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California Supreme Court Rules Beneficiaries Can Sue Trustee For Breaching Fiduciary Duty To A Settlor

Trust LitigationNo Comments

Gavel 150x130 California Supreme Court Rules Beneficiaries Can Sue Trustee For Breaching Fiduciary Duty To A SettlorThe California Supreme Court has ruled in Estate of Giraldin that the beneficiaries of a trust have standing to sue a trustee for breaching fiduciary duty to the settlor, even after the settlor has died.

William and Mary Giraldin wed in 1959; William had four children and Mary had three at the time of the marriage. Together, they then had twins, Patrick and Timothy.

William created a trust in 2002, and made his son Timothy the trustee. Under the terms of the trust, William was sole beneficiary during his lifetime, then Mary would become sole beneficiary upon William’s death; the nine children would then share equally in the remainder of the trust after both parents died.

Before his death in 2005, William invested millions in a company co-owned by Timothy and Patrick. The company performed poorly, and most of the investment was lost.

William’s four children sued Timothy as trustee, claiming he breached his fiduciary duty to William while he was still alive. A trial court ruled in 2008 that Timothy had violated his fiduciary duty. Timothy appealed, and the appellate court reversed, finding that the plaintiff’s lack standing because Timothy’s fiduciary duty as trustee was only to William, not the other beneficiaries.

William’s children appealed to the California Supreme Court, specifically on the question of whether remainder beneficiaries have standing to sue a trustee for breach of fiduciary duty to a settlor during the settlor’s lifetime.

Drawing implications from the California Probate Code as well as various rulings from California and other states, the California Supreme Court held that, “After the settlor’s death, the beneficiaries have standing to assert a breach of the fiduciary duty the trustee owed to the settlor to the extent that breach harmed the beneficiaries.”

In addition, the court found, “Considered as a whole, the various probate code sections impose a duty on the trustee to protect the interests of the persons who are entitled to the proceeds of the trust.”

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Will Stipulates Gay Father Must Marry Woman For His Son to Receive Inheritance

Estate Planning, Trust Litigation, WillsNo Comments

last will 150x150 Will Stipulates Gay Father Must Marry Woman For His Son to Receive InheritanceFrank Mandelbaum, who died in 2007 at the age of 73, amassed a fortune as the founder of Intellicheck, an ID verification firm.  In his will, he left a $180,000 trust for each of his grandchildren, including any that would be born after his death.

Frank’s son, Robert Mandelbaum, is a Manhattan criminal court judge who also happens to be gay.  Robert and his partner had a son via a surrogate, and married shortly after the birth of the boy in 2011.

However, for Robert’s son to be able to inherit according to Frank’s will, Robert must have been married to the female surrogate within six months of his son’s birth.  The will specifically excludes any child that may have been adopted by Robert as well as a biological child if he did not follow the instructions to marry the biological mother.

Robert is challenging his father’s will on the basis that it violates New York’s marriage equality law.  His attorney has said it was clear that Frank tried to induce Robert to marry a woman against his wishes, which “is therefore contrary to public policy.”

People who try to exert control over loved ones from the grave in ways that are contrary to public policy will usually find their efforts invalidated by a court.  If the provisions of an inheritance are illegal, ambiguous or impossible to satisfy, these will likely not survive a challenge either.

In many cases, an incentive trust can be used to define when financial gifts would be distributed from a trust, and under what circumstances.  Most parents choose to give a distribution upon graduation from college, or to help an entrepreneurial child start a new business – events that are unlikely to be found contrary to public policy.

Contact us today and let our Newport Beach law firm help you with all your financial planning needs.

Family Feud Over Remains of Legendary Car Designer Carroll Shelby

Estate Planning, Trust Litigation, WillsNo Comments

1967 Ford Shelby Mustang GT 500 EW0014 medium e1340399851415 Family Feud Over Remains of Legendary Car Designer Carroll Shelby Legendary car racer and designer Carroll Shelby died on May 10 in a Dallas hospital at age 89, but his remains still remain in the Dallas County morgue, imprisoned by a dispute between his sixth wife, Cleo Shelby, and his three children over what should be done with them.

