Elderly woman gifts $1 million to neighbors after feeling threatened by family

Netanya family’s claim to a $1 million check gifted by a late elderly neighbor faces fierce opposition from the woman’s heir, who alleges fraud, manipulation and a decades-long scheme

by Tomer Ganon/Calcalist 

A nearly unbelievable story first revealed by Ynet's sister outlet Calcalist over three years ago has taken a new turn — one that appears to hinge on whether the case involves a generous gift or an elaborate fraud.

The saga began in November 2021, when a family from Netanya filed a lawsuit claiming they had cared for and supported their neighbor, G., a widowed and childless woman who lived across the hall from them for about 40 years. 

 

According to the case, during a Rosh Hashanah dinner in 2010, G. handed them an envelope. Inside, to their astonishment, was a check for NIS 4 million ($1 million), allegedly given as a gesture of gratitude for their support.

The father of the family said he hesitated after opening the envelope and soon spoke with G., who allegedly told him it was her final wish for them to have the money and instructed him only to fill in a date and cash it when the time was right. “You are my family,” she reportedly told him. Still, he waited.

Years passed, and G.’s health and mental capacity declined. In March 2017, a court appointed a legal guardian for her after she was deemed unfit to manage her affairs. In June 2021, the neighbor filled in the date and deposited the check. The bank rejected it.

He then approached G.'s guardian, claiming the check was valid and had been held legally. The guardian disagreed, responding in a letter — attached to the lawsuit — that the circumstances suggested “the exploitation of a helpless, lonely elderly woman.”

G. died in March 2022, four months after the lawsuit was filed. Recently, during the ongoing legal proceedings, a man identified as A., the primary heir to G.’s estate under her will, submitted a sworn affidavit. According to official documents, G.’s assets included a rental apartment building in a European country and a pension tied to her dual citizenship.

 

In his statement, A. said he met G. in 2007 while renovating her home. Over time, he claimed, their relationship grew close, with G. eventually becoming a regular guest in his household. He disputed the neighbors’ narrative, asserting they had never cared for her and that G. had in fact spent that Rosh Hashanah holiday with his family, not theirs.

 

According to documents submitted to the court, A. managed G.’s needs after her health deteriorated and did so with her request and the guardian’s later approval. Her will included bequests to others as well — such as her housekeeper and her late husband’s grandchildren from a previous marriage, who each received NIS 100,000 ($25,000).

 

In the will, G. wrote that she had no children and chose not to leave anything to other relatives, saying they had already received “significant property and money over the years” but had shown “no interest in me, other than in a clearly ugly and transparent manner.” 

 

She left the remainder of her estate to A., “who cared for me, looked after my needs and made my final years more pleasant.”

 

A. also pointed to a clause in the will in which G. wrote: “As I’ve recently been harassed by potential heirs and neighbors trying to inherit from me while I’m still alive, I request that a copy of this will be sent to the Israel Police.”

In his affidavit, A. claimed that “in hindsight, she was likely referring to the plaintiff — the neighbor — who tried to extract money from her during her lifetime. This clause, in my view, nullifies any promise or gift, if such a gift was ever even given.”    

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Elderly woman gifts $1 million to neighbors after feeling threatened by family

What’s Going On In South Carolina’s Probate Courts?

Funny business in Florence County … and possibly beyond.

by Jenn Wood

Dana Hanna chuckled in 2017 when her mother-in-law, Georgia “Jo” Hanna, asked her for $2.00 for a hot dog. Jo told Dana her debit card wasn’t working, and Dana assumed she was using the wrong card as she was known to do sometimes. Dana wasn’t concerned because Jo had substantial assets and things like that happened from time to time. She told her husband, Craig Hanna, who hopped in his car and drove to Jo’s house to ease her mind.

Craig didn’t realize at the time that what he as about to uncover would initiate a years-long legal battle to protect his mother – a battle that continues to this day.

Jo had been married to Carlos M. Hanna for 44 years when he died on December 14, 2010 — the same year the estate tax briefly expired. Carlos and Jo had two sons — Brad and Craig (Dana’s husband) — and a successful business in Florence County. Carlos founded Coastal Sanitary Supply in Florence in 1969. The business supplied half of South Carolina with janitorial supplies and sanitation equipment – including public entities such as jails, courts and school districts.

In 2004, Carlos underwent a successful heart transplant – after which he recovered and returned to running his business. On December 14, 2010, Carlos took his medicines and started seizing, vomiting, and having diarrhea. Jo called her son, Craig, and informed him he needed to come over immediately as something was wrong.

When Craig arrived, his father died in his arms. 

Carlos was a planner. He left behind detailed wills and trusts created by Gary Crawford, a Florence-based estate planning attorney. Crawford died by suicide on March 19, 2023 – shooting himself in the head in his car, which was parked outside of his law office. We’ll share more of Crawford’s story in a moment, but first let’s get back to the Hannas.

Per Carlos Hanna’s instructions, Crawford prepared two documents … 

• A last will and testament which, at the time of his death, decreed that everything he owned would go to his wife – Georgia “Jo” Hanna. It listed her as the personal representative of his estate.
• “Trust B,” which decreed that if Jo were unable to run the family business in the same capacity as Carlos did when he was alive, it would be placed into a trust to be managed by their sons, Craig and Bradley. This trust would pay Jo’s living expenses through her sons – and with Jo receiving Carlos’ salary. (Craig says his father knew that Jo – who spent forty years as a nurse – had no interest in running the business, so the trust was obviously the document to be followed).

The Hanna assets were significant. In addition to Coastal Sanitary Supply, the estate included a Florence residence, a vacation home, commercial properties, farm, timber, boats, vehicles, and commercial leases which brought in rental income. Carlos also had stocks, bonds, and life insurance. Dana wasn’t concerned on her drive over to Jo’s house, but when she arrived and pulled up her mother-in-law’s accounts, she quickly realized something was wrong.

Dana informed her husband, Craig, and when he began researching further he discovered his brother, Brad, had allegedly taken Jo Hanna to meet with Crawford – and had him transfer all of her assets to him for $5.00.

