Wealth Law Blog : Oregon Asset Protection Lawyers & Attorneys : Samuels Yoelin Kantor Seymour & Spinrad Law Firm : OR Estate Planning, Fiduciary Litigation

COMPLIMENTARY SEMINAR SERIES

Samuels Yoelin Kantor LLP's seminar series helps keep our clients and colleagues informed on recent developments and industry best practices. The seminars typically take place in our beautiful, state-of-the-art conference room on the 38th floor of the US Bancorp Tower. Seminars are complimentary. Participants qualify for (1) Continuing Professional Education (CPE) credit. To register, please use the links below or call us at 503-226-2966. Seating is limited, so be sure to contact us soon!

PLANNING FOR MARRIED COUPLES AND DOMESTIC PARTNERS IN OREGON

Thursday, March 15, 2012
7:30 - 9:00 A.M.
at Samuels Yoelin Kantor LLP offices
Light refreshments will be served

Presented by Eric Wieland and Glen Goland

The second part of a year-long Estate Planning seminar series, this session will focus on the Oregon rules and court cases that govern the way we plan for married couples and domestic partnerships.

We will talk about Oregon’s elective share law, overturning of the Olsberg case, and the estate planning rights afforded to Oregon’s same-sex couples. The seminar will also address the preparation of prenuptial agreements in Oregon and discuss the legal concept of marital property.

To register for this seminar, contact events@samuelslaw.com or call us at 503-226-2966.

Upcoming Seminars:
     April 19 – Trusts 101: maximizing control over your assets
     May 24 – Understanding transfer tax fundamentals
     June 7 – Trust and Estate Litigation

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Oregon’s Court of Appeals recently made a step towards clarifying Oregon’s statute prohibiting financial abuse of “vulnerable persons” (which includes persons age 65 and older) under ORS 124.110. However, the broad contours of the elder abuse laws in ORS Chapter 124 remain far from certain.

In Cruze v. Hudler, 246 Or App 649 (November 23, 2011), the court addressed various fraud claims alleged against Markley in an investment scheme. While not discussed in depth by the court, one of these claims was for financial abuse of an elderly person under ORS 124.110(1)(a) where an action may be brought under for financial abuse in the following circumstances:

When a person wrongfully takes or appropriates money or property of a vulnerable person, without regard to whether the person taking or appropriating the money or property has a fiduciary relationship with the vulnerable person.

Cruze, 246 Or App at 649. The court referred to another Oregon case, Church v. Woods, 190 Or App 112 (2003), and paraphrased it to mean that “conduct is ‘wrongful’ under ORS 124.110 if it is carried out by improper means, including deceit and misrepresentation.” Id.

This phrase “wrongfully takes or appropriates” is a slippery one. In Cruze, the alleged abuse was wrongful taking through fraudulent misrepresentation – a tort claim that requires showing, among other things, that the party subjectively intended to deceive the victim.These cases suggest that, at least for the purposes of ORS 124.110(1)(a), a person who mistakenly but incorrectly takes money or property from an elderly person in an otherwise lawful context should not create elder abuse liability.  But as with many legal issues, guarantees are tough to come by.   

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COMPLIMENTARY SEMINAR SERIES

Samuels Yoelin Kantor LLP's seminar series helps keep our clients and colleagues informed on recent developments and industry best practices. The seminars typically take place in our beautiful, state-of-the-art conference room on the 38th floor of the US Bancorp Tower. Seminars are complimentary. Participants qualify for (1) Continuing Professional Education (CPE) credit. To register, please use the links below or call us at 503-226-2966. Seating is limited, so be sure to contact us soon!

ESTATE PLANNING: THREE IMPORTANT DOCUMENTS THAT EVERY OREGONIAN SHOULD HAVE

Wednesday, February 15, 2012
7:30 - 9:00 A.M.
at Samuels Yoelin Kantor LLP offices
Light refreshments will be served

Presented by Eric Wieland and Glen Goland

The first part of a year-long Estate Planning seminar series, this session will introduce the class to the basics of wills, powers of attorney and the Oregon healthcare directive.

We'll talk about some of the factors you should consider when executing these documents and explain the powers that are granted in each one. We'll also discuss the different ways that property can be transferred at death, and we'll outline the probate process from start to finish.

