Last Will and Testament must comply with all parts of the law

A last Will and Testament needs to meet certain requirements. Those requirements vary from state to state. In today’s case, the trial court and two appellate courts found Ronnie Toney’s 2014 Last Will and Testament was not in compliance with the requirements of Louisiana probate law because the Will was intialled, not signed on the first two pages, and the witness clause did not specifically say each page of the Will was signed in front of the witnesses (though it apparently was). The last Will and Testament was signed by two witnesses and signed and initialed by Ronnie, and all three signatures were notarized at the same time, but though that would fly in Arizona, that just wasn’t good enough for Louisiana law.

Louisiana law has a persnickety provision that says “The formalities prescribed for the execution of a testament must be observed or the testament is absolutely null.” Not much wiggle room there. The Louisiana Supreme Court even put the words “must” and “absolutely null” in bold when quoting the statute.

One of the “formalities” spelled out in Louisiana law is that “witnesses shall sign the following declaration, or one substantially similar: ‘In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this ____ day of ____, ____.’ ” In a nutshell, Ronnie’s will did not include that magic phrase. Instead it used a standardized phrase that looks word for word like the one I use in the wills I prepare, and which would have been fine in Arizona. But it was not the magic phrase, and two of the three Louisiana Supreme court judges found it was not “substantially similar” to the magic phrase.

So Ronnie’s doubly witnessed, notarized, clearly spelled out desire 6 months prior to his death to leave everything to his brother in law failed, the Will was found “absolutely null,” and whatever Ronnie had went to Ronnie’s next of kin (an uncle) instead. Probate law requires more than proof of what the deceased wanted. For example, if he had tried to leave a video will, it would have been equally null, both in Louisiana and Arizona. Moral of the story: make sure your estate plan is drafted by someone who knows the law. A pdf of the case is here: http://cases.justia.com/louisiana/supreme-court/2017-2016-c-1534.pdf?ts=1493838121

Scammer request

Being an attorney sometimes means people will try to scam you. One such scam is below. Typically the “client” will send a bogus check either for my services or from the imaginary party on the other side of the transaction, and when it is deposited in my client trust account but hasn’t cleared, they will suddenly need me to wire a partial payment from that check, but will generously offer to let me keep a sizable chunk for my efforts. Which is great until the check they sent bounces and the money I sent disappears.
Incidentally, there is no website for sunrayglobalservice.com, the scammer didn’t bother to identify my state (often the scam email just says “in your area”) and the grammar is stilted. And other lawyers have received an identical email with a different email address. Yeah, I’ll pass.

To: Lonnie K McDowell
From: Michael
I want to inquire if you handle purchase agreements. I am in the process of selling a drilling rig to a company in your state and they agreed for us to employ a lawyer that will draw a purchase contract which will protect my interest in this transaction. A referral will be helpful if this is not your area of practice. Send your response to my email directly. michaeljones@sunrayglobalservice.com Regards, Michael Jones

“A very unusual case, this.” – Judge Posner

Ct: Mr. Hart, you are representing yourself and claiming Amazon sold counterfeit copies of your 2 self-published books written about your experiences as a homeless man? And they damaged you to the tune of millions of dollars, and you would have been able to “end homelessness” if they had been legitimate copies?
Mr. Hart: Yes.
Ct: How do you know?
Mr. Hart: My cousin ordered a copy, and I saw it did not have my fingernail indentations on the cover. That’s how mark my copies, so I know his copy was counterfeit. Look, here’s two indistinguishable pictures to help you distinguish the counterfeit.
Ct: Amazon has offered evidence that shows they had no books. According to them, they helped third party vendors sell a total of 6 copies, none of which Amazon ever directly touched. It seems likely to the court that the third party venders had copies you sent them, rather than that Amazon itself undertook the significant expense to duplicate and print hard copy counterfeits of your books. Based on that, your implausible valuation of damages, and your unfortunately indistinguishable method of identifying the “counterfeits”, your case is below the threshold of plausibility. Dismissed.

The post heading is the opening line by Judge Posner. I like Judge Posner.

