued to over $100,000. In November, 2004, the Appellant approached the son, who lived in a shelter, at his place of employment as a banquet steward. Appellant asked McKenney if he was aware of the $100,000 in outstanding taxes owed and whether he was in any position to do anything with the property. McKenney understood Appellant's implication to be that he would need to pay the taxes himself and to pay them at one time. Appellant offered to purchase McKenney's interest in the property for $1,200 but he did not disclose the property's value nor that there was a right of redemption. He pressed McKenney to make a decision right away asserting that the house was facing imminent demolition. McKenney accepted the offer and was paid the first $300 installment. McKenney was presented with an Irrevocable Assignment of Right, assigning the property interest to Appellant, which he signed even though no dollar value was listed in the agreement. Appellant's attorney then presented McKenney with pages one, two and four of a Petition for Probate of his mother's estate, omitting page three of the Petition which listed the value of the residence at $150,000. McKenney signed the Petition, filed several days later, seeking the appointment of Appellant as Personal Representative. On December 15, 2004, the Court held a hearing on the Petition to further probe into the circumstances of the transaction. The purchase price of the assignment was never disclosed to the court. Following the hearing, the Petition was accepted and the Appellant was appointed Personal Representative whereupon he conveyed the property to himself by quitclaim deed on January 15, 2005. In March, 2005, McKenney was approached by a third party, who informed him of the property's real value and offered to purchase the property. McKenney filed a petition to remove Appellant as Personal Representative and to rescind the assignment. He then executed an agreement to sell the property for $205,000 less the outstanding tax liens. The trial court conducted several days of evidentiary hearings and concluded that Appellant's misrepresentations were deliberate and that he and his attorney intentionally tried to make the Petition for Probate look as benign as possible so that it would be quickly approved without questions. The Court removed Appellant as Personal Representative and voided both the assignment and the quitclaim deed.
On Appeal, Court rejected the Appellant's argument that the Trial Court
lacked authority to rule on the heir's motion to vacate as it was untimely
filed since the hearing below focused on the heir's competency. An interested
person may, at any time, petition the Trial Court for an order to resolve
a question or controversy arising in the course of administration of
a decedent's estate and, in the case of allegations of fraud, the statute
extends the limitations period to two years following its discovery.
As to the finding of fraud and the rescission, the Court noted that
each remedy requires a different standard of proof, i.e. clear and convincing
evidence and preponderance of the evidence respectively. Intentional
misrepresentation must be shown to be both fraudulent and material,
while rescission can be obtained without a showing of knowledge of falsity
and may result from even innocent misrepresentation. Affirmed.
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KENNEDY, Executrix of the Estate of Kennedy, Deceased,
v. Plan Administrator for DuPont Savings and Investment Plan, et al.
U.S. Supreme Court No. 078-636 (January 26, 2009)
The decedent, William Kennedy, participated in his employer's savings
and investment plan (SIP), with power both to designate a beneficiary
to receive the funds upon his death and to replace or revoke that designation
as prescribed by the plan administrator. Under the terms of the plan,
if there was no surviving spouse or designated beneficiary at the time
of death, distribution was to be made as directed by the estate's executor
or administrator. Upon his marriage, Kennedy designated his wife, Liv
Kennedy, his SIP beneficiary and named no contingent beneficiary. Their
subsequent divorce decree divested Liv of her interest in the SIP benefits,
but William did not execute a document removing Liv as the SIP beneficiary.
On William's death, his daughter and the executor of his estate, Kari
Kennedy, asked for the SIP funds to be distributed to the Estate, but
the plan administrator relied on William's designation form and paid
the funds to the former spouse, Liv. The Estate sued alleging that Liv
had waived her SIP benefits in the divorce and thus the employer and
the SIP plan administrator had violated ERISA by paying her. The District
Court entered summary judgment for the Estate, ordering the benefits
to be paid to the Estate. The Fifth Circuit reversed, holding that Liv's
waiver was an assignment or alienation of her interest to the Estate
barred by § 1056(d)(1). The Supreme Court affirmed the Fifth Circuit
Court of Appeals but held that Liv's waiver was not nullified by §
1056 and that the plan administrator did his ERISA duty by paying the
SIP benefits to Liv in conformity with the plan documents. ERISA provides
no exception to the plan administrator's duty to act in accordance with
the plan documents and the claim of the Estate stands or falls by the
terms of the plan. By giving a plan participant a clear set of instructions
for making his own instructions clear, ERISA forecloses any justification
for inquiries into expressions of intent, in favor of the virtues of
adhering to an uncomplicated rule. Plan administrators should not be
required to examine numerous external documents purporting to be waivers
and draw them into litigation over their meaning and enforceability.
