Current Developments: October 2025 Review

In the past month, we have seen significant developments in estate planning, business law, elder law, and special needs law. A state supreme court declined to apply a savings statute to extend the time to initiate a probate proceeding; another state supreme court ruled that signing an arbitration agreement to gain admission to a nursing home is not a healthcare decision; and the FTC dismissed its appeals to implement its final rule banning noncompete agreements. Read on to learn how these decisions may impact your practice.

Estate Planning

Utah Supreme Court: General Savings Statute Does Not Extend Time Limit to Initiate Probate Proceeding as Established by Probate Code

In re Estate of Davies, No. 20231140, 2025 WL 2438332 (Utah Aug. 21, 2025)

In 2018, Jodi Kittinger filed a petition to probate her grandmother’s will within three years after her grandmother’s 2015 death, but in 2021, the petition was dismissed for failure to prosecute. In 2022, Jodi refiled the petition within one year after the dismissal, asserting that it was timely under Utah’s savings statute, Utah Code § 78B-2-111(1), which states that a plaintiff may commence a new action within one year after a dismissal not based on the merits. 

Other grandchildren moved for partial summary judgment on the basis that the second petition was untimely under Utah’s probate code, Utah Code § 75-3-107. They argued that because the new petition was filed more than three years after their grandmother’s death, the statutory presumption of intestacy was final. According to the other grandchildren, the savings statute did not apply because the probate code’s timing statute was a statute of repose, not a statute of limitations, and could not be tolled. The district court denied their motion for partial summary judgment, and the grandchildren sought an interlocutory review of its decision. 

The Utah Supreme Court determined that it did not need to decide whether the timing statute in the probate code was a statute of limitations or statute of repose; rather, it was more appropriate to assess whether the legislature intended the savings statute to apply to the timing statute. The court examined the plain language of both statutes. The court determined that the language of the timing statute affirmatively prohibited a person from initiating a probate or testacy proceeding more than three years after a decedent’s death and imposed a final presumption of intestacy if a party failed to initiate the proceeding within that period.

The court noted that many statutes of limitations and repose indicate that an action may or shall be brought within a specified time period, but that the probate code’s timing statute used prohibitory language, stating that a probate or testacy proceeding may not be commenced more than three years after a decedent’s death. Thus, its language conflicted with the savings statute, which indicated that a plaintiff may commence a new action within one year after a failure in the action not based on the merits. The timing statute did not limit the time to commence a proceeding but affirmatively prohibited the commencement of an action after three years. 

Further, the timing statute stated that the presumption of intestacy is final if the decedent’s will is not probated within the three-year period. The savings statute, if applied, would allow a petition seeking the resolution of an issue that had been deemed to be finally resolved by the statute and the passage of time. Therefore, the court declined to apply the general savings statute to the more specific situation in the probate code’s timing statute. 

The court noted that its determination that the savings statute did not apply was supported by the rules of construction applicable to the probate code, i.e., that it must be liberally construed and applied to promote its stated purposes. The timing statute was designed to achieve a balance between two goals: discovering and effectuating a decedent’s intent and promoting efficient estate administration. Applying the savings statute to extend the three-year time limit in the timing statute would disrupt that balance. The court reversed the district court’s order denying the other grandchildren’s motion for partial summary judgment and remanded for further proceedings.

Takeaways: Although probate statutes vary widely by state and some states do not impose a limitations period on initiating a probate proceeding, many states establish relatively short statutory timeframes to file probate petitions and will contests to facilitate the prompt settlement of estates; as noted by the court in In re Estate of Davies, this was one of the goals promoted by Utah’s timing statute. In those jurisdictions, courts may emphasize the legislative policy of expediting probate matters to avoid unnecessary delays and expenses. Attorneys must become familiar with their jurisdictions’ relevant statutes and case law. 