Oldest Last Will and Testament

Possibly the oldest Last Will and Testament known to western historians was discovered in 1890 in Egypt. Oddly, though found in a pyramid excavation, it does not belong to a Pharaoh or other ruler, but to a self described “devoted servant of the superintendent of works” named Ankh-ren. The will of Ankh-ren, also known as Sekhenren depending on translation, is currently dated to 1797 BCE (earlier historians thought it was older, but that date has been revised). It leaves all his goods, including his property in town and in the marshland, to his brother, Uah. Uah is one of the names of Egyptian God Osirus, who we assume Uah was named after: some translations indicate that Ankh-ren’s brother was a priest of Osirus.
Uah’s Will was also found: it indicates that all the goods he received from his brother should be left to his wife, Teta. Ankh-ren and Uah’s Wills were both written on papyrus.
Uah’s Will includes a provision that Teta must refrain from demolishing or knocking down any of the houses inherited from (or possibly built by) his brother. Four thousand years later, this would be known as a “fee entailment that runs with the land,” or simply as a “proviso.” Back then, it was just known as “Uah doesn’t trust Teta.” She was also instructed to give Ankh-ren’s slaves to whichever of her children she chose.

You can read Ankh-rens Will below. Or if your Egyptian hieroglyphs are rusty, just squint at it like me.
oldest-will-1787-bc

Bankruptcy Court Boots Man who Formed His Own Jury to Overturn a Judgment

Sovereign Citizens are kind of like watching a clip from America’s Funniest Home Videos: entertaining as long as it doesn’t involve you directly.
After losing two civil and one criminal lawsuit in state court, one such Citizen decided to avail himself of the protection of the Federal Bankruptcy court in South Dakota. If you have any familiarity with the typical court behavior of sovereign citizens, you can predict the results. He picked and chose the rules he liked, ignoring the ones that did not serve his purpose. His chapter 13 bankruptcy was kicked out: he filed a new one, and that case was kicked out as well. Here are some excerpts.

After the Debtor’s attempts to challenge the judgments in the state courts proved unsuccessful, he convened a group of individuals which he refers to as “the Peoples Seventh Amendment Jury.” The “jury” purported to void the judgments against the Debtor as being fraudulently obtained and also assessed punitive damages against the parties involved in the alleged fraud. In 2013, the Debtor filed the Peoples Seventh Amendment Jury’s judgment and other documents containing the heading of “Our One Supreme Court” in the South Dakota state court. The filing of these documents resulted in the Debtor being convicted of the crime of accusing a state court judge of treason and threatening the judge with death. That conviction was affirmed by the South Dakota Supreme Court. …
In addition to the arguments which had previously been rejected by the courts, he also now asserts that ConAgra and the political and judicial leaders of South Dakota have conspired to destroy his livelihood as an organic farmer and take over the food industry.

The court found that Mr. Paulson’s opposition to the dismissal of his second bankruptcy case was both untimely, and meritless. Paulson v. McDermott, No. 16-6018 (8th Cir. 2016) http://law.justia.com/cases/federal/appellate-courts/ca8/16-6018/16-6018-2016-11-17.html

Don’t Lie to the Bankruptcy Court.

Paul Hansmeier was a wealthy, but unscrupulous, attorney.  5 years ago, he was making hundreds of thousands of dollars “porn trolling,” i.e. getting courts to issue broad John Doe subpoenas to internet service providers for users suspected of downloading copyrighted pornography.  Subpoena requests are routinely granted without evidentiary hearings.  Paul would then send threatening letters to pressure the thousands of suspected users to settle by paying hundreds or thousands of dollars or risk “public exposure” in litigation, when he had no actual proof that the users were the actual downloaders. When the courts found out he was abusing the subpoena process, they sanctioned him repeatedly, totaling $576,000 as of 2014.  Paul dissolved that firm and moved on to filing ADA (Americans with Disabilities Act) claims against small, family-owned businesses with non-compliance issues such as improper signage or doors with round knobs instead of levers.  Most small businesses would settle (or authorize their insurer to do so) rather that engage in a protracted federal case. Business was lucrative, but the pesky 1/2 million dollars worth of sanctions kept following him.