All of this happened without any notice to Craig …

In 2018, without Craig knowing, Jo Hanna was diagnosed with Alzheimer’s and Brad Hanna petitioned the Florence County probate court have her declared as incapacitated. That petition was approved by Florence County probate judge, J. Munford Scott. A sheriff’s deputy served Jo Hanna with a notice of the hearing to declare her incapacitated. In an effort to protect her, Craig petitioned to obtain guardianship of his mother to ensure her health and safety were being monitored as his brother and his wife only saw her a couple times a year.

When this petition was approved, he gained access to Jo Hanna’s medical records. Upon reviewing those records, he discovered a 2017 document which revealed that Brad’s wife – Cassie Powers Hanna, a pharmacy doctor – had taken Jo in for a neuropsychology evaluation that same year. The evaluation indicated Cassie had concerns about Jo’s cognitive skills going as far back as 2012 – prior to her signing her assets over to Brad for $5.00.

While Craig was relieved he could now ensure his mother’s health and well-being, the guardianship didn’t give him any money for this purpose. At same time Craig petitioned to be his mother’s guardian, he also requested a third-party conservator be appointed to oversee what remained of his mother’s finances. The judge immediately granted Craig’s guardianship request, but held back on the decision regarding the conservatorship for few months. 

Florence County, S.C. court house (Will Folks/ FITSNews)

Shortly before he retired, judge Scott quietly appointed Bradley Hanna to serve as the conservator for Jo Hanna. This decision placed one brother in charge of Jo’s health and safety – and the other in charge of her finances.

Upon learning his father’s probate estate was still open from 2010, Craig sought to be appointed as a successor to the personal representative of Carlos Hanna’s estate. That was done so he could attempt to close the estate file which had remained open. On November 16, 2022, his petition to be appointed in this role was approved by Florence County probate judge Jesse Cartrette.

Craig went to the Florence County probate court and pulled his father’s file. It soon became readily apparent why he wasn’t receiving any information concerning the estate. The address Crawford’s office listed for him on the “notification to heirs and devisees” was incorrect. When he dug deeper into this address, he realized it didn’t even exist. For years every notification regarding his father’s estate had been sent to an address that never existed — leaving him unaware that everything in the estate was being fraudulently transferred, allegedly, by Craig’s brother and his attorney, Gary Crawford.

On February 7, 2023 – four-and-a-half months ago – a letter was submitted by judge Cartrette indicating his prior approval of Craig as successor had been in error due to a conflict of interest. Cartrette recused himself and recommended the case be transferred out of Florence County owing to the conflict. Jo Hanna’s guardianship and conservatorship case had already been transferred to Darlington County probate court under judge Marvin Lawson and Carlos’ estate was transferred by order of the S.C. Administrative Law Court (SCALC) and S.C. chief justice Donald Beatty to Georgetown County probate court. 

Lawson made some interesting moves in Jo’s case – appointing Darlington County treasurer Jeff Robinson to serve as her conservator and S.C. state representative Cody Mitchell to serve as her guardian. This removed her son and strongest advocate, Craig Hanna, from his role. It also erected significant roadblocks for Craig if he hoped to continue advocating for her and protecting her assets moving forward.

As all of this was unfolding, Craig contacted Gary Crawford’s law office to obtain the files for his father’s estate. When he learned of Crawford’s death by suicide, he grew even more concerned. Crawford’s law firm changed its online status to “permanently closed,” and his office staff told Craig they would have to get back to him regarding his request.

He has yet to receive a return call – or any of the files he requested.

Back to Crawford: Every licensed attorney in South Carolina is required by law to have a clear plan of succession in place detailing what is to happen in the event of their death or disability. Successor attorneys identified on each lawyer’s annual license fee statement. Gary Crawford was no exception – listing Brown Johnson of Florence as his successor. According to a notice on Facebook, though, Johnson’s entire law firm resigned on May 18, 2023 – this past Thursday – further complicating things for former clients of Gary Crawford, many of whom are still trying to obtain their files from his office.

Craig Hanna recently hired a new attorney – Tucker Player of Columbia, S.C. Last week, Player issued subpoenas to Gary Crawford’s office on behalf of a number of clients attempting to obtain their case files. According to Player, his process server was surprised when Crawford’s wife, Becky Crawford – his longtime office manager and paralegal – refused service.

Last week, Player filed a motion in Darlington County probate court to vacate an order issued by judge Lawson allowing for the sale of Jo Hanna’s primary residence. This motion detailed some aspects of what many believe to be a broader scheme to defraud multiple victims. Jo’s primary residence, a stately brick home in Florence on a beautiful tree-lined street in a prestigious neighborhood, was approved for sale by judge Lawson. According to Player’s motion, though, Lawson “issued an unconstitutional and illegal order providing for the sale of the most valuable tangible asset of (Jo) Hanna without providing any notice or opportunity to be heard to the parties in this action.”

Attached to Player’s motion was a letter from Charles Ipock – an attorney with the Haynesworth Sinkler Boyd law firm – requesting judge Lawson’s order be issued “without notice, as allowed under the South Carolina Probate Court.”

Wait … what? Such lack of notification is permitted under state law?

When Player examined the statutes cited in the order, he realized one did not exist and the other “specifically prohibits” such notices. According to Player, without required notice to the parties in this case the court had no legal right to issue its order.

Player noted Lawson’s order was issued on April 18, 2023 – just hours after Craig Hanna appeared at a judicial reform press conference at the S.C. State House with solicitor David Pascoe. While at the press conference, Hanna saw his former attorney – S.C. senator Gerald Malloy – and his mother’s guardian, representative Cody Mitchell, numerous times in passing. Neither made any attempt to speak with him or acknowledge him, according to Craig, which he thought was bizarre.

According to Player, “the motion to sell Georgia Hanna’s real estate, and its accompanying correspondence requesting the petition be granted without notifying any other party, was mailed to this court on the exact same day. Unless the United States Mail Service has developed instantaneous transporters, the motion could not have reached this Court until April 19, 2023. This court received the motion, considered the motion, drafted an order granting the motion, and filed the Order within 24 hours of receipt.”

Lawson’s order allowed for the sale of Jo Hanna’s home with zero notice to the parties with interests in that real estate. Player said in his quarter century of practicing law, he has never seen an order issued in this manner as even “first year law students are aware of the Due Process clause of the United States Constitution and its fundamental requirement of notice.”