Failure to Fund Trust Not Proper Basis for Reformation

McGee v. McGee, No. 2D2024-1447, 2025 WL 2370810 (Fla. Dist. Ct. App. Aug. 15, 2025)

In 2014, Robert McGee created a revocable living trust naming his wife Jacqueline and his daughter Karey as beneficiaries at his death and transferred assets to the trust. In 2021, Robert created another revocable living trust naming Jacqueline as the sole beneficiary upon his death. A schedule attached to the 2021 trust document listed real estate and accounts that he had previously transferred to the 2014 trust. Jacqueline was the trustee of both the 2014 and 2021 trusts.

At Robert’s death, Jacqueline discovered that he had not retitled any assets from the 2014 trust to the 2021 trust and that the 2021 trust did not hold any assets. She petitioned the circuit court to reform the 2021 trust to correct mistakes pursuant to Fla. Stat. Ann. § 736.0415. She asserted that reformation was appropriate because Robert had intended for the 2021 trust to be a full restatement of the 2014 trust and that his failure to retitle the assets from the 2014 trust to the 2021 trust was an error. 

At trial, the court found that Robert’s clear intention was for the assets in the 2014 trust to be transferred to the 2021 trust. The parties and the attorney who drafted the 2021 trust stipulated that its terms reflected Robert’s intent. In addition, Robert’s attorney testified that Robert did not tell him about the 2014 trust, he was not aware of any mistake in the terms of the 2021 trust, and he had advised Robert that the 2021 trust would not be effective unless Robert funded it. The trial court ruled in favor of Jacqueline. Karey appealed.

The Florida District Court of Appeal, in a de novo review, noted that under Fla. Stat. Ann. § 736.0415, a party seeking reformation must establish a mistake in the terms of the trust that affected the settlor’s intent. The court found that Jacqueline failed to prove a mistake that affected the terms of the 2021 trust and the accomplishment of Robert’s intent. To the contrary, as mentioned, the parties stipulated that the terms of the 2021 trust reflected Robert’s intent. Because section 736.0415 focused on the terms of the trust, which conformed to Robert’s intent despite his alleged mistake in failing to fund it, reformation was not available as a remedy. 

Moreover, Robert’s attorney testified that he had instructed Robert about the steps necessary to fund the 2021 trust so it would accomplish his intention that all his trust assets be distributed to Jacqueline at his death. Consequently, Jacqueline’s argument that restating the 2014 trust was necessary to accomplish his intent was meritless. Further, the court determined that the evidence, including the parties’ stipulation that the 2021 trust reflected Robert’s intent when he signed it, showed that Robert intended to create a new trust rather than restate the 2014 trust. The court reversed and remanded, holding that the district court erred in reforming the 2021 trust.

Takeaways: Reformation is typically available only if there is a mistake when the trust was drafted that caused it to not accurately reflect the trustmaker’s intent, e.g., a scrivener’s error, or when the trust’s terms do reflect the trustmaker’s intent but their intent was affected by a mistake of fact or law. In McGee, Jacqueline failed to show by clear and convincing evidence that the 2021 trust did not reflect Robert’s intent. The 2021 trust accurately reflected Robert’s intent when he signed it, and its terms were not affected by a mistake of fact or law. Robert’s failure to take the steps necessary to retitle the assets held by the 2014 trust to the 2021 trust as instructed by his attorney was not a mistake that could be remedied by reformation.

Elder Law and Special Needs Law

Signing Arbitration Agreement Not a Healthcare Decision Authorized by Living Will Directive Act

Lexington Alzheimer’s Invs., LLC v. Norris, No. 2023-SC-0510-DG, 2025 WL 2388179 (Ky. Aug. 14, 2025)

In 2019, Sandra Norris was appointed as her husband Rayford’s conservator by a Tennessee court after his diagnosis with Alzheimer’s disease. She sought his admission to a private-pay personal care facility, The Lantern, in Lexington, Kentucky. Sandra did not register the 2019 Tennessee order in Kentucky. The Lantern required Sandra to sign a mandatory arbitration agreement before Rayford’s admission to the facility. The agreement requested that the signee indicate the capacity in which they were signing, for example, self, power of attorney, or guardian, etc., but Sandra did not do so. Nevertheless, Rayford was admitted to The Lantern and resided there until March 2020. Sandra alleged that he fell multiple times, lost weight, and suffered from an infected bed sore while he resided at The Lantern. Rayford died in August 2020.