With multiple courts coming after him to collect the sanctions he had been ordered to pay, Paul decided to file a chapter 13 bankruptcy.  Perhaps not coincidentally, he did so immediately before he was to turn over significant financial disclosure in response to a judge’s request. Paul made just over $10,000 worth of payments to the bankruptcy court over a 4 month period before things fell apart. The trustee found he had been less than honest in his filing and his subsequent conduct. The trustee also asked the court to change the case to a chapter 7 and sell Paul’s assets, instead of letting Paul pay the equivalent value over a 5 year period. Paul fired his attorney and filed his own response saying, “Actually, can I have the $10,000 back? I’ve got this plan to repay everybody. And the Trustee’s a crook, he buys a new Mercedes every Christmas.” The court sided with the trustee. Paul appealed.

The appellate court cited some of the findings of the bankruptcy court. It noted that Debtor had been found by a federal district court judge in the Southern District of Illinois to have exhibited “a serious and studied disregard for the orderly process of justice and a relentless willingness to lie to the court on paper and in person”; he had been found by a state court judge in Minnesota to have “intentionally given inconsistent testimony” throughout the proceedings; he had filed his bankruptcy petition to avoid disclosing financial information to the state court; he had failed to disclose numerous transfers totaling over $500,000.00 on his statement of financial affairs; he moved to a rental property and failed to amend his schedules to reflect the resulting reduction in his monthly living expenses; and “numerous courts had entered findings and conclusions that he had engaged in fraud and misrepresentations to the courts regarding his assets and his use of various entities to hide his assets” to misrepresent his financial condition.

Paul is going to lose everything (including his licence to practice law if it has not been revoked already.) Don’t lie to the court, and don’t lie or leave stuff out of your bankruptcy paperwork. Don’t think you won’t get caught. It will not end well.

Will Not Timely Probated, Gets Thrown Out

Every once in a while, I see a case I disagree with.  Today’s case comes from Montana’s supreme court.

Paul lived with his sister, her husband, his niece, and her husband.  His sister and her husband died before he did, and niece and husband continued to care for him.  Niece’s dad left her a small sum ($8,125) payable on Paul’s death.  Paul didn’t have any other known assets except furniture when he died in January 2000, so his estate was handled with a small estate transfer affidavit instead of a full blown probate.

Paul’s niece and husband helped him write up a will in February 1998: according to them, Paul dictated it, husband wrote it down and titled it “Instructions and Last Will and Testament”, and two witnesses signed it after Paul signed it.  As mentioned above, the estate was too small for probate, so the will was never submitted to the court.

Fast forward to February 2013.  Turns out Paul had an interest in some mineral rights (probably inherited, though the case doesn’t say) and now someone wants to develop them. They contacted Paul’s nephew.  Nephew offered to open a probate, but did not know about the Will, so he sought to have Paul’s share of the mineral rights lease go to his 3 surviving siblings and 9 surviving nieces and nephews as an intestacy (probate without a Will). “But wait,” cried the niece, “here’s his Will!”

Montana, like Arizona, has a statute that says there is a limited time to probate a Will (three years in Montana, two in Arizona).  There are two important exceptions, and they say 1) a probate can happen for the limited purpose of passing assets to successors, and 2) probate can happen to get assets of the estate from someone other than decedent.  Nephew claimed “too much time has passed, no exception applies.”  Neice claimed “the second one does.”

Two years of litigation ensued.  Nephew deposed niece and husband, and asked the court for permission to bring extra claims against them based on what he had learned.  The court said yes.  Niece and nephew then sought to include exception one as well as exception two, and the court said no, you should have raised it two years ago.  But even if I let you, I don’t think it applies.  Then the court ruled against niece and husband on summary judgement.

