Dont Go Changing

 

Don’t Go Changing..Billy Joel

Your will without me..

Don’t change your beneficiaries…

M’mmm..

I draft the clauses, I draft the sections, ..

I am the lawyer and your not…

I have started putting a bold stamp on first drafts of the wills and trusts I draft. I sometimes never hear from the client again after mailing out the first effort. I worry they start doing their own work after they see my start on their project.

draft

We have seen such events in our chambers. The mouth runs dry at the sight of such chaos in what once was another lawyers fine product.

Often folks arrive in my office not really knowing what they want to become of their estate when they are gone. One couple had a knock down drag out fight about who got what when they were both gone. I heard too much information about their children; who is “responsible” and who is not. I proposed sending out a draft for them to think about but the argument raged on for about an hour.

Finally they left, I sent what I thought was what they wanted and never heard from them again. Perhaps they are still struggling for control of what happens when they cross out of this plane of existence where the argument between them will finally end, leaving their children to continue the fight.

The Power of Myth at Death

Neptune
What ends up happening with a mans estate is often just a question of how strongly a myth about “what ought to be” is held by those who survive him, rather than what it says in black and white in the will.

This goes far beyond the “what Dad really wanted” comment I hear, literally, every day in my office and am powerless to use as evidence.

images rolling rock

Instead I refer to the mythical powers people assume they have upon the death of another. Conduct they would never dream of adopting when the man was alive suddenly becomes the standard for these new demi-gods.

centaur

First it is the personal property that disappears. The thought process must be “He doesn’t need this any more” or the more morally justified “I better take this for safekeeping”.

What disappears? Guns of course, jewelry ( often a ring ), watches and other valuables but even step stools and kitchen knives. I am not making this up. The Ring

Next comes the money. Often people claim to have been told by the decedent the life insurance is “for” someone else than is named in the policy. This may be true but it is a myth that the benefactor will do the right thing every time without a trust actually being drafted.
Frodo

Worse is the personal representative ( or executor ) who, upon gaining access to the funds of the departed become a Gollum-like creature, cursed with the evil ring that bends the mind to the dark side and a bright side; a schizophrenic.
gollum

On the surface Gollum is a fiduciary taking great care of the estate. But alone, the personal representative assumes special powers which, after making certain incantations, can rationalize use of the funds of the estate for personal purposes while the rest of the heirs sleep through the process.
wizard
Often myth infects those waiting for the money. Memories of how the personal representative behaved on any given occasion in the near or distant past which might imply a likely failure to act with strict adherence to the terms of the will and duties imposed by law somehow become fact, and extrapolated into current, on going theft of the estate.

Gollum 5

But this is not without some basis, even if it is not theft that occurs. For example other myth frequently encountered is that a “good person” who is named as personal representative is not necessarily up to the task of managing not only the assets of the estate timely, but also managing the other myths the heirs named in the will have preloaded into their minds which activate as the news of the death spreads.
Frodo 2

Objectivity is often the first casualty in probate. If you happened to be named personal representative of an estate in a will, take a deep breath and consider the evidence before you, not the bias of your mind. Also consider declining the appointment. Stay in the Shire, away from the ring.

The Doctrine of Virtual Representation Can’t Save The Farm

Sorry, but this does not mean they have passed a law which allows the client to log on to an interactive website and have a virtual lawyer who does whatever you tell him. Instead the concept predates the internet by centuries and means you are stuck with the decisions of those who came before you were born.

The Doctrine of Virtual Representation is a common law concept which means what we do today about our property can bind our heirs; both those that have been born or are yet to be born.

Imagine the chaos if we lacked this rule. Generations who come after decide they were not adequately represented in the deeds Grandpa did, and sue the estate for a larger share.

I had a great-grandfather who lost the ranch in a poker game. There was a divorce. How would it be if I now decided Great-grandma didn’t get enough out of her husband for that folly when the decree entered? So I look up his descendants and sue them?

Nope. Better to just get in your old truck and head on down the highway to the future, and forget about the past. What is done is done.

Evidence : As Seen on TV

There are no rules of evidence on television but that is where most folks learn to practice law.

On television lawyers can do anything, present anything and say anything and the judge always follows the script. The problem of evidence in real courtrooms is that this is not television and what may be admissible in fiction may not be admissible in a real court.

