Malpractice. The single word can send shivers down the spine of every attorney. Most attorneys have malpractice insurance to protect themselves and clients in the event the attorney makes an error. But how far does a malpractice insurance company have to go to defend the attorney? How does an exclusion clause affect the analysis? These issues were recently litigated in an Illinois appellate court.

Lisa died, leaving a last will and testament that named her two minor children as beneficiaries. Randy was appointed executor of the estate and he retained attorney Alan’s firm to represent him in the probate case. The probate court converted the case to supervised administration, whereas Randy could not pay Alan’s firm without prior court approval.

Can undue influence lead to a Trust Amendment via a Trust Protector who is an independent party? This issue was recently litigated in Arizona. In this case, Austin and Kay were married for 57 years. Near the end of their marriage, Austin was diagnosed with Parkinson’s Disease. Austin became romantically involved with his caretaker, Lindi. Austin and Kary divorced; thereafter, Austin and Lindi married.

During Austin and Kay’s divorce, Austin had his attorney, Paul, create an irrevocable trust. The trust provided for the following distributions upon Austin’s death: 45% to Kay, 45% to their children, and 10% to Lindi. The only person that could amend the trust was the Trust Protector, Paul. Paul was not subordinate to Austin within the meaning of IRC 672(c). After the divorce was finalized, Austin requested that Paul amend the trust. Paul added a no contest clause, eliminated Kay as a beneficiary, made Lindi the sole income beneficiary upon Austin’s death, reduced the children’s’ share, and added Lindi’s sons as remainder beneficiaries.

A Last Will and Testament devises one’s property after their passing. Great weight is given to this document; Wills have formalities that other documents don’t, hinting to its importance. But what happens when a devise in a Will contradicts a formerly executed contract?

This issue was litigated recently in Ohio. In this case, Twila entered into a partnership agreement in 1986 with her husband and another couple. The partnership agreement contained a provision that stated: “To protect and preserve the family character of this Partnership, each of the undersigned partners agree to have prepared and to execute a last will and testament so as to ensure that his or her interest in this Partnership will, upon his or her death, pass to and vest in his or her surviving spouse. Each partner, who shall ultimately become a surviving spouse, further agrees to have prepared and execute a last will and testament so as to vest his or her interest in this Partnership in his or her children (lineal descendants). Should any partner neglect or fail to execute such last will and testament, so as to ultimately cause his or her partnership interest to pass to and vest in an individual, who is not a spouse or lineal descendant of these partners, then upon such event, the Partnership shall be liquidated and dissolved forthwith.”