Florida Probate Attorney and Florida Inheritance Lawyer Florida Probate Attorney Blog

No Contest Clause in Will of recently deceased long time actor Jackie Cooper.

Hollywood California Actor Jackie Cooper started acting at the age of 3 and was nominated for a best actor in a leading role at the age of 9 the youngest in any category for 50 years. He then went on to work in the entertainment field for over 60 years including the role of Perry White the editor of the newspaper in Superman.

When he prepared his will having been married 3 times and having a child from a prior marriage and 3 from his current wife he wanted to make sure that there was no Probate Litigation, disputes or other contesting of his wishes and that the property just passed to his wife for her life then to the children. As a result he provided in his will that if anyone named in the will sought to contest its terms unsuccessfully that they would only receive $5. His phrasing was  "I give to such persons so contesting or objecting the sum of FIVE DOLLARS ($5.00) and no more."

Interesting to note that while no contest clauses had been valid and all types of no contest clauses had been enforeceable in California for a while the law permitting this was changed effective January 1 2010 with when new Probate statute §§ 21310–21315 was passed and signed into law repealing the prior statute. There are now restrictions regarding what types and situations a no contest clause is enforceable. Also his wife failed to survive him so it now passes all to his children in equal shares.   

In Florida where the Probate Attorney Blog is written the law is and has been that no contest clauses are specifically uneforceable by statute as against public policy. Florida Statute 732.517 states 

A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.

Source regarding provision in Jackie Cooper's will and photo TMZ Jackie Cooper the poison pill clause.

Estate Litigation Rick James estate dispute regarding Digital Royalties v Universal Music.

The Estate of funk and R&B singer Rick James who died in 2004 and was popular in the 70s and 80s best known for the song Super Freak is suing Universal Music Group (UMG) for half of all the digital royalties. 

By Back in 2009, Eminem and his FTB Productions launched a successful $1.3 million lawsuit argument was when his music was sold on iTunes, this fell under the umbrella of licensing and not a regular sale. This meant that all digital profits should be split 50/50, rather than the artist being given a standard sales royalty (around 12 to 15 percent). Eminem lost at the trial court but won on appeal.

The estate litigation is citing the FTB case as precedent for why it should treat digital music sales as a licensing agreement. Further the James estate filed the estate litigation as a class action lawsuit, so that other artists with similar claims could join in the case. 

Universal has claimed that the previous FTB case has no bearing on its digital sales agreements with other artists. James's estate disagrees saying that the FTB case means that Universal now owes money based on that previous lawsuit's outcome. The Estate Litigation says "[UMG] has systematically violated its contractual obligations to plaintiff and other members of the class."

Most modern music contracts clearly state how digital sales will be split Billboard reports. Musicians who agreed on contracts before the rise of iTunes, though will very likely be paying close attention to this estate litigation on behalf of the Rick James estate and others with similar claims. 

Source: Exclaim.ca - Alex Hudson

Largest Probate Litigation case ever of $12 Billion ends with Nina Wang's will being ruled a forgery.

Nina Wang’s former feng shui adviser and lover Tony Chan lost a bid for her $12 billion estate, with Hong Kong’s Court of Appeal dismissing his attempt to overturn an earlier ruling that the fortune should go to charity. 

The judge described it as a throughouly dishonest case. Chan was arrested on charges of forgery as a result. He says he will appeal to Hong Kong’s highest court, adding a further chapter to the world’s biggest probate litigation. Chan claimed Wang left him her fortune after a 15-year intimate relationship that began when he was hired to help find her kidnapped husband Teddy, with whom she built the Chinachem Group into one of Hong Kong’s biggest closely held developers.

She had provided a 2002 will leaving her property to charity but then he presented a 2006 will to the court which purported to give him everything but the court found it to be a forged documents and charged him criminally. He has pledged to file an appeal to the highest court.

The 2002 will, which the appeal judges said was indisputably valid, devised the estate to the foundation that she established with her husband,Teddy in 1988. The foundation would award Chinese prizes of worldwide signficance, similar to that of the Nobel Prizes, according to the judgment.

The estate dispute described by the Probate Litigation Attorneys as the world's biggest probate dispute was similar to a will contest Nina Wang had with her father in law regarding her husband Teddy's billions and control of the company. 

Wang had also been arrested during her will contest and probate dispute regarding forgery of her husband's estate for a will she claims he made just prior to the second time he was kidnapped in 1990. The police dropped the charges after the court of Final Appeal ruling.

