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.

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

The Sands of Iwo Jima Timeshare

Sands of Iwo JimaClients come in with timeshare presented as two different legal problems:
1) Contract, as in how do I get out of this and
2) Estate planning, what happens to this when I die.

The first is usually answered by you sell it for a lot less than you paid for it.

The second depends on whether you only have a license to spend your vacation in some remote location the United States took by force, or you actually own some of that sand in fee simple absolute. More common is the license variety represented by “points”.

Shortly after I began composing this piece an estate planning client came in with the points variety. She actually uses the points. Much like any other amphibious invasion she spends considerable time planning and plotting more than a year in advance in order to maximize her usage, and not get stuck with the leftovers of places our country has seized but no one really wants, like a vacation on Iwo Jima.

An Unprobated Will Is a Dead Letter

So you have been named as the executor or personal representative in your uncles will. Great. Jefferson County Courthouse

Go to his bank and show them the will and try to get his money. Good luck. They will tell you to come back with Letters Testamentary from Superior Court.

Until a court declares the will to be the last will and testament of our departed, it is as dead as they are. In other words, the Court is the only authority for declaring a will should be followed.

Consider other possibilities. What if there are other wills? Maybe the one your uncle left with you is not the last will.  Perhaps there is a codicil. Anyone with an original will must surrender the document to the Court within 30 days of death so these things can be cleared up.

Probate is not a bad thing. Neither is a will. They just have to go together to mean anything.

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”.

Night of the Living Trust

What seemed like a good idea at one point often becomes an unwanted “person” that lives on and makes everyone miserable.  Like Zombies, trusts that have outlived their usefulness need to die, but because the residual beneficiaries may not like the idea of a trust being killed off in favor of the person who wrote it to begin with, the Trustor, the resolution of its life moves slowly and infects people with despair. It also infects them with a dislike of lawyers and the entire complex business of dying. Why cant it just be simple? Because it isn’t.

Often the lawyer wrote this thing but they had good reason to; the client came in certain this is what they wanted. Just as often and perhaps more likely they never consulted a lawyer who might have persuaded them that the effort of a living trust is too much. For example usually people forget to put everything they buy into the trust defeating a purpose of avoiding probate.

Most tragically the do it yourself Trustor may forget to make this a revocable trust, meaning the family members obtain a real interest in the property they are residual beneficiaries of when he funds the trust, even before the Trustor dies. This means they all own a piece of the living trust. The remedy is to get everyone to agree to give the property back to the man who made the mistake in the first place.

But lo, there may be a beneficiary out there not willing to let go and hence, we experience the horror of the Zombie Trust.

Be afraid, be very afraid.

Dog Trusts

We are so wealthy we leave our money to our pets when we die. Washington is one of 46 states and the District of Columbia at last count that expressly allow people to erect trusts for animals. This is not just for dogs or cats, the statute allows a person to leave a trust for the benefit of any non-human animal as long as it has a vertebrae.

So dont try to sneak in a worm trusts, do you hear?

The Settlor doesn’t even have to have any particular animals in mind when the trust is drafted. I was briefly associated with one trust where the old fella had a large tract of land near the mountains during his life and left the whole thing to the woodland creatures that lived there, so they would have a refuge for as long as the trust could last, which according to our Rule Against Perpetuities is 150 years.

But the Rule of Ugly Facts intervened to shorten it’s life dramatically. The Woodland Creature Trust immediately ran into trouble as it didnt have a person or society lined up to take care of it, pay the taxes and insurance or otherwise protect the trust. Several nature societies were approached but there were no takers. It looked like the Trust would fail, and the land be sold off.

Of course if this were a Disney film the woodland creatures would all speak English, and a badger like individual who is also a licensed member of the bar would file an action entitled Bambi et. al. vs. Woodland Creature Trust in our Superior Court. The nadir moment of the film would feature the human vertebrae on the bench ruling against the non-human vertebrae and sending the human vertebrae tax collector out to auction off the woodland for back taxes.

Disney’s formula film always has a villain with a pencil thin mustache ( c.f. Jaffar in Aladdin or John Clayton in Tarzan ) and the tax collector would look like either. Of course the cute Disney non-human vertebrae would somehow prevail and we would all leave the theater humming the theme song.

But this scenario belongs in Never Never Land. My last experience with the case at bar was to be fired by the decedants sisters because I had to tell them the only way for this woodland trust to work was to sell some of it to a developer to finance the thing. But that is not what our brother wanted….

Why is it people expect they can have at death what they cannot have during life?

Collect Child Support From the Dead

Like the 2nd Amendment slogan, we can only take child support from some men when we pry it from their cold dead hands. Prior to that we sometimes we pry it from hands that are bound together.

It is not uncommon to be in the hallways of the courthouse and notice the men on the chain gang. Sometimes these are ordinary felons. More often they are men who have been arrested for non-support. I often break into song:

That’s the sound of the men, working on the chain, ga-a-ang – all day long they are working….. under the table….

They get someone from somewhere to pay something and they get out of jail, and the process starts all over again.

But what if they die? Support in our state vests as a judgment each month it is not paid and survives death. The statute of limitations for collection of child support judgments only begins to run when the youngest child of the abandoned family turns 18. Then it runs for 10 years. If still not paid, a motion can be filed to extend it another 10 years, until the youngest child is 38 years old. The interest rate is 12%.

I have noticed men begin to drop dead in their 50’s, particularly if they are living the hard life underground or off the grid. (Lawyers begin to drop dead about that time too, but that is another topic). So it is conceivable we will have child support claims in probate.

Normally these will be advanced by the ex-wives of the dead men, but what if the mother dies? What if the children inherit the claim from thier mother? Hey kids, lets sue Dad for our impoverished childhood!

Kind of reminds me of Disney’s Lion King, Elton John singing about the “Circle of Life”. The whole prospect gives me a sort of warm feeling.