Fiduciary Litigation

The area of fiduciary law in North Carolina encompasses multiple types of cases. These include challenging a last will and testament (a will caveat), contesting estate and probate issues, violation of trustee’s duties, termination or modification of a trust, power of attorney abuse litigation, and elder abuse.

Kirk Sanders, Chair of Hendrick Bryant’s N.C. Fiduciary litigation department, has litigated many fiduciary litigation matters. The attorneys at Hendrick Bryant Nerhood Sanders & Otis LLP not only have experience drafting estate documents, we have experience litigating estate matters. When it comes to going to court, experience in the courts has advantages over an estate transactional practitioner who lacks courtroom experience.

Some of the areas of Fiduciary Litigation Disputes we have experience are discussed below.

Will Caveats: When contesting a last will and testament of the decedent, the main challenges include attacking the execution of the probated document purporting to be the will based on the following challenges:

  • Testamentary Capacity
  • Undue Influence
  • Fraud
  • Sham Will
  • Execution Formalities for a Will

The attorneys at Hendrick Bryant have litigated will contest cases in North Carolina on behalf of the propounder (Defender of the probated will) as well as the caveator (challenger of the probated will).

Probate is when the will is filed to commence an estate of the decedent. If a person dies without a will, then the estate is distributed via intestate laws established by North Carolina, which is a prescribed division based on family members living at the time of decedent’s death and their relationship to the decedent.

Probate litigation includes:

  • motions to revoke the letters testamentary of the named executor,
  • petition to sell assets to pay the debts of the estate,
  • declaratory judgments to determine ambiguous terms of the last will and testament,
  • Will contests.

We’ve handled the above type of matters. We’ve represented clients from routine fiduciary litigation matters to complex disputes. We’ve resolved matters pre-litigation and by jury decisions in trials.

Sometimes there are challenges to how ambiguities in the language of the will. Other times there are conflicting language in the documents that need clarification.

We’ve resolved disputes, including:

  • Family Settlement Agreements for clients (this includes fights between beneficiaries and between beneficiaries and the fiduciary/executor),
  • Multiple Wrongful Death cases,
  • Pursued claims involving life insurance, annuities, bonds, commissions, and financial accounts.

Trusts: Trust issues involve issues around the language of the trust and the management of the trusts, such as:

  • Breach of the Prudent Investor Rule
  • Failure to provide accountings to the settler or beneficiaries pursuant to Chapter 36C
  • Conflict of Interest, Self-dealing
  • Misappropriation of funds
  • Modification or Termination of a Trust
  • Compelling a distribution to a beneficiary
  • Construction of Trusts
  • Breach of Fiduciary Duty Claims
  • Trust Disputes
  • Disclaiming Trust proceeds

Power of Attorney Abuses: a power of attorney (or attorney-in-fact) has a fiduciary duty to manage the assets and property of the principal. POA’s are helpful, but in the wrong hands they are a license to steal. Like trustees, the fiduciary has a duty to act in the best interest of the principal. Many times, powers of attorneys make mistakes that require lawsuits because the NC power of attorney:

  • committed self-dealing acts and transactions,
  • misappropriated or converted money for their own use and benefit,
  • failed to give accountings

The attorneys at Hendrick Bryant also have handled other fiduciary issues involving:

  • Proceedings involving Wills and Trusts
  • Petitions & Motions for the Construction, Reformation and Modification of Trusts
  • Petitions for Trustee Instructions
  • Litigation Proceedings involving Breach of Fiduciary duties
  • Guardianship and Conservatorship Proceedings
  • Proceedings for the Partition and Division of Trust Assets
  • Proceedings for Charitable and Marital Estate Tax Deductions
  • Trust and Estate Accounting Hearings
  • Proceedings to Determine Ownership of Assets
  • Mediation involving Estates and Trusts
  • Prenuptial Agreements
  • Partition Proceedings
  • Appellate litigation (N.C. Court of Appeals and N.C. Supreme Court)