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.

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

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.

Where did I leave that Will?

By the time you are asking this question it is probably too late.

There is a county in Florida where the locksmiths have an 18 month backlog of drill orders from Superior Court on safety deposit boxes in order to gain access to the will people died leaving there. Not only has no one been able to find the will, probably in the box, they can’t find the key to get in any case.

In my county here in Washington State I saw a lawyer ordered to stand watch and inventory the contents of the safety deposit box under these circumstances. What should have been a brief inexpensive court appearance to start the probate became a several thousand dollar event.

Wont a copy do? No.

You know, I have seen a lot of things in my career but I have never known there to be a black market in unprobated wills. It is not likely there will be a theft of this document, so perhaps leaving somewhere people might find it is best. Some say wrap it in plastic to keep it from being ruined and leave it in the freezer. Me, I spent thirty bucks at the hardware store and bought a fireproof box. The key is right there to access, but if it should melt in the fire that kills me I have left the other key with a relative.

Leave the jewels in the safety deposit box. Once the original will is admitted to probate the court will issue your personal representative the authority he or she needs to get into the box, without a locksmith this time.

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.

Hooray for Hollywood!

This was my first blog post ever. pparently no one in Hollywood listened. Oscar winning actress Anjelica Huston was being interviewed by Terry Gross on NPR’s “Fresh Air” recently and referenced her mothers death as something she couldn’t handle emotionally well. Understandable, she was 17. angelica huston

But then she said she didn’t hang around for the reading of the will . Well Anjelica, you didn’t miss much. Best to skip law school too and keep your day job as an Oscar winner.

Here is what I said about this in 2011. At least I know Hollywood doesn’t care what I write here.

Apparently without any desire to find out how it really works, Hollywood has developed several legal conventions for us all to consume, and presume, exist outside the theater. Here are some events on screen and how they play out in real life.

1) The reading of the will. You know how it looks, it’s the same every time. A really expensive looking conference room, a bushy browed lawyer at one end of the table reads to the assembled family members, or in the case of Rainman just Tom Cruise. In a slow steady voice he parcels out the property of the decedant and the people react. “I definitely got the roses, right?”
rainman
I hate to bring you up to date on current events but this doesn’t happen. I polled the lawyers on the probate list serve here in Washington State and found only one man who has ever been asked to do this and declared he would never do it again. It is a prescription for drama as well as domestic violence.

I regularly encounter people in the days following a death in the family who expect the reading of the will is going to be scheduled sometime by my firm, and that people should make travel plans to be there. Often people lie about whether this event has taken place, to yank the chain of the sister they never liked. “Too late Char, the will has been read! HAHAHAHA!”

2) Captains of ships can marry people. No. Persons licensed by authorities in states or other countries to perform weddings can marry people. Perhaps that marriage you are in was performed by the captain of the Love Boat, but you probably ought to check what credentials on land he was given for the act before you set sail. Don’t worry, the children are legitimate in most jurisdictions.the love boat in wreckers yard

3) The right lawyer can win anything. I literally have a memory of sitting on my fathers knee watching Perry Mason as a child. Perry won everything. The music at the end of the show with the books stacked up on screen as the credits rolled by scared the hell out of me. But Perry Mason is not the way it is. perry mason

If you want a reality check, watch A Civil Action starring John Travolta as the “right lawyer”. Its based on a true story, and I don’t think they deviatated from how things really happen. Fighting for an elusive result most of us would recognize as “justice” John makes mistakes and goes broke. And that ladies and gentlemen is a harsh reality check, even for the right lawyer.
John Adams
Even John Adams.