Each side claims to have instructions from Shelby on what he wanted done with his remains.  Cleo Shelby, whom he tried to divorce before he died, said he wanted to be buried next to his father in Leesburg, Texas, where he was born in 1923.  She says she has a 2010 power of attorney document that allows her to make the decision as to his final resting place.

Shelby’s three children – Michael, Patrick and Sharon Shelby – say he wanted to be cremated and have his remains split between the children and the Leesburg family plot. They say they have a 2008 document signed by their father that empowered his eldest son Michael to make plans for his remains.

The children are suing Dr. Jeffrey Barnard, Dallas County medical examiner, for the release of the body.  No death certificate has been issued yet, and the LA Times reported that Dr. Barnard remains in control of the body “because an allegation was made which falls within” Texas law pertaining to criminal procedure.  Dr. Barnard has also filed a motion to dismiss the suit, claiming he enjoys official and sovereign immunity.

Making your wishes clear to family members and putting your intentions in writing can help avoid these types of emotionally and financially draining disputes.

Your California legal and financial planning experts are at your service; Contact us today.

Court Says No to Adoption of Ex-Husband to Fatten Inheritance

Trust LitigationNo Comments

goretex logo 150x150 Court Says No to Adoption of Ex Husband to Fatten InheritanceEarlier this week, the Delaware Supreme Court ruled that an heiress’ attempt to gain more shares of an inheritance in the Gore-Tex family fortune was a no-go, according to a news report.

Susan Gore is an heir to the Gore-Tex waterproof fabric company fortune that her father, Wilbert Gore, founded in Newark, Delaware in 1958.  The family has been fighting over how to divide the stakes in the $3 billion privately held company since Wilbert’s wife, Vieve Gore, died in 2005.

Susan is one of five children of Wilbert Gore feuding over how to divide 26,500 shares in W.L. Gore & Associates, Inc.  Wilbert and Vieve had established a trust that set up five equal shares for each of their children and a supplemental trust to distribute an equal amount of stock to their grandchildren.

Susan was married to Jan Otto, and they had three children.  Her other four siblings each had four children, which meant that Susan’s children would inherit fewer shares.  Susan and Jan were divorced, and Susan and her son allegedly hatched a plan to get more shares by having Susan adopt her ex-husband.  Susan went to a Wyoming court and secretly adopted Jan in 2003.

Jan originally agreed in writing not to keep any of the shares, but apparently had a change of heart the following year.  While Susan was pondering “un-adopting” Jan, Vieve died, which triggered the terms of the trust intended to distribute shares to children and grandchildren.

Susan then instigated legal proceedings in Delaware to ensure Jan was allowed to keep his shares as her adopted child.  Her siblings argued that the court should not recognize the adoption, which flew in the face of Wilbert and Vieve’s original intentions in establishing the trust.

The Delaware Supreme Court ruled with the rest of the family.  “The fact that Susan kept this adoption secret until Vieve died further evidences that Susan and the Otto grandchildren knew that they were acting to thwart Vieve’s intentions,” Chief Justice Myron Steele wrote in the court’s unanimous opinion denying Jan Otto the right to lay claim to part of the Gore inheritance.

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Caution Flags: Top 6 Reasons for Contesting a Will

Trust Litigation, WillsNo Comments

caution flag 150x150 Caution Flags:  Top 6 Reasons for Contesting a WillIn a recent article on Will Contests-Prediction and Prevention, Gerry W. Beyer, Governor Preston E. Smith Regents Professor of Law at Texas Tech University School of Law, noted these six prevalent reasons for contesting a will:

1.  Disinheritance of close family members in favor of a distant relative, friend or charity.  Beyer noted that will contests based on assets passing out of the traditional family are more likely today than ever because of societal changes that include more divorces, cohabitation and same-sex relationships as well as childless marriages.

2.  Unequal treatment of children.  Siblings treated inequitably in inheritances are more likely to contest a will.

3.  Sudden or significant change in disposition of assets.  When someone suddenly changes a bequest, the beneficiaries of a previous will may be more likely to challenge the new will in court.

4.  Excessive restrictions on inheritance.  Beneficiaries may content the will if they feel that certain restrictions or conditions made on the inheritance by the testator are excessive or unreasonable.

