Massachusetts Lawyer Blog

... we take this opportunity to stress that we have no doubt that self-settled, irrevocable trusts may, if so structured, so insulate trust assets that those assets will be deemed unavailable to the settlor. ... Muriel's trust is a carefully crafted, entirely appropriate estate planning device. But neither the trust's validity nor her good intentions determine the present question. In our view, Muriel's trust, as structured, allows the trustees a degree of discretionary authority that would, if sanctioned, permit Muriel to enjoy her assets, preserve those assets for her heirs, and receive public assistance, to, in effect, "have [her] cake and eat it too." ... Congress has declared a contrary intent, that Medicaid benefits be made available only to those who genuinely lack sufficient resources to provide for themselves. We perceive no reason in this case to deviate from that mandate.

MURIEL DOHERTY vs. DIRECTOR OF THE OFFICE OF MEDICAID, Essex Docket No. 08-P-939.

This case shows the importance of the entire trust document as a whole and the importance of not simply relying on certain provisions or words to protect assets.

Technorati Tags: Medicaid. Trust, Irrevocable trust, Self-settled trust, Distribution, Trustee's discretion

Does your Massachusetts divorce agreement have a provision that addresses disagreements regarding the college selection process or does it tightly define what are reasonable education costs? Perhaps it should. With a number of colleges now above $50,000/year for each child, and the economy where it's at, disputes over education expenses are likely to be on the rise for some time.

What are "reasonable college expenses" and what happens when parents disagree during the college selection process? The answer depends on many factors, holds a MA Appeals Court in Paula A. Mandel vs. Shawn W. Mandel. The court introduced the Mandel case as follows:

In 1996, the parties, Paula Mandel and Shawn Mandel, obligated themselves...to each pay for one-half of their daughters' "college education expenses." The provision contained no further explanation regarding cost or choice of school, although another...provision provided both parents with the right to participate fully in their daughters' activities and with input into educational decisions. A decade later, their older daughter enrolled at a private university costing approximately $34,000 a year. The parties never reached an agreement on payment, and when Shawn refused to pay fifty percent of the cost, Paula initiated contempt proceedings against him. A Probate and Family Court judge eventually found that Paula and the child had selected a school "financially out of reach" for Shawn and ordered him to pay approximately one-quarter of the expenses of the private college. On appeal, Paula claims the judge erred by not requiring Shawn to pay one-half of the expenses actually incurred. Shawn argues that the judge properly limited his obligation to the expenses he would have paid had the child attended a State university.

In Mandel, the court ultimately held that further proceedings, regarding the reasonableness of the college expenses in these circumstances, are required. Some of the specific terms in the Mandel Agreement included,

Both parents shall participate fully in providing access to the child and her activities, and input into educational, medical, behavioral and other significant decisions affecting the child.
...

The Husband and Wife shall each contribute 50% toward each child's college education expenses, including, but not limited to, room, board, tuition, books, fees and other normal educational expenses.

Are reasonable education costs measured using public school costs as the standard, or are they the actual costs at a private school?  Or, is it something different altogether? In addressing these questions, the court reviewed "all relevant equitable factors" which courts have considered in examining the educational needs of the child and the financial circumstances of the parents, including:

• Financial resources of both parents;
• Standard of living the child would have enjoyed if the marriage had not been dissolved;
• Financial resources of the child;
• Cost of the school;
• Programs offered at the school;
• Child's scholastic aptitude;
• How the school meets the child's goals;
• Benefits the child will receive from attending the school;
• Parents' standard of living," which in some cases "includes the ability to provide certain opportunities...such as private school education"; and
• Massachusetts Child Support Guidelines, encouraging "joint parental responsibility for child support in proportion to, or as a percentage of, income."

An additional factor mentioned by the court in its opinion considers the college decision making process,

the extent to which [a party] unjustifiably may have been excluded from the [college] decision-making process.

But it appears timing, or taking some action during the process, is also an important factor,

Conversely, a party who has sat on his or her right to intervene, or to seek approval from the court when the parties disagree, until the college selection process has been completed, may have waived his or her right to object to the college and its concomitant cost.

So at the end of the day, the answer is, "it depends" and thus will require further litigation to answer the question as to what is reasonable under the circumstances. Knowing this analysis could be waiting for you in a divorce, do you prefer to take steps now to lock down these issues in a divorce agreement or leave them open for later interpretation. If later, are there any special considerations you want included in your agreement?

Divorce and education disputes are likely to be on the rise, as the court noted in a footnote,

Disagreement itself is not surprising. "With the explosive growth in the cost of financing a college education, the issue of who will pay those costs after the divorce of the parents is becoming increasingly acute." 2 Kindregan & Inker, Family Law and Practice § 39:50, at 830 (3d ed. 2002). Overall, college tuition and fees have increased 439 percent from 1982 to 2007, adjusted for inflation. National Center for Public Policy and Higher Education, Measuring Up 2008: The National Report Card on Higher Education 8 (2008). The difference between college costs at different types of universities is also significant. According to the National Association of State Universities and Land-Grant Colleges(NASULGC), tuition and fees averaged about $3,200 for community colleges and $33,000 for private research universities in 2006-2007. NASULGC, University Tuition, Consumer Choice and College Affordability: Strategies for Addressing a Higher Education Affordability Challenge 14, 85 (2008).

