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).

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: 

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).

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.