Monthly Archives: October 2013

October 28, 2013

Keeping up to date with ICCES

by Jody H. Hall, Paralegal 

The latest updates and enhancements to ICCES (Integrated Colorado Courts E-Filing System) were released on October 19, 2013.  The release bulletin, which can be found on the ICCES Home page, is attached here for your easy reference. 

We found a couple of items of specific interest to those of us that work in the probate and trust arena:

  • The new event type of Amended Trust Registration Statement will allow us to file updated information on those trusts requiring to be registered under C.R.S. 15-16-101, including the termination of these trusts, without the system automatically charging a filing fee (as required by the originating event type Trust Registration Statement) or having to be manipulated by the Court. 
  • The Court will also now have use of two new party types for Probate Cases: Professional Conservator and Professional Guardian

We recommend that you (and/or others in your office) read the entire bulletin and implement those practices that will help you stay up to date with the most current information on e-filing in Colorado – the Court Clerks, as well as other interested parties in your case, will appreciate you for it.

October 21, 2013

Effective Immediately: New Discovery Rule

by Morgan Wiener

One of the recurring questions and controversies among probate litigators is whether and to what extent discovery applies in contested probate proceedings.  The confusion in this area is largely due to the unique nature of certain types of proceedings litigated under the Colorado Probate Code (for example, from a practical standpoint, how do you apply the civil discovery rules to an emergency hearing for the removal of a trustee?), the contradiction between Rule 1, C.R.C.P. (“These rules govern the procedure in . . . probate courts. . . “) and Rule 26, C.R.C.P. (“Unless ordered by the court or stipulated by the parties, provisions of this Rule shall not apply to . . . probate. . . “), and the fact that, until now, the Colorado Rules of Probate Procedure did not include a discovery rule.

On October 10, 2013, the Colorado Supreme Court took a step towards adding clarity to this area by adopting Rule 37 of the Colorado Rules of Probate Procedure.  This new discovery rule is effective immediately.  See below for the full text of this important new rule.

Rule 37. Discovery

(a) This rule establishes the provisions and structure for discovery in all proceedings seeking relief under Title 15, C.R.S. Nothing in this Rule shall alter the court’s authority and ability to direct proportional limitations on discovery or to impose a case management structure or enter other discovery orders. Upon appropriate Motion or sua sponte, the court may apply the Rules of Civil Procedure in whole or in part, may fashion discovery rules applicable to specific proceedings and may apply different discovery rules to different parts of the proceeding.

(b) Unless otherwise ordered by the court, the parties may engage in the discovery provided by C.R.C.P. 27 through 37. Any discovery conducted in Title 15 proceedings prior to the issuance of a case management or other discovery order shall be subject to C.R.C.P. 26(a)(2)(A); 26(a)(2)(B)(4) and (5); and 26(b) through (g). However, due to the unique, expedited and often exigent circumstances in which probate proceedings take place, C.R.C.P. 16, 16.1, 16.2 and 26(a)(1), do not apply to probate proceedings unless ordered by the court or stipulated to by the parties.

(c) C.R.C.P. 45 and 121, Section 1-12, are applicable to proceedings under Title 15.

(d) Notwithstanding subsections (a) through (c) of this Rule 37, subpoenas and discovery directed to a respondent in proceedings under Part 3 of Article 14 of Title 15, shall not be permitted without leave of court, or until a petition for appointment of a guardian has been granted under Section 15-14-311, C.R.S.

October 14, 2013

An Old Idea Is New Again

by C. Jean Stewart

When he died in December of 1799, George Washington left a will that was remarkable in many ways. Shortly after his death, the will was printed in Virginia, and was then circulated throughout the country in pamphlet form.  In concluding the dispositive part of his handwritten will, Mr. Washington inserted an arbitration clause that provided, in part:

            “ . . . I hope, and trust, that no disputes will arise . . . ; but if, contrary to expectation, the case should be otherwise . . . My Will and direction expressly is, that all disputes (if unhappily any should arise) shall be decided by three impartial and intelligent men, known for their probity and good understanding; two to be chosen by the disputants—each having the choice of one—and the third by those two.  Which three men thus chosen, shall, unfettered by Law, or legal constructions, declare their sense of the Testators intention; and such decision is, to all intents and purposes to be as binding on the Parties as if it had been given in the Supreme Court of the United States.”

            The mandatory arbitration provision in wills and trusts has not been without controversy in this country in recent times although, as Mr. Washington’s example reveals, it clearly was used previously.  It is sometimes argued that the arbitration provision would be unenforceable in modern times where state law did not specifically provide for its use in the context of a will or trust dispute because of arbitration’s inherently contractual nature.  

This makes the recent decision from the Supreme Court of Texas hopeful in that the Texas Arbitration Act (modeled on the Uniform Arbitration Act in force in 22 states and the District of Columbia) provides that an arbitration clause in an “agreement” is enforceable and the Texas Supreme Court held that the trust in question was an agreement. Hence, the Court enforced the arbitration provision against the Beneficiary/Plaintiff.

In my view, the most significant holding in the opinion in terms of Alternative Dispute Resolution, is the Court’s use of the “doctrine of direct benefits estoppel” to find that a beneficiary/plaintiff who had accepted the benefits of the trust and had filed a suit to enforce its terms had exhibited the degree of assent required to form an enforceable agreement to arbitrate under Texas state law. 

I continue to urge estate planners to include ADR language in their wills and trusts and to share with their clients the advantages of avoiding protracted and expensive litigation over estate and trust disputes.  Perhaps Colorado will soon have an appellate decision enforcing one of those arbitration provisions? 

October 7, 2013

A Will Contest on a National Stage

by Rebecca Klock Schroer

A recent national news story involving a family dispute over an estate illustrates a common theme.  Heiress Huguette Clark died in 2011 at the age of 104 leaving an estate in excess of $300 million.  Ms. Clark was the daughter of William A. Clark, a former U.S. Senator from Montana and business man involved in railroads and mining.  Ms. Clark executed two wills in 2005, only six weeks apart.  In the first will, Ms. Clark directed that her residuary estate pass to her family pursuant to the intestacy laws of New York.  In her second will, Ms. Clark specifically disinherited her family, “having had minimal contacts with them over the years.”  She directed that her assets pass to a foundation and her caretakers, including but not limited to, her doctor, accountant, lawyer, nurse and hospital.  Ms. Clark lived in Beth Israel Medical Center in Manhattan for the last 20 years of her life. 

The underlying theme in this case commonly appears in our cases.  Most of Ms. Clark’s family members had never met her and others had very little contact with her.  Once she died, her family members were upset to find out they were not included in her will.  It is not unusual for elderly people to feel grateful to those who care for them and want to provide for them instead of providing for estranged family members.  We see this not only in disputes involving estates, but also in pre-death disputes involving conservatorships.

The Clark case recently settled and the family received approximately $34 million.  Ms. Clark’s nurse received nothing and had to pay back $5 million of the $31 million that she previously received during Ms. Clark’s lifetime.  Obviously, the media cannot provide us with all of the facts, but it is interesting that the family prevailed and the nurse, who spent decades taking care of Ms. Clark and was given 60% of her residuary estate in the second will, received nothing at her death.  Also, I was fascinated to see that the attorney fees in the Clark case added up to more than $20 million! 

There are dozens of interesting articles about this case.  Below are links to two articles and the two wills that were at issue in the case. 

NY Times article

NBC article

First will

Second will