Sandra filed a lawsuit against The Lantern, asserting multiple claims, including negligence, medical negligence, and wrongful death. The Lantern filed a motion to stay the claims and compel arbitration, asserting that Kentucky’s Living Will Directive Act, Ken. Rev. Stat. § 311.631, granted Sandra the authority to enter into the arbitration agreement on Rayford’s behalf. The Lantern acknowledged that the Tennessee court order was not registered in Kentucky and had no legal effect there. The circuit court denied The Lantern’s motion to compel arbitration, holding that signing an arbitration agreement was not a healthcare decision under the Living Will Directive Act. The Kentucky Court of Appeals affirmed its decision, and the Kentucky Supreme Court granted The Lantern’s request for review.

The Kentucky Supreme Court distinguished its precedent holding or stating as dicta that where an agent under a power of attorney expressing general authority to make healthcare decisions or a guardian is presented with an agreement to arbitrate as a condition to admission to a nursing facility, the agent has the incidental or reasonably necessary authority to enter the arbitration agreement. In contrast to the facts in those cases, Sandra was not Rayford’s agent under a power of attorney, his guardian or conservator under an order enforceable in Kentucky, or his surrogate under a living will or advance directive.

Under the Living Will Directive Act, when an individual’s physician has made a written determination that the individual lacks decisional capacity, a spouse is authorized to make certain healthcare decisions on their behalf, even if they do not have a living will or advance directive. However, the Act only authorizes the spouse to decide whether to consent to or withdraw consent for any medical procedure, treatment, or intervention. The court determined that signing an arbitration agreement was not a medical procedure, treatment, or intervention and thus was not a healthcare decision under the Act. Therefore, the Act did not authorize Sandra, as Rayford’s spouse, to enter into the arbitration agreement on his behalf. In addition, the court noted that nothing other than the unregistered Tennessee order indicated that Rayford’s physician might have determined he lacked decisional capacity.

The court also rejected The Lantern’s argument that the lower courts had flouted the US Supreme Court’s ruling in Kindred Nursing Ctrs. Ltd. P'ship v. Clark, 581 U.S. 246 (2017), which had invalidated the clear-statement rule, i.e., that a power of attorney must explicitly state that an agent has the authority to enter into arbitration agreements. The US Supreme Court held the rule violated the Federal Arbitration Act by discriminating against arbitration agreements instead of placing them on equal footing with other contracts. The court determined Kindred Nursing was inapplicable: The court’s determination that the arbitration agreement was invalid was based on a generally applicable contract defense—an agent’s lack of authority to bind the principal—and did not discriminate against arbitration. Thus, the court affirmed and remanded the case for further proceedings.

Takeaways: Many states have statutes like Kentucky’s Living Will Directive Act that specify individuals, such as a spouse, child, court-appointed guardian, or attorney-in-fact, who can make certain healthcare decisions on behalf of individuals who no longer have the capacity to do so for themselves. In the absence of such a statute, a party must be authorized by a properly executed medical or financial power of attorney effective in the relevant state or petition a court to be appointed as the guardian or conservator for an incapacitated individual to act on their behalf. In Lexington Alzheimer’s Investors, LLC, the Tennessee court order appointing Sandra as Rayford’s conservator had no effect in Kentucky. Further, because signing the arbitration agreement was not a healthcare decision consenting or withdrawing consent for a medical procedure, treatment, or intervention, and nothing in Rayford’s medical records showed that his physician had determined that he lacked decisional capacity, the Living Will Directive Act did not authorize Sandra to bind Rayford to the arbitration agreement. Sandra was not authorized by statute, a court order effective in Kentucky, or an estate planning document to sign the arbitration agreement on Rayford’s behalf.

Although the care facility at issue was a private-pay facility, elder law practitioners should remind clients that under CMS regulations, long-term care facilities that participate in Medicare or Medicaid programs may not require a resident or their representative to sign an agreement for predispute binding arbitration as a condition of admission to or as a requirement to continue to receive care at the facility. Further, any agreement for binding arbitration must be thoroughly and clearly explained to the resident or their representative to ensure they understand the agreement and to ensure transparency. Lastly, agents acting on behalf of a principal, whether under a durable power of attorney, medical power of attorney, or other agency arrangement, must follow the specifics outlined in such documents to fully vest legal authority and prevent unnecessary consequences.