5.  Mental health of testator.  If a testator is elderly or disabled, unhappy heirs may try to claim lack of testamentary capacity or undue influence.

6.  Unusual behavior of testator.  If a testator is acting unusual, this may give dissatisfied heirs a reason to content the will on the basis of diminished capacity.

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Two wealth planning industry leaders, Matsen and Voorhees, join forces to provide the ultimate service

Asset Protection, Business Litigation, Business Planning, California Trusts, Domestic Asset Protection, Estate Planning, Foreign Asset Protection, Living Trust, Offshore Trusts, Probate, Real Estate, Retirement Planning, Tax Planning, Trust Litigation, Uncategorized, WillsNo Comments


March, 2012


Orange County California


Attorney Jeffrey R. Matsen of Wealth Strategies Counsel, one of the Nation’s ”Top 100 Attorneys”, and Tim Voorhees, JD, MBA,  a 34-year veteran of the advanced planning industry, have merged to form the Matsen Voorhees partnership. This new entity will operate as Matsen Voorhees, part of Bohm, Matsen, Kegel & Aguilera LLP.  The Voorhees-Matsen relationship will offer a broad array of resources to clients and advisers on each planning team. The merged law firm will emphasize Estate, Business and Asset Protection Planning as well as Real Estate and Probate services. Voorhees Family Office Services will continue to offer Zero-Tax Planning workshops, Wealth Blueprinting, Wealth Counseling, and Tax-Efficient Asset Management Solutions through its “TEAMS” affiliate. The service mark of the revised firm is, “Maximizing Value with Zero Tax and Asset Protection Planning.”


Attorney Jeffrey R. Matsen has been designated by Worth magazine as one of “America’s Top 100 Attorneys,” by Los Angeles Magazine as one of California’s “Super Lawyers,” and by OC Metro Magazine as an “O.C.’s Top Lawyer. He is also listed in The Best Lawyers in America. The Nationally Renowned Attorney Rating Service, ‘AVVO’ has rated Mr. Matsen a perfect “10/10 Superb” and he has continued to achieve the highest “AV rating.“  He has been designated a “Preeminent Lawyer” by the only other prestigious attorney rating directory, Martindale Hubble. He is internationally recognized in the areas of Asset Protection, International Trusts and Offshore Business Entity Formation and has a myriad of world-wide legal, financial and business connections.

Matsen is the founding partner of Wealth Strategies Counsel (WSC), the Estate Planning and Business Transactions Department of the Orange County California premier law firm of Bohm, Matsen, Kegel & Aguilera, LLP with offices in Orange County California, Connecticut, New York City, Washing D.C., Detroit, Chicago, Kansas City, Salt Lake City, Boise, and Monterey/Carmel California, San Diego and Honolulu.  With over 35 years of experience, WSC handles complex and sophisticated asset protection, estate and business planning matters locally, nationally and internationally.  WSC serves a variety of clients by providing integrated solutions through advisors they can trust.  The WSC process fulfills clients’ wishes using a proven and tax advantaged process.

Attorney Tim Voorhees has 34 years of experience as a Wealth Counselor.  In addition to a Juris Doctorate with a concentration in corporate and estate planning, Tim holds a BA in economics and an MBA in finance.  Since focusing on zero tax planning in 1990, Tim has had key roles in planning several hundred cases for clients with net worths ranging from $3 million to over $1 billion.  His planning staff integrates any of more than 300 tactical planning tools into comprehensive plans that reduce or eliminate taxes, increase transfers to heirs, enhance charitable giving potential, or achieve other personal or financial goals.  Tim has a well-developed and effective process for coordinating a client’s advisors to develop plans using proprietary software.  Tim regularly publishes in Estate Planning Magazine, the Journal of Practical Estate Planning, Insurance News, the elite advisor website of Financial Planning Magazine, and other leading publications.  Tim has spoken at national conferences of the National Network of Estate Planning Attorneys, ALI-ABA, Kingdom Advisors, the Southern California Tax & Estate Planning Forum, etc. He has also presented at annual conferences for numerous financial advisory firms.

