Posts made in October, 2015

Power of Attorney Abuse Settlement for $1.5million

Posted on Oct 30, 2015 in Fiduciary Litigation Attorney NC, News

NC Fiduciary Litigation Attorney, Kirk Sanders, and co-counsel, Bryan Thompson, settled a lawsuit against the power of attorney for an elderly octogenarian. The case was filed, along with discovery and a motion for a preliminary injunction to protect the assets. The case was reported in North Carolina Lawyers Weekly, September 28, 2015 edition. The elderly plaintiff had $1,000,000 in financial assets taken out of his control and name. Within 2 weeks, the power of attorney went to the plaintiff’s banks, closed all his accounts, and transferred the money to sequestered, unknown banks....

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Contesting a Will, but Which Will

Posted on Oct 27, 2015 in challenging a last will and testament, Contesting a Will

Contesting a Will & the Deadman’s Statute –  the case of In Re Will of Lamparter, 348 N.C. 45 (1997) The NC Decededent had a typed up Last Will and Testatment. Later the decedent wrote a handwritten codicil (Addendum) to that Last Will. But later, after passing, someone found an undated 8 page handwritten document purporting to be the Last Will. Did it revoke the prior will? So the typed Last Will was probated. Thus the challengers of that typed will, the caveators, said the handwritten will (holographic will) was the Last Will and should govern the estate. Problem/Issue:...

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Discovery in Will Contests

Posted on Oct 21, 2015 in challenging a last will and testament, Contesting a Will, News, will contest attorney NC

When the probate litigation lawyers at Hendrick Bryant file a Will Contest (will Caveat), we also file discovery requests per the N.C. Rules of Civil Procedure. If the case is based on capacity of the testator at the time of execution of the Last Will & Testament or if it’s based on Undue Influence on the testator, then medical records are vitally important. So we ask for medical records around the time the will was executed and beforehand. These requests include: Medical & health records and bills from {DATE} to her Date of Death, including: medical records doctors notes...

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Breaking A Will & Bifurcated Trials

Posted on Oct 15, 2015 in challenging a last will and testament, Contesting a Will

Will Caveats (Will Contests) or colloquilly known as “breaking a will” involve at least two phases in the devisat vel non trial. Devisat vel non is the archaic speak for the questions put to the jury concerning the validity of a will. So at the trial, something interesting happens: the defender of the will, the Propounder, has the burden of proof to show the will that is being questioned was executed properly, then the attacker of the will probated, the Caveator, has the burden to show why the will should be over turned, typically by either lack of capacity of testator or undue...

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NC Change of Beneficiary Form Challenges & Mental Capacity

Posted on Oct 14, 2015 in challenging a last will and testament, Contesting a Will

NC Change of Beneficiary Form Challenges & Mental Capacity Last Wills & Testaments only transfer undesignated assets such as real property, accounts without death beneficiaries, personal property, stocks, business interests. But what if the decedent allegedly signed a Transfer on Death (a/k/a Paid on Death Beneficiary, life insurance policy, annuity contracts, Totten Trust, Joint Account with Right of Survivorship) or a deed before they died? Similar rules apply to challenging the document as there are with Will Contests (aka Will Caveats). Was this an invalid gift? Did the...

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