Attorney-Trustee for Vulnerable Elderly Woman Disbarred for Breach of Fiduciary Duties and Fraudulent Misrepresentations

In re Bradshaw, 570 P.3d 868 (Cal. July 3, 2025)

In 2006, Ora Gosey, a 78-year-old woman with no children or spouse, hired attorney Drexel Bradshaw to prepare her estate plan, including the Gosey Revocable Living Trust. Ora’s home was the main asset held in the trust. The trust permitted the trustee to employ the trustee, a relative of the trustee, or a business in which the trustee had an interest, to perform services needed for the trust, provided the trustee did not act in bad faith or contrary to the purposes of the trust. The trust further provided that, except as expressly provided in the trust document, the trustee was subject to all duties imposed by law and required to act as a prudent person would. Bradshaw’s law firm was designated as the third successor trustee. In the trust, Ora also expressed her desire to stay in her home if she became incapacitated.

In 2013, Ora fell in her home and was hospitalized, where her doctors determined that she suffered from dementia and could not care for herself. Thereafter, she lived at her home with in-home care. After the individuals designated as the first and second successor trustees declined to serve, Bradshaw was appointed as her conservator and successor trustee.

While Bradshaw was trustee, he formed a construction company that employed his son and a contractor with whom he had an attorney-client relationship. Bradshaw’s law firm was listed as the corporate address for the construction company, and Bradshaw named law firm employees as corporate officers. He hired the construction company to work on Ora’s home without obtaining competitive bids and before the company obtained a license.

Bradshaw did not disclose his affiliation with the construction company to the probate court and indicated there was no affiliation when he petitioned the court to waive a court accounting and terminate its supervision over the trust. Bradshaw petitioned the probate court twice to obtain reverse mortgages on Ora’s home, asserting that the cash in her estate was insufficient to pay for her monthly expenses and her funds would soon be exhausted. The construction company did repairs on Ora’s home, depleting the funds from the first reverse mortgage more quickly than Bradshaw had estimated. During the time period when the trust paid the construction company to make repairs, the trust owed $45,000 to the agency providing Ora’s daily care. Bradshaw petitioned the court for permission to obtain a second reverse mortgage, which prompted an investigation that revealed his ties to the construction company. The probate court expressed concern about whether the trust funds had been spent appropriately and Bradshaw’s relationship with the construction company, but allowed the second reverse mortgage on the condition that the funds be used only for Ora’s care and living expenses.

After Ora died in 2017, one of the trust beneficiaries petitioned the court to remove Bradshaw as trustee. The court granted the petition, finding that Bradshaw had violated his fiduciary duties to the trust by engaging in self-dealing and concealing and misrepresenting his interest in the construction company.

Thereafter, the state bar brought a disciplinary action. The Review Department recommended a six-month suspension and two years of probation. On appeal, the California Supreme Court found that Bradshaw had engaged in a scheme to defraud the trust in violation of Cal. Bus. & Prof. Code § 6106: He fraudulently represented himself to be a prudent trustee who acted in good faith and in the best interest of the trust by falsely representing that he was not affiliated with the construction company when, in reality, he effectively controlled it. He also enriched himself by repeatedly hiring and paying the construction company to perform work that required a licensed contractor and failed to adhere to the requirement that a licensed contractor supervise its work. 

Further, Bradshaw violated Cal. Bus. & Prof. Code § 6068 by breaching his fiduciary duties to Ora and the other trust beneficiaries: The court found that he had prioritized his own interests and those of the construction company over those of the trust by employing an unlicensed contractor, causing risk to Ora and the trust, and by awarding work to a construction company he controlled without obtaining other bids.

