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PROBATE 52: Court ordered the return of all estate property in his possession or face a per-day fine.

In this case, the decedent passed away and left behind three living children: Kenneth, Karen, Dennis.  In his will, the decedent left his entire estate to Kenneth, Karen, and Dennis in equal shares. The will also named Dennis as the personal representative of the Estate.

Removal of Personal Representative

Immediately after the decedent’s death, Kenneth went to the decedent’s home, removed items from the house. Kenneth sought to remove Dennis as personal representative, citing Dennis’s failure to fully identify all the decedent’s property and his mismanagement of the estate. Kenneth requested that Dennis and Karen be surcharged to cover the legal fees Kenneth had incurred.

In response to the request for removal and surcharge, Dennis indicated that Kenneth had failed to return estate property and asserted Kenneth should be surcharged. Kenneth obtained Dennis’s removal as personal representative and a successor personal representative was appointed.

Dennis also filed a petition to surcharge Kenneth. Dennis’s petition alleged that Kenneth had taken several items from the decedent’s house and presented evidence that he was selling the estate property on eBay.

Court Order to Return Estate Property

Kenneth continued to disobey court orders to return estate property in his possession. Thus, the trial court entered an order that required Kenneth to return all estate property in his possession or face a $100-per-day fine until he returned all estate property in his possession. There was no evidence that Kenneth returned any estate property in his possession.

Evidentiary Hearing

An evidentiary hearing addressed several issues, including, in relevant part, ownership of estate property to be turned over by Kenneth, the various surcharge petitions, and any issues regarding sanctions against Kenneth for failure to comply with court orders.

After testimony from several witnesses, and argument from the parties, the trial court found, in relevant part, that the evidence demonstrated Kenneth took and kept various items of estate property in flagrant and continual violation of court orders. Accordingly, the trial court ordered Kenneth to pay $8,400 for failing to return the estate property. The trial court also ordered Kenneth to pay two-thirds (2/3) of the property he sold on eBay, and $1,000 for his contempt of court from his use of profanity during the evidentiary hearing.

Do Not Face Probate Litigation on Your Own

Given the emotional nature of these disputes and their financial impact on all involved, it is critical that anyone involved in such a dispute retain highly qualified legal counsel. Our attorneys have the experience and legal know-how to protect your rights and interests.

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PROBATE 53: The trust agreement included an Incontestability Provision.

A settlor’s intent is to be carried out as nearly as possible. Generally, in terrorem clauses are valid and enforceable. However, a provision in a trust that purports to penalize an interested person for contesting the trust or instituting another proceeding relating to the trust shall not be given effect if probable cause exists for instituting a proceeding contesting the trust or another proceeding relating to the trust.

FAMILY LAW 82: Court stated it would terminate the personal protection order (PPO) after the parties present documentation of the initiation of the divorce proceedings.

However, the trial court concluded that these matters should, in fact, be in the province and the jurisdiction of the Family Division and in that respect, having issued a personal protection order, the Court stated it would terminate the personal protection order after the parties present documentation of the initiation of the divorce proceedings.

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