Pasternak & Fidis Reporter

February 8, 2019

Morriah Horani Talks about Estate and Trust Litigation

Morriah Horani, a partner in the firm, is an experienced trial lawyer who handles disputes about child custody, division of property at divorce, and child and spousal support. Several years ago, she decided to expand her litigation practice to include resolving disputes arising out of estates and trusts. It seemed like a natural expansion of her family law practice as these cases often involve family members at war with each other. For this article Morriah answered some questions about her estate and trust litigation practice.

What is fiduciary litigation or estate and trust litigation?

This is an umbrella term that encompasses disputes about trusts or the estate of a deceased person. Litigation may involve issues stemming from a will, a beneficiary designation, a power of attorney, or a trust. A will dispute, for example, may be about whether a document purporting to be a will is valid, whether the decedent had capacity to make the will, was unduly influenced to favor one
beneficiary over another, or whether the will was forged. A dispute about a power of attorney or a trust can include a disagreement about whether the fiduciary properly carried out his or her duties. Parties may also dispute the court appointment of a guardian or conservator for an incapacitated adult or about whether the guardian or conservator properly carried out his or her duties.

What (or who) is a fiduciary?

A fiduciary is a person or institution, such as a bank or trust company, who occupies a position of trust to carry out the terms of a legal document, such as a will, a trust, or a power of attorney. The person or entity appointed to carry out the terms of a will is typically referred to as the personal representative or executor, while the person or entity charged with carrying out the terms of a trust is the trustee, and the term for a person or entity appointed under a power of attorney is the agent or attorney-in-fact. In each case, the person or entity is obliged to act for the benefit of another—the beneficiaries under the will, the trust beneficiaries, or the principal under the power of attorney. The fiduciary is obligated to carry out the instructions in the instrument on behalf of the person or persons for whose benefit the instrument was created and to do so in accordance with fiduciary standards. For example, the fiduciary is charged with exercising prudence in the investment of assets and in accounting for transactions.

How did you get into estate and trust litigation when for 10 years your practice had been focused on family law issues arising out of divorce?

I was always interested in estates and trusts work. After my judicial clerkship, I had an offer from an estates and trusts firm, but I decided to accept the offer from Pasternak & Fidis to do family law. As I practiced family law, I came to see the intersection of family law and estates and trusts work. For example, a marital settlement may include an obligation to provide for a spouse or children in the event of death, such as funding a trust with life insurance or other assets. Divorcing couples may include other obligations in their settlements for minor children in the event a parent dies prematurely. Sometimes a dispute arises after a parent dies about whether he or she breached a marital settlement agreement that required provisions for a child. Disputes between children of a prior marriage and a step-parent after the death of the parent are another example of this intersection. Some divorces require untangling the estate plan that couples had in place prior to their separation, such as a trust intended to accomplish tax savings.

Is there also an intersection between the skill set needed for effective representation in family law cases and in estate and trust disputes?

In litigating both types of cases, I acknowledge the importance of the family, consider family dynamics, and try to handle the case in a way that helps the parties move through a difficult situation without doing permanent damage to family relationships. After all, parents will always be parents, even if they are no longer a couple, and siblings will always be siblings, even after a disagreement about how their parents’ wills or trusts should have been carried out. Resolving estate and trust disputes is another way of helping families. It seemed like a natural expansion of my skills and interests.

What’s different about it?

The estate and trust litigation practice has brought me in contact with different demographics from the most common types of domestic cases. I have dealt with more older clients and have had to learn about elder-care issues and issues of incapacity. Before I decided to go to law school, I contemplated going to medical school and did lots of coursework in the sciences. In law school I got a certificate in healthcare law due to my interest in the healthcare field. The intersection of law and medicine has long been an interest of mine, and I enjoy cases that involve handling medical evidence and experts.

What is a will contest?

A will contest is an omnibus term to describe a challenge to the validity of a will. For example, a claimant may allege that the signature of the decedent is actually a forgery, or that a page of the will was substituted, or that the decedent did not have the mental capacity to make a will, for example, due to dementia. A party may claim that the authentic last will and testament was lost or stolen, or that a decedent was unduly influenced by someone who benefited under the will. For example, a child who was omitted from a parent’s will may make such a claim, especially when his/her siblings received bequests. Or, all of the children may make such a claim when a non-relative caretaker receives what seems like a disproportionate bequest, or when the children from a prior marriage believe a recently acquired spouse was unduly favored. A valid will can also be the subject of a dispute about what its terms actually mean when the terms may be open to multiple interpretations.

What sorts of issues come up when there is a dispute about a trust?

