The Last Minute

Despite my best intentions I found myself at the mall shopping this week before Christmas. I was not alone with the sense of rush to accomplish tasks that could have been done earlier. Predictably it was a stress filled event that makes me question whether Jesus would shop on line or shop at all.

I also wondered about those who make this choice in estate planning; shop on line or come to my office. Often I open a probate where the family comes in with the “will” the dear departed family member left behind only to find it is “holographic” or self created without proper witnessing. These are not admissible in Washington, but they are elsewhere.

Probably all the on line instructions are correct, but are skipped over as the reader scrolls down to the “I agree” button we have all learned we must push to get to the product we want on line. So skipping what law professors call “Wills Acts Formalities” means you died without a will.

Americans prefer to be informal, as if this is a virtue we should all aspire to imitate. An American will tell you anything no matter how personal, and he will dress as if they are going to a beach party when something more formal would be appropriate.

So it is a shock to learn the American law frowns on informality, and thus these “informal” documents are not admitted to probate. This means the informal desires of the decedant have no formality at all, and will never be considered. It’s like going out to eat in Europe and being turned away because you failed to pack a coat and tie. Go ahead and get upset, but there isn’t anything you can do about it. Like the better European resturants, the law has standards. Thats why they call it “Law”.

Realizing they are about to be turned away from the last menu selection they will ever make,  people find themselves calling me from emergency rooms, or are brought in to the office on oxygen, or dont quite make it in at all. I recall one such fellow who had consulted with me about a will but put it off. I finally saw he was on the calendar finally for the following week, but alas, saw his photo in the obituaries Sunday morning.

There really is a too late, and the last minute is often truly, the last minute.

Deathbed Gifts – Many Unhappy Returns

At some point your beloved elderly relative names you as attorney in fact in her durable power of attorney. You graciously accept the role and help her paying her bills and otherwise managing the house as her time on earth grows long.

Months, perhaps years later as your elderly relative lays dying she hands you her antique vase and declares “I want you to have this”. You accept graciously. Later you leave taking the vase with you.

Upon awakening the next day you find she has expired during the night. First there is the shock, then the funeral arrangements, and finally the probate gets underway. Everyone wants to know where the antique vase has gone. You tell the rest of the family our dear departed has given this to you.

The families response: PROVE IT.

The law in Washington is on the side of the family. The question is whether undue influence exists. For a will, contestants must show that undue influence lead to the execution of the will. For those who have done the labor of being attorney in fact who now find themselves defending a deathbed gift, the person receiving the gift must prove he did not practice undue influence by clear cogent and convincing evidence, far more than a preponderance.  Good luck. He had a “confidential relationship” which essentially presumes people in this role take advantage of the elderly.

Plan on returning the vase and save the attorney fees. It is curious at least that while we allow and encourage persons to transfer authority to manage affairs to someone they trust, rather than allowing an expensive guardianship to accrue, we presume they are acting with avarice if something as simple as a human act of gratitude is practiced as a last act in a life.