If you think about it Rules of Evidence are important so the fate of people and their property are not just a question of emotion or prejudice or the right scriptwriter, and instead their fate is based on what is reliable, or authentic, or can withstand a good questioning.

People come to me with their opinions and declare it to be evidence. Bits of paper that may support their position become facts set in stone when handled by them, but go up like so much smoke when marked by the clerk, offered as evidence then objected to on any number of basis; hearsay, authentication, the best evidence rule, the list goes on.

Then they get mad. Well fine, be mad, but what you see on TV is not evidence.

The E Will; It’s Not that Easy Being Green

The term “Green” has come to mean a consciousness about our impacts on the environment. When applied to law I am afraid “Green” also means naive.

A “Green” person looks for of opportunities to save trees. The latest is to not printing wills on paper, instead create and verify them somehow on-screen.

At least one state, Nevada, has legislated a means to sign a will without ever picking up a pen. Instead electronic signature is allowed. They have something called the Nevada Lockbox for wills and other documents that are not in original form anywhere else.

This is also “Green” in terms of lack of experience with fraud. Forgive my conservative nature but I see this development as a means to encourage self-help inheritance.

Back when the term “software” was new and “hardware” was something you bought on Saturday for home repairs, our firm had a case where a document damaging to our client surfaced during litigation. It was drafted on a computer and an ostensible cursive signature of our client endorsed the same.

Our client swore that was not her handwriting. It wasnt. Instead it belonged to an early version of the Word program but we were too inexperienced to know the difference. We had to call an expert witness to disprove the document.

I wonder if we would have to call that expert now? Probably not, as we are not that “Green”.

The Carnage of Will Changes

Among the Do It Yourself Will carnage we see after people pass on are amendments made by themselves on the face of their documents after seeing the lawyer and then apparently changing their mind.

Reviewing a will that comes into the office all marked up we have to first decide who made the changes; the testator or someone finding the will and unhappy with his decisions while he was alive. Assuming the former, I was astonished to find a statute here in Washington State that sets out the rules for a do it yourself change to your will.

Forever we have had the rule that one must have a testator signing his will in the presence of two witnesses that sign it as well. That has not changed.

It seems however to be that one can revoke any particular gift by drawing a line through it, this is without two witnesses. You may not however add terms without those witnesses.

But then there is some case law that says if the deletion materially alters the disposition of the will in an unnatural manner, the partial revocation is void. So for example deleting a distant relative of a small gift might be OK, striking out two of three children without a formal disinheritance through Wills Act formality would not.

Think of the opportunities for fraud or other mischief, leaving it to the lawyers to unravel. The attorney fees involved are exponentially higher than merely returning to the lawyer for a codicil, usually a modest effort.

This would probably make good television. I hope am played by George Clooney.

40 Days to Apply for Executor is Almost Biblical

Noah and the flood, 40 days.

Moses goes up the mountain into a cloud, 40 days.

Jesus in the desert, 40 days.

Modern Lent, 40 days.

Some mention of this 40 days in Lord of the Rings to, which I am told some consider Holy Writ.

And 40 days is the amount of time a spouse can allow to lapse and thereafter leave open the possibility someone else will apply to be personal representative, or executor of the estate of a lost husband or wife.

It is written.

Your Parents Estate Is Not An Opportunity to Live Out Long Held Grudges

Lets say your parents die. Lets say they trusted you to “do the right thing” so they have made you the personal representative of the estate when they are both gone in order to distribute the estate “Subject to Probate”. Lets review what that means.

“Subject to Probate” means notifying creditors and paying the bills. It means making sure the funeral is paid for and the taxes have been addressed. It means making sure the people who are to get the money do get the money.

“Subject to Probate” does not mean a witch hunt. It is not a cry to “unleash the lawyers”. Your parents estate is not an opportunity to get back at your siblings. This is not your money, it belongs to the people or charities listed in the will, “subject to probate”.

During the probate the personal representative is not allowed to profit. If you are the personal representative you have what is called a fiduciary duty to the people named in the will. The metaphor is that the probate is not an arms length transaction, and certainly not a means to “get a good deal” particularly if it is at the expense of the others named in the will.

The appropriate metaphor instead is more closely related to family life, instead of held at arms length, you hold them close. If you find you cannot do this, resign. All will be better for that act of discretion.

 

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.

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.