Archive for the ‘Trusts & Estates’ Category

In recent years, Warren Jeffs, incarcerated leader of the Fundamentalist Church of Jesus Christ of Latter-Day Saints, has been charged with bigamy, sexual assault, and rape in multiple states. The $110 million trust for the polygamist sect owns more than 700 houses, farms, dairies, and other businesses on land in two communities along the Arizona-Utah border. Several entities have sued the trust as an accomplice to Jeffs, and Utah intervened in the trust amid claims of mismanagement stemming from the alleged crimes of Jeffs.

A federal trial court entered an order returning control of the trust, including financial and property records and all of the trust’s assets, to the Fundamentalist Church of Jesus Christ of Latter-Day Saints. Then a state trial court filed a motion with the Tenth Circuit Court of Appeals, requesting a stay of the first order. The Tenth Circuit agreed and indefinitely stayed that order, halting the return of control of a $110 million trust to the polygamist sect.

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Norwood v. Sellers, No. CA08-952.

In 2003, Jeannie Rodgers signed as one of the attesting witnesses on the last will and testament of Thomas Norwood.  In 2006, Rodgers signed an affidavit stating that (1) she had been a subscribing witness to the will, (2) Norwood asked her to sign the will, and (3) she signed the will in Norwood’s presence.  However, in 2007, Rodgers testified at a hearing that (1) there were no other signatures on the will when she signed it, (2) Norwood never told her that it was his will, (3) Norwood never acknowledged his signature on the will, (4) she did not see Norwood or other other witness at the time she signed the will, and (5) she believed she was signing a loan.  The trial court accepted Norwood’s 2007 testimony and refused to probate the will.  On appeal, the Arkansas Court of Appeals affirmed the trial court’s ruling, noting that substantial compliance with the other requirements for a valid will cannot overcome positive proof that one of the witnesses did not see the testator sign or acknowledge the will.

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Kelly v. Estate of Kenneth Edwards, Sr., Deceased, No. 08-1234.

Under Arkansas law, a person cannot serve as administrator of an estate if he or she is a convicted felon.  In August 1996, plaintiff pled guilty to two felonies (theft of property and forgery).  After his father died, plaintiff was appointed administrator of his father’s estate by a probate court in 2003.  Plaintiff then brought a medical negligence case against Dr. Thomas Kelly and Cooper Clinic, P.A.,  in 2004 related to his father’s care and death.

After learning that plaintiff was a convicted felon, defendants sought to intervene in the probate estate case.  The probate court refused, noting that defendants’ motion was untimely.  On appeal, the Arkansas Supreme Court stated that timeliness should be determined based on the following factors:  (1) how far the proceedings have progressed, (2) whether any other parties have been prejudiced by the delay, and (3) the reason for the delay.  The court focused on the fact that the estate would be prejudiced by allowing defendants to intervene in the probate estate and affirmed the probate court’s decision.

Essentially, under these circumstances, no one can contest that a felon is acting as administrator of an estate?  Does that seem right?

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Osborn v. Bryant, No. CA 08-589

Lacy Bryant died in 1994, leaving a will that allowed a life estate for his wife in a twenty-acre tract of land, with an option to purchase to Brenda Bryant Osborn.  Ms. Osborn filed an affidavit for collection of small estate and attached Mr. Bryant’s will.  She later executed an “Administrator’s Deed,” which conveyed the property as outlined in the will. 

After Mr. Bryant’s widow died, other members of the family filed a declaratory judgment action, seeking to have Mr. Bryant’s will and the “Administrator’s Deed” declared invalid.  The other family members argued that, because the will itself was never probated, the will and the deed were nullities under Ark. Code Ann. 28-40-104.  The trial court agreed.

On appeal, the Arkansas Court of Appeals explained that small-estate proceedings were exempted under Ark. Code Ann. 28-40-104.  By specifically exempting such estate proceedings, the Arkansas legislature intended that such a will could be offered as evidence of a devise of real property.  Accordingly, the court reversed the trial court’s ruling.

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