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2022 In Review (All NC Trust & Estate Cases)

In 2022 there were approximately 14 appellate cases in North Carolina that touched on trusts and estates:





Barrington v. Dyer, 282 N.C. App. 404, 2022-NCCOA-198; El Hatto v. El Hatto, 878 S.E.2d 681, 2022-NCCOA-691; Fox v. Fox, 283 N.C. App. 336, 2022-NCCOA-334; Godwin v. Harvell, 282 N.C. App. 254, 2022-NCCOA-160; In re Gard, 870 S.E.2d 713, 2022-NCCOA-227; In re Gerringer, 876 S.E.2d 71, 2022-NCCOA-405; In re Moore, 283 N.C. App. 137, 2022-NCCOA-283; In re Magestro, 282 N.C. App. 115, 2022-NCCOA-127; Parks v. Johnson, 282 N.C. App. 124, 2022-NCCOA-129; Pitman v. Wilkins, 871 S.E.2d 880, 2022-NCCOA-363; Galloway v. Snell, 282 N.C. App. 2392022-NCCOA-159; Walker v. Foley, 878 S.E.2d 683, 2022-NCCOA-704; Wing v. Goldman Sachs Trust Co, 382 N.C. 288, 2022-NCSC-104; Wright v. Jackson, 873 S.E.2d 443, 2022-NCCOA-442.


From these cases we can determine the approximate rough statistics:

  • Over 50% were valued at less than a $1,000,000 in value (nearly 1/3 were under $500,000; several cases left values unknown from what information is available for review in the briefs, opinions, and record on appeal);

  • The two most common party alignments were children vs stepparents, followed closely by siblings vs siblings;

  • Trust disputes lead over deed and probate disputes;

  • Deed-related estate planning disputes lead over probate disputes;

  • Disinheritance of family members exist in over 50% of cases;

  • Almost 25% of cases involve contested deathbed estate planning;

  • Almost 20% of cases involve holographic wills; and

  • Instrument construction/interpretation was the leading claim.

Takeaways:

  • Case values suggest a disproportionate loss in litigation expenses (smaller estates still get the same sized litigation bill);

  • The family members fighting these cases are unfortunately those nearest and dearest to decedents;

  • Trust and deed disputes leading over standard probate disputes suggest that attempted-sophisticated estate plans are facing more challenges than simple wills;

  • Deed disputes suggest estate planners would be wise to include real estate CLEs in their annual training regimens;

  • Cutting out (or cutting down) family members' shares remains both (1) legal, but (2) risky, so practitioners are well advised to heavily document the client intentions/basis for the disparate treatment;

  • Deathbed estate planning (approximated as planning done in the last 12 weeks of life) remains a high risk endeavor, so practitioners are well advised to heavily document all interactions with family members and especially to keep close and detailed records relevant to capacity and undue influence factors; and

  • With ambiguity (instrument construction) claims leading over standard caveats and breach of fiduciary duty claims, practitioners would be well advised to conduct internal reviews of templates as well as case-by-case internal reviews for clarity and consistency.

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