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    Matthew T. McDavitt

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    WILLS: Execution Evidence—Testator Incapacity Due to Permanent Mental Impairment

    Posted by Matthew T. McDavitt on Thu, Jun 30, 2016 @ 16:06 PM

    The Lawletter Vol 41 No 6

    Matthew McDavitt, Senior Attorney, National Legal Research Group

         While the issue is apparently one of first impression in many jurisdictions, a handful of courts nationally have addressed the relevancy and admissibility of evidence of pre- or post-will-execution mental capacity—normally deemed irrelevant to will-execution mental capacity—where it has been shown that the testator suffered from a permanent mental deficiency. Importantly, as observed by the U.S. Supreme Court, where evidence is developed of permanent or continuing mental incapacity, the burden properly shifts to the will proponent to prove a lucid interval, rather than the normal burden upon the contestant to prove incapacity, as continued mental incapacity is legally presumed:

         In addition to the proof . . . of his undoubted insanity prior [to] and for some time subsequent []to [the will execution], there was slight evidence of insane acts during the month of February, though there was no opinion expressed by anyone that he was incapable of making a valid deed or contract. The whole testimony regarding his insanity was duly submitted to the jury, who were instructed that if they found his insanity to be permanent in its nature and character, the presumptions were that it would continue, and the burden was upon the defendant to satisfy the jury by a preponderance of testimony that he was, at the time of executing the will, of sound mind. There was no error in this instruction.

    Keely v. Moore, 196 U.S. 38, 46-47 (1904) (emphasis added).

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    Topics: wills, Matthew T. McDavitt, evidence, permanent mental impairment, Lawletter Vol 41 No 6, testator incapacity

    CORPORATIONS: Nonresident Trust Company Fiduciary Power Reciprocity Statutes

    Posted by Matthew T. McDavitt on Fri, Mar 11, 2016 @ 10:03 AM

    The Lawletter Vol 41, No 3

    Matthew McDavitt, Senior Attorney, National Legal Research Group

         Most states now allow nonresident corporations, such as trust companies, to serve in fiduciary roles such as the personal representative of a decedent estate, trustee, or trust or as the conservator of a guardianship estate. However, various state statutes place varying requirements on such fiduciary roles, such as whether state certification is required by such out-of-state corporate fiduciaries, which fiduciary roles are available to trust companies, and whether an in-state agent must be designated for service.

         One frequent requirement placed upon nonresident companies seeking to serve in a fiduciary role is that of reciprocity: The out-of-state corporation is allowed only the powers and authority granted to nonresident fiduciaries in its state of incorporation. Thus, where a trust company seeks to serve in a fiduciary role in another state, it is imperative to know whether both the state of incorporation and the foreign jurisdiction are "reciprocity" states. The following is a chart compiling the citations of the statutory nonresident corporate fiduciary reciprocity provisions currently in force in the 25 states that possess them: 

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    Topics: corporations, Matt McDavitt, nonresident trust company, reciprocity statutes, fiduciary power

    WORKERS' COMPENSATION: Compensability—Employment-Related Travel in Employer-Provided Vehicle

    Posted by Matthew T. McDavitt on Tue, Nov 10, 2015 @ 12:11 PM

    The Lawletter Vol 40 No 10

    Matt McDavitt, Senior Attorney, National Legal Research Group

         It is well settled under workers' compensation law nationally that, generally, worker injuries occurring coming to, or going from, work are not compensable in nature. However, an important exception to this rule exists regarding accidents in which workers are traveling in employer-supplied vehicles, where the worker is off duty but remains on call. For example, given that city police departments receive a benefit by having their police officers on call for duty at a moment's notice while driving their police cruisers, so long as the travel has some relation to employment, injuries received during such travel are compensable.

    [W]e are satisfied that the City enjoyed sufficient benefits from Ms. Ross's participation in the take-a-car-home program to affirm the Commission's determination of eligibility. The City does not dispute the Commission's conclusion that the City benefitted from the program by having more officers available for immediate response, from better care of patrol cars, and from increased police visibility. Officers with take-home cars were prepared to respond to emergency calls at any time. These officers always had at hand those items required to be kept in the take-home patrol cars, including their service gun, police radio, identification, flashlight, ticket book, report forms, and flares.

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    Topics: Matthew T. McDavitt, workers' compensation, compensability, employment-related travel, The Lawletter Vol 40 No 10

    ESTATES: Assets—Gold Bars, Bullion, and Coins—Tangible or Intangible Property?

    Posted by Matthew T. McDavitt on Mon, Jul 27, 2015 @ 09:07 AM

    The Lawletter Vol 40 No 6

    Matt McDavitt, Senior Attorney, National Legal Research Group

         When distributing a probate estate, it is important to determine whether particular assets are tangible or intangible property where the will's language distributes these classes of property to different beneficiaries. While many assets may be sorted based upon common-sense principles, other assets present analytical difficulties. One such problematic asset is gold formed into bars, bullion, and coins. Some laymen would classify these precious metal assets as money, others as collectibles, and it is not intuitive whether such gold objects constitute tangible assets (such as a chair or a computer) or intangible assets (such as bank account deposits or stocks).

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    Topics: Matthew T. McDavitt, estates law, assets, probate, gold, tangible property

    ESTATES: Depletion of Eventual Probate Estate Through Inter Vivos Transfers

    Posted by Matthew T. McDavitt on Tue, Apr 14, 2015 @ 13:04 PM

    The Lawletter Vol 40 No 2

    Matt McDavitt, Senior Attorney, National Legal Research Group

         One problematic issue regarding the administration of probate or intestate estates is that in which the property of mentally or physically incapacitated persons is found to have been significantly depleted through lifetime transfers in the period just prior to death. The Virginia Supreme Court recently addressed this problem, establishing that where such lifetime transfers benefit persons standing in a confidential relationship to the grantor, a rebuttable presumption of fraud arises so as to protect decedent estates from the depredations by third parties upon whom the decedent relied at the end of life.

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    Topics: estates law, depletion of property in estate, inter vivos transfers, confidential relationship

    TAX: IRS Announces Its Position on Bitcoin

    Posted by Matthew T. McDavitt on Mon, Oct 20, 2014 @ 17:10 PM

    Jim Witt, Senior Attorney, National Legal Research Group

         The virtual currency known as "Bitcoin," created by anonymous computer programmers, has been traded on online exchanges as an item of investment, subject to few fees and no government regulation. The price has fluctuated wildly, from a few cents to more than $1,000 per Bitcoin unit. Programmers are able to obtain new coins through a computer technique known as "mining."

         With a growing number of merchants now accepting Bitcoin as payment and general pressure on governments to regulate virtual currency (especially in view of the collapse of the largest virtual currency exchange, Mt. Gox), the Internal Revenue Service ("IRS") has announced its position on the income tax treatment of Bitcoin. I.R.S. Notice 2014-21, 2014-16 I.R.B. 938.

         The IRS defined "virtual currency" as "a digital representation of value that functions as a medium of exchange, a unit of account, and/or a store of value," id. sec. 2, and noted that Bitcoin fit this definition as a form of currency convertible into legal tender.

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    Topics: IRS will treat as property rather than currency, Bitcoin, virtual currency, Bitcoin subject to capital gains tax

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