Posts Tagged ‘wills and trusts’

WSJ on court-appointed guardians

For many readers it will be behind a WSJ paywall, but try to catch up with the alarming account by Arian Campo-Flores and Ashby Jones of chronic problems in the system of legal guardians for adults, still “plagued by allegations of financial exploitation and abuse, despite waves of overhaul efforts. As a result, critics say, many elderly people with significant assets become ensnared in a system that seems mainly to succeed at generating billings.” One Florida woman had taken what might seem to be the appropriate precautions — assigning to one of her sons power of attorney and signing advance directives designating him as her guardian — but wound up with a court-appointed guardian anyway and before long was hundreds of thousands of dollars poorer.

A way to reduce will contests?

Margaret Ryznar at PrawfsBlawg:

…in France, there are almost no will contests brought on the grounds of a lack of capacity, fraud, or undue influence. In the United States, on the other hand, 3% and 5% of all wills executed will be contested, most commonly, on undue influence grounds. Why the difference?

Two elements of French law — mandatory shares for children and the role of specialized officers known as notaires who assist in document preparation — would be hard to duplicate here. Another institutional step that might reduce the incidence of costly probate struggles, however, would be to adopt (as three states have) what is known as antemortem probate, a right of testators to go to court during their lifetime seeking to have their testaments validated against challenge. “The proceeding allows judicial evaluation of the testator’s capacity, intent, and freedom from undue influence or fraud during the testator’s lifetime, which has the obvious benefit of the presence of the testator at the proceedings.”

It seems, however, that the antemortem probate procedure is seldom used in the American states where it is available. (Nor are official registries of wills, another aspect of the French system Ryznar describes as “easily adoptable” here and indeed in effect in some states.) Is the process going unused mostly because of unfamiliarity, or because persons whose estates will end up being contested on grounds of undue influence do not commonly recognize that? Or are there other reasons the procedure might be unpopular, such as an unwillingness to offend family members who are getting less than they might like?

April 17 roundup

  • “The Consortium has hired Arnold & Porter, and they can threaten whomever they want, the facts be damned.” [Popehat]
  • Former Social Security administrators: NPR’s just imagining things, pay no attention to that report on the growth of the disability program [, earlier] Ronald Reagan got rolled on the SSDI disability program, and we’re all paying the price [Avik Roy]
  • Katrina qui tam: “Jury returns verdict for the Rigsby sisters against State Farm” [Freeland, earlier]
  • Probate dispute had become cause celebre in Connecticut: “Judge Rules In Favor Of Caretaker In Smoron Farm Case” [Hartford Courant]
  • Judge’s text message complains of “‘docket from hell,’ filled with tatted-up… gap tooth skank hoes” [Above the Law]
  • “FTC Clarifies Obligations of Product Reviewers, But Does Not Ease Concerns” [DMLP]
  • “Trump Dismisses ‘Spawn of Orangutan’ Lawsuit” [Lowering the Bar, earlier]
  • If you’re one of those who occasionally send me links from the Alex Jones site InfoWars, now you know why I never use ’em [Dave Weigel]

Our wayward bench and bar

Please don’t do these [in some cases alleged] things:

  • Calif.: “Judge accused of stealing elderly neighbor’s $1.6M life savings resigns from bench” [ABA Journal]
  • Stan Chesley joins a rogue’s gallery of disgraced litigators [Paul Barrett/Business Week, earlier here, etc.]
  • San Francisco’s Alioto firm: “Attorney and law firm must pay $67K …for ‘vexatious’ suit challenging airline merger” [ABA Journal, Andrew Longstreth/Reuters (Joseph Alioto: “badge of honor”), Ted Frank/PoL (sanctions are small change compared with enormous fees obtainable through merger challenges]
  • N.J.: “Lawyer takes state plea, will pay $1M to widow’s estate” [ABA Journal]
  • Texas: “State Rep. Reynolds charged with 7 others in barratry scheme” [SETR]
  • “Paul Bergrin, ‘The Baddest Lawyer in the History of Jersey,’ Convicted at Last” [David Lat/Above the Law, earlier]
  • “Attorney’s mug shot winds up next to his law firm’s ad, in marketing effort gone awry” [Martha Neil, ABA Journal]
  • Once the American legal profession reformed itself, but that was long ago [John Steele Gordon]

Draining of disabled and elderly persons’ estates

The San Jose Mercury-News has an investigative series. Among the highlights: “At some point, this endless wasting of Danny Reed’s trust assets must stop,” said Judge Franklin Bondonno, throwing out $30,000 in fees billed to the special needs trust of a 37-year-old brain-damaged man, and regretting that he could not reach $145,000 previously billed. The “judge — in a highly unusual gesture — implored a higher court to overturn his decision.” Among recurring problems: “fee on fee” billing in which lawyers charge fees to persons under conservatorship for the legal effort expended in defending earlier fee bills. [editorial and links to articles in the series]

Connecticut: court-appointed probate lawyers seek immunity

The Connecticut Supreme Court is being asked to rule that lawyers and conservators appointed by probate judges are immune from being sued by those they represent. The case arose “because of the abuse that Daniel Gross, an elderly New York man, suffered during 2005 and 2006 at the hands of a Waterbury probate court after he became sick while visiting his daughter.” Gross was placed in a nursing home on conservator’s orders, a decision eventually reversed by a court. [Rick Green, Hartford Courant]

October 9 roundup

  • Update: “Tax Panel Rejects Lawyer’s Bid to Deduct Spending for Sex” [NYLJ, William Barrett/Forbes, earlier] And: “Musings on laws affecting adult entertainment, alcoholic beverages and other ‘vice’ industries” [Meeting the Sin Laws blog]
  • Mississippi: judge jails lawyer for not saying Pledge of Allegiance [Freeland]
  • More on much-written-about Israeli “rape by fraud” case [Volokh, more, earlier here and here]
  • “Tribune bankruptcy talks complicated by emergence of pugnacious hedge fund” [Romenesko; earlier on involvement of hedge funds in bankruptcies]
  • More disturbing tales from Connecticut probate court [Rick Green, Hartford Courant, earlier]
  • Marc Williams of the Defense Research Institute responds to Ted Frank’s criticism of many defense lawyers [PoL]
  • Advice for Australians: to fix your litigation system, look to Germany’s success [Ackland, Sydney Morning Herald]
  • Rep. John Hall (D-N.Y.) & ’70s band Orleans threaten suit against GOP remix [“Orleans Reunion Tour“]