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.

There is No Trap Door in Superior Court

There is no trap door in Superior Court. trap door

This is not vaudeville, “Laugh In” or some totalitarian state.
HitlerAccused 1944

When someone lies in court, the opponent has to be prepared to confront them with a prior inconsistent statement made under oath somewhere during cross examination. That is not the same as arguing with them.

argument
Don’t expect the Judge to somehow magically know when a person is lying. Clairvoyance is not a requirement to take on the robes.
clairvoyant

Every month it seems someone appears in my office with a document someone has signed under oath, or declaration swearing the contents to be the truth “on pain of perjury” and declaring they have lied!

Truth is hard to find. One mans black is another mans white.

Star trek black and white

My Dad used to say that the reason we lawyers have jobs is one guy cannot see the other guys point of view. And that is why there are no trap doors or sudden death in civil or criminal law.

Modern fact finding is an advanced, yet frustrating concept. It takes time, and eventually there is some result. Better this way than by popular sentiment, strong man leadership or mob rule. French sloganguitene

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.

Dont Take The Hearsay Rule Personally

I have clients that do this.

They come into the office, relate a story and declare a conclusion. I lean back in my chair, review my notes and I tell them about 2/3rds of it is inadmissible as evidence. This is not well taken, like I am telling them they are unable to relate what they heard accurately. Well I’m not, but the hearsay rule is.

The rule reads something like this:

No statement, made out of court, shall be admitted into evidence for the truth of the matter asserted.

What?

Lets break it down: HEAR. You hear someone something,  assume it is true, then turn and then SAY it to someone else like a Judge and ask him to assume it is true too.

Example: “John told me the light was green when I went through the intersection”. Using this statement to prove the color of the light is hearsay. My clients will then  come to Johns defense, as if he is being accused of lying, which really confuses the issue.

It’s so much better if you actually saw the light. “I saw the light was green when I went through the intersection”. Not hearsay.

It’s just remarkable how often I interview a witness or a client and find most of what they have to say is based not on their own first hand knowledge, what they actually saw but instead a mass of hearsay, peppered with preexisting judgments about the actors involved and a personal agenda.

Hearsay. It’s an old rule, but a good rule. Please, don’t take it personally.

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.

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.

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.