The beneficiary may disagree with the investment decisions the trustee has made. Or, the beneficiary may feel that the trustee abused his or her discretion by not making appropriate or timely distributions to him or her. Even when a trust gives complete discretion to the  trustee about management of the trust, a beneficiary may still take issue with the decisions of the trustee. When a trust contains provisions that attempt to constrain the beneficiary’s behavior—for example, a provision that prohibits distributions to a beneficiary unless he or she refrains from abusing drugs or alcohol—there can be a dispute about whether the beneficiary qualifies for distributions. When a trust settlor names an adult child as a trustee of a trust of which his/her siblings are also beneficiaries, that can generate disputes that may be replays of childhood rivalries.

What kinds of cases have you litigated?

I have litigated cases in Maryland, Virginia, and the District of Columbia that involve the validity of beneficiary designations, conflicts between beneficiary designations and other instruments (such as a marital settlement agreement), and will contests involving both validity and construction. I have handled trustee-beneficiary disputes and trust disputes where beneficiaries are seeking to enforce their legal rights. I have also had cases involving fiduciaries who are seeking help from the court in determining how to exercise judgment or solve a problem relating to the trust, as well as cases involving claims of breach of fiduciary duty.

February 4, 2019

Marital Agreements and Beneficiary Designations—Sometimes Friends and Sometimes Foes

A marital agreement can take the form of a premarital agreement, a postmarital agreement, or a separation agreement, i.e., an agreement that settles property rights (and other issues) between parties who intend to divorce. A marital agreement may provide for the disposition of assets at death; it may require one or both parties to provide for the other or a child at death after divorce; or it may waive rights at death. When the terms of a marital agreement and a beneficiary designation conflict with each other, the law will either validate or annul the designation, depending on the jurisdiction, the type of asset, and the language of the marital agreement.

The District of Columbia, Virginia, and Maryland all have laws that revoke at divorce either the entire will or the portions benefitting a… MORE >

August 30, 2018

Changing Irrevocable Trusts

When is a door not a door? (Answer: When it is ajar.)

When is an irrevocable trust not irrevocable? Answer: Pretty much all the time. That is, perhaps the irrevocable trust cannot be revoked per se but, with a little creative thinking and cooperation, it may be possible to modify, decant, or terminate an irrevocable trust. This is not the kind of news that makes headlines (except in our newsletter), but great changes are afoot in trust planning.

In the past 18 years, more than 30 jurisdictions (including DC, MD, and VA) have enacted a version of the Uniform Trust Code, shifting trust law away from arcane rules buried in old court decisions and into the modern era. Many jurisdictions (again including DC, MD, and VA) have also revised laws that used to prohibit extremely long-term trusts,… MORE >

July 26, 2018

OPINION: Electronic Wills? Maybe, But Not Like This

B22-0169, the Electronic Signature Authorization Act of 2017, is pending before the DC Council, and it is dreadful.  The Uniform Law Commission (ULC), relevant sections of the DC Bar, and a number of DC Fellows of the American College of Trust and Estate Counsel (ACTEC) have submitted, formally or informally, written opposition to the bill.  We have it on good authority that this bill is unlikely to pass, and we hope that is the case.

Are electronic wills coming?  Of course they are.  Last year in Australia, an unsent text message was accepted for probate as someone’s last will and testament.  (Unsent!  With an emoji in it!)  In July of this year, the Michigan Court of Appeals affirmed a trial court decision to accept for… MORE >

July 19, 2018

Alimony Ends When Payor Spouse Retires . . . Or Does It?

Family lawyers are increasingly hearing from divorced clients who are getting ready to retire or have retired and who have a spousal support obligation or a right to receive support under a court order.  A court order may result from a trial or as part of a settlement agreement adopted by a court in the judgment of divorce.  Some payors think alimony payments automatically end at retirement, or that a court will decide to terminate payments at retirement as a matter of course, but this is not necessarily so.

Court-ordered spousal support terminates automatically only on the death of either party or—in Maryland and Virginia, but not the District—upon remarriage of the recipient.  When a court orders indefinite spousal support, i.e., support without a predetermined… MORE >

July 9, 2018

Seasoned Trial Lawyer Eric P. Bacaj Joins Pasternak & Fidis

In June 2018, Eric P. Bacaj joined the firm as an associate after eight years as a criminal prosecutor: almost four years in the Bronx District Attorney’s Office and four years as an Assistant United States Attorney in Charleston, West Virginia. As a former prosecutor he brings a wealth of courtroom experience to his new position with the firm’s Divorce and Family Law Group.

With nearly all of his extended family in the DC area, joining Pasternak & Fidis was a homecoming for Eric. At Denison University, in Granville, Ohio, he got an undergraduate degree in Political Science. In his second year, he took a course on the Supreme Court from Susan Gellman, a civil rights lawyer, who taught it as a typical law school course, with a law school casebook and the Socratic method, requiring students to make legal arguments and challenging… MORE >