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Legal
Updates
for September 2007
Estate of Bigelow v. Comm'r of Internal Revenue, U.S. 9th Circuit Court of
Appeals, 09/14/07, Case Number 05-75957
Summary: Tax Court decision upholding a deficiency in an estate's federal estate
tax return based on the recapture of the value of certain inter vivos asset
transfers to a family limited partnership is affirmed where the Tax Court
properly found that: 1) decedent retained an economic benefit from the
transferred asset; 2) decedent had an implied agreement to derive income from
the transferred asset; and 3) the transfer was not a bona fide sale for an
adequate and full consideration under 26 U.S.C. section 2036's parenthetical
exception.
Estate of
Williams, California Court of Appeals, 08/24/07, Case Number H030830
Summary: Issue was whether document written by decedent in block letters and
without decedent’s traditional signature was a valid holographic will that
should have been admitted to probate. Appeals court upheld trial court orders
admitting the holographic to probate over claims that the document is not a
valid holographic will: 1) under Probate Code section 6111 as it is not signed
by the decedent; and 2) as it does not completely dispose of the decedent's
assets and it lacks language demonstrating testamentary intent.
McDonald v.
Structured Asset Sales, LLC, California Court of Appeals, 08/30/07, Case Number
E041628
Summary: Issue was whether a probate order denying creditor's claim as untimely
is appealable. Court ruled that it is not.
Conservatorship
of John L., California Court of Appeals, 08/31/07, Case Number: D048654
Summary: Issue was whether the proposed LPS conservatee knowlingly and
intelligently waived his rights. Appeal claims that the trial court: 1)
improperly proceeded with LPS hearing in absence of proposed conservatee without
satisfying conditions excusing his mandatory presence under Probate Code section
1825; 2) did not conduct on-record voir dire required by Probate Code section
1828; and 3) violated proposed conservatee’s state and federal constitutional
due process rights because the court did not comply with the aforementioned
statutory safeguards intended to minimize the risk of error, and consequently it
did not have evidence from which it could reasonably determine he knowingly and
intelligently waived his rights. Appeals Court upheld the trial court’s ruling
that while a proposed conservatee has both a statutory and procedural due
process right to be present at his Lanterman-Petris-Short Act conservatorship
establishment hearing, appointed counsel may communicate a proposed
conservatee's waiver of his or her right, and an effective waiver will be
inferred by virtue of counsel's authority to act on his or her client's behalf
with the client's consent.
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