Home of Jo Hanna. (Provided).

Player further noted there is nothing in the file to justify the sales price of the home other than “an approved but an unsworn hearsay statement from some realtor.”

“There is no appraisal, no repair estimate, no pictures, no testimony, nothing that is required of an acting fiduciary to dispose of property owned by another.”

The sale of this property leaves Jo Hanna with only one asset remaining in her name – her cemetery plot. To date, over $20 million worth of assets have reportedly been transferred from her estate.

Among the questions the Hannas and their attorneys are hoping to answer: Why are motions and orders being issued with an ostensibly concerted effort to avoid all parties knowing about the sale of these properties? Who is benefiting from these property transfers? And was the sudden death by suicide of Gary Crawford tied to any of these actions?

And perhaps the biggest question of them all: Are there other cases like this one?

This news outlet has been told to expect a motion early next week which will answer many of these questions – and likely rock the already scandal-scarred South Carolina legal community to its core.

In the meantime, I would remind everyone reading this article that FITSNews has an open microphone policy – one which encourages any individuals named in our reports to address our audience directly. (Click to continue reading)

Full Article & Source:
What’s Going On In South Carolina’s Probate Courts?

Exec’s $2 million estate ‘wasted’ as disabled niece waits for inheritance: records

By Kathianne Boniello and Helayne Seidman 

A profoundly disabled Upper East Side woman is about to run out of cash she needs for life-saving medications and aides — as a more than $1 million inheritance has been allegedly mishandled by a former home health aide during an eight-year court battle, records show.

Multiple scleroris has left Meryn Klabouch, 74, a quadriplegic, forcing her to burn through $20,000 to $30,000 in monthly medical costs, legal filings show.

She’s survived off a $1 million bequest from her father, Francis, who died in 2015, and was due another hefty payout when her aunt, Mutual of America Insurance Co. CEO Dolores Morrissey, died in 2016 at age 88.

But the money hasn’t materialized.

Morrissey’s estate included cash, stocks, and a 1-bedroom, 1.5-bath Yorkville co-op, itself once valued at $1 million, according to Manhattan Surrogate Court documents.  

Her aunt’s former home health aide — Janina Lewandowska — was named executor of the roughly $2 million-plus estate, but has let costs pile up, failed to dole out any of the cash and allowed Morrissey’s home to languish for nearly a decade before finally selling it in July for $825,000, Klabouch has charged.

Meryn Klabouch needs $20,000 to $30,000 a month to pay for medications and aides.

Helayne Seidman

With funds from her father’s bequest running out, Klabouch says the court battle is now a matter of life or death.

“If Meryn does not receive a distribution from the estate she will end up dead, with no money to pay for her medication, caretakers, therapists and doctor,” her attorney wrote in court filings.

“This is truly an emergency which we beg the court address itself to, as there is plenty of money for Meryn’s care and the estate is being wasted each day.”

Meryn Klabouch, 74, gets help from her home health aide Joy, in her Upper East Side apartment.

Helayne Seidman

Dolores Morrissey was CEO of Mutual of America Insurance company.

Helayne Seidman

“I’ll be put in a nursing home,” Klabouch told The Post. “They’d probably kill me.”

Morrissey left modest amounts to about a dozen other relatives, none of whom have received the money.

Klabouch, in addition to $1 million cash, is supposed to receive half of whatever is left of her aunt’s estate after the co-op is sold and the other bequests are completed.

She recently got a measly $80,000 payout — but fears nothing else is left after Lewandowska — who blamed the co-op for delaying the apartment’s sale, told the court in December only $161,000 remained.

Francis Klabouch, left, and his wife Madeleine, left an inheritance to care for their disabled daughter as did Madeleine’s sister, Dolores Morrissey (center).

Helayne Seidman

Klabouch said she’s tried to find out what happened to Morrissey’s money, but that Lewandowska has flouted court directives and hasn’t shared any financial information.

“One can only guess the reason she refuses to provide the information is that it will evidence the breach of her fiduciary duty,” Klabouch contended in court papers.

Lewandowska, who moved to Florida without telling the court, also got Morrissey’s cat, Timmy, and has allegedly refused to give Klabouch jewelry from her mother, Morrisey’s sister. 

The executor of Morrissey’s estate, Janina Lewandowska, left, seen here in an undated photo with Morrissey. Lewandowska was once Morrissey’s home health aide.

Helayne Seidman

 

It took executor Janina Lewandowska nearly eight years to sell Morrissey’s East End Avenue co-op.

Helayne Seidman

“We do not know if the estate is still in existence or if the executor has wasted it all,” according to court documents filed by Klabouch’s attorney, who added, “I believe that the executor always thought my client would die, and the executor … would keep …the money.”

Lewandowska declined comment. 

Full Article & Source:
Exec’s $2 million estate ‘wasted’ as disabled niece waits for inheritance: records

Plaintiff claims probate court complicated control of his father’s estate

Posted by Gabriel Tynes

 

Ryan Peters was just 7 years old in 1991 when his father, Michael, suffered a traumatic brain injury. Michael, the agent and owner of several McDonald’s franchises in Mississippi, was a passenger in a car that left the road and hit a tree. A branch came through the window and broke Michael’s neck, destroying his frontal lobe and leaving him both paralyzed and in a coma. He partially recovered with treatment and rehabilitation, but lived in a non verbal and dependent state for the next 29 years, until his death in June 2020. 

 

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Plaintiff claims probate court complicated control of his father’s estate

My mother was diagnosed with Alzheimer’s. My siblings created chaos in her life. Should I help my mom change her will?

By Quentin Fottrell

‘After suffering elder abuse by two siblings, she moved in with me a year ago, and is now under professional guardianship/conservatorship’

'Our mother is still able to state her preferences, and knows who we are.'

MarketWatch illustration

Dear Quentin,

My mother created a trust and a will in 2013, creating the distribution of equal shares of her substantial estate among myself and my three siblings upon her death. Her estate includes financial accounts and several properties. 

Two years ago, in 2019, she was diagnosed with Alzheimer’s disease. Since that time, it’s been chaos dealing with litigation related to my siblings. After suffering elder abuse by two siblings, she moved in with me a year ago, and is now under professional guardianship/conservatorship.