Under the SIP, Liv was William's designated beneficiary. The plan provided
a way to disclaim an interest in the SIP account, which Liv did not
purport to follow and the plan administrator did exactly what was required
and paid Liv the benefits.
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Disciplinary Proceedings
In Re WILLIAM S. BACH D.C.App.No. 07-BG-1389, (February 26, 2009)
The Respondent, while serving as conservator for the estate of a 92-year old woman, wrote himself a check from the estate for his services knowing that he was not authorized to do so without prior court approval, which he had not received. The Board on Professional Responsibility, in agreement with a Hearing Committee, concluded that this was intentional misappropriation of client funds and, accordingly recommended that the Respondent be disbarred pursuant to D.C. Rule of Professional Conduct 1.15(a). The Respondent was disbarred from the practice of law in the District of Columbia.
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In Re MARIA INES GONZALES D.C.App.No. 07-BG-104, (March 19, 2009)
The respondent in this reciprocal discipline matter was admitted to practice law in New Jersey, New York, and the District of Columbia. On January 23, 2007, the Supreme Court of New Jersey suspended her for three months based on stipulated violations of the New Jersey Rules of Professional Conduct for failure to comply with record keeping rules, failure to supervise nonlawyer assistants, sharing legal fees with a nonlawyer and assisting in the unauthorized practice of law. These violations were committed by negligently allowing her paralegal and bookkeeper to use her signature stamp on trust check accounts (which enabled them to steal client funds without her knowledge), and by permitting her paralegal to perform the duties of an attorney in personal injury matters (for example, by attending depositions and appearing in Court). Identical discipline was imposed by the District of Columbia Court of Appeals, namely suspension for a period of ninety days, with reinstatement conditioned on proof of rehabilitation.
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The Estates, Trusts and Probate Section Newsletter is produced up to four times a year and is available online at the Section's webpage. The Newsletter always welcomes material on recent developments in District of Columbia, Maryland and Virginia law. Send newsletter materials to Kate Kilberg, editor. Call or write 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:
Estates, Trusts and Probate Law Section Steering Committee 2008-2009
Morris Klein, Esq., Cochair
Attorney at Law
4550 Montgomery Avenue, Suite 601N
Bethesda, Maryland 20814
(301) 652-4462
(301) 652-1086
Catherine Mary Rafferty, Esq., Cochair
Law Law Offices of Catherine Mary Rafferty
4801 Yuma Street NW
Washington, DC 20016
(202) 244-0608
(202) 244-2967 (Fax)
Kimberly Edley, Esq.
Attorney at Law
P.O. Box 31550
Washington, DC 20030
(202) 584-3204
(202) 584-3204 (Fax)
James Larry Frazier, Esq.
Law Offices of James Larry Frazier
918 Maryland Avenue NE
Washington, DC 20002
(202) 544-9455
(202) 544-0077 (Fax)
Kate M. H. Kilberg, Esq.
Law Office of Virginia A. McArthur
1101 17th Street NW, Suite 820
Washington, DC 20036
(202) 857-3434
(202) 463-3060 (Fax)
Anne Meister, Esq.
Register of Wills
500 Indiana Avenue NW, Suite 5000A
Washington, DC 20001
(202) 879-4800
Paul D. Pearlstein, Esq.
Attorney at Law
2928 Ellicott Street NW
Washington, DC 20008
(202) 223-5848
(202) 235-7036 (Fax)
Andrea J. Sloan, R.N., Esq.
Attorney at Law
P. O. Box 419
McLean, Virginia 22101-0419
(703) 438-9200
(703) 438-9201 (Fax)
Edward G. Varrone, Esq.
Law Offices of Edward G. Varrone
910 17th Street NW, Suite 800
Washington, DC 20006
(202) 861-3150
(202) 861-3152 (Fax)
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Steering Committee Officers and Committee Assignments
Cochairs: Catherine Mary Rafferty and Morris Klein
Chair-Elect and Financial Officer: Kimberly Edley
Secretary and Newsletter Editor: Kate M. H. Kilberg
Programs Committee: Paul D. Pearlstein, Andrea Sloan, and Kimberly M. Turner
Community Outreach Coordinators: Larry Frazier and Andrea Sloan
CLE Committee: Paul D. Pearlstein, Andrea Sloan, and Kimberly M. Turner
D.C. Digest: Kate M. H. Kilberg and Ed Varrone
Elder Law Representative: Morris Klein
Intervention and Elder Law Support Group Coordinator: Archie L. Palmore
Legislative Updates: Morris Klein
Nominating Committee Chair: Larry Frazier
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