Do Not Write on the Evidence

How many times has a client come in with a great piece of evidence only to find it is ruined because they have indelibly added their testimony to the face of it in blue or black ink. It is as if the intense need to control events blots out any kind of judgment they might have had, or restraint to action until they can get some legal advice.

A letter might have proved their point, but who can say who is the author of all the rest of the commentary?document

I can hear the objection already, the document is not authentic because the author is undetermined.

Or in the case of a bank statement which was certainly produced by the bank, but who wrote “Uncle Charlie told me I was supposed to get this!!!” on the face of it?

 

 

I have vivid memories of a judge examining the offered exhibit then angrily declaring “Some one has written all over it!” knowing that someone was seated at counsel table next to me.

 

Objection Sustained.mean judge

Primogeniture

It is extraordinary how many people come into my office believing the oldest son somehow has some inherent right to govern the estate of the parents.

Being a lawyer, I start looking for authority for this rule. I start with Exodus 13-

The Lord said to Moses, “Set apart for me the first boy born in every family. The oldest son of every Israelite mother belongs to me. Every male animal that is born first to its mother also belongs to me.”moses

And thus Primogeniture was born, as well as animal law.

Note the ancient practice of Primogeniture called for the first born male to actually inherit, not just govern his parents estate. This lead to the ancient practice of fratricide as well.

Cain said to his brother Abel, “Let’s go out to the field.”
And while they were in the field, Cain attacked his brother Abel and killed him.

—Genesis 4:1-8
cain and abel
It has never been clear to me his motive, Abel was not the oldest. Cain was going to inherit anyway. Perhaps Cain got bad legal advise from the internet.

Here is something to keep the modern mind away from such sin; slayers do not inherit. See Revised Code of Washington.

Need Not Be Present To Win

After the funeral a dozen people or so show up at the lawyers office, some times the same day, for the reading of the will. I think they get this idea this must happen from television and the movies. Television and the movies is where this unnecessary step belongs.
funeral procession
First, there generally is no reading of the will. Instead everyone with an interest in the estate gets a copy, but there are no elderly barristers with cherry lined law library waiting with fire blazing to read wills as funerals end.
read will

Second, you need not be present to win. When a person dies with a will leaving someone else property, the gift vests. Even if there is no will, by operation of law some heirs just plain take by doing nothing.

But there is always a catch, the vesting is subject to probate.
spendthrift
In other words, we have to pay the bills first.

Occasionally the lawyer will be hired to read the will but usually it is a huge disappointment for everyone involved. We don’t have a cherry wood lined conference room full of old books with fire blazing in the fireplace.
lawyers office
People fail to wear black or otherwise dress appropriately.
bad funeral wear

People do get upset, say things they might later regret, and otherwise misbehave. That part is like television and the movies. And that is why most lawyers refuse to read any wills to the family.

Title credits to Valetta King, Office Manager at Newton Kight LLP

Dying Declarations Are For Slayers Only

After the funeral people come to see me about probating the Last Will and Testament the family member left behind. The interview sometimes begins like this:
“Dad wanted me to have the farm. He told me so on his death-bed. He said, ‘I want you to have the farm’.”
family farm

I ask for the will and can find no reference to this bequest. Instead the client and all her siblings are listed share and share alike which means they all get an equal portion ownership.

“I am afraid you have a hearsay problem”, I tell the shocked client.

eager person
This “dying declaration” always seems to benefit the client immensely.

There is some room for dying declarations to be admitted in court.

First, the person has to understand they are about to die when the statement is made.

Second, it is only admissible to prove the client is guilty of murder of the decedent.

Third, if proven, the client is not going to inherit in any case because of the rule that says slayers do not inherit. axe murderer

Fourth, I refer this person out to a firm that handles criminal law.

A good example of what might be admitted against the client was John Lennon’s exclamation “I’m Shot!” if offered in the prosecution of Mark Chapman. john lennon

Faced with this and other evidence, Chapman plead guilty to 2nd Degree Murder and is still in prison.

So friends and neighbors let’s go with what is on paper and not a dying declaration. If admitted at all, it might mean you are going to jail.