None of my siblings help with her care. One of my siblings has cut off communication with our mother altogether. Another one visits regularly, but it’s really spying on behalf of the other two, one of whom moved away 46 years ago as a teenager and visited once, prior to our mom’s diagnosis. 

‘One of my siblings has cut off communications with our mother altogether. Another one visits regularly, but it’s really spying on behalf of the other two.’

Our mother is still able to state her preferences, and knows who we are. She can’t change the trust, according to her attorney, but she can change her will.

Due to my siblings’ behavior toward her, she has stated consistently that they should receive “not a penny” from her estate. She would need help to fulfill this desire. 

I’m torn. Should I help her? I don’t blame her for how she feels. It seems obvious what they’re really after is her estate. For nearly a year they wouldn’t let me near her, knowing we’ve always been close. They also conspired to have me written out of her will. Fortunately, her attorney recognized their undue influence and refused to do so.

I estimate she has already spent $100,000 in attorney and guardianship fees, protecting herself from them. 

What should I do? The whole thing is heartbreaking. 

The Remaining Child

***

Dear Remaining,

What you propose is not impossible, but you are playing a high-stakes game. Just know that you would be leaving yourself open to further litigation and accusations that you are putting undue influence on your mother — something you have alleged your siblings have attempted to do in the past. I’m not doubting your intent or your story. I’m merely giving you a heads up on what turmoil may lie ahead. That said, what you suggest is not impossible, despite your mother’s diagnosis. 

If your mother wishes to change her will and you want to help her with that, you must first show that your mother has “testamentary capacity” to make such changes. She must understand what it means and the effect it will have — in this case, disinheriting her other legal heirs. She must also understand the full nature of her assets and their value. Your mother would likely also have to provide a reason for making these changes. It may not be easy.

You don’t give details on the nature of the current litigation, but I assume your siblings have made efforts to wrestle control of your mother’s trust and estate, and have challenged the existing conservatorship. This is not an uncommon sequence of events when siblings are at war, and when an ailing parent owns a sizable estate. To prove testamentary capacity, you will have to access medical records and enlist the help of doctors, nurses, psychiatrists and/or neurologists.

Legal precedent

Every case is unique, but there is legal precedent of a family member who unsuccessfully tried to overturn a beneficiary posthumously. Timothy Gallagher, an attorney with Reminger Attorneys at Law, cited the case of Webb v. Anderson Children Trust, et al., 2020, where a sister sued her brother over their mother’s individual retirement account (IRA) beneficiary designation. The sister alleged their mother lacked the capacity to make changes due to a recent dementia diagnosis.

In this case, the brother had their mother take two separate mental-status exams. “The trial court found that the sister did not prove the mother lacked capacity to make the change to the IRA beneficiaries,” Gallagher writes. “The mere fact of a dementia diagnosis was not enough to show lack of capacity, and the testimony of the financial advisor was [that] the mother was strong and confident in 2009 when she made the change.”

You and your mother will have to weigh how strongly she feels about disinheriting her children, taking her mental and emotional state into account. You will be inviting more conflict into your life. Such court cases often linger for years, and can usurp hundreds of thousands of dollars — if not more — in legal fees.

I clearly don’t know all the facts in this case or both sides of the story. With that in mind and in good faith, I urge you to proceed meticulously and cautiously.

Full Article & Source:

My mother was diagnosed with Alzheimer’s. My siblings created chaos in her life. Should I help my mom change her will?

A Family History of the Smiths & Alexanders

By: Tiffany Bentley & Ann Hetherwick Cahill

Welcome to the story of the Smiths and the Alexanders — made-up people with a wild accumulation of fictional (but factual) circumstances that raise all kinds of probate and fiduciary litigation issues. What potential problems do you spot here? What are the arguments to be made on all of these contentious issues? Stay tuned to Beyond the Will throughout November and December as we dig deep into this family’s saga.

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Johnny Smith and Jocelyn Smith were married in 1983 in Massachusetts. They had two children, Randall Smith (born January 1, 1985) and Twyla Smith (born March 3, 1987). Unfortunately, Jocelyn died in a tragic car accident in 1995 with no estate plan in place.

At the time of her death, Jocelyn had a gross estate of approximately $5,000,000 consisting primarily of individually held investments that she had inherited from her parents. She also had a few minor accounts held jointly with Johnny but no retirement accounts or life insurance policies.

Johnny began dating Moira Alexander in 2000. Moira had two children of her own, Alexis Alexander (born February 5, 1985) and David Alexander (born October 8, 1989).

In 2005, Moira, Alexis, and David moved into the Smith home with Johnny, Randall, and Twyla. They appeared to have minimal issues as far as blended families go. Their children got along and each accepted the other adult as a parental figure. As the children graduated and moved out of the family home, they remained in frequent contact with both Moira and Johnny and returned home for holiday and birthday celebrations.

Moira and Johnny met with an estate planning attorney, Attorney Mullens, in March of 2013 in order to have estate planning documents prepared including wills, revocable trusts, health care proxies, durable powers of attorney, and HIPPA waivers. Moira and Johnny were planning on eloping the following month and thus told Attorney Mullens that they were already married.

Attorney Mullens prepared estate planning documents for each of Johnny and Moira. Each will stated that the testator was married and left tangible items to the surviving spouse and otherwise to the surviving children in equal shares. Children under both wills were defined to include Randall, Twyla, Alexis, and David. The residue under Johnny’s will poured over to The Johnny Smith Trust. The residue under Moira’s will poured over to The Moira Alexander Trust. Moira was named as Personal Representative under Johnny’s will followed by Randall as a successor. Johnny was named as Personal Representative under Moira’s will with Alexis named as successor. Through Johnny’s will, he exercised a limited power of appointment that had been granted to him in a Family Trust established by his parents, directing that income from that trust be paid to his spouse, Moira, for her lifetime. That trust, by its terms, would terminate upon the last to die of Johnny and his four siblings, at which time the remaining principal would distribute outright to the issue of Johnny and his siblings by right of representation.

