Elder

Topgolf CLE: Estate Planning Tee-off

The TBA Estate Planning & Probate Section will host the Topgolf CLE: Estate Planning Tee-off on June 26. The program will feature 2.5 hours of CLE programming, focused on information relevant to new attorneys interested in Estate Planning and lawyers who desire to add this area to their practice.
 
The CLE package includes breakfast, lunch, plus two hours of Topgolf after the presentations. Don’t miss this unique opportunity to build your practice knowledge and fine-tune your drive game, all in one day! 
 
When: Tuesday, June 26, 9 a.m., CDT
 
Where: Topgolf Nashville, 500 Cowan Street, Nashville, TN, 37207
 
 
 
 
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Metro Nashville Government to Pay $300,000 in Conservatorship Suit Involving Disbarred Attorney

Metro Nashville government will pay $300,000 to settle a suit filed on behalf of a man who was cheated out of nearly $800,000 by a court-appointed conservator, reports The Tennessean. Former Nashville attorney John E. Clemmons was appointed as the conservator for William Link in 2003 and was placed in charge of Link’s estate following his death in 2004, with funds for the estate intended for allocation to Link's daughter, who has a disability. Clemmons would later plead guilty to stealing $1.3 million from wards and estates he had been appointed to oversee and protect in Davidson and Rutherford counties. He was disbarred in May 2014. After the crimes became public, attorney Paul Gontarek was appointed to replace him and subsequently filed suit against Metro government alleging that if the probate clerk had been monitoring Clemmons, the theft would not have occurred. "We are pleased with the settlement," Gontarek said, "and we appreciate the efforts of the Metro legal department to bring this matter to a conclusion."
 
Metro government, however, argued that any claim against Metro should have been filed within one year of the last time Clemmons took money from the estate, which was in April 2013. Gontarek didn't file suit against Metro until 2014. Though the circuit court accepted Metro's argument, the appeals court rejected that conclusion stating "As we understand it, Metro's defense is predicated on the notion that Mr. Clemmons could have sued for the losses to the estate that stemmed from his own malfeasance. Respectfully we find such a proposition to be absurd," Justice Arnold Goldin wrote, adding that the suit filed by Gontarek was in fact "timely." The appeals court also rejected Metro's argument that it could not be held liable because a judgment already had been issued against Clemmons for the entire loss. The panel ruled that the comparative fault principle did not apply under the facts of the case stating, "Assuming liability can be established, Metro would be liable for the entire amount of damages.”
 
A resolution authorizing the payment was approved without debate by Metro Council last week. Gontarek said that he expects the $300,000 payment to Link’s estate will be made in the near future. You can read the Court of Appeals opinion here.
 
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Harper Lee’s Estate Sues Over Broadway Version of ‘Mockingbird’

The estate of Harper Lee has filed suit in Alabama federal court over producer Scott Rudin and acclaimed screenwriter Aaron Sorkin’s depiction of Atticus Finch in the much-anticipated Broadway adaptation of novel To Kill A Mockingbird, reports The New York Times. The complaint asserts that Sorkin’s portrayal of the iconic Atticus Finch, the crusading lawyer who represents a black man unjustly accused of rape, presents him as a man who begins the drama as a naïve apologist for the racial status quo, a depiction at odds with his purely heroic image in the novel. 
 
The contract the parties signed states that “the Play shall not derogate or depart in any manner from the spirit of the novel nor alter its characters.” Tonja B. Carter, the lawyer Lee appointed to run her estate, met with Rudin to express “serious concerns about the script,” specifically that Finch is depicted as “rude and selfish” as well as “more confrontational and far less dignified.” “This Atticus,” Carter wrote, “is more like an edgy sitcom dad in the 21st Century than the iconic Atticus of the novel.” The Rudin team is arguing that while the producers must listen to the estate’s view, they are the final arbiters of whether the production is faithful to the novel.
 
"As far as Atticus and his virtue goes, this is a different take on Mockingbird than Harper Lee's or Horton Foote's," Sorkin told New York Magazine. "He becomes Atticus Finch by the end of the play, and while he's going along, he has a kind of running argument with Calpurnia, the housekeeper, which is a much bigger role in the play I just wrote. He is in denial about his neighbors and his friends and the world around him, that it is as racist as it is, that a Maycomb County jury could possibly put Tom Robinson in jail when it's so obvious what happened here. He becomes an apologist for these people” said Sorkin.
 
