Massachusetts Lawyer Blog

A Suffolk Superior Court judge declared whole classes of mortgages structurally unfair under state law. It is both imprudent and unfair to approve mortgage loans that the borrowers cannot reasonably be expected to repay if housing prices were to fall, Judge Ralph Gants wrote. This is an interesting judicial approach to gain time to evaluate the system in more detail. I anticipate this may leverage lenders into finding more workout deals. What steps will be taken long term? Raises some interesting property right and freedom to contract questions. See Boston Herald Article, http://www.bostonherald.com/business/real_estate/view.bg?articleid=1076243

Posted by Kevin P. Whitaker | Permalink | Email This Post | Comments (0)

Posted In: Bankruptcy , General , Real Estate & Real Property

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Medical malpractice claims (or other claims) involving Massachusetts residents vacationing in a foreign country may need to be pursued in that foreign country. This issue was discussed in a Massachusetts woman's lawsuit (through her estate) involving her trip to the Dominican Republic. In Marilyn Gianocostats and George Gianocostas, Administrators of the Estate of Jennifer Gianocostas vs. Interface Group-Massachusetts, Inc. doing business as GWV International (SJC-10017, Slip Opinion), the court wrote,

"When... conduct occurs in a foreign country... [and] ... concerns medical services provided to travelers by residents of that country, our interests may have to bend to those of the foreign jurisdiction. The balance tips decisively in favor of a foreign jurisdiction when a primary issue to be litigated is the standard of medical care that may be (or has been) obtained there."

Posted by Kevin P. Whitaker | Permalink | Email This Post | Comments (0)

Posted In: General , Health Issues , Probate Litigation

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Recently, I've been receiving more "death bed" calls and inquiries from those in hospitals wanting to execute a will or create a trust. Some are from dying patients wanting to memorialize their wishes. Some are from concerned family members, but some are from others with only self-serving intentions. There are times when you can help a terminally ill patient and there are times when you can't. Someone who doesn't know what they are doing or what they are signing shouldn't be making estate plans. With the number of do-it-yourself will packages readily available, however, it's foreseeable that wills will be executed when they shouldn't be. When this occurs, there are certain to be more will challenges.

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The Supreme Court in LaRue v. DeWolff ruled than individuals (not only Plans themselves) may bring actions for breach of fiduciary duties in 401(k) plans. Mr. LaRue had argued his holdings decreased $150,000 when plan administrators did not heed his requests to switch to safer investments. The question raised was whether the Employee Retirement Income Security Act (ERISA) allows account holders to sue plan administrators. With the answer now being "yes" estates may want to consider actions too. When warranted, it may be prudent for estate executors and administrators to investigate potential suits when a breach of fiduciary duty has occurred.

Posted by Kevin P. Whitaker | Permalink | Email This Post | Comments (0)

Posted In: General , Probate Litigation

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The estate of "Lord of the Rings" creator J.R.R. Tolkien is suing the film studio that released the trilogy based on his books, claiming the company hasn't paid it a penny from the estimated $6 billion the films have grossed worldwide, reports Alex Veiga. See the full article here The suit was filed in Los Angelos New Line Cinema. Veiga indicates the case could disrupt plans by New Line to make a two-film prequel based on "The Hobbit." As commerce, arts, and intellectual property rights expand globally, there will likely be a continued growth in probate related litigation worldwide. At the end of the day, reason indicates someone should eventually make a deal, but it gets tougher and tougher as the number of parties and countries' laws involved expands.

Posted by Kevin P. Whitaker | Permalink | Email This Post | Comments (0)

Posted In: General , Probate Litigation

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Michelle Nichols, in a Reuters article, reports Paris Hilton's grandfather, Barron Hilton, has announced his intentions to donate 97% of his estate to charity (about $2.3 billion) into the Conrad N. Hilton Foundation (including contribution to be valued about $4.5 billion). Has the family fortune come full circle? Conrad Hilton established the foundation in 1944 and when he died in 1979 left virtually all of his fortune -- including, according to media reports at the time, a 27 percent controlling stake in Hilton Hotels -- to the charity”, writes Nichols. She recounts, “Barron Hilton challenged the will and after a nearly decade-long legal struggle reached an out-of-court settlement to split ownership of the shares with the foundation in 1988, The New York Times reported fame and fortune mixed together with an estate challenge (and a historical theme) -- could make for some great television. Authors note: Forgive me, but I simply couldn't resist posting a Paris Hilton related entry following a Britney Spears post within the same week.

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Posted In: General , Probate Litigation

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The mortgage meltdown crisis is coming to probate matters. When someone dies their property is generally passed according to either their estate planning documents or by operation of law. Since many people have been using the equity in their homes as credit cards (and have run up a high debt), what will happen in probate? When the owner dies --the property and the mortgage are left to deal with.

This is a situation you generally should deal with quickly. To determine what course of action to follow, you need to know the value of the property and the amount of debt owed. If there is plenty of equity, you can sell the property and pay the mortgage. But what about the opposite: when there is no equity or the mortgage is greater than the value of the home? Here it helps to get some help as soon as possible.

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Posted In: General , Probate Litigation

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Raquel Maria Dillon, For The Associated Press, writes: "An attorney who claims to represent Britney Spears has filed papers to move her conservatorship case from the Los Angeles County Superior Court to federal court..." The attorney writes that Spears has not "received the benefit of a single hearing before the court," and "is being confined by the conservator to the private prison of her own home," and "raises the legal issue of whether an adult child may be subjected by her parents [her conservators] to their complete and total control in violation of her civil rights." Dillon writes, "Legal experts were doubtful that Eardley's bid to remove the case to federal court would succeed."

Continue reading " Britney Spears and Conservatorship Issues: Right to Counsel in Massachusetts or Elsewhere? " »

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Posted In: Competency , Probate Litigation

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