Johnny was the Donor and Trustee of The Johnny Smith Trust. Johnny was the beneficiary of The Johnny Smith Trust during his lifetime. After his passing, the Trust was structured to minimize potential Massachusetts and Federal estate tax while providing for Moira’s sole benefit during her lifetime. After Moira’s death, any remaining assets would divide into equal shares and would be distributed outright to each of Randall, Twyla, Alexis, and David. Moira and Attorney Mullens would serve as successor Trustees after Johnny’s death. After Moira’s death Attorney Mullens (or another attorney from his firm) would serve as sole Trustee.

The provisions of The Moira Alexander Trust mirrored those of Johnny’s Trust. Moira was the Donor and Trustee of her Trust and the beneficiary during her lifetime. After her passing, the Trust would minimize potential estate taxes while providing for Johnny during his lifetime (if Johnny survived) and otherwise the assets would be divided into equal shares and distributed outright to all four of the children. If Johnny survived, he would serve as a Trustee along with Attorney Mullens (or another attorney from the law firm).

Finally, Moira was named as agent under Johnny’s health care proxy and durable power of attorney, followed by Randall. Johnny was named as agent under Moira’s health care proxy and durable power of attorney, followed by Alexis.

Moira and Johnny signed their wills and trusts in early April of 2013. Although Attorney Mullens encouraged them to sign all of their documents, Johnny and Moira neglected to sign their health care proxies and durable powers of attorney. They wanted to give more consideration as to whether they wanted a child to serve as a co-attorney-in-fact with the other spouse under the durable powers of attorney, and whether they wanted language concerning the life-sustaining treatment in their health care proxies.

Moira and Johnny postponed their plans to elope after Moira, a doctor, had worked long hours caring for victims of the Boston Marathon bombing.

Unfortunately, Johnny began exhibiting signs of early-onset Alzheimer’s in late 2017. His health deteriorated rapidly and by mid-2018 Johnny was unable to function independently. Moira cared for Johnny to the extent possible at their home and hired an in-home nurse to assist as necessary.

That holiday season, Randall gave Twyla one of the newly-released ancestry testing kits hoping that it might shed some light on their father’s disease and their potential risks down the road. Twyla took and submitted the ancestry test, set up an online profile and ultimately forgot about it with everything else that was going on in her life.

In February of 2019, Twyla decided to surprise Moira and Johnny and made an unplanned visit to her childhood home while in town for a bridal shower. Twyla became concerned when she saw a brand new Mercedes SUV sitting in the driveway. Twyla inquired and Moira explained that it was a “gift” and not to ask so many questions. Twyla mentioned this to Randall who at the time was roommates with David. He noted that David, an avid baker, had recently come home with a brand new collection of Le Creuset cookware. Randall hadn’t given this much thought but after his conversation with Twyla wondered how David, a struggling artist, could afford to spend that much money on items that simply supported a hobby.

Randall and Twyla became more concerned with how they believed Moira was spending Johnny’s money. After Moira avoided their questions multiple times, Randall and Twyla sought the advice of their own attorney, Attorney Budd. Attorney Budd advised that they could petition the court to have an independent conservator appointed to handle Johnny’s finances. After filing a petition, and over Moira’s objection, the court-appointed an independent conservator and independent guardian for Johnny.

The relationship Randall and Twyla had with Moira and her children continued to deteriorate as their father’s health grew worse. After one particularly difficult evening in February of 2020, Johnny had to be rushed to the emergency room after he was completely unresponsive and had labored breathing. The doctors advised that he likely had only a few hours to live unless he was placed on life support. Moira believed that Johnny did not want life-sustaining treatment and advised the doctors to give him medicine to simply make him comfortable. When Randall arrived he demanded that the doctors put his father on life-support. Unfortunately, before any decision could be made, Johnny passed away.

Johnny died with a gross estate of $7,000,000 consisting of his Massachusetts residence and a variety of investment and bank accounts titled in his name, individually, a bank account with approximately $75,000 held jointly with Moira, a life insurance policy payable to his Trust with a death benefit of $500,000 and a 401k account in which Moira was named the primary beneficiary followed by the four children equally as contingent beneficiaries.

Moira turned to Attorney Mullens to probate Johnny’s estate and prepare any necessary tax filings. Attorney Mullens was shocked to discover that despite what he had been told and what was provided in their wills, Moira and Johnny had never actually married. Attorney Mullens filed a Petition in Probate Court to have Moira appointed Personal Representative of Johnny’s Estate. Both Randall and Twyla filed objections. In addition, Randall and Twyla engaged Attorney Budd to present an argument that all provisions for Moira under the will and trust should be disregarded given the fact that she was not actually their father’s spouse, that their father’s tangible items should be distributed in equal shares to them, and that the remainder of their father’s estate should pass outright to the two of them (to the exclusion of Alexis and David).

This argument enraged Moira and she engaged a new estate planning attorney, Attorney Brewer, to prepare a new estate plan with the intent to disinherit Randall and Twyla. Moira’s new will provided for tangible items to be divided equally between her children, Alexis and David. Moira amended and restated The Moira Alexander Trust and provided that after her death, all assets would be divided into equal shares and distributed outright to Alexis and David.

Meanwhile, Attorney Mullens was working to prepare the Massachusetts Estate Tax Return for Johnny’s Estate. He wished to utilize the tax planning methods that had been provided for through Johnny’s will and trust and take advantage of the spousal deduction that could be taken on any assets that passed to Moira as the surviving spouse either outright or as held under Johnny’s trust for her benefit during her lifetime.

Around the same time, Stevie Jenkins, a young woman living in Colorado, contacted Twyla after her own ancestry test results indicated that she and Twyla could be half-sisters, sharing Johnny’s genetic profile. Twyla, although shocked at the discovery, was interested in getting to know Stevie but was concerned about whether Stevie might have any rights to Johnny’s assets under his own estate plan or under the Family Trust that Johnny’s parents had established.

Full Article & Source:

A Family History of the Smiths & Alexanders 

Financial Exploitation and the Authority of a Conservator

Ann Hetherwick Cahill

To best enjoy this post, please be sure to first read A Family History of the Smiths & Alexanders.