When interviewed, Jeff Matsen shared the following comments about the merger, “I am excited to partner with Tim!  The decision to merge our firms was made after considerable due diligence where I found Tim to be very professional and trustworthy with impressive knowledge, skills, connections and a talented team.  Perhaps the deciding factor is that I really like Tim and the way he conducts himself and his practice.  We have Co-counseled on a few clients and it was evident that we work well together and complement each other.  It is an honor and pleasure for me to be affiliated with Tim and to have a younger and vigorous partner who I know, not only can keep up with me and the demands of my practice, but will add considerable value to it.  Our combined expertise and resources provide a strategic advantage to our mutual clients,” stated Jeffrey R. Matsen, Founding Partner, Wealth Strategies Counsel.

Tim Voorhees shared the following comments about the merger, “We needed a world-class team of lawyers and paralegals to help us implement strategies in our Family Wealth Blueprints®.  While we have been honored to serve many of the top law firms and CPA firms around the country as a back office during the last 20 years, ultimately, our success depends on implementing our blueprints most effectively with support from a highly experienced legal team that knows our process.  We are honored and thrilled to tell our clients about the deep and broad capabilities now available through the Matsen Voorhees partnership.”


jeffmatsen small Use Two wealth planning industry leaders, Matsen and Voorhees, join forces to provide the ultimate serviceJeffrey R. Matsen of Wealth Strategies Counsel helps his clients structure their personal and business assets in the best way possible to preserve, protect, and transfer them in the most efficient and tax saving manner.


Tim Voorhees1 Two wealth planning industry leaders, Matsen and Voorhees, join forces to provide the ultimate serviceTim Voorhees of Family Office Services helps advisors plan for high-net-worth individuals, with a focus on zero tax and charitable planning issues of concern to individuals with estates of $3million or larger.

Contact us today and let our Newport Beach law firm help you with all your financial planning needs.

Newport Beach Estate Planning Attorney Notes Settlement in Brooke Astor Case

Asset Protection, Estate Planning, Trust LitigationNo Comments

brooke astor grave 150x150 Newport Beach Estate Planning Attorney Notes Settlement in Brooke Astor CaseThe New York Times reported earlier today that a settlement has been reached in the battle over the estate of New York philanthropist and society maven Brooke Astor, who died in 2007 at the age of 105.

The settlement defines how Astor’s $100 million fortune will be distributed, and reduces in half the inheritance of her only child, Anthony D. Marshall, who was convicted in 2009 of defrauding and stealing from her in the last years of her life.  He was sentenced to 1-3 years in prison, and is still free on appeal.

According to the Times, the settlement strips Marshall and his wife of all control over the estate and nullifies amendments made to her 2002 will, which were the subject of the case against her son.  Marshall and estate planning attorney Francis X. Morrissey were charged with tricking Mrs. Astor into signing amendments that gave Marshall control over her estate upon her death, and that cut bequests to a number of charities.  Morrissey is also appealing a conviction in the case.

Financial abuse of the elderly is an issue that is all too common in our society, but one that rarely gets much attention. And it isn’t only the very wealthy who fall victim to elder abuse. According to the National Center on Elder Abuse “between 1 and 2 million Americans age 65 or older have been injured, exploited, or otherwise mistreated by someone on whom they depended for care or protection.”

Financial abuse of elders in particular goes under-reported in our culture, mainly because it leaves no visible scars to tip off friends and family. It is disheartening to discover that in most cases of financial exploitation of elders, the perpetrator is a family member, often the victim’s own son or daughter.

One way to prevent this from happening is to make your own decisions about who will serve as your physical and financial caretakers by executing a nomination of conservator, health care directive, and durable power of attorney. These three simple documents can allow you to choose the best person to care for you when you are unable to care for yourself.

Let our Costa Mesa law offices help you get started by contacting us today.

Newport Beach Estate Planning Attorney Notes Case of the Untrustworthy Trustee

Asset Protection, California Trusts, Estate Planning, Trust LitigationNo Comments

gavel 2 e1314977899988 Newport Beach Estate Planning Attorney Notes Case of the Untrustworthy TrusteeA Riverside County, Calif. Superior Court judge has awarded more than $18.2 million to a California woman and her brother, who accused two half-siblings of enriching themselves at the expense of their inheritance, according to a National Law Journal article.

