Will Contests

My Daddy ( a lawyer ) used to say Judges are like a box of chocolates. You never know what you’re going to get.

But there is one thing I know you will get when you contest a will most of the time: Defeated.

Most of these cases are brought on three basis; 1 )Testamentary Capacity: for example the Dad’s mind was gone when he signed this will or 2) Undue Influence: someone taking an unusually large or unnatural gift had a position of trust with Dad or 3) Fraudulent Misrepresentation in the execution of the document: Dad signed a will when he was told it was a contract to buy a new Ford.

This is a complex area of shifting presumptions of law which start out favoring the will as written, and is peppered with problems of proof to over come that presumption ranging from excluded testimony due to the Dead Man’s Statute to just how good your medical expert is who saw Dad before he signed this will.

This trouble is compounded by the standard of proof. The contestant has to prove these things that would invalidate the will by clear cogent and convincing evidence. That is the civil equivalent of putting a man in jail, well beyond a preponderance.

Often the question is would Dad have any reason to do what the will says. If so, it is doubtful the there is much of a contest. Better off spending the attorney fees on a real box of chocolates.

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Lets create a new law that will make the world a more fun place.

Lets adopt a law recognizing ship captains can actually perform weddings on board their vessels while at sea. This would then make our law congruent with the myth.

Lets require a dearly departed’s will actually be read to the assembled grieving family, some of whom eagerly await to hear what bit of the material world they have been left. Attire must be black.

Lets require courtrooms actually be filled with curious onlookers throughout the entire trial, as it is in the movies, gasping at the appropriate moments.

Lets regulate Elvis impersonators, requiring a license and fees.

Let’s install bike lanes on freeways.

Let’s adopt left hand drive like they have in the United Kingdom, Jamaica, Hong Kong and a few other former colonies, along with Japan and assorted other countries in the Far East.

Lets require live entertainment for people while they are waiting for licensing and vehicle registration at the Department of Motor Vehicles.

Lets require postal employees to wear costumes of their favorite historical figures.

Lets require Disney to open and operate a theme park in every state, granting a waiver to Alaska and Hawaii as they already qualify as theme parks.

Lets adopt a 4 day work week. This leaves three days rather than two for lawyers to catch up on work.

It’s Not Your Money

Sometimes even the most seasoned lawyer is shocked by the conduct of people, often those in their own family.

I am just fresh from the probate and guardianship calendar where I witnessed an institutional trustee, a bank no less, hand up an order approving expenditures from a child’s special needs trust that was rejected immediately by the bench.  Instead our Court had lots of questions about why it was necessary to spend in increasing amounts tens of thousands of dollars taking the extended family on fabulous trips to Mexico and the Caribbean.

Meanwhile the needs of this special needs child who apparently had been left quite a bit of money in a will seem to be glossed over.

The really remarkable thing was the bank seemed unphased by this spending. Usually I see this kind of conduct from individuals named as trustee, because the term “fiduciary” is not part of their lexicon. Webster defined fiduciary as one who holds the trust or confidence of another. The first known use of the term is from 1641, and derived from the Latin fiduciarius which sounds a lot like fidelity to me.

I wonder what the Latin is for “taking advantage of the helpless”? And what about the bank, what Latin term can we assign them? There is no Latin term for “clueless”.

Cat Seizure in Bankruptcy

One reason we revolted from Britain: Debtors prison. When you couldn’t pay your debts they put you in jail until you could. Seems really strange, doesn’t it? So, well, foreign.

So the concept that one could not be jailed for his debts and has a right to discharge debts in bankruptcy has been with us from the beginning.

And how have Americans reacted to this freedom? They exercise it regularly. Even after the “get tough” Reform Act of 2005 there is a lot a debtor gets to keep in terms of assets notwithstanding declaring bankruptcy. Check out Title 11 section 522 of the United States Code. You get to keep your retirement, 401(k) and IRA. All of it. Such a deal.

Of course various Federal Court Districts around the country have interpreted things differently here and there, sometimes as close as from the Eastern District of Washington ( a closet Red State ) to the Western District of Washington ( which makes this a Blue State in every  Presidential election ). Sometimes within the District decisions vary from Trustee to Trustee.

