Mary Novotny’s conservators established the Mary Novotny Trust for the benefit of Mary’s daughter Catherine Novotny. The conservators were appointed as trustees. After a dispute arose over the validity of the trust, a circuit court granted reimbursement of attorney’s fees and various expenses to the conservator-trustees pursuant to S.D. Codified Laws § 55-3-13. Catherine appealed, arguing that the limited information provided to the court regarding the trustees’ expenses was insufficient to determine whether the expenses were actually and properly incurred. The South Dakota Supreme Court agreed and remanded for further proceedings. The trustees had submitted an affidavit that listed the sums paid to certain individuals or entities, but did not provide any additional information related to the expenses. The court held that section 55-3-13 requires evidence or testimony on the record that would allow a court to determine whether the amounts a trustee seeks for reimbursement were “expenses actually and properly incurred in the performance of his or her trust.” The lower court abused its discretion by relying on affidavits that provided no information as to how the trustees incurred the fees sought.

Guardianship of Novotny, 2016 S.D. 36 (S.D. April 20, 2016)

John and Emmaline O’Hara were married in 1955. Emmaline filed for divorce in 2012 and a litigious divorce proceeding ensued. John died unexpectedly during the pendency of the action. John’s last will created a marital and family trust for Emmaline’s benefit, the terms of which permitted, but did not require, the trustee to make principal distributions to Emmaline. The court subsequently granted a motion by Emmaline to join John’s estate as a defendant to the matrimonial action and add a claim for a constructive trust. The estate, in its motion to dismiss for failure to state a claim, argued that a constructive trust was not necessary because Emmaline had not been disinherited and there were no exceptional circumstances justifying equitable relief. After additional discovery, the court concluded that, although John’s last will established trusts for Emmaline’s benefit, it did not guarantee her the rights she would have otherwise been entitled to under the alimony and equitable distribution statutes. The order was affirmed on appeal. In exceptional circumstances equitable relief, including constructive trusts, may be available in divorce actions following a spouse’s death but prior to entry of a final judgment. The appellate court held that John’s death did not diminish Emmaline’s right to equitable distribution and further discovery was warranted to determine whether the estate would be unjustly enriched if it retained full interest in the marital assets.

O’Hara v. O’Hara, 2016 WL 731863 (N.J. Super. Div. Feb. 25, 2016) (unpublished)

Appellant Craig Anderson filed five lawsuits against numerous individuals for claims involving his father’s estate and property previously owned and occupied by his parents. The current lawsuit entails several additional claims that Anderson filed in his capacity as personal representative of his parents’ estates. The district court imposed preconditions on him before he could file any additional complaints, among them that he must be represented by counsel, post a bond of $20,000, and obtain permission from the court. Anderson, appearing pro se on behalf of the estate, appealed the preconditions. The appellate court dismissed the appeal, holding that a nonlawyer personal representative may not litigate on behalf of an estate, as this constitutes the unauthorized practice of law. A nonlawyer personal representative may only appear pro se when the personal representative’s actions are at issue.

Anderson v. Carlson, 2016 WL 764615 (Minn. App. Feb. 29, 2016) (unpublished)

Ronald Mount was a ward in a nonadversarial guardianship proceeding. The guardianship court entered an order at the request of Mount’s court-appointed counsel compelling the co-trustees of the Ronald Mount Revocable Trust to return funds held in an escrow account at the Stern & Kilcullen law firm to the trust’s primary bank account. The co-trustees appealed, and the Florida court of appeals reversed the order in its entirety. The court held that in the absence of an action commenced by the guardianship against the trustees, Mount’s beneficial interest in the trust alone does not confer authority on the guardianship court to override decisions of the trustees regarding the management of trust assets. Without proof a trustee failed to perform its fiduciary duties, a guardianship court lacks authority to remove trust assets from a trustee’s control.

Guardianship of Mount, 2016 WL 759304 (Fla. App. Feb. 26, 2016) (publication pending)

Gwendolyn R., an alleged incapacitated person (AIP), appealed an order appointing a guardian over her person and property. Although Gwendolyn informed the court evaluator of her intent to be present at the underlying hearing, she notified her counsel at the last minute that she was ill. Nevertheless, the Superior Court conducted the hearing, finding that Gwendolyn had waived her attendance. Gwendolyn appealed. The New York Appellate Division held that the state guardianship statute requires that a hearing to determine the appointment of a guardian must be conducted in the presence of the AIP, including at the AIP’s place of residence if necessary. This allows the court to observe firsthand the AIP. The appellate court reversed and remanded with instructions to conduct a hearing at which Gwendolyn was afforded the opportunity to be present.

In re Banks, 2016 WL 1453967 (N.Y. App. Div. First Dept. April 14, 2016)