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New Protections for Vulnerable Adults

Senior CitizenFinancial exploitation of vulnerable elderly adults is a serious problem.  Many seniors suffer from dementia or Alzheimer’s disease, which limits their ability to protect themselves from abuse, neglect or financial exploitation.  It makes them easy targets for unscrupulous caregivers, family members, friends or strangers.

Elder abuse costs about $3 billion dollars a year, according to Mary Mack, the president of Wells Fargo Bank’s brokerage division.  Combating exploitation requires new methods of protection.  What more can be done to help protect the financial security of our beloved vulnerable senior citizens?  Fortunately, there are some new ways.

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B.B. King’s Estate Dispute

The recent death and loss of blues legend B.B. King was saddening. Shocking, however, are the allegations that King was murdered by his longtime business manager and executor of his estate, Louise LaVerne Toney. A dispute regarding the estate is now in court with two of King’s daughters, Patty King and Karen Williams, leading the charges against Toney.Blues legend B.B. King

According to, the Official Website, “He started life as Riley B. King in one of America’s most impoverished places, the Mississippi Delta. He had little but the dream in his heart and a destiny that would take him around the world. Now he’s an international music icon, and Blues aficionados from all over the planet want to hear more and know more about B.B. King.”

Estate disputes are not uncommon.  The rich and famous are not immune.  Patty King and Karen Williams have raised allegations of elder abuse, neglect and financial exploitation against Toney.

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Do It Yourselfers Beware! – Holographic Will Held Invalid

When a loved one dies, it is a time of grieving, pain and sorrow.  The grief and sorrow can turn to frustration and even anger when the deceased’s wishes for his estate are not followed.  Sometimes the person’s wishes are not followed because the person did not have testamentary capacity (was of unsound mind) or was unduly influenced.  Other times, the person’s wishes are not followed because those wishes were not properly adopted in a legally enforceable will.  Irrespective of the reason for the question or dispute, it is often helpful to consult with an experienced Arizona probate attorney.

The question in Wagoner v. Aleman, decided by the Arizona Court of Appeals on May 19, 2015, was whether Jeanine Jones’ partially typed and partially hand-written will was valid and enforceable under Arizona probate law.

In that case, Elisa Aleman was Jones’ natural granddaughter.  Elisa’s natural mother died shortly after Elisa was born and Elisa was legally adopted six months later.  Despite the adoption, Jones reconnected with Elisa and they remained close until Jones died on August 31, 2012.

Before she died, Jones prepared what was labeled a “Last Will and Testament” on a computer.  The document provided that Elisa was to inherit 50% of the sale of Jones’ property in Lake Havasu City, Arizona.  Later, Elisa stated that she was present when Jones made handwritten changes to the Will.  The changes reduced Elisa’s share to 25%.  Jones initialed all of the changes, except one that remained basically unchanged from the original document.  Only Jones and a notary signed the document.

After Jones died, her sister opened probate, claiming that Jones died intestate (without a will).  Elisa then filed a petition seeking to admit the typed/handwritten will to probate, whereby she would inherit 25% of the sale proceeds of the Lake Havasu City, Arizona property.  Elisa claimed that the will was a valid holographic will and Jones’ sister objected.  Elisa also argued that even if the will was not valid and Jones died without a will that she was Jones’ heir under Arizona’s intestatcy laws, such that Elisa was entitled to Jones’ estate.

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UNC Basketball Coach Dean Smith Leaves Behind a Special Gift

basketballDean Smith, the great basketball coach for the University of North Carolina, Chapel Hill, died recently at the age of 83. His reputation among the UNC alumni and athletic department would go so far as lauding him as revered. One of professional basketball’s greatest all-time players, Michael Jordan, was quoted after the passing of his college coach, “Other than my parents, no one had a bigger influence on my life than Coach Smith. He was more than a coach—he was my mentor, my teacher, my second father. Coach was always there for me whenever I needed him and I loved him for it. In teaching me the game of basketball, he taught me about life.” This is high praise from one legend to another. [Read more…]

Arizona Supreme Court Clarifies Anti-Deficiency Statute

Since the downturn in the Arizona real estate market and increase in the number of loan defaults and foreclosures, lenders and borrowers have fought over the interpretation of Arizona’s so-called anti-deficiency statutes.

Disputes between lenders and borrowers have involved, for example, (1) what is a dwelling? (2) does a dwelling have to be someone’s primary residence? (3) what is a purchase money loan? (4) does a construction loan qualify as a purchase money loan? and (5) can an incomplete dwelling still be considered “limited to and utilized for either a single one-family or single two-family dwelling?”  This post focuses on the last issue, recently addressed by the Arizona Supreme Court.

But, before addressing that, I will cover the basic requirements to qualify for protection.

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Lessons from Robin Williams’ Trust Dispute

Robin WilliamsAfter the passing of a loved one, family members and friends normally gather to find solace or to celebrate the person’s life. Or at least that is the order and manner in which most people would wish to be remembered. To this end of allowing space to grieve, creating estate planning documents should assist the bereaved in efficiently handling their loved one’s worldly affairs. However, conflict can still occur between family members. And, conflict is more likely when the estate planning documents have gaps or are subject to differing interpretations.

Sadly, this appears to be the situation with the trust of Robin Williams, the late comic actor. As his family works through a trust dispute in court, the public may learn some valuable lessons on how to better prepare for (or ways to avoid) similar situations.

Beloved comedian and actor Robin Williams passed away suddenly in the summer of 2014, leaving fans and family in shock over the loss. Now, as the trust’s administration and distribution gets underway, Mr. Williams’ family has become embroiled in a trust dispute over the allocation of specific personal memorabilia and other property. The problems allegedly stem from a lack of specificity in the trust that was prepared presumably by an attorney and relatively recently executed by Mr. Williams on June 24, 2010 and amended and fully restated on January 31, 2012.