Wang, died in 2007 at 69 with no children. She married Teddy in 1955 at the age of 18.

The couple turned a Shanghai paint and chemical business, started by Teddy’s father, into a property developer with extremely valuable properties. 

The case is between Chinachem Charitable Foundation Limited and Chan Chun Chuen and the Secretary for Justice, CACV62/2010 in the Hong Kong High Court of Appeal.

The prior courts opinion can be found here.

source Kelvin Wong and Debra Mao Nina Wangs ex lover loses bid for 12 Billion dollar estate. 

 

Broward County Probate Seminar - Florida Probate Law A view from the Bench

The Broward County Probate and Trust Section of the Broward Bar Association and organized by the Florida Probate Attorney who writes this Probate Attorney Blog, David Luber as chair. are pleased to be hosting a seminar titled Probate Law a view from the bench. The bar section and Probate Attorney David Luber thank Broward Probate Judge Green, Probate Judge Grossman and Probate Judge Speiser for speaking to the section on the evening of May 4 at the Bar Association. For more info the Broward Bar website click here. 

Presumption of Death Certificate Information rebutable

As  Philip Bernstein who writes the New York Probate Litigation Blog pointed out in a post which can be viewed here. While the death certificate is evidence of death collateral evidence which conflicts with the death certificate can be challenged. In a New York case it was established to the court that while the death certificate did not provide that the decedent was married and had in fact been married and divorced subsequent to a prior marriage there had never been a divorce obtained and therefore the decedent was still married and would have the rights of a spouse.

This issue has arisen in Florida Probate disputes as well where the absence of a divorce is proven under similar facts. Given the rights of a spouse through an intestate share as well as elective share it is important to make sure that a proper divorce is followed through with or despite the intent of the decedent or lack of relationship for decades the law provides certain rights for that individual as a spouse.

On a related topic not addressed by the case but which has arisen is where a couple separates and dislikes one another with no intent of ever getting back together and at times decades go by without contact but then contrary to the intent of the decedent that individual still has all the rights of a wife absent a binding agreement to the contrary or divorce.

One additional related point is that if there is a subsequent divorce then all the financial provisions in the will are void absent a contrary intent. Florida Statute 732.507 provides that and can be seen here. Florida Trust Law has a similar provision. However transfer on death designations and insurance policies or contractual transfers are not automatically voided by a divorce and should be remembered to be changed upon a change in relationship and/or specifically changed in the divorce agreement. Upon divorce in Florida the court will look to provide an equitable distribution as provided by Florida statutes here.

Anna Nicole Smith Probate Litigation Video - Trust and Estate Litigation may continue.

Anna Nicole Smith Estate Litigation Video from the AP. 

Her Estate lost the latest round in the probate and trust fight but the estate dispute may continue as her probate litigation attorneys have said they may appeal back to the US Supreme Court on a different issue than was heard in 2006. 

Marshall Estate wins latest round of Litigation. Anna Nicole gets nothing. Probate Court had jurisdiction.

A federal Judge has denied the estate of Anna Nicole Smith $300 she claimed her ex husband who died at the age of 90 an oil billionaire had promised her. J. Howard Marshall who had a $1.6 billion dollar estate and gave her millions in gifts during his lifetime has been contested for 15 years. The trust and estate litigation has been disputed by each side in probate court, bankruptcy court, the Supreme Court and numerous venues with a series of conflicting results with a bankruptcy court awarding as much as $474.5 million another court cutting it back to $89.5 million. 

The federal judge essentially determined they had been wasting their time the past decade. He cited that a 2001 Texas jury verdict said that the money was not intended as a gift and there was no undue influence or fraud. During that court fight as both parties were present and had the opportunity to present their case then the jury spoke the district court should have held to the findings of the Texas Probate Court and that should have precluded other courts (such as the bankruptcy speaking to the factual findings or legal conclusions). Although the bankruptcy court had made their ruling first in 2000 and Anna Nicole's attorney sought to argue federal court should therefore control the courts found the case was initially in probate court and their was a full trial at the probate court level and the bankruptcy decision did not have jurisdiction but was merely an advisory opinion. 

In 2002 a district court cut back the 2000 bankruptcy verdict in favor of Anna Nicole but this federal court ruled that given the 2001 probate court case the 2002 judge should have dismissed the case instead of merely cutting the amount to $89.5 million. 