To register for this seminar, contact events@samuelslaw.com or call us at 503-226-2966.

Coming in March:
     March 8 - Planning for married couples and domestic partners in Oregon

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When the Trust says jump, then the Trustee jumps, right?  Not necessarily.  When sufficient evidence instructs the Trustee otherwise, consider a petition to reform the Trust. 

In Frakes v. Nay, the Oregon Court of Appeals upheld a grant of summary judgment in favor of reforming certain terms of the Saling Family Trust to require only two, rather than three distributions of $500,000 to beneficiary Raymond Frakes. Even though the trust language unambiguously instructed the trustee to make a third round of distributions, the Petitioners (trustee Nay and beneficiary Carol and Velma Saling Foundation) offered sufficiently clear and convincing evidence that the settlors’ intended to give Frakes only two distributions for a total of $1,000,000. At trial, Frakes failed to present any relevant evidence of a contrary intent. Thus, the court found no genuine issues of material fact regarding the settlors’ intent, and allowed summary judgment for trust reformation under ORS 130.220.

ORS 130.220 allows a court to reform a trust to conform to the settlor’s intent, even if the express terms are unambiguous, if the party seeking reformation shows by clear and convincing evidence a mistake “of fact or law, whether in expression or inducement.” Here, the trust language unambiguously instructed distribution according to “paragraph 8.3.”  The Petitioners argued that this was a drafting error (a mistake of fact in expression), and that the language should have instead instructed distribution according to “paragraph 8.3.2.”  Under this latter paragraph, after the second distribution all remaining trust assets would go to the family foundation. Under paragraph 8.3, the trustee would have to make a third round of distributions (giving Frakes a total of $1,500,000) before the foundation received remaining assets.

The trial court found that the Petitioners offered sufficiently clear and convincing evidence that the settlors’ wanted the trust to distribute only $1,000,000 to Frakes. This included letters sent by the trustee to the settlors during the process of amending the trust which expressly stated only two distributions of $500,000 each would go to Frakes, and the trustee’s declaration that the settlors had told him of their intention that Frakes should receive no more than $1,000,000 from the trust. A paralegal who assisted in amending the trust also declared that settlor Carol had showed her a chart he had drawn which demonstrated that Frakes would receive $1,000,000 under the trust, and that Carol specifically told her that $1,000,000 “is enough for anybody.” Frakes himself acknowledged in his own deposition that, just prior to his death, Carol had directly said that he would receive two $500,000 distributions under the trust.

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We’re excited to welcome three new attorneys to the Samuels Yoelin Kantor LLP family:  Ben Leedy (left), Denise Gorrell (right), and The Honorable Donald W. Hull (center).

The Honorable Donald W. Hull has joined the firm as senior counsel. Judge Hull retired in December 2011 after serving 20 years on the bench for Circuit Court, District 7, which includes Gilliam, Hood River, Sherman, Wasco and Wheeler counties. Judge Hull has presided over an incredible variety of cases throughout his twenty years on the bench. His extensive knowledge of complex and, often times, emotional cases — as well as his experience in private practice — provides a valuable resource for our attorneys and clients. You can contact Judge Hull directly at dhull@samuelslaw.com.

Denise has joined the firm as a partner focusing on the business and litigation practice areas. Prior to law school, Denise spent 11 years on the Seattle restaurant scene, including stints at the award-winning Wild Ginger restaurant and wine retailer Esquin. This first-hand experience helps her understand the unique challenges that food and beverage entrepreneurs face when planning, launching and running their businesses. Denise also maintains a successful business and fiduciary litigation practice, frequently representing clients on real estate disputes, business dissolutions, and trust contests. You can contact Denise directly at denise.gorrell@samuelslaw.com.

Ben joins the firm as an associate, with a focus on the areas of commercial real estate, real estate development and finance, and retail and office leasing. He frequently represents clients on purchase and sale transactions, as well as real property secured lending transactions, including loan modifications, workouts, and deeds-in-lieu of foreclosure. An experienced presenter and author, Ben has spoken and written about a variety of topics including commercial mortgage loan workouts, employment contracts and legal developments affecting the management of golf courses and private clubs. Ben can be reached at ben.leedy@samuelslaw.com.
 

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