In this last discussion of the Smith and Alexander families, we examine financial exploitation, its impact on suitability in appointing a conservator, and steps that a conservator can take if there is evidence of prior financial exploitation. As background, Johnny developed Alzheimer’s, and Moira cared for Johnny at their home, with the help of an in-home nurse. When Randall and Twyla were concerned with how Moira was spending their father’s money, they appropriately filed for a conservatorship. Randall and Twyla asked for an independent conservator to be appointed over Johnny, to which the court agreed, despite Moira’s objection.

Moira likely objected because she wanted to be appointed as conservator over Johnny. Remember that Johnny and Moira never signed the health care proxies and durable power of attorneys prepared by Attorney Mullens (they did sign their Wills and Trust). Johnny’s health care proxy and durable power of attorney named Moira as the agent, followed by Randall. Had Johnny signed his durable power of attorney, Moira would have had top priority for consideration for the appointment as conservator under the governing statute. Otherwise, she lacks any priority for the appointment. Moira might still argue that the unsigned durable power of attorney evidences Johnny’s intent for her to serve as conservator. That would be a tough argument, though, given that Johnny never actually signed the durable power of attorney, and he was still thinking about whether he wanted to name one of his children to serve as co-attorney-in-fact with Moira.

Importantly, the court would likely not appoint Moira as conservator for Johnny because she is unsuitable to serve in such a fiduciary position. Based on the facts, it seems like the conservator need arose out of Moira’s lavish spending of Johnny’s money. The governing statute ensures that lack of qualification or lack of good cause overrides any person’s priority for the appointment. Here, with Moira’s history of using Johnny’s assets, there is a solid argument that she should not be appointed.

With a neutral conservator in place, the conservator is protecting Johnny from future exploitation and standing in Johnny’s shoes to pursue any necessary investigation and/or claim against Moira or any other wrongdoer. A conservator is explicitly empowered to “commence, prosecute or defend actions, claims, or proceedings in any jurisdiction for the protection of estate assets,” pursuant to M.G.L. c. 190B, § 5-423(c)(26). Once appointed, the conservator likely learned from Randall and Twyla of their concerns about Moira’s spending. Then the conservator has the power to review bank account statements, hire counsel, and file any claim to recover any assets if necessary. As shown by Moira, often, the fight over a person or estate stems from wanting to remain in control and to limit someone’s own potential liability for bad acts.

If you have concerns about the financial exploitation of a loved one, you should consult with a skilled attorney who specializes in this area of the law.

Until next time!
Hether

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Financial Exploitation and the Authority of a Conservator

Guardians seek changes to assist in final arrangements

Pryor

Dillman

by Olivia Covington

In the year of COVID-19, court-ordered adult guardians have faced a grim reality: their clients, many at a high risk for medical complications, are getting the virus and passing away.

For Becky Pryor, a longtime guardian and guardianship advocate, a typical year might include one client death, maybe two. But by October of 2020, two of her wards had died after a positive COVID-19 diagnosis. By November, three had.

“It’s no joke. This is real,” said Lisa Dillman, a partner at the elder law firm of Applegate & Dillman. Like Pryor’s guardianship practice, Dillman’s firm has dealth with more deaths in 2020 than normal.

Aside from the emotional toll of losing a guardianship client, another longstanding issue in the guardianship world has been exacerbated by the pandemic, Pryor said. When a client dies, guardians are unable to finish their duties, she said, specifically overseeing the disposition of the body.

Under Indiana law, a guardianship ends at the time of a ward’s death. While a guardian will have financial and administrative duties to tie up, Pryor said the statute gives her and other guardians no authority to oversee post-mortem matters.

Instead, the law lists several other parties who can tend to those matters, including surviving spouses and powers of attorney, to name a few. But to Pryor and others working in guardianship, the question is, what if a spouse or power of attorney isn’t willing or able to do the job?

To that end, a guardianship task force has recommended that the Indiana Legislature amend state statute to give guardians authority over dispositions if necessary. While the concept received general support in a recent meeting of the Probate Code Study Commission, the question remained: how do you balance the authority of a guardian with that of another party, such as a POA?

That issue, Pryor said, is one that must be resolved in order to get a bill passed.

Making the list

Pryor presented the legislative proposal to the Probate Code Study Commission on behalf of the Working Interdisciplinary Networks of Guardianship Stakeholders — or WINGS — Indiana Adult Guardianship State Task Force. The group representing nearly 200 advocacy organizations proposed amendments to Indiana Code § 29-3-12-1(e) and I.C. 29-2-19-17(2) to allow a guardian to oversee a ward’s disposition.

The former statute provides that “(w)hen a guardianship terminates by reason of the death of the protected person, the powers of the guardian cease, except that the guardian may pay the expenses of administration that are approved by the court and exercise other powers that are necessary to complete the performance of the guardian’s trust … .” But under the latter statute, those “other powers” do not include disposition of a body.

Instead, I.C. 29-2-19-17(2), Indiana’s funeral planning declaration statute, names 10 individuals, listed in order of priority, who can sign off on a disposition. Among them are a power of attorney, a surviving spouse or “any other person willing to act and arrange for the final disposition of the decedent’s remains … .”

Bennett

Ken Bennett practices guardianship law at Bennett & McClammer in Indianapolis and is also CEO of the nonprofit CARE, or Center for At-Risk Elders Inc.. When the issue of disposition has arisen in CARE’s cases, he said the organization has relied on the “any other person” provision — number 10 in the list of 10 individuals — to allow CARE to oversee final disposition.

The problem, though, according to Pryor, is that the number 10 option comes with a caveat: the individual acting as “any other person” must “attest in writing that a good faith effort has been made to contact any living individuals described in subdivisions (1) through (9).”

Guardians are often asked to attest that they do not know of any other individual who could sign off on disposition, Pryor said, which may not be the case. An adult under guardianship may have living family or a power of attorney, she said, but those individuals may have proven themselves to be unwilling or unable to carry out these duties.

Willing and able

That issue proved to be a sticking point when the Probate Code Study Commission met in October to discuss the amendments. Under the WINGS proposal, the funeral planning declaration statute would be amended to give guardians the second priority spot on the list, bumping powers of attorney down to the third spot and spouses to the fourth.

