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Will Contests and Estate Litigation





Proponents of a will have the burden of establishing Undue Influence, Fraud, Duress, Mistake, Revocation or lack of Testamentary Capacity. A legal presumption exists that the Testator had capacity to execute his LWT or Trust. However, a legal rebuttable presumption of incapacity exists where the Testator has been adjudicated insane, has had a guardian or conservator appointed, or has been confined to a mental institution.


Testamentary Capacity


Generally, a Last Will and Testament (LWT) may be made by a person of sound mind that is not a minor under eighteen years old. The standard for capacity to make a LWT is less than the capacity for execution of a contract but is the same as the capacity to execute a trust document. A person may have the capacity to execute a valid LWT even if he or she is not competent to transact his or her ordinary, everyday affairs. The capacity required to create, amend, revoke, or add property to a Revocable Trust Agreement, or to direct the actions of the trustee of a Revocable Trust Agreement, is the same as that required to make a LWT.  The test for capacity to make a LWT is whether the Testator knew his or her (i) estate or assets, (ii) the objects of the Testator's affection such as knowing who his or her spouse or children are, and (iii) knowing who the Testator desired to give his or her property to.


Undue Influence, Coercion and Duress


When an otherwise competent person executes a LWT under undue influence or duress, the will may be set aside, but the undue influence or duress must be proved. For a LWT to be invalidated for undue influence, the influence must be the kind of mental coercion that destroys the free agency of the Testator and constrains the Testator to do things that are against the Testator's free will or that would not have otherwise been done if the Testator had been left to his or her own judgment and volition.


Elective Share


In South Carolina, the surviving spouse of a decedent has the right to make an election, known as an elective share, to receive an amount equal to one-third of the decedent's probate estate if that amount is greater than the amount the spouse would otherwise receive from the decedent's estate.


Omitted Spouse


If the spouse of a decedent is omitted in the LWT of the decedent, the spouse may take the share he or she would have taken if there had been no will.  To qualify as an omitted spouse, there must have been a LWT in existence at the time of the marriage which was not modified to include the spouse after the marriage.

John Kachmarsky has assisted numerous clients in routine and complex estate litigation matters, including issues regarding the elective share, personal representative fees, trustee and breach of fiduciary duty, and will construction and will contest matters. He has been appointed by various probate court judges to serve as Special Administrator, Trustee, Guardian ad Litem and Attorney in matters that are both routine and complex and in litigation and non-litigation contexts. Contact our office today to discuss your probate or probate litigation matter.


FINRA Arbitration - Securities Losses

In 2007 the National Association of Securities Dealers (NASD) merged with the New York Stock Exchange (NYSE) to create the Financial Industry Regulatory Authority (FINRA).  FINRA conducts arbitration and mediation, regulates broker conduct, conducts enforcement proceedings, handles compliance work and helps resolve disputes.  If you have a brokerage account, you most likely agreed to have any disputes relating to that account referred to FINRA for arbitration.


Examples of misconduct that may give rise to an arbitration claim against a broker or brokerage firm are as follows:

   1.        Breach of Fiduciary Duty;

   2.      Unsuitability;

   3.      Excessive Trading;

   4.      Over-Concentration;

   5.      Lack of Supervision;

   6.      Unauthorized Trading;

   7.      Mutual Fund Fraud;

   8.      Misrepresentations & Omissions;

   9.      Inappropriate Asset Allocation.


In particular, if you are retired or elderly and have recently sustained substantial losses in the stock market, you may have a FINRA claim based on the unsuitability of your holdings and an over concentration in equities.  FINRA, in recent notices to brokerage firms, has advised that an investor's age and life stage are critical components of an investor's profile and firms cannot meet their regulatory obligations without considering those factors.  FINRA has also expressed concern regarding the suitability of recommendations to and communications aimed at older investors.


Contact us today to receive a complimentary evaluation of your portfolio and to discuss with an experienced FINRA arbitration attorney whether you have sustained losses in the stock market that could have been prevented and which might be actionable against your broker or brokerage firm.



Charleston Tax Attorney, John Kachmarsky, and the Law Office of John Kachmarsky provide legal services in the areas of Asset Protection, LLC (Limited Liability Company) Formation, Business Formation, Contracts, Conservatorships, Powers of Attorney, Estate Administration, Probate, Estate Planning, Wills, Trusts, FINRA Disputes, Securities Losses, Income Tax, Tax Planning, Tax Controversy, Tax Litigation, Tax Settlement, and Offer in Compromise to individual and business clients in Charleston and throughout South Carolina and the U.S. including communities such as North Charleston, Summerville, Mt. Pleasant, Hilton Head Island, Myrtle Beach, Georgetown, Florence, Beaufort, Moncks Corner, Goose Creek, Isle of Palms, Daniel Island, James Island, Charleston County, Berkeley County, Dorchester County, Beaufort County, Horry County, Georgetown County, Florence County and Colleton County.

John Kachmarsky is a Charleston Tax Attorney with a Master of Laws Degree in Taxation.  Charleston Tax Attorney, John Kachmarsky, is licensed to practice law in South Carolina and Georgia and represents clients before the Internal Revenue Service and the United States Tax Court.

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