Once in a recent 341 meeting of creditors the Trustee was examining my client as to her statement of debts and monthly budget. He noted she was discharging veterinary bills and had pet food in her budget. “But”, he triumphantly noted, “you have not listed any pets in your list of assets! Where are your pets!?!”

“I have three cats”, my client confessed, then added “Do you want my cats?”

The Trustee relented, but I had visions of him selling pelts to pay her debts. I am not making this up.

Another Myth: The Right Lawyer can Win

Nope. not true. The lawyer cannot change the facts. Nor can he or she change the law. At best they can persuade. Here is something Aristotle taught me about persuasiveness (Yes, I am old enough to have known him personally):

What you want to persuade the court to do must be logos or logical.

What you want to persuade the court to do must be ethos or ethical.

What you want to persuade the court to do must be pathos or likable.

WHAT? The court has to like what they do? That’s right ladies and gentlemen we have to count the Judge’s emotions, reactions, take aways or whatever you want to call that have a dramatic impact on your case. I recall one chambers conference where my father was discussing possible outcomes in the case when the judge said to him “I wouldn’t do that even if I liked your client”. I am not making this up.

So, the right lawyer cannot change the outcome of the case. But the wrong lawyer can certainly lose it. Is the lawyer you might hire logical, ethical and likeable? Do they seem to be on a mission or really interested in your case?

And candidly ask yourself, do you think your case is logical? Is it ethical? Do you think it is likable?

Pathos. Think about it.

Personal Property At Death- A Crime in Progress

The worst thing that can happen to a lawyer is to be in a fight over personal property, particularly after the owner of the property has died. The people this unfortunate testator intended to have the asset post mortem may never see their wishes followed because the lawyer with any experience at all refuses to get involved with the fight.

Personal property is best described as objects people can pick up and walk off with at any time, but right after a death the owner is not in a position to object. This is opposed to real property which is of course dirt and the structures on it, or intellectual property like stocks and bonds that are generally not laying around the house at any given moment of one’s last breath.

For some reason it doesn’t enter the mind of the purloining party that this object doesnt belong to them, and that first lesson of kindergarten still applies post mortem. Instead it seems a new rule applies that begins with the phrase “He doesnt need this any more…..”.

So lets say the disgruntled heirs who have perhaps only the residual clause of the will to support the claim (which is a perfectly valid means to pass property ), as they are the takers under that final clause. The lawyer has to first prove the deceedant actually owned the property the dispossessed heir claims to have existed. Guns, tools, lamps, a wagon wheel from the 19th century, photos, silver, 1963 Seattle Worlds Fair memorabilia, all are among the claimed “disappeared” that have crossed this lawyers desk and have gone on to require a disproportionate amount of time to the value of the assets in question. We literally have gone to the local hardware stores trying to show the deceedant actually bought the Kobalt tools he always said he was going to buy, without any success.

We have in our state a great little statute that is supposed to help with this, and many other wills from other jurisdictions have something similar. The statute allows the person who has made the will to leave a list of who is to get what personal property at death, signed and dated, no witnesses required, so long as the will refers to the list and the will is properly executed with the two witnesses initially. The list can be changed at any time by the testator prior to death.

This avoids many problems post mortem. First it proves the testator had at least at one point ownership of the personal property. Secondly we know who he or she intended it to go to. Third, if suddenly someone who had access to the house at the time of death suddenly has the wagon wheel or a nice set of silver at Thanksgiving, we have a pretty good idea what to do next.

The oddity is that any value of object can be transferred by the statute. Our testator may have owned 5 acres of radioactive dirt next door to the Hanford Nuclear Reservation whose value is dubious but also a $100,000 yacht in the Everett Marina. It takes Wills Act formalities with the two witnesses to pass the worthless dirt, but only this list attached to the will to pass the yacht, no witnesses required. This invites fraud and forgery if you ask me, but then I worry for a living because I possess the secret knowledge of lawyers.