Estate Litigation

Past Cases

Since1992, litigating will contests and trust and fiduciary matters concerning executors, trustees, agents under a power of attorney.

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Estate Litigation

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Breach of Trust – Fiduciary Duty – Medical Care Trust

Represented trust beneficiary with profound mental retardation and quadriplegia in litigation with trustee, SunTrust Bank, and trust grantor and remainderman, DC Children’s Hospital.

The trust was established in consideration of a 1982 settlement of a medical malpractice case against hospital for misdiagnosis (meningitis) in 1978 when the beneficiary was 8 months old.

which resulted in her sustaining profound disabilities The trust provided for needs of child during her lifetime which at the time of the malpractice settlement, Children’s Hospital expected to be minimal, no more than five years.

The hospital funded trust expenses for daily home nursing services for over twelve years and then in 2001 contested and threatened to sue the trustee for paying these home nursing services, which were necessary for survival, claiming it was custodial and not medical care under the terms of the trust. Fearing litigation in the District of Columbia, the trustee filed a declaratory judgment action in Arlington County Circuit Court and immediately thereafter, Children’s filed a breach of trust, fiduciary duty, accounting action against SunTrust in D.C. Superior Court.

The case involved various equitable and legal issues, including fiduciary duty and trustee discretion; and it was resolved in favor of the trustee and beneficiary by Decree entered in Arlington County Circuit Court and the medical expenses for home nursing continued to be paid by the hospital for the next 8 years until the beneficiary’s death at age 33.

The case required review and management of thousands of pages of trust bank and accounting documents, as well as medical records spanning a period of over twenty years. Experts in trust administration, physical medicine, internal medicine, developmental pediatrics testified.

The case was reported in Virginia Lawyers Weekly, June 2, 2003 (VLW 003-8-114 p. 15). SunTrust Bank vs. Children’s Medical Ctr., Medical Trust Fiduciary Duty Disabled Adult Medical vs. Custodial Care.

Will Contest – Undue Influence – Lack of Mental Capacity

An elderly male with late stage Alzheimer disease lacking mental capacity to execute documents was unduly influenced by female real estate agent to execute a will, trust, power of attorney and deeds to parcels of lands that had been in his family since the 1700’s and valued at over a million dollars.

An eleven day trial in Leesburg, Virginia, Loudon County Circuit Court involved many fact and expert witnesses, including psychiatrists, psychologist, geriatric psychiatrist, cardiologist, and estates and trusts lawyers. Issues involved the decedent’s mental and physical condition, and/or the pattern of manipulation, influence, exploitation and the attempt to disinherit the family by this nonfamily member.

Chief Judge Thomas Horne ordered in a published opinion that all testamentary documents were overturned by equitable decree returning the land to the family. Defendant’ appeal and certiorari was denied by Virginia Supreme Court in Panizza vs. Funkhouser,, Supreme Court of Virginia, Record No. 970371. The trial court’s opinion is the subject of a digest opinion in the Virginia Lawyers Weekly, October 12,1994, Will Contest Limitations Unsound Mind (VLW 094-8-336, P.3) and mentioned in the article “And to My Ungrateful Son”, Washingtonian Magazine, Nov. 1998 issue (p. 62).

Will Contest – Handwritten or “Holographic” Will

Represented the daughter of deceased airline mechanic who during his lifetime had received a multi-million dollar structured annuity after sustaining a traumatic brain injury in an accident at work. Post-accident, the mechanic executed in the presence of witnesses and a notary, a formal typewritten will, drafted by an attorney in which he leaves 50% shares of his estate upon his death to his only daughter and his sister. Three years later, he privately wrote, entirely in his own hand writing, on a single piece of paper, what is termed a holographic will. In this handwritten will, he left 75% of his estate to his daughter and 25% to his sister.

When brother died, and the handwritten will was discovered, sister filed a lawsuit to impeach this holographic will claiming that the handwriting was not her brother’s and that he lacked the testamentary capacity to execute the will due to brain injury he sustained in accident. Following extensive discovery and litigation, sister’s handwriting expert, brought in to examine the holographic will, eventually conceded that the handwriting was that of brother. In addition, sister could not produce any credible evidence that brother lack the testamentary capacity when he wrote the will and the case ultimately settled with the daughter receiving her 75% of her father’s estate.

Will Contest – Disinherited Heir

Represented Executor of Estate against suit by disinherited daughter’s claim that undue influence was exerted by her sister, the executor upon their father, at the time he executed the will and she claimed he lacked of testamentary capacity. After discovery, interrogatories and responses to requests for production document revealed no basis to these claims. The evidence showed the father when he executed this will had lent or given this daughter more than her fair share of his estate during his lifetime and decided at his death he wanted to bequeath the remainder of his estate to his other two daughters. The disinherited sister finally gave up on her unsubstantiated claims and voluntarily dismissed her case with prejudice on the day before the trial was to commence.

Petition to Construe Inter Vivos Trust – Trusts & Estates

Represented widow’s interest in husband’s trust, which was the subject of a petition to construe inter vivos trust. An equitable action was filed and resolved with all interested parties by negotiation and the entry of a consent decree.

Breach of Fiduciary Duty – Joint Account Transfer – Estate Tax Apportionment

Suit between two sisters for return of the value of stock transferred from mother’s joint account with one daughter to another the joint account with the other daughter.

The central document was a letter of instruction directing broker to transfer securities. The authenticity of purported signatures of the parties in letter of instruction was disputed by nationally known handwriting experts.

The case also included a claim for reimbursement of federal estate taxes incorrectly paid from mother’s inheritance and estate tax expert testimony from law professor regarding correct apportionment of estate taxes.

There were a multitude of legal and equitable issues concerning, statute of limitation, laches, undue influence, constructive trust, presumptive fraud, confidential/familial relationship, a financial institution’s duty to parties of joint account, the principal/agent relationship, the transfer of a entitlement holder’s rights, Uniform Commercial Code provisions, a power of attorney’s authority to make gifts, and interference with contract.

Elderly Financial Abuse – Power of Attorney – Fiduciary Duty

Defendant son took control of his father’s assets and engage in massive self-dealing, withdrawing funds for himself and to make extravagant purchases for himself while allowing his father to live only a meager existence. The daughters retained a prominent local estate firm to represent their interests and Mr. Buscemi was brought in as litigation counsel. The defendant, a former police officer, was very evasive and had to be taken painstakingly through records and accounts during his deposition which lasted two full days. Shortly after the deposition the defendant settled when it became apparent he made these withdrawals and expenditures for himself without any justification and without his father’s knowledge.

Will – Life Estate – Apartment Unit

Represented beneficiary in an action filed by executor of an estate seeking aid and direction from the court in construing the will of an apartment building owner who bequeathed in her willa life estate in an apartment unit to a longtime friend/tenant of the building. The primary issue was the valuation of the life estate (apartment) and interpretation of VA Code §§55-269.2 et seq.

Will Contest – Undue Influence – Testamentary Capacity

Represented daughters in lawsuit against bank manager who inherited by will their elderly and demented mother’s home. Case involved claims that the bank manager breached a fiduciary duty to the mother and exercised undue influence on a person who lacked testamentary capacity when she signed while she was in hospital intensive care. The case was settled by the parties at a Circuit Court hearing in the wake of court rulings on dispositive motions.

Removal of Trustee –Vintage Photographs – Archival Procedures

Represented trustee in action brought by children/heirs of decedent regarding a trust consisting of 19th century collection of vintage photographs – Civil War (Matthew Brady, etc.) and Western.