Probate attorneys on the commission questioned that move, noting that powers of attorney generally have greater authority under Indiana law than guardians. Commissioner and Vincennes lawyer Jeff Kolb opined that POAs likely knew the incapacitated adult while guardians could be strangers. Similarly, lawyer and commissioner Jim Martin said a power of attorney would have to be revoked to give a guardian greater authority.

Pryor did not question their legal arguments, but instead pointed to what she said is a practical reality: If an adult is under guardianship, the POA, who is often a family member, likely has been unwilling or unable to perform their duties. She and other guardians will frequently petition courts to revoke a POA in those situations, she said.

What’s more, Pryor continued, guardians usually know their clients well and are familiar with their needs and wishes.

Pryor told IL if a client’s spouse is living, they will be consulted in issues regarding disposition. But if a guardianship was ordered, the spouse likely was unable to adequately care for their husband or wife.

Two or three?

Pryor said Sen. Tim Lanane, D-Anderson, has agreed to carry legislation in the 2021 session that would make the changes the task force is seeking. IL was unable to reach Lanane for comment.

The big question that needs to be answered, Pryor told IL, is what place on the list guardians should take. But there are other statutory issues that may arise.

Bennett, for example, noted there are conflicts in Indiana law regarding the authority of a power of attorney and the authority of a guardian. If a guardianship is in place, he said, the guardian seems to be the more natural decision-maker.

Additionally, Indianapolis probate lawyer Jeff Dible told the commission that there are three other lists in Indiana probate law that track with the list of individuals in the funeral planning declaration statute. If one list is changed, Dible said, the other three would have to follow.

Like Pryor and Bennett, Dillman supports the proposal but offered some practical advice if a bill is not passed this year.

“If a client goes and hires a lawyer to do a power of attorney, the job doesn’t stop there,” Dillman said. “… If the client is not sure what they want yet, they should appoint someone who has the authority. This could all be handled in a preplanning situation.”•

 

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Guardians seek changes to assist in final arrangements

Jennifer Dulos Case Goes Before Probate Judge

By Kristen Johnson

Is Jennifer Dulos dead?

That is one of the questions lawyers asked a Farmington probate court to answer Thursday.

By determining that Jennifer predeceased her estranged husband Fotis Dulos, his estate will be able to access an IRA worth close to $200,000 to pay off debts.

“It is clearly not our intent for this court to make any findings of causation, their involvement, or having anything to do with the criminal complaint,” said Christopher Hug, the court-appointed attorney administering the Fotis Dulos estate.

Jennifer Dulos has been missing since May 24, 2019. The last sighting of her was when she dropped her children off at school in New Canaan that morning.

Her estranged husband, Fotis Dulos, was charged with her murder and maintained his innocence until he died days after an attempt to take his own life in January. Jennifer has never been found.

Because Connecticut law requires a person to be missing seven years before a declaration of death, this ruling could provide precedent on such matters. Thursday, the Hon. Evelyn Daly said she’s not convinced she had enough information to make a decision.

“I believe it is fair to say that the supplemental brief did not provide the court with any related Connecticut case law precedent,” she told the attorneys. “I believe a full hearing of testimonial evidence and any other evidence counsel needs to be heard before I can render a decision.”

Hug was joined by the guardian ad litems for Jennifer and the estranged couple’s five children who also tried to convince Daly that a hearing was unnecessary.

An attorney representing Hug drew comparisons to 9/11.

“Our probate courts proceeded to make findings for those whose bodies were not found and therefore had no death certificates in abundant numbers,” said Paul Kanera.

Daly said she wanted to hear testimony from the state trooper involved in the criminal investigation along with the medical examiner, but the attorneys pointed out that they were not asking her to determine how Jennifer died, only that she died before her husband.

Attorney Jon Schoenhorn appeared on behalf of Michelle Troconis, who has pled not guilty to a charge of conspiracy to commit Jennifer’s murder. He stood alone in his argument that the judge should hold a hearing on the matter.

“Although there is this comparison to 9/11, there was no dispute at all about the circumstances of those disappearances, and I submit here it is contested,” he said.

Hug submitted the arrest warrant for Fotis Dulos, which includes a chief medical examiner’s determination that Dulos was unlikely to have survived a serious assault in her home, as evidence that she is no longer alive.

“That warrant talks a lot about my client. A lot, relies a lot on allegations that they claim involve my client Ms. Troconis,” Schoenhorn went on to say. “They’re asking the court to make a finding on a sworn document that I maintain contains half-truths.”

While the other attorneys argued that Schoenhorn had no standing on the issue (he was present for other matters the judge took arguments on, including contested items he was seeking to be returned to Troconis from the home she once shared with Dulos), he expressed concern that his client’s criminal trial could be negatively impacted by the probate court’s decision.

“For the most part, the issue here for them is the money and who should get it. I have no interest in that. Michelle Troconis has no interest in that,” he explained.

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Jennifer Dulos Case Goes Before Probate Judge

All of Fotis Dulos’ properties now in foreclosure

By Lisa Backus

• 

Photo: Nathan Spotts / Contributed Photo 

 

The attorney representing Jennifer Dulos’ mother expects to soon receive the title to the home at 4 Jefferson Crossing in Farmington.

FARMINGTON — The one-time property empire owned by Fotis Dulos and his high-end real estate company is being dismantled by foreclosure proceedings as his estate makes its way through probate court.

Fotis Dulos died Jan. 30 from an apparent suicide while facing murder and other charges in connection with his estranged wife’s death and disappearance. Jennifer Dulos was last seen on May 24, 2019 and has been presumed dead based on blood evidence found in the garage of her New Canaan home, according to arrest warrants.

Attorney Richard Weinstein, representing Jennifer Dulos’ mother, expects to have the title to the 14,000-square-foot Jefferson Crossing property in Farmington by late July.

Jennifer and Fotis Dulos lived in the home until June 2017 when she left with their five children for New Canaan and filed for divorce.

Fotis Dulos remained in the home with his former girlfriend, Michelle Troconis, and her daughter. At the time of his death, Fotis Dulos had not made mortgage payments for about a year, Weinstein said.

Weinstein said he will put the house up for sale once he receives the title. He expects a judge to grant him the title as soon as this week, but there will then be a 20-day appeal period.