His family said that lies about E Pierce Marshall have finally been put to rest. 

In 2006 the US Supreme Court had ordered a federal appeals court to reconsider its ruling against Smith. 

It is an important decision from a jurisdictional issue. Had the bankruptcy court been able to prevail and take precedence over the probate court it would have provided a 2nd chance to rush off to another venue when it appeared a case was going poorly and create jurisdiction shopping. Here there was already a probate case going but then she went to a different jurisdiction and was able to get them to take the case on different grounds of a supposed bankruptcy but essentially just a tactic to retry the case in a different context and court. This decision sends the message to determine facts regarding the probate and trust issues in the probate court and to then go with the factual finds of that court and not drag it through to numerous other types of courts to get another shot on the same factual determinations. 

Anna Nicole was 26 when she married the 89 year old J. Howard Marshall who was 89 after meeting her a couple years earlier when she was a stripper. They were married for only 14 months.  

One of her attorneys Howard Stern who was also a past boyfriend was to be paid a contingency fee and will now also receive nothing absent another reversal. She had been his only client and he had made no money for years as mentioned during her estate. At this point the son of J. Howard Marshall who was initially litigating against Anna Nicole died and his estate continued to fight then she did as well and even her son died so the only heir was her daughter who is a minor but she will receive nothing based on the decision. The son's family hopes this finally concludes 15 years of disputes regarding the estate. It has been an interesting case to follow for jurisdictional and other reasons.  An article discussing his not receiving anything can be found here.  

Probate Litigation may be avoided with mediation for Rosa Parks Estate

Probate Litigation Avoided - Mediation is scheduled in Parks case

The Will Contest and Probate Litigation may be avoided as the estate litigation attorneys and the beneficiaries of the Rosa Parks estate, their clients have agreed to try to mediate the estate dispute. The article reporting this can be found here Despite the other side waiving the potential conflict of interest it does seem strange though that an interested party as one of the two personal representatives for the estate would serve as the mediator for this dispute. 

Adam Shakoor and Elaine Steele were chosen by Rosa Parks to represent her estate.

Both sides in a probate dispute and will contest over the estate of civil rights icon Rosa Parks agreed Tuesday to have former Detroit District Court Chief Judge Adam Shakoor mediate in hopes of avoiding a probate estate litigation trial disputing the will and seeking to establish or disprove undue influence.

The decision to have Shakoor conduct the May 17 mediation was reached at a meeting Tuesday attended by lawyers and Wayne County Probate Judge Freddie Burton Jr.

Parks' nieces and nephews planned to pursue a will contest of her 1998 will, which designated the Rosa and Raymond Parks Institute as the recipient of most of her estate. Its vice president is Elaine Steele, Parks' longtime caregiver, whom Parks designated as co-personal representative of her estate.

Parks' relatives say their aunt, who suffered from dementia before her death last year, was unduly influenced by Steele. Parks' estate attorney and an estate litigation attorney for Steele have denied the charges.

Although Parks also designated Shakoor as a co-personal representative, a lawyer for the family, Lawrence Pepper, expressed confidence that he would be a fair mediator.

Will Contest Litigation - Inability to afford Attorney does not excuse untimely Will Challenge

In a Probate Administration or Probate Litigation contest the system is setup to help pay the final expenses, taxes, gather the assets of the estate, determine the validity of the will and make distributions of the probate assets so the beneficiaries can receive their inheritance and the estate can be moved along in a timely manner. There are due process requirements of beneficiaries having a set amount of time to bring a will contest and creditors having a period of time to bring claims against the estate but an important aspect of the probate is being able to establish finality and it is of significant importance that people act without the timeframes allowed or their case can be barred as this case illustrates.

It is the opinion of this probate attorney and Florida-Probate.blogs.com that a Florida Will Contest Attorney or Florida Will challenge lawyer would not be able to bring this as a Florida Probate Litigation Case just as it was not allowed as a New Jersey will contest litigation case after proper service to a beneficiary and their failure to act caused as a result merely of failure to afford an attorney. While the specific time frames and probate procedures would differ among Florida Probate Litigation and New Jersey the result would likely be the same and the will contest litigation would be dsimissed for failure to bring the case in a timely manner.   

