I invited Mark to share some of the lessons he drew from this case with the rest of us and he kindly accepted.
[Q] What strategic decisions did you make in this case that were particularly outcome determinative at the trial-court level? On appeal?
Focusing on the fact that this was a case of trust construction and not a factual question of testamentary capacity.
[Q] If you had to do it all over again, would you have done anything different in terms of framing the issues for your trial-court judge? On appeal?
I would not change the issues. However, the are several other counts of the complaint that I also feel my clients would have prevailed on if they were to be decided.
[Q] Looking back from your perspective as a litigator, do you think there’s anything that could have been done in terms of better estate planning while the trust settlor was alive to avoid this litigation or at least mitigate its financial impact on the family?
While it may not be clear from the Opinion, the appellant was the very substantial beneficiary of the change under the Second Amendment while he was serving as Guardian and the Trustee. As the Opinion states, the Court was never made aware of the change so there was a clear question of transparency that should have, in my opinion, been addressed.
[Q] Any final words of wisdom for estate planners and probate lawyers of the world based on what you learned in this case?
Remember that the fiduciaries we represent need to act under a higher standard and that should always be kept in mind.
For those of you interested in viewing past interviews done for this blog, click here.