2015 FIDUCIARY LITIGATION UPDATE First Run Broadcast: May 4, 2015 Live Replay: August 17, 2015 1:00 p.m. E.T./12:00 p.m. C.T./11:00 a.m. M.T./10:00 a.m. P.T. (60 minutes) Claims challenging estate and trust plans continue to rise in number and change in theory. There is a steep rise in clams based on the quasi-tort theory of interference with an inheritance expectancy. There is also an emerging theory claiming that lifetime gifts or the establishment of an inter vivos trust which avoids any assets passing through probate is a form of fraud and thus a fiduciary breach. These new claims join continuing developments in challenges to the distribution practices of trustees, properly managing the diversification of concentrated positions in a volatile market, and the exercise of undue influence on elderly benefactors. This program will provide you with a practical guide to recent developments and trends in fiduciary litigation.

• Review of significant case law developments and trends in fiduciary litigation • Trends in tort-like claims, including interference with an inheritance expectancy • Lifetime gifting and the avoidance of probate as a form of fraud claim • Failure to diversify and properly manage continuing market volatility • Claims based on breach of distribution polices or abuse of discretionary distributions • Trends in the assertion undue influence and the presence of duress • Trends in defending fiduciary claims, including waivers

Speaker: Steven B. Malech is partner in the New York City office of Wiggin and Dana, LLP, where he is chair of the firm’s probate litigation practice group. He is represents beneficiaries, fiduciaries and creditors in disputes involving alleged violations of the Prudent Investor Act and its predecessors, alleged breaches of fiduciary duty, disputed accountings, and will contests. He represents clients in cutting edge probate litigation matters involving trusts and estates with assets in the hundreds of millions of dollars. Mr. Malech received his B.A., with special honors, from the University of Texas and his J.D. from the Connecticut School of Law.

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2015 Fiduciary Litigation Update Teleseminar

August 17, 2015 1:00PM – 2:00PM

1.0 MCLE GENERAL CREDITS

PAYMENT METHOD:

Check enclosed (made payable to Vermont Bar Association) Amount: _________ Credit Card (American Express, Discover, Visa or Mastercard) Credit Card # _______________________________________ Exp. Date _______________ Cardholder: __________________________________________________________________

VBA Members $75 Non-VBA Members $115

NO REFUNDS AFTER August 10, 2015

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CERTIFICATE OF ATTENDANCE

Please note: This form is for your records in the event you are audited Sponsor: Vermont Bar Association Date: August 17, 2015 Seminar Title: 2015 Fiduciary Litigation Update

Location: Teleseminar - LIVE Credits: 1.0 MCLE General Credit Program Minutes: 60 General Luncheon addresses, business meetings, receptions are not to be included in the computation of credit. This form denotes full attendance. If you arrive late or leave prior to the program ending time, it is your responsibility to adjust CLE hours accordingly.

Fiduciary LitigationUpdate

Steven B. MalechWiggin and Dana LLP

(o) (212) 551-2633

smalech@wiggin.com

Robert H. SitkoffJohn L. Gray Professor of LawHarvard Universityrsitkoff@law.harvard.edu

Professional Education Broadcast Network

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Overview

Interference with Inheritance

Circumstances and Examples

Practical Implicationsand Practice Tips

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INTERFERENCE WITH INHERITANCE CLAIM

Elements An expected inheritance or gift

Knowledge by Defendant of the expectancy

Tortuous conduct by Defendant

Damage suffered by Plaintiff

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PriorExhaustion

ofAdequateProbate

Remedies

Before brining claim, in most states one must ….

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Where Can you Bring an Interference Claim?

*Source: John C.P. Goldberg & Robert H. Sitkoff, Torts and Estates: Remedying Wrongful Interference with Inheritance, 65 Stan. L. Rev.

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Longer SOL

InterestedWitness

Testimony

PunitiveDamages

Commencebeforedonor’sdeath?

Advantages

Jury Trial

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Inconsistentwith donor’sfreedom ofdisposition

Uncertainty inrecognitionacrossstates/weakdoctrinal basis

Conflict withprincipledpolicies,specializedrules/remedies

Difficulty indeterminingtrue intent ofdonor

Disadvantages

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Circumstances

Non-ProbateTransfers

Lifetime AssetTransfers

Fraud

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Fraud:

Concealment of aProbate Proceeding

Concealment orDestruction of a Will

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Recent Example in CTVechiola v. Fasanella

Facts: 2004:

Decedent executes Last Will and Testament

Residuary estate to 13 people.

Appoints Defendant as Power of Attorney

2005:

Decedent opens 4 Totten Trusts for benefit of Plaintiff

2010:

Defendant closes Trust accounts

Places funds - $427, 908.49 – in account for Defendant

Decedent passes away

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1. Plaintiff knew of the existence of Totten Trust accountsand had a reasonable expectation of the inheritance;

2. Defendant knew of the accounts and closed them;

Court found all elements of Interferencewith Inheritance Claim were met:

3. Defendant knew his family and he

would inherit the funds;

4. Plaintiff only received $32,835.20

instead of $ 427, 908.49

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Result:

Plaintiff’s verdict

Value of Totten Trusts $427,908.49

Interest per CGS §37-3a $150,763.45

Interest per CGS §52-192a(c) $102,229.11

$680,901.05

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Practical Implication/Practice Tips

Know the law of yourjurisdiction

If Permitted: help or hurt potential claims

• Statute of Limitations

• Evidentiary Concerns

• Types of damage/sources of recovery

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Facts:

Disinherited Child Procures Destruction of Will

Promises to pay terminally ill parent $10,00 per month

Pay’s attorney for parent

Claims:

Probate Copy of Destroyed Will

Interference Claim?

Whose Will Is It Anyway?

Last Will &Testament

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212-551-2633

smalech@wiggin.com

Contact Information

617-384-8386

rsitkoff@law.harvard.edu

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This presentation is a summary of legal principles.

Nothing in this presentation constitutes legal advice, which can only be

obtained as a result of a personal consultation with an attorney.

The information published here is believed accurate at the time of

publication, but is subject to change and does not purport to be a

complete statement of all relevant issues.