Gloria Farber moved to foreclose on the house last year as Fotis Dulos was the prime suspect in the death and disappearance of her daughter.

Five other properties owned by Fotis Dulos are also in foreclosure proceedings, court records show.

A Superior Court judge recently awarded Farber nearly $2 million in two lawsuits she filed against Fotis Dulos on claims he failed to repay her family business loans made to him while he was married to her daughter.

Attorney Kent Mawhinney, who at one point represented Fotis Dulos in the lawsuits, and Troconis have each been charged with conspiracy to commit murder in the Jennifer Dulos case. Troconis also faces tampering with evidence and hindering prosecution charges.

The estate of Fotis Dulos is now in probate court as Farber raises the couple’s five children. The items owned by the Dulos children that were still in the Jefferson Crossing house were retrieved last week, Weinstein said.

Troconis had also filed paperwork with the probate court in Farmington to retrieve her personal property from the home.

Hartford Superior Court Judge Cesar Noble agreed Thursday to allow Farber to receive $25,000 from the estate in legal fees for bringing forward one of the lawsuits, which claimed Fotis Dulos stopped paying a $500,000 loan that was used to help build the Jefferson Crossing house.

People’s Bank has started foreclosure proceedings on three other Farmington properties owned by the Fore Group at 80, 84 and 88 Mountain Spring Road, court records show. Harry Masiello, a longtime friend of Fotis Dulos who loaned him $600,000 in 2017, is now foreclosing on an Avon property at 585 Deercliff Road, which is just a few hundred feet from the Jefferson Crossing home.

The Savings Bank of Danbury started foreclosure proceedings in late 2019 on a Sturbridge Hill Road home in New Canaan that Fore Group had developed and planned to sell.

Farber and Masiello are named as defendants in several of the foreclosures since they have liens on the properties. The properties at 80, 84 and 88 Mountain Spring also have a $6 million lien placed by a bail bond agent who signed off on the $6 million bond that released Fotis Dulos from prison in January when he was charged with murder.

The probate court is still working on “sensitive issues” as the estate is finalized, Weinstein said. All money remaining from the probate process will go to the children who have been in Farber’s care since their mother disappeared, Weinstein said.

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All of Fotis Dulos’ properties now in foreclosure

Court: Attorney Doesn't Have to Return $65K Legal Fee to Estate

A Pennsylvania lawyer who was paid for legal services by the daughter of an incapacitated woman is under no obligation to return that money to the estate, despite an Orphans' Court's finding that the fee was paid using funds that were unlawfully transferred to the daughter.

By Zack Needles

A Pennsylvania lawyer who was paid for legal services by the daughter of an incapacitated woman is under no obligation to return that money to the estate, despite an Orphans’ Court’s finding that the fee was paid using funds that were unlawfully transferred to the daughter.

In In re Carol Shiner Rosenbloom, an Incapacitated Person, a three-judge panel of the Superior Court unanimously ruled Feb. 14 to vacate an order of the Allegheny County Orphans’ Court requiring attorney Margie Hammer of Lieber Hammer Huber & Paul in Pittsburgh to return $65,000 in legal fees to the estate of her former client, Carol Shiner Rosenbloom.

In a memorandum opinion, Superior Court Judge Deborah Kunselman said Orphans’ Courts have “no authority under the Probate, Estates, and Fiduciaries Code (PEFC) to force a person to give money to an estate, if, as here, the money does not belong to the estate.”

Kunselman was joined by Judges John Bender and Dan Pellegrini.

According to Kunselman’s opinion, the Orphans’ Court, acting on a petition by the guardian of Rosenbloom’s estate, determined that Rosenbloom’s daughter Kate had exerted undue influence in convincing her mother to transfer investment accounts worth $283,000 to her.

The Orphans’ Court ordered Kate to return that money to the estate, but also required Hammer to return $65,000 in legal fees Kate had paid her for work Hammer had done on behalf of Kate and Rosenbloom, according to Kunselman.

The Orphans’ Court reasoned that it had not approved the payment to Hammer and that, since neither Hammer nor Kate could show that the fees were paid using Kate’s money and not Rosenbloom’s, the fee needed to be returned to the estate.

But the Superior Court panel said the Orphans’ Court “did not find that attorney Hammer exerted undue influence over Ms. Rosenbloom, that she overcharged for her legal service, that she failed to render proper service, or that she in anyway defrauded Ms. Rosenbloom.”

“Instead, the Orphans’ Court relied on the argument of the guardian, namely that Kate’s payments to attorney Hammer violated Section 5536(a) of the PEFC. We disagree,” Kunselman said, noting that Section 5536(a) only gives the Orphans’ Court authority over funds within the estate and not funds that lie outside “‘the income or principal of the estate of an incapacitated person.’”

Kunselman said the section likewise does not permit the Orphans’ Court to order payment of funds into an incapacitated person’s estate from a third-party transaction.

“Here, the Orphans’ Court ordered Kate to refund the full $283,000 to the estate, as an invalid, inter vivos gift from Ms. Rosenbloom to Kate,” Kunselman said. ”However, under Section 5536(a), the court could not go beyond Kate to recover estate funds that Kate may have subsequently transferred to third parties, including attorney Hammer.”

Kunselman also said the $65,000 paid to Hammer was neither principal nor income of Rosenbloom’s estate.

“Contrary to the belief of the orphans’ court and the guardian, attorney Hammer had no obligation to petition that court to be paid for services to Kate and Ms. Rosenbloom, when those services predated the decree of incapacity and were paid for by Kate,” Kunselman said. “Regardless of how Kate obtained the money she paid attorney Hammer, those funds had been passed to a third party and, thus, may not be acquired under Section 5536(a) of the PEFC.”

Reached for comment, counsel for Hammer, James Lieber of Lieber Hammer, said, ”The main thing is it’s a fair decision and I was pleased that the Superior Court made clear what has always been clear, which is that the Orphans’ Court has jurisdiction over the pertinent individual’s estate but not over third parties.”

Counsel for the guardian, Frederick Frank of Frank, Gale, Bails, Murcko & Pocrass in Pittsburgh, could not immediately be reached for comment.

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Court: Attorney Doesn't Have to Return $65K Legal Fee to Estate