Technorati Tags: Divorce, Separation, Separation agreement, Child support, Modification, Child support, Education, Reasonable college expenses, Massachusetts, divorce agreement

My new Privacy Law and Policy blog is underway. This blog examines privacy law issues that include:

• Privacy Rights
• Privacy Invasions
• Security Breaches and Crimes
• Open Government

I help individuals in civil and criminal matters and represents municipalities and businesses in privacy compliance matters, security breaches, commercial privacy infringements, cybercrimes, and crimes involving privacy issues.

You can also follow Kevin Whitaker on Twitter at http://twitter.com/kevinwhitaker

Massachusetts attorney Kevin Whitaker's new Privacy Law and Policy Blog is live.

Technorati Tags: Privac, Privacy Law, Privacy Lawyer, Privacy Attorney

In Kennedy, an estate tried to recover $402,000 that was paid to an ex-spouse.  In the divorce, the wife gave up her rights to the husband's pension or other work-related benefits. However, the husband failed to remove his ex-wife as the beneficiary of his investment plan assets. Following his death, the funds went to the ex-spouse. Prior to this Supreme Court decision, various courts had reached different conclusions about this type of issue (This post follows my prior post, Rolling Over in His Grave--Another Lesson in Costly Beneficiary Form Mistakes.)

The Court, in Kennedy, found plan benefits can be waived under a divorce decree, however, "...the plan administrator did its statutory ERISA duty by paying the benefits to [the ex-spouse] in conformity with the plan documents.”

So the ex-spouse keeps the money, or does she? A footnote indicates the estate might still be able to pursue an action against the ex-spouse to recover the funds. An analysis at the Scotus Wiki states,

The Court, in a footnote, left open the question of whether the estate could have sued to recover the benefits from Liv after she received them. The footnote mentioned prior rulings that seemed to say that a prior contractual agreement to forfeit funds may be enforceable after the distribution without violating ERISA; once the money is paid out, it loses its ERISA protection, those rulings had indicated.

Beneficiary designation forms may appear simple, but think twice about how your estate plan or divorce relates to them.

Technorati Tags: estate, divorce, beneficiary form, ERISA

Probate lawyers in Brockton, Plymouth, Quincy, Weymouth or, for that matter, anywhere in Massachusetts help executors, estate administrators, and others with the mechanics of selling probate real estate or with probate in its entirety. Some general probate areas might include:

• Having a will approved;
• Probating a will;
  
• Obtaining a court appointment as an executor or administrator;
• Managing assets;
• Determining an estate's liabilities;
  
• Filing an inventory of property with the probate court;
  
• Dealing with state and federal estate tax issues;
• Obtaining a license to sell real estate;
• Negotiating and paying debts of the decedent;
  
• Making distributions to heirs and others;
  
• Providing accounts to the court; and
  
• Other matters before closing out the probate matter.
  

While individual cases may be simple or complex (depending on the law and circumstances), I've observed complications aren't usually about the law or legal procedures, but often involve people, their relationships, and their different perceptions and perspectives. I've seen this occur in many probate areas, but ofen in probate real estate matters.

Probate real estate sales can be procedurally nuanced but easily managed with proper guidance from an attorney.  A probate lawyer with an understanding of both Massachusetts real estate law and MA probate courts' customs and procedures can get most people through the maze of issues, forms, and procedures succesfully.  Getting people to agree on a fair selling price, however, can often be more difficult at times. This obstacle is primarily perception driven and often includes not only buyers and sellers with different price assessments, but can also include several related sellers each with differing opinions on what the asking or ultimate selling price should be.  While proper advanced estate planning can help avoid some conflicts, there are other practical steps to consider when estate planning isn't in place.  During a series of posts that follow I'll be discussing these in more detail.

Did you know there are lawyers in Massachusetts who are qualified for offering services in certain Probate and Family Courts on a limited basis?  This allows you to hire a lawyer to help you with some things but not others.  For instance, a lawyer could help you draft a complaint for divorce, a probate petition, a license to sell real estate, or coach you on evidence matters.  Some could even be hired for a day or part of day to attend a motion, deposition, conference, mediation, hearing, or trial. 

The goal of this program is to find ways for people to gain access to qualified attorneys on an as needed basis.  The philosophy is, some representation is better than no representation.  You can read more about this program at the Massachusetts Bar Association site or visit here for various orders from the SJC extending the program in certain counties through 2008.

Auto accident laws (in Massachusetts or anywhere for that matter) should exist to protect consumers involved in auto accident claims and settlements, but the victims of car accident injuries will likely tell you the process can be confusing and daunting.  For many, it appears, the laws protect the insurers more than the injured.

