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November 07

Probate Litigation: Impose Constructive Trust Over Proceeds of Sale of Real Estate in a Will Contest

Written by Thomas Upchurch , , , ,

In a 2015 Nebraska case, an attorney-in-fact sold real estate prior to the decedent’s death in order to obtain a one-third share of the proceeds. Otherwise, the attorney-in-fact received nothing and only the Petitioner benefited.

The Petitioner was to inherit the real estate if not sold prior to decedent’s death. The attorney-in-fact sold the property and properly deposited the money in the decedent’s bank account. The issue at hand is that it appears that the attorney-in-fact may have known that he received nothing unless he sold the property. Therefore, he sold the property to ensure he benefited from the sale thereby intentionally interfering with the Petitioner’s expectancy of inheritance.

Proving that he “intentionally interfered” may be difficult to prove. There are four elements that are required to prove intentional interference with expectancy of inheritance provided later in the article.
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