The Montana Supreme court reviewed and upheld the lower court.  They looked for “clear error,” and found none.  But Judges are sworn to uphold the law, not to ignore it.  Even when a party only lists the latter half of a statute, the judge should not strap on blinders and ignore other applicable law, especially when it is raised with enough time for the other side to appropriately respond.  This case was not on the eve of trial; it was decided by summary judgment.  I think trial court got it wrong by allowing nephew to amend but not niece, and by finding that “even if allowed, i don’t think it applies.”  I can only hope an Arizona judge would find differently, since the statute seems clear that the Will is admissible to allow transfer to “successors,” i.e. those identified in the Will.

And thus the Will of Paul falls by the wayside, not because it is found invalid, but because there was no reason to submit it to the court within the three year period.  No reason at all, until the mineral rights turned out to have some value 13 years later.  Sorry, Paul.

“Do I have a Case?”

I receive a number of calls and consults each month that end with the question “You’re the lawyer, do I have a case?”  Often, to my caller’s disappointment, the answer is “No.”  Typically, the potential client doesn’t like this answer, so another 5-10 minutes is spent answering the “but what about…” or “even though…” followup questions.  In many cases, the reason the potential client does not have a case is not lack of liability on the part of the wrongdoer (though sometimes that is also questionable): it is lack of definable damages.  Take the recent case of Hancock v. Urban Outfitters, (D.C. Ct App. 2016).

Whitney Hancock and Jamie White made purchases with credit cards at Urban Outfitters LLC and Anthropologie, Inc.  At the register, the credit card was scanned, then the sales clerks asked for Whitney or Jamie’s zip code, which they entered into their registers (not the card machines).  “My zip code!” cried Jamie and Whitney.  “That’s part of my address, and is protected consumer information!  That violates consumer protection law!”  (*Actual exclamation marks may vary.)

So they hired a lawyer, who said “Yep, it’s right here in this federal statute, asking for an address or other personal identification information breaks the law.  Let’s make this a class action suit.” and sued.  And quickly lost on a motion to dismiss, with the court saying “A zip code, without more, is not protected.”  Their lawyer appealed.  The conversation went something like this:

Appellate court: I know you want to talk about whether a zip code is a prohibited part of an address or not under consumer protection law.  But first, what are your clients’ damages?

Lawyer: “The only injury … that the named plaintiffs suffered was that they were asked for their zip code when under the law they should not have been.”

Appellate Ct: Hmm, I guess the court below erred.

Lawyer: Hooray!

Appellate Court: This should have been dismissed for lack of standing because there is no real injury, not on the merits of whether a zip code is or isn’t an address.  Without an actual injury, the complaint here does not get out of the starting gate.

Lawyer: Awww…

So at the end of the day, I turn away some clients who, admittedly, have been wronged.  Why?  Because they have damages that are either non-existent, or are minimal enough that hiring me makes no sense.  The court is not going to “punish” the other side in the manner the potential client wants, and I think it’s a disservice to let people hire me because they believe otherwise.  So I don’t.

Bankruptcy, Probate, and Invalid Wills, Oh My!

In the case of Brown v. Sommers, No. 15-20034 (5th Cir. 2015), we look at how probate and bankruptcy interact. Michael Brown was a successful surgeon, accumulating a great deal of money for many years.  Unfortunately, he was not as successful in keeping his marriage together, and ended up moving from Texas to Florida while acrimonious divorce and child custody proceedings were pending.  In Florida, he filed a chapter 11 “with assets” bankruptcy.  He did not disclose what he should, however, and his case was dismissed for “significant misconduct,” with the court taking the unusual step of assigning a Chief Restructuring Officer (“CRO”) outside of the bankruptcy to operate Dr. Brown’s business and oversee his personal affairs.  Dr. Brown did not cooperate with the CRO, and the bankruptcy was reinstated and transferred to Texas (where most of the assets were held).

Dr. Brown died shortly thereafter.  He had numerous wills, but none of them appeared to be valid.  And since the divorce was not final, it was dismissed, leaving his wife as his lawful intestacy heir.  His chapter 11 was converted into a “sell everything” chapter 7 liquidation.