Massachusetts personal injury attorneys help balance the equation against the powerful insurance companies as well as keep in check the unfair or deceptive practices that can be employed.  Without a MA lawyer to help assess a Mass. personal injury case (property damage, lost wages, car accident injuries, insurance, medical bills, out of pocket costs, prescriptions, …), how does the average consumer know if a settlement of their car accident claim is in their best interests?  The insurance company/industry wants you to believe they can help you with this and you don't need a lawyer.

This post is the first of five that addresses some of the themes to be on the lookout for when settling your car accident case or questioning whether you need a lawyer at the start of your Massachusetts personal injury case.  In the posts to follow, I'll touch on a few general themes such as: lowball offers, "friendly" adjusters (who aren't your friend), delay tactics, blaming the victim, and fear of trials.  While having an attorney won't necessarily prevent these tactics from arising, your lawyer can deal with these head on and refocus the discussion back on obtaining the highest value for your case.  In sum, the theory behind these posts is: "forewarned is forearmed."

A license to sell real estate in Massachusetts probate cases is obtained by bringing a completed petition to the county Probate and Family Court where the probate case is pending (i.e., Norfolk, Plymouth, Suffolk, Barnstable, Bristol, ....).  A local MA probate or estates lawyer can help an executor or administrator accomplish this in a Massachusetts probate estate case.

While a license to sell real estate is not always required to sell real estate following the death of a property owner, it is often required by the buyer or the buyer's lender in order to write a mortgage for the property.  Under a license to sell approach, the sale is free of debts and costs and provides added security for the buyer or potential lender (as well as certainty about the seller's legal power or authority to sell the property).

There are many times, however, when a license to sell real estate is not required to transfer real estate in probate matters (i.e., power contained in will, join tenancy...).  Each case depends on evaluating the circumstances, timing, and parties involved to determine the best course of action to suit all the interested parties' needs in a timely and cost effective manner.  In cooperative probate real estate transfer cases, the process can be relatively straightforward with only a few twists and turns.  In hostile probate sale cases, however, the process can be difficult, lengthy, and full of obstacles.

It's not uncommon for death and probate cases in Mass to involve people who are suffering a loss and experiencing grief. As their lawyer in a wrongful death case or in a Massachusetts probate estate matter, I'm often directly discussing what caused the death of their loved one or the final wishes of a spouse, parent, child, or friend. Some of our discussions can be difficult and quite emotional

It seems whenever someone begins to cry or need a moment, they almost instinctively need to apologize afterward and then offer a reason for why they shouldn't be getting emotional. I've heard person after person explain how they "should" be experiencing their grief. I've never quite understood this -- many times their loss moves me too.

While I'm no psychologist, I've never found there to be any set rules here. While it's somewhat slanted in its origin (and in a couple of places maybe), I came across this article discussing the Ten Common Myths and Realities About Grief. I'm listing an excerpt of some of the myths below to give you the general idea.

• "It has been a year since your spouse died. Don't you think you should be dating by now?"
• "You look so well!"
• "The best thing we can do (for the griever) is to avoid discussing the loss."
• "It has been six (or nine or 12) months now.
• "Don't you think you should be over it?"
• "You need to be more active and get out more!"
• "You are young, and you can get married again."
• "Your loved one is no longer in pain now. Be thankful for that."
• "She cries a lot. I'm concerned she is going to have a nervous breakdown."
• "Grief support groups are too depressing and not helpful."

Again, I'm no psychologist, but I'm guessing the list (on myths about grieving) could be expanded quite a bit and, like me, many lawyers in Mass and elsewhere have seen it firsthand.

Some bereavement support resources (these may change but a search for "bereavement support group" and then your area may offer some local results) are below. Also check with your local hospice, hospital, funeral home, city/town hall, or attorney for local options if you are interested.

Some links from today...

• Massachusetts Center for Sudden Infant Death Syndrome

• MGH Bereavement Support Group

• The Good Grief Program

• The Good Grief Program Family Resources Page

• Hospice of the South Shore Bereavement Care: 781-794-7803

• Quincy Hospital Bereavement Support Group: 617-376-5502

• Grief and Loss Resources from website of Help Starts Here also see their article on Grief and Loss - Your Options: Bereavement Support Groups -- An Effective Tool for Healing.

Blogs, social networks, and the web extend well beyond Massachusetts borders thus it's often instructive to look around the country and consider how laws are developing elsewhere as they relate to blogging and cyberspace in general. Trial lawyers of both today and of the future will need to be well versed in the law and understand this evolving interactive arena that changes day-by-day. Blogger and California law professor Eric Goldman recently mentions a case involving blog postings being introduced as evidence in a trademark infringement lawsuit. He quotes the court's holding which excluded the blog's comments from evidence.

The Court declines to consider these postings in reaching its decision. The Court is concerned, on this record, that the blog entries lack sufficient indicia of reliability.FN4