This production will be the first time To Kill A Mockingbird has been performed on Broadway. The play is scheduled to open on Dec. 13. Click here to read the complaint in its entirety.
 
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Children of Legendary Entertainers Push Elder Abuse Legislation

The children of Casey Kasem, Mickey Rooney and Glen Campbell were joined by supporters to address the Michigan Senate Judiciary Committee on Tuesday, promoting legislation protecting rights of adult children aimed at preventing elder abuse according to The Detroit News. Kerri Kasem, Kelly Rooney and Travis Campbell advised the committee on the stories surrounding the final years of their parents' lives and how this legislation might have prevented the abuse and exploitation they suffered.
 
Kerri Kasem was involved in several contentious court battles against her stepmother, Jean Thompson Kasem, for the right to see her father, the "American Top 40" host who died in 2014 of complications of Lewy Body Dementia. Since the death of her father, Kasem has made it a priority to guarantee that family members can visit ill or incompetent relatives through measures such as those being considered in Michigan. "What it would allow the judge to do is to just rule on visitation. It would put the burden of proof on the caretaker," said Kasem. "If they're not allowing visitation, they have to prove why instead of hearsay."
 
Travis Campbell said he was limited in his ability to see his father when the musician began experiencing his decline into Alzheimer's disease. Campbell had concerns about his father's health due to the 151 shows the musician was made to perform over three years, even though the entertainer felt he could not perform that many concerts. Travis was instrumental in getting lawmakers in Tennessee to pass the "Falk Act" in 2016. He said toward the end of his father's life, he was only allowed to see him for four hours twice a month. "(The bill) is not just for us, it's for everybody," said Campbell.
 
Kelly Rooney describes her isolation from her father as "slow ... gradual." Rooney maintains that her father had complained of emotional and other forms of abuse prior to his death in 2014. She became emotional when speaking about not seeing her dad for nearly two years before he died. "They withheld medication and withheld food from him," Rooney said of her father's caretakers.
 
The group, along with the Kasem Cares Foundation, plan to continue the mission in hopes that more states adopt similar legislation to protect vulnerable seniors.
 
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Meet Your Section Chair

James (Jay) Barry is this year's chair of the Tennessee Bar Association's Elder Law Section. He is the owner and founder of Elder Law of Middle Tennessee. His legal practice areas include life care planning, estate planning including, trusts, Medicaid, veteran's benefits and probate.  
 
Prior to the development of Elder Law of Middle Tennessee, Barry worked in trademark and intellectual property law, as well as mediation. Through these experiences, he was able to use his specific attention to detail to draw upon when analyzing his client's needs.
 
His background is quite varied and includes not only being an attorney but also a commercial airline pilot with American Airlines for more than 24 years, entrepreneur, U. S. Air Force instructor pilot, aerospace engineer, and Air Force Reserve Lt. Colonel with the Defense Intelligence Agency.
 
Barry holds degrees from the University of Tennessee, Trinity University and Pepperdine School of Law. He can be reached by email or by phone at 615-444-3568.
 
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Glen Campbell's Longtime Publicist Subpoenaed Regarding Contested Will

The longtime publicist of Glen Campbell, who passed away from Alzheimer's Disease last year, has been subpoenaed to testify regarding the late singer's competence when he signed a now-disputed will, according to The Tennessean.

Records in Davidson County Probate Court show a subpoena has been issued for Sanford Brokaw to appear for testimony in Nashville on Feb. 20. The subpoena calls on Brokaw to "provide proof of the decedent's capacity since 2002” and submit "all communications regarding the estate of the decedent."

The contention is regarding the exclusion of three of Campbell's children, who have been cut out of his estimated $50 million estate, according to a 13-page will filed by his widow in 2006, Rolling Stone reported. The will states that he was "specifically excluding" the three children from receiving anything under the will or a related trust, and names his wife, Kim, as executor. Court records indicate there was an earlier version of Campbell's will, dated in 2002.