Thomas Barnes of Corona, Calif., died in 2001, leaving assets in a trust for his four children – two from his first marriage, and two from his second marriage.  The two children from his second marriage – Brittnee and Shane Barnes – were minors at the time of Thomas Barnes’ death.   The two older siblings from the first marriage – Thomas Barnes Jr. and Kristine Barnes – were named trustees.

In 2010, Brittnee Barnes petitioned the court to remove the two older half-siblings as trustees, claiming that they had misused trust assets to enrich themselves.  In 2011, the court found that the two older siblings had breached their fiduciary duties and appointed an independent trustee.

Additional discovery was also ordered, as it was alleged that a number of assets were missing from the estate, including 1,852 ounces in gold from a safety deposit box.  On Feb. 1, the court ordered Thomas Barnes, Jr. to turn over to his younger half-siblings the value of the gold, outstanding probate assets, as well as investments he made in auto dealerships and distributions he made to himself.  The award was doubled under a California Probate Code section that allows double damages against trustees who are found to have taken trust assets in bad faith.

Contact us today and let our Newport Beach law firm help you with all your financial planning needs.

Orange County Estate Planning Lawyer Shares Most Common Reasons for Estate Litigation

Asset Protection, Estate Planning, Trust Litigation, WillsNo Comments

Boxing e1321902650338 Orange County Estate Planning Lawyer Shares Most Common Reasons for Estate LitigationIt seems that as soon as news breaks about a celebrity’s passing, the next report out is how his or her potential heirs are lining up for litigation over the estate.  Recently, Reuters interviewed an estate planning attorney on the East Coast who has authored a book entitled, Probate Wars of the Rich and Famous: An Insider’s Guide to Estate Planning and Probate Litigation.  Here’s what he had to say about the most common reasons for estate litigation:

Remarriage.  The estates of those who marry for a second or third time and have children from multiple marriages are ripe for litigation if their estate plan doesn’t provide adequately for the children of the first marriage and a subsequent spouse.  To help guard against this scenario, be sure to have a prenuptial agreement in place and appoint an independent fiduciary or trustee for the estate.

Family business.  Families who own lucrative businesses can get into a tangle if a clear plan is not crafted for succession and for fairly compensating spouses and children who may not be involved in the business.

Fraud.  This is especially prevalent in situations where one child is caring for an elderly parent and begins to believe they are entitled to more than the other children.  Re-titling bank or investment accounts to pass to one child often leads to litigation.

Family home.  It is not uncommon for a child to move into the family home to care for an elderly parent.  However, when that parent dies, the children often battle over who gets the house.  There should be a will stipulating that the child who moved in may keep the home, but needs to take out a mortgage to compensate other siblings.

Your California legal and financial planning experts are at your service; Contact us today.

Disinherited Children of Tony Curtis Allege Undue Influence

Estate Planning, Trust LitigationNo Comments

Tony Curtis portrait e1317853710795 Disinherited Children of Tony Curtis Allege Undue InfluenceWhen actor Tony Curtis died last September, his will intentionally disinherited all five of his children and left everything to his fifth wife, Jill Vandenberg Curtis, and to his charity.

Last month, the Tony Curtis Estate conducted an auction of hundreds of memorabilia items, netting the estate an additional $1 million.  According to his daughter, Allegra Curtis, none of the children were advised of the auction and the widow gave them nothing to remember their father by.

According to an interview Allegra gave to Inside Edition, Curtis’ children were “blindsided” by the disinheritance and Allegra says she doesn’t believe the new will he drafted just four months prior to his September 2010 death was reflective of his last wishes.  She told the program that being disinherited by her father was “devastating”.

Another daughter, Kelly Lee Curtis, has sued over her father’s trust, and has accused his widow of exerting undue influence over him when he changed his will to disinherit his five children.  That suit is currently pending in a Las Vegas court.

As noted in a post about the case, when a will and/or trust excludes children entirely in favor of a spouse, it is almost a guarantee that a lawsuit will be filed to contest that will – especially when it is changed shortly prior to death.

Blended families are especially vulnerable when it comes to estate battles, which is why it is advisable to consult with a California estate planning attorney when making final inheritance plans.

Help is available to you by contacting your Southern California financial planning experts today.

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