The court also found that Bradshaw had made numerous false statements, including falsely representing that he did not have a financial interest in the construction company and concealing the true purpose for obtaining the reverse mortgages. Further, he sought to avoid court supervision to perpetrate the fraud. In considering the appropriate discipline, the court found several aggravating factors and ordered that Bradshaw be disbarred from practicing law in California.

Takeaways: One of the aggravating factors assigned substantial weight by the court was that Bradshaw’s misconduct harmed a highly vulnerable victim. Ora was an elderly woman with advanced dementia who had no close family members or other individuals who could watch out for her interests. Bradshaw, her attorney and trustee, was bound to act in her best interest, but instead put his own interests above hers—conduct the court described as “highly reprehensible.” In re Bradshaw, 570 P.3d 868, 883 (Cal. July 3, 2025).

Attorneys are not prohibited from serving as their client’s executor, trustee, or other fiduciary position but are subject to conflict of interest rules and must obtain their client’s informed consent to a conflict (See Model Rules Prof Conduct r. 1.8, cmt. 8). As discussed in In re Bradshaw, in the role of trustee, they are also subject to fiduciary duties and must consistently act in the best interest of the trust and its beneficiaries.

Business Law

FTC Withdraws Notices of Appeal, Acceding to the Vacatur of the Non-Compete Clause Rule

On September 5, 2025, Federal Trade Commission (FTC) Chairman Andrew Ferguson and Commissioner Melissa Holyoak announced that the FTC withdrew its notices of appeal in Ryan, LLC v. FTC, No. 24-10951 (5th Cir.) and Properties of the Villages v. FTC, No. 24-13102 (11th Cir.), acceding to the vacatur of the April 2024 Non-Compete Clause Rule. The rule banned most noncompete covenants in the employment context. 

However, Ferguson and Holyoak expressed the FTC’s intention to initiate enforcement actions against individual instances of unreasonable noncompete agreements that violate section 5 of the FTC Act, which prohibits unfair competition. On September 4, 2025, the FTC launched a public inquiry to encourage employees and others to share information about the use of noncompete agreements for possible future enforcement actions. Further, on September 10, 2025, the FTC issued a warning letter to several large healthcare employers and staffing firms advising them to review noncompete agreements to ensure any restrictions imposed are reasonable.

Takeaways: The FTC’s abandonment of its appeals formally ended its efforts to implement the Non-Compete Clause Rule. At the state level, the law addressing the enforceability of noncompetition covenants has been dynamic over the past several years, with some states imposing additional restrictions and others creating presumptions of enforceability under certain circumstances. A few states—California (Cal. Bus. and Prof. Code §§ 16600, 16600.1), Minnesota (Minn. Stat. § 181.987), North Dakota (N.D. Cen. Code § 9-08-06), and Oklahoma (15 Okla. Stat. § 219A)—have enacted statutes completely banning noncompete clauses in employment under most circumstances. However, Kansas recently enacted Kan. S.B. 241, an employer-friendly statute that identifies circumstances in which nonsolicitation agreements are presumed to be enforceable (see our May 2025 monthly recap). Similarly, Florida enacted H.B. 1219, entitled the Florida Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth (CHOICE) Act, which creates presumptions of enforceability for certain garden leave and noncompete agreements (see our June 2025 monthly recap).

FinCEN Director: Beneficial Ownership Information Collected from Domestic Companies to Be Deleted

In March 2025, the Financial Crimes Enforcement Network (FinCEN) issued an Interim Final Rule limiting enforcement of the Corporate Transparency Act’s (CTA) beneficial ownership information (BOI) reporting requirements to foreign reporting companies and exempting domestic reporting companies and US persons. However, some domestic companies had already submitted their BOI reports. In testimony before Congress, FinCEN Director Andrea Gacki stated that FinCEN intends to delete the data submitted by those companies once a new final rule is issued later this year. 

Takeaways: Despite the introduction of bills to repeal the CTA, it remains the law. Proponents of the CTA have questioned the US Department of the Treasury’s legal basis for exempting domestic small businesses and US persons from compliance with its reporting requirements. If the CTA is not repealed, a future administration that favors it may decide to enforce its requirements against domestic reporting companies and US persons. FinCEN has indicated that a new final rule will be released before the end of 2025.