Editors: Kirstin E. Helmers & Denise S. Rahne
The Minnesota Trust and Estate Litigation Deskbook includes 11 chapters covering all aspects of trust and estate litigation, including: chapters on the types of trust and estate disputes; jurisdictional issues, venue and related implications; parties, interested persons, and notice requirements; burdens and standards; unique evidentiary issues; discovery; trials and evidentiary hearings; appellate issues; ADR; fees and costs; and navigating potential conflicts of interest.
The Minnesota Trust and Estate Litigation Deskbook will complement the expertise of the practitioner and/or serve as a strategic companion to that practice. The organization of the Deskbook begins with an overview of the types of matters one might encounter in this space, and moving roughly chronologically through the phases of a “typical” trust and estate litigated matter. Each chapter is authored by Minnesota trust and estate attorneys with many years of experience litigating these issues, which gives them special insight into what Minnesota lawyers need to know about contested trusts and estate plans and remedies to best serve their clients. The Deskbook chapters also include numerous practice tips and ethics commentary that go beyond the law to share real-world expert advice. Reading these tips is like having these professionals in the room with you, answering your questions, and guiding you through the tough dynamics involved in trust and estate disputes.
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CHAPTER 1
Primer on Trust and Estate Disputes
Introduction; Themes and Dynamics Unique to Trust and Estate Litigation; Common Types of Trust and Estate Disputes; Legal Authorities for Trust and Estate Litigation
– Julian C. Zebot & Evan A. Nelson
CHAPTER 2
Jurisdictional Issues, Venue, and Related Implications
Introduction; Jurisdictional Issues; Venue; Governing Law; Appendix A – Probate: Sample Notice and Order for Hearing; Appendix B – Probate: Sample Affidavit of Mail Service; Appendix C – Probate: Sample Affidavit of Publication; Appendix D – Trust: In Rem – In Personam – Sample Notice and Order for Hearing; Appendix E – Trust: In Rem – Sample Affidavit of Publication; Appendix F – Trust: In Personam – Sample Affidavit of Service; Appendix G – Federal: Sample Removal to Federal Court
– John P. Worrell
CHAPTER 3
The “Who” – Parties, Interested Persons, Notice Requirements
Introduction; Notice in Estate Proceedings; Notice in Trust Proceedings; Appendix A – Sample Notice to Spouse and Children; Appendix B – Sample Notice of Probate When Lost Will; Appendix C – Sample Notice to Creditors; Appendix D – Letter and Notice of Time Limit to Contest Trust
– Kimberly Prchal & John A. Wehrly
CHAPTER 4
Burdens and Standards
Introduction; Allocations of Burdens; Standards of Proof; Appellate Standard of Review
– B. Steven Messick & Teresa B. Molinaro
CHAPTER 5
Unique Evidentiary Issues
Introduction; Applicable Rules of Evidence; Hearsay; Application of the Parol Evidence Rule in Trust and Estate Litigation; Testamentary Exception to the Attorney Client Privilege and the Duty of Confidentiality; Requesting and Responding to Requests for Unique Types of Evidence; Pretrial Considerations; Trial Admissibility; Appendix A – Hearsay Flowchart; Appendix B – Sample Subpoena for Estate Planner’s File; Appendix C – Minnesota Standard Consent Form to Release Health Information
– Amy Erickson & Casey D. Marshall
CHAPTER 6
Discovery in Trust and Estate Litigation
Introduction; Initial Hearing and Disclosures; Party Discovery; Third-Party Discovery; Electronic Discovery Considerations; Appendix A – Petition for Formal Appointment of Special Administrator; Appendix B – Interrogatories; Appendix C – Request for Production of Documents
– Elizabeth C. Henry & Brian Dillon
CHAPTER 7
Trust and Estate Trials and Evidentiary Hearings
Introduction; Court Rules Governing Probate and Trust Matters; Bench Trials; Jury Trials; Other Common Evidentiary Hearings; Pretrial Matters; Order and Burden of Proof at Trial; Examination of Witnesses; Other Evidentiary Considerations; Objections to Evidence; Ending a Trial; Appendix A – Sample Stipulation of Facts; Appendix B – Sample Deposition Designations
– Philip R. Schenkenberg, Abby N. Sunberg & Emily Valentine-Grimm
CHAPTER 8
Appellate Issues
Introduction; Appellate Court Jurisdiction; Standards of Review; Post-Trial or Post-Decision Motions at the Trial Court and the Need to Preserve Error; Effects of an Appeal on Trial Court Proceedings; Resources
– Katherine S. Barrett Wiik & Mahesha P. Subbaraman
CHAPTER 9
Alternative Dispute Resolution
Introduction; Historical Overview of ADR and Applicability to Probate and Trust Matters; Types of ADR in Trust and Estate Matters; Unique Ethical Issues; Current Issues; Conclusion; Appendix A – Notice to Interested Parties Regarding Mediation; Appendix B – Sample Mediation Agreement
– Hon. Robert Blaeser & Denise S. Rahne
CHAPTER 10
Fees and Costs
Introduction; Applications for Attorney Fees and Court Review – Trust and Probate Proceedings; Attorney Fees and Costs in Probate Matters; Fiduciary and Attorney Fees in Trust Proceedings; Managing Client Expectations; Avoiding Pitfalls; Trends; Appendix A – Checklist for Attorney’s Fees and Expenses in Trust and Estate Litigation; Appendix B – Sample O’Neil Waiver
– Hon. Elizabeth V. Cutter & Kim Ruckdaschel-Haley
CHAPTER 11
Focus on Ethics: Navigating Potential Conflicts of Interest
Introduction; Upholding Professionalism in Probate Litigation; Who is the Client in Probate Litigation?; Defining the Scope of Representation; Confidentiality; Attorney Witnesses; Attorneys Serving as Fiduciaries; Attorney Fees; Other Matters; Appendix A – Waiver of Confidentiality; Appendix B – Waiver of Conflict of Interest and Confidentiality
– Karin Ciano & Louise C. Rogness
Table of Authorities
Subject Index
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