Estates & Trusts Program on Recent Developments in Real Estate Administration Case Law

Picture14On February 12, 2015, the Estates and Trusts Committee of the Baltimore County Bar Association hosted its monthly educational lecture, this time on Recent Developments in Estate Administration Case Law. The venerable Allan J. Gibber, Esq., author of the highly acclaimed “Gibber of Estate Administration,” graced the packed grand jury room with his wisdom and insight in discussing ten very recent cases on estate administration, some reported and some unreported, the most recent of which was reported just seven days prior, on February 5, 2015.

Mr. Gibber provided a handout with a synopsis of the cases — three of which are briefly described below, to each of the attendees. He began with a little nugget of useful advice for all Maryland estates and trusts practitioners — the general prohibition against the use of unreported case law as precedent or persuasive authority in Maryland does not apply to the Orphans’ Court.

Mr. Gibber began with Kelly v. Duvall, Jr., et al, a case that he successfully argued in the Court of Appeals. The case dealt with the interplay of the lapse/anti-lapse rules and the survivorship statutes found in Estates and Trusts § 4-403 and § 4-401. In brief (although the case should be reviewed for specifics), the Court held that restating the general language of § 4-401 in the will did not provide a condition on survivorship, so the anti-lapse rules still applied to the will.

He then proceeded to discuss Rosebrock v. Eastern Shore Emergency Physicians, a case in which the Court of Special Appeals adopted Section 3.07 of the Restatement (third) of Agency and held that actions taken by an agent (guardian of a ward) under authority and prior to notice of the principal/ward’s death are valid. This prompted a discussion amongst the crowd as to the application of the case to a financial power of attorney; specifically whether actions taken by an agent under a financial power of attorney after the death of the principal, but without knowledge of the principal’s death, would be valid. It may be a good idea to include a statement in a power of attorney that the agency of the agent is terminated upon the death of the principal regardless of whether or not the agent knows of the principal’s death.

In White vs. Register of Wills, the Court of Special Appeals held that the Register of Wills was classified as part of the judicial branch of government which precluded the application of the Whistleblower Act, even though the Register serves executive functions (such as a tax collector).

Mr. Gibber used his wit and humor to captivate the 25 attendees for the entire hour program. It was a true honor for the Estates and Trusts Committee to host one of Maryland’s best and listen as the “Gibber on Estate Administration” came to life. Thank you, Mr. Gibber!