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trusts & estates

Aug 16, 2016

Civil Practice – Pleadings Amendment – Delay & Futility – Capacity to Sue – Trusts & Estates – Personal Representative – Statutes of Limitations – Tort/Negligence

Brown v. Brown (Lawyers Weekly No. 012-154-16, 20 pp.) (Lucy Inman, J.) Appealed from Mecklenburg County Superior Court (John Bowers, J.) N.C. App. Unpub. Holding: Before she qualified as decedent’s personal representative, plaintiff (1) filed a lawsuit on the decedent’s behalf, (2) dismissed it without prejudice, (3) refiled the complaint within one year, and (4) […]

Dec 26, 2012

Civil Practice – Judicial Admission – Real Property – Trusts & Estates

Turner v. Hammocks Beach Corp. Where the N.C. State Board of Education made judicial admissions disclaiming any interest in a trust that administers real property in Onslow County, and where the Board admitted that it “may not serve as successor trustee,” the trial court should not have appointed the Board as trustee of the trust.

Sep 11, 2012

Real Property – Statute of Frauds – Sale of Business – Writing – No Mention of Land – Trusts & Estates

Hankins v. Bartlett: A father’s memorandum that he had sold his business and its “assets” to his daughter and son-in-law was insufficient to transfer title of the land on which the business sits.

Aug 23, 2012

Trusts & Estates – Wills – Executors’ Authority – Real Property – Mortgages

RL Regi North Carolina, LLC v. Estate of Moser Although the decedent’s will granted its co-executors broad powers, the will’s co-executors lacked the authority to have the estate guarantee a loan that was borrowed for the purpose of developing raw land owned by the decedent’s company.

Aug 8, 2012

Trusts & Estates – Guardianship – Ward’s Death – Collector’s Appointment – Power of Attorney

White v. Harold L. & Audree S. Mills Charitable Remainder Unitrust At the time the trial court entered summary judgment for defendants, named plaintiff Ray White no longer had the authority to sustain the present action because his ward had passed away. Although the trial court subsequently entered a consent order substituting the collector of the ward/decedent’s estate as plaintiff, we[...]

Aug 8, 2012

Trusts & Estates – Guardianship – Ward’s Death – Collector’s Appointment – Power of Attorney

At the time the trial court entered summary judgment for defendants, named plaintiff Ray White no longer had the authority to sustain the present action because his ward had passed away. Although the trial court subsequently entered a consent order substituting the collector of the ward/decedent’s estate as plaintiff, we [...]

Jul 17, 2012

Trusts & Estates – Wills – Civil Practice – Appeals – Party Aggrieved – Executor

Bigger v. Arnold The trial court ruled in favor of one beneficiary (the testator’s widow) over another beneficiary (a college). The college – the aggrieved party -- did not appeal. Since the order affected only the distribution rights of the beneficiaries, the executor lacks standing to appeal.

Jun 5, 2012

Trusts & Estates – Uniform Transfers to Minors Act – Accounting – Interest – First Impression — Attorney’s Fees – Speculative Investment

Belk v. Belk Where the Uniform Transfers to Minors Act is silent as to the contours of the accounting remedy provided for in G.S. § 33A-19(a) and (d), we hold that a trial court may award interest on funds wrongfully disbursed, representing the loss of appreciation on such funds.

May 17, 2012

Trusts & Estates – Life Insurance – Missing Person – Declaration of Death – Civil Practice – Appeals

Dayton v. Dayton Where the trial court made a final finding under G.S. § 28C-11(a) that plaintiff’s missing person had suffered an accidental death, this was a final decree, and the defendant-insurance company neither appealed, nor timely filed a motion to amend.

May 10, 2012

Trusts & Estates – Wills – Real Property – Direction to Sell – Upset Bid Procedure – Inapplicable

Riggs v. Burns Since the testator’s will directed that his land be sold and the proceeds divided among his beneficiaries, the will vested title in the testator’s heirs – not the executrix – pending the sale. Therefore, G.S. § 28A-17-10 does not apply, and there was no requirement that the executrix’s private sale of the land be subject to the upset bid provisions of G.S. Chapte[...]

Apr 11, 2012

Domestic Relations – Separation Agreement – Court Orders – Trusts & Estates – Husband’s Will – Tort/Negligence – Constructive Trust

MacMillan v. MacMillan A decedent’s first wife has stated a claim for a constructive trust against the decedent’s widow when the first wife alleges that the decedent was under court order to leave her $38,000 but he arranged his finances so that his widow received the money instead.

Mar 20, 2012

Civil Practice – Prior Pending Action Doctrine – Different Issues & Relief Requests – Trusts & Estates – Wills – Testamentary Capacity & Undue Influence – Tort/Negligence – Conversion & Breach of Fiduciary Duty

Shoaf v. Shoaf Plaintiffs’ will caveat proceeding presents the issues of the testatrix’s testamentary capacity and undue influence while this tort action presents the issues of whether defendant converted the testatrix’s property and breached his fiduciary duty to her while she was alive. The caveat proceeding seeks to have the testatrix’s will set aside, while this action seeks d[...]

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