This was not the first interfamilial feud, as Campbell’s eldest daughter Debby and son Travis previously won a legal victory after claiming that Kim Campbell was denying them the right to visit their father during his illness. Tennessee Gov. Bill Haslam subsequently signed a bill into law called the Campbell / Falk Act, which allows family members and close friends of a person with Alzheimer’s disease, dementia or other disabilities to visit a loved one in person, or maintain contact with them by phone, email or mail, despite the stated wishes of a legally appointed conservator.

Campbell was first diagnosed with the Alzheimer’s in 2011 and died in August 2017. A Netflix film, "I’ll Be Me", details his diagnosis, final tour and his farewell to fans.

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Legislative Updates Affecting Probate in Tennessee

Every year, some changes in the law come with the fanfare, bells and whistles of a Las Vegas jackpot win, such as no inheritance tax or no gift tax. Other revisions to the law are less obvious, but a closer look reveals the treasures to be found in their simplicity and substance. The major legislative changes that went into effect July 1, 2017, surrounding probate are of this sort, less glitz but still noteworthy. 
 
The Tennessee 110th General Assembly enacted SB 769, a bill that revises certain provisions of the probate code related to estate administration. These revisions impose additional responsibilities on the estate's personal representative for the protection and benefit of the beneficiaries. Here are a few of the hidden gems that may affect your estate or a loved one's:
 
No Hands in the Cookie Jar 
Take the case where a personal representative (an executor or administrator) files a claim against the estate for payment of a debt owed to him or her by the decedent. In the past, the notice of the filing was sent by the probate clerk only to the personal representative and his or her attorney. Now, the personal representative seeking payment must provide the probate clerk with the names and current mailing addresses of all residuary beneficiaries of the estate (whose interests will likely be diminished if the claim were awarded) so they can be notified by the clerk within five days of the filing and given the opportunity to protect their interests. [T.C.A. 30-2-313]
 
Crime (Still) Doesn't Pay 
The prior version of the "Slayer Statute" prohibited a person from inheriting from an individual that person killed, unless it was an accident or self-defense. The new version, a much more robust and detailed statute, now requires, among other things: the killer has to give up all benefits of the decedent's estate; it revokes any beneficiary designations for the killer and it eliminates any interest the killer has in real estate as a joint tenant with the decedent. [T.C.A. 31-1-106]
 
Who's Your Daddy? 
To inherit from a decedent, a child born out of wedlock must establish his or her paternity at the earlier of four months from the first publication of the notice to creditors, or one year from the father's date of death. In the case of an amorous decedent, the personal representative can now send a copy of the notice to creditors published in the local newspaper to any purported child and limit the time that child has to establish his or her parent/child relationship with the decedent. If the representative fears that children will come "out of the woodwork" after a decedent's death, this amendment provides a shortened timeframe in which a purported child must establish paternity, which is a blessing to an estate administration that could otherwise be drawn out in costly litigation. [T.C.A. 31-2-105]
 
Signin' My Life Away 
Each recipient of a specific bequest under a decedent's will must sign a receipt that is required to be filed with the probate court by the personal representative in order to close an estate administration. A seemingly innocuous revision now provides that these receipts must be notarized under penalty of perjury or otherwise sworn, where the prior version of the statute only required signatures on receipts for filing with the Court. This is to ensure that the intended recipient of a gift under a will actually receive the gift, although it could be an inconvenience to some beneficiaries. [T.C.A. 30-2-601]
 
No Hostages  
Although the Legislature now requires receipts to be notarized or otherwise sworn (see above), they also realize that some beneficiaries simply will not follow directions. In those cases, the personal representative is allowed to close an estate administration if he or she can show to the Court's satisfaction that diligent efforts have been made to obtain the required acknowledgment from a beneficiary. If the other beneficiaries agree, the estate will not be held hostage by the one recalcitrant beneficiary. [T.C.A. 30-2-601]
 
Jennifer Kent Exum is the section chair of the Tennessee Bar Association's Estate Planning and Probate Section. Exum is Of Counsel at Chambliss and has practiced law for nearly a decade, primarily in the areas of estate administration, estate planning, conservatorships, tax, estate-related litigation and general civil litigation. She holds degrees from Northwestern University and the University of Tennessee College of Law. Exum can be contacted at 423-757-0297 or jexum@chamblisslaw.com.
 
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