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Beneficiaries Disinherited for Filing Trust Contest in Violation of Forfeiture Clause

25095774_sBeneficiaries beware!  The Arizona Court of Appeals has concluded that someone who challenges a trust may be disinherited for violating a “no-contest” clause.

A no-contest or forfeiture clause is a provision included in a will or trust to discourage litigation and disputes.  Such provisions have obvious benefits of avoiding litigation and allowing the prompt distribution of trust or estate assets.

But, there are conflicting public policies when it comes to enforcing such clauses.  Courts have a strong public policy of enforcing the maker’s intent, including his direction to disinherit someone who challenges the document.  Such challenges sometimes waste time and money.  A contestant may also use such a challenge to coerce a more favorable disposition in settlement from other beneficiaries than what the maker intended.

On the other hand, forfeiture is generally disfavored.  And public policy typically ensures access to the courts to pursue legitimate challenges.  Such challenges may include, among other things, that the maker lacked mental capacity, was unduly influenced or defrauded into making the will or trust.  In those cases, the document does not reflect the maker’s true intent.  If a challenge were not permitted, it would allow the enforcement of a document that does not genuinely set forth the person’s true intent for the disposition of his assets. [Read more…]

Probate and Trust Lessons from the Rich and Famous

Celebrity Probate TrustThe old saying that celebrities are just like us with more money holds true in some cases, but it definitely holds true in the realm of probate, trust administration, and estate planning. Celebrities make mistakes in timing, selecting a plan, holding onto outdated plans, or just failing to put anything in writing. Handling an incomplete or unnecessarily complicated probate or trust administration can leave even the strongest families feeling confused and frustrated during a time of grief. Failing to plan can have devastating financial repercussions as well. We can all learn more by observing the way public figures plan and then handle their otherwise private family affairs. As spectators, however, we have the advantage of observing and learning from a safe distance.

What are some of these lessons, even when the financial lives of everyday people barely resemble those of the wealthy and famous? This article appearing in illustrates some examples of how different celebrities’ estates affected their families and how some practical changes could have improved most of these situations.

Here are a few of the lessons taken from the article:

  1. After Patrick Swayze died, members of his family questioned the validity of his will. Some family members questioned whether the will had been forged during Patrick Swayze’s final stay in a nursing home. This type of probate challenge is called a will contest. Will contests can include signing under undue influence (force or threats), when the person lacked mental capacity , or fraud. The article points out the problem the Swayze family encountered during the will contest: challenging a will in probate court requires following the statute of limitations. The timing of the challenge is always dictated by state law and varies from state to state. Seeking an experienced Arizona probate litigation attorney allows a family’s interests to be protected within the applicable deadlines.
  1. The untimely passing of fashion designer L’Wren Scott, Mick Jagger’s girlfriend, left the famous lead singer bereaved to the point of postponing his multi-national touring shows. While the average person may be able to take time off from work to mourn the death of a loved one, the contractual obligations for unique performers like the Rolling Stones can be non-negotiable. Unfortunately for Mick Jagger, the insurance carriers that cover performance venues demanded performance on the broken contract. The lesson here is that insurance disputes can cost grieving families. Wise planning and having a strong legal strategy makes the best defense.
  1. Author Tom Clancy’s trust was drafted in such a way as to leave ambiguity regarding payment of estate taxes. The resulting lawsuit has embroiled family members against one another instead of allowing space and time to grieve and honor the late author’s memory. The lesson here is that any family with assets exceeding the state and federal estate tax exemption needs clearly drafted estate planning documents. In the event of a dispute, a trust litigation attorney can assist in clarifying ambiguities.

There are several other key lessons included in the article, so by all means, continue to read more of the article For additional questions or concerns about Arizona probate litigation, Arizona trust litigation, or Arizona will contests, Berk Law Group, P.C. is here to help.

Photo Credit: ♥ Xanda ♥ via Compfight cc

Scottsdale Trust Litigation

Elderly woman with daughterTrusts are often sold to seniors as a device allowing them to pass their property to their children and other loved ones with the least possible expense, time and hassle. That may be true where there are no complications and everyone in the family gets along.

Trusts, at least theoretically, reduce the expense, time and inconvenience of settling your affairs after you’ve passed away because they typically avoid probate.

Probate” refers to the process to administer a deceased person’s property. Probate starts with (A) the acceptance of a will as the governing instrument for how the assets should be distributed or a declaration that the person died without a will (called an intestate estate); and (B) the appointment of a personal representative. There are very specific and sometimes complex rules that apply in probate cases, so many people want to avoid probate like a disease and take elaborate steps to keep their property out of court. [Read more…]

Scottsdale, AZ Elder Law Litigation and the Greatest Generation

Greatest Generation elder lawThe survivors and veterans of World War II have been called the Greatest Generation for several decades now, a title earned by their enormous contributions during a period of global and cultural strife. The nation’s prosperity depends upon the sacrifices of the men and women in the U.S. military, but perhaps this generation’s hallmark has been the enthusiasm with which the group made sacrifices needed to win the war abroad.

How disheartening then to learn of situations where veterans of WWII have been taken advantage of by unscrupulous individuals, like this story out of Tucson involving fraud and deceit of a once-trusted friend. The story is not uncommon. An elderly man is approached with a sad story of hardship that just so happens to be fixable with the savings of the old man. He gives his money to her willingly, but she has made the whole story up. She uses the money to buy herself and her family vehicles, plastic surgery, and other non-essentials that the elderly man did not agree to buy. [Read more…]