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?
“Estate Says $2,105, IRS Says $434,000,000.” [TaxProf]
Donald Eugene Miller, Jr., formerly of Arcadia, Ohio, is having trouble trying to convince the law that he really is alive. [Lowering the 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]
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]
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]
Marie Long, now 88, was “worth $1.3 million when she [suffered a stroke and] came under the protection of Maricopa County’s probate court in 2005. Today, she’s destitute and depends on taxpayers for support.” Where’d the money go? [Laurie Roberts, Arizona Republic and more via ABA Journal] But see: A different view of the affair [Phoenix New Times via ABA Journal]
Massachusetts’s highest court thought it a bit much that fees and costs would eat up $800,000 from an estate valued at $1.2 million, or two-thirds of the value at stake. [Robert Ambrogi, Legal Blog Watch; Above the Law]
Incidentally, Robert Ambrogi is hanging up his keyboard after an impressive four-year tenure at Law.com’s Legal Blog Watch, but he’ll continue to maintain his other sites. He has kind words for this site as one to “follow religiously”, too.
“A former Brooklyn, N.Y., lawyer has pleaded guilty to fleecing millions of dollars from guardianship accounts he oversaw for incapacitated seniors and children. … at least 16 court examiners who oversaw Rondos [Steven T. Rondos] had signed off on his reports without detecting any red flags.” [NYLJ]
The Yale law professor, a longtime advocate of probate-court reform, says the Nutmeg State’s recent legislation falls well short of what’s needed; he’s particularly critical of lawmakers’ decision to let probate judges go on carrying on their own law practices on the side. [Hartford Courant via Estate of Denial]
The headline at Business Insider puts it more rudely than that. Business Week notes that “The singer faced a near-constant drumbeat of legal troubles in life. He’ll likely cue up plenty of them in death as well.” More: WSJ Law Blog; Eric Turkewitz with an early analysis of the medical and pharmacist liability possibilities.
Gov. Jodi Rell has signed legislation reorganizing the long-criticized system, which handles child custody matters and conservatorships as well as wills and estates; Hartford Courant columnist Rick Green had made the cause a crusade with horror stories. More: Connecticut Law Tribune (cross-posted from Point of Law).
Family disputes between a wife and the mistress over a will are probably one of the few times when the “not about the money” saying really is true. But after a two-week trial and two trips to the Georgia Supreme Court, it’s hard to imagine that attorneys aren’t going to get the majority of the $6 million at stake in the five-year battle over Harvey Strother’s will. A penalty clause calling for the disinheritance of anyone who challenged the will appears to have been successfully challenged by the wife’s family. (AP/Washington Post, Apr. 13; Talia Mollett, “Millionaire’s will trial begins today”, Marietta Daily Journal, Jul. 15; Tom Opdyke, “Life’s final chapter to play out in court”, Atlanta Journal-Constitution, Jul. 13; Melican v. Parker, 283 Ga. 253 (2008)).
It’s deeply entrenched, yet political pressure for a change continues to build (earlier).