The Estate of Elvis

Well of course there had to be a lawsuit when Elvis passed.

elvis

His will referenced “lawful” children being beneficiaries of his testamentary trust. Now who would that be? Children born during his marriage, certainly. Those adopted, OK, but there were none.

elvis and lisa marie

What about those Elvis may have sired on tour and never claimed? What if Elvis dies before a paternity action can be brought?

elvis in concert

Well as it turned out The King of Rock and Roll successfully defended a paternity suit in California, only to have the claimant return to haunt him post mortem, like in a horror picture. One wonders what forgettable music would be produced for that film, something from “The Trouble with Girls” perhaps?

Elvis the trouble with girls

If that Elvis love child was sired in Washington State it means that poor child should have you get nothing. Same in Tennessee apparently. Text from his Will:

..the Trustee is authorized to accumulate the net income or to pay or apply so much of the net income and such portion of the principal at any time and from time to time for the health, education, support, comfortable maintenance and welfare of: (1) my daughter, Lisa Marie Presley, and any other lawful issue I might have, ….

There is no Equal Protection argument either, it’s the parent that failed the child, not the state. Yes, New Age reader, “Lawful Issue” still means something.

Indeed, every word of a will means something, and how carefully chosen each word may be will not be examined post mortem, as this unfortunate appellant tried to claim. It is presumed every word means what it says.
elvis easy come easy go
It should be noted there are about 40% of children born in America to unwed parents at the present time. Even among the highly educated, it seems an acceptable practice. It’s remarkable people who clearly love their children simply chose to ignore great bodies of law that will have an impact upon them should they perish without taking care of matters.

What do you say to this child? Return to Sender?

elvis stamp
So, for those that presume the law has caught up with your Brave New World of family, take care to ensure terms are not thrown around in your will like “lawful” when you mean “all”.

Regardless of new concepts of family, people who have had children without benefit of clergy also want their offspring to say kind things about their parents when they pass, perhaps the way Elvis would end a concert:

Thank ya, Thank ya vury much.

elvis grave

Escheat- Your Property Goes to the State

Recently I heard an account of the Roman leader Sulla, (138 BC-78 BC) who decreed not only his political opponents but also those of wealthy families should be slaughtered so as to have their property escheat to the state so as to pay his army.
Sullahead

Even today, those without obvious takers of property like children or siblings, nieces and nephews, are at risk for this Roman escheat to the state, unless they have a will of course. However even after the fall of Rome it was not always so.

Things were more civilized by 1066 when Britain was successfully invaded for the last time.
Invasion of England

By then it was just a given that when you died, even though you may have paid for the land with a lifetime of rents and military service, the real property of which you were “seized” reverted to the feudal lord.

You really wanted to be a lord then, unless you were King Harold II, who died after receiving a Norman arrow to the eye at Hastings.

arrow in the eye

All his feudal retainers lost their rights in land to the Norman conquest; William was in charge and started parceling out the country to his army.

Of course sometimes the land was given to the vassal who fought for William with extras, such as adding the term “and his heirs” meaning the knight would be able to leave the property to his children. Thus it was not best to die childless in feudal England however, or the land will escheat back to the William once again.

William the Conqueror

The record keeping wasn’t all that good the either. Paper was expensive and it took a lot to make up a deed. One had to know Latin, and then find the right rock from the field to represent the transfer to tie to the deed.

medeval deed

If the lord had no paper or couldn’t write, let alone in Latin, typically he would call together the neighbors for a ceremony where he took up a dirt clod from the land in question, and placed it in the hands of the grantee vassal, thereby making the latter “seized” of the land.

Hopefully people remembered whether you were seized of the land for your heirs as well. I guess the take away from this sort of transfer is the vassal wants lots of witnesses, preferably young and healthy.

In consideration for these grants the lord got a share of the crops or other profits from the land.
Medeval farming 2

These ancient dues predated the Conquest, and William apparently liked them so much he just kept the rent the same. Perhaps that is why no one has successfully invaded England since, and loyalty to the Crown remains intact.

Today in the United States you can will your property to whomever you wish, just be sure to do so, lest the lords who govern your state end up with it.

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.