Creditors' Claims under the Tennessee Investment Services Act of 2007

TN Attorney General Opinions
Date: 2011-11-28
Opinion Number: 11-79


QUESTION:

Whether the Tennessee Investment Services Act of 2007 requires a creditor to prove fraud in order to prevail on an action for attachment or other provisional remedy against property that is a qualified disposition to an investment services trust, or to avoid a qualified disposition to such a trust?

OPINION:

Yes. If the creditor’s claim arises before a qualified disposition, the creditor may prevail by proving actual or constructive fraud. However, if the creditor’s claim arises after a qualified disposition, the creditor must prove actual intent to defraud.

Read the full opinion at: http://www.tba2.org/tba_files/AG/2011/ag_11_79.pdf

Court reviews whether an attorney-in-fact has the power to name herself as beneficiary of an insurance policy

EVA WEAVER v. PRISCILLA DEVERELL, ET AL. (Tenn. Ct. App. October 26, 2011)

This is a case involving life insurance and a Power of Attorney. After Decedent named Appellant as his attorney-in-fact through a Power of Attorney, the Appellant changed Decedent's life insurance policy to name herself as primary beneficiary. Appellee, the previous beneficiary of the policy, filed this action to prevent Appellant from receiving the proceeds, alleging fraud. The trial court found that the Uniform Durable Power of Attorney Act prevented Appellant from changing the beneficiary of the policy. Further, the trial court held that Appellant's argument that she had actual authority to make the change was an affirmative defense that was waived by Appellant's failure to specifically plead it. Based on the foregoing, we affirm in part, reverse in part and remand.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/weavere_102611.pdf