The rest of the case (here) deals with the wife’s efforts to get the bankruptcy court to pay several probate allowances from Dr. Brown’s estate: ultimately the court declined to give her the money, though she is entitled to any money left over after creditors are paid.  Can Wife still go through the Texas probate court to get her probate claims recognized?  Probably.  Will the Bankruptcy court then give her claims priority?  Maybe.  Will it cost a lot in legal fees?  Yep.

Let’s review: there is a stereotype that some surgeons believe they know everything and can do no wrong, sometimes called a God complex.  Dr. Brown thought he knew better than the bankruptcy court, better than his wife, better than the court assigned CRO, and better than any estate planning attorney (since he apparently drafted his own defective wills).  At the end of the day, he was wrong several times over.  He didn’t get a bankruptcy discharge, he didn’t get a divorce, he didn’t get control of his business or finances back, and he didn’t have his final wishes acknowledged or enforced by the probate court.  If only he could go back in time, perhaps he could fix it, but it appears he did not have a Delorean among his many assets.  Sorry, Doc Brown.

Help! My Stepdad Took my Inheritance!

I have had more than one client visit me with inheritance situations like the one described in the title.  In Arizona, a valid Last Will (or a trust, or survivorship or beneficiary designations) controls who is entitled to property when someone dies.  If none of these things were set up, then after bills are paid, Stepdad (or Stepmom) is entitled to 1/2 the estate, stepkids (children of the deceased) split the other half.  Stepparent also gets certain amounts as priority payments (I.e. before the stepkids or most creditors get paid).  They do not get to hide or take stepkid’s share, though they can hold it for a while in some cases if stepkid is a minor or incompetent.

If Stepdad wrongfully takes a stepkid’s share of the estate, the stepkid can file a probate and get double the value of the property wrongfully withheld.  Today’s case happened in California, but Arizona has a similar law.

In a nutshell, Mr. Staggers kept all his wife’s assets when she died, and did not give his two stepkids the share they were entitled to get.  They sued.  During the suit, Mr. Staggers died, and his son was appointed as his personal representative to resolve the lawsuit.   Son filed a motion to terminate the double damages claim, citing a 2008 case and arguing that since Mr. Staggers is dead, his estate can’t be punished with double damages under a specific California code section eliminating “punitive or exemplary damages” against estates.  He also wanted to throw out the requested attorney’s fees, which he argued were also punitive.  Stepkids argued the 2008 case was dicta, a non-applicable ruling about a different issue, and cited an 1866 case (issued a year after the Civil War ended) arguing the opposite.

The trial court found the 1866 case did not apply because the current code section didn’t exist in 1866, and entered summary judgment against stepkids.  Stepkids appealed, and got the summary judgment reversed.  The Appellate court said “Yes, the double damages and attorney’s fees are demonstrative and punitive in nature, but they are statutory damages, rather than punitive damages which have to be proved by clear and convincing evidence along with evidence of defendant’s bad faith and his net worth.  So attorney’s fees and double damages can be awarded against the estate.”

So now the case goes back to the trial court for an actual trial (not just summary judgment, i.e. trial by motion) against a dead man’s estate over a dead woman’s estate.  Meanwhile, years have passed and attorneys on both sides have been paid lots of money.  Stepdad’s estate may have to come up with the stepkids’ share of Mom’s estate, plus double damages, plus attorney’s fees to repay the stepkids.  Someday. If they win. And if there is any money left.  It is unlikely that Mr. Staggers contemplated any of this when he took his wife’s assets for himself.  For all we know, his wife wanted him to have everything, but didn’t write up a will to make that clear.  On the other hand, maybe he deliberately ignored her wishes.  Either way, unless his son beats this lawsuit, Mr. Staggers’ estate will eventually be asked to pay the price.  The Feb 18, 2016 appellate decision in the case (Hill v. Superior Court) is here.

Moral of the story: 1) Mr. Staggers should have talked to an attorney before making asset distributions to himself; and 2) Mrs. Staggers should have used proper estate planning such as Wills, life estates, beneficiary designations, and beneficiary deeds to avoid this kind of fight and make sure her estate automatically went to the people she wanted it to go to.  A good attorney now can help save tens or hundreds of thousands of dollars later.  At least that’s the moral I got.