Saturday, June 4, 2011

Failure to Preserve

In re Estate of Orville Tucker, 2011 VT 54 (mem.)

This case could have come straight out of your law school Estates textbook:  Daughter becomes legal guardian of testator; shortly after daughter assumes the guardianship, she sets testator up with an appointment with an attorney; at said appointment, which daughter drives him to, testator changes his will in a manner that heavily favors daughter; testator dies (don’t worry, no suspicious circumstances surrounding the death); and the will is contested in probate court by the other heirs. 

The probate court declined to admit the will on the basis of undue influence, and daughter appealed to superior court.  After a jury trial in superior court, daughter lost again and appealed to the SCOV.  The SCOV manages to avoid reaching the merits of any of daughter’s claims because she failed to properly preserve them, or they were moot due to other circumstances.  Because the SCOV doesn’t decide any of the issues, I’m not going to bother to describe them here.  You can read the decision if you are interested or preparing for a wills and estate question for the upcoming bar exam.  

The bottom line is that you should really know all the rules of civil procedure if you are going to be a litigator.  Although I have only very little court room experience myself, I can still appreciate how difficult it is to keep everything straight while a trial is going on.  But one thing I hope I will remember is that even if I have objected to jury instructions at the initial charge conference, I still have to object to the jury instructions in open court, after the court gives the jury instructions.  This is an error that I have seen numerous times in my review of SCOV decisions—an attorney objects initially (usually in the charge conference), but then does not renew the objection after the court gives the instructions.  This means you lose your ability to appeal the jury instructions.  Just ask the daughter whose next attorney will hopefully not repeat the mistake.

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