Inability to Afford Counsel Does Not Excuse Untimely Will Challenge (NJ)

The decedent's will was admitted to probate over the objection of her son, who appeared at the hearing, told the judge that he had evidence that his mother suffered from dementia, and insisted that there were police reports and witnesses who would support his position. After continuing the hearing twice to allow the son to retain counsel and file proper pleadings, the probate judge denied his objection and admitted the will. Eight months later, after having secured a loan from his grilfriend with which he retained counsel, the son filed a complaint alleging that the will was the product of undue influence. The probate judge dismissed the complaint, ruling that any challenge to the probate of the will had to have been filed within four months of the original order.  The appellate court affirms the dismissal, albeit on different grounds from the trial court determination.

The Estate Litigation Attorney hired to challenge the will was unable to bring the probate litigation lawsuit and contest the will because it was not done within the statutory time frame for a will contest lawyer to bring the undue influence complaint disputing the validity of the will. A link to the estate litigation and will contest case can be found here. In the matter of Estate of Schifftner. Superior Court of New Jersey Appelate Division.

Probate and Trust Litigation Anna Nicole Smith

On Thursday November 17 Primetime Live the ABC news show discussed the Anna Nicole Smith Probate and Trust Litigation case, her relationship with her husband who was 63 years older than her (89 and 26) and showed some of the video from the court cases that have spanned from Texas to California bankruptcy court, probate court and federal court. Two of the aspects of the show that were particularly of interest were first that that J. Howard Marshall was not just an oilman who happened to get lucky and make billions of dollars but that he had been an attorney and not merely an attorney but a trusts and estates attorney as well as a professor. In fact he taught trusts and estates at Yale law school. With that being mentioned it is reasonable to assume that if he wanted to provide for her his documents would have done so. Although that further raises the question of the conflict in his failing to follow up with a post nuptial agreement or having done a prenuptial before they were married in order to avoid her right to an elective share and community property from the time they were married which she presumably has the right to in Texas. In Florida there is no community property but a surviving spouse would be entitled to an elective share which is basically 30% of the overall estate whether or not included in probate. During his lifetime he gave her gifts of around $6-$7 million dollars and they were married for just 14 months. His will and trust which Anna has challenged with a decade of litigation in probate court essentially left the same thing which she heard him intend to leave at the time he prepared the home video. The Supreme Court will next be deciding whether a federal judge has jurisdiction in a probate matter. The Supreme Court case will be Vickie Lynn Marshall (Anna Nicole's formal legal name) v. E. Pierce Marshall, (J. Howard Marshall's son who is the personal representative and trustee. The case number is 04-1544.

Rosa Parks Probate Litigation

A lawsuit filed about the Outkast song "Rosa Parks" publicly showed that Rosa Parks herself was suffering from Dementia and required a guardian. At the time their was litigation regarding who should serve as the guardian. Now that she has passed the litigation has resumed in a probate litigation context and likely a trust dispute.

A Nephew Cited failing health and undue Influence to challenge the will and seek to be named as the Personal Representative. 

The link to Article from the Detroit Free Press on November 16 setting out who the participants in the litigation are and the background of the case is here. An Article the next day from the Detroit News Online indicated an estate settlement was possible.

It also raises two interesting issue by stating: By law, Parks' relatives could stand to lose whatever she intended for them if they unsuccessfully  challenged her living trust. That's because such documents can include specific instructions to exclude beneficiaries if they contest the trust.

First being that Michigan must have a law which allows no contest provisions. In Florida a no contest provision is unenforceable by statute so an individual can challenge or dispute with will and trust litigation and not risk losing any property they are left. This is a matter of public policy which the legislature of Florida clearly has a different view than Michigan and could have a significant impact for the beneficiaries in this and other estates.

Also while most of the articles and coverage has been about a will contest and who is named the Personal Representative those issues may be of significantly less importance given that Ms Parks has a trust. Depending on how her property interests both tangible property and use of her name and likeness and any other property she may have owned or had a right to were titled it may be of little consequence who Personal Representative is if all her assets were properly titled in her name to avoid probate and she was determined to have had capacity and not been impacted by undue influence in the preparation of the trust. Given that all the will said is everything passes to the trust presumably the contest or litigation should be over who serves as the trustee of the trust given that is how the assets will pass or be controlled for the future. As the article also states this is not merely about the money but how her name and likeness will be used in the future. The person who is the trustee or has the rights to make those decisions will have a significant impact on how she is remembered.

An interesting audio tape in which she recounts what happened to make her famous and another recent song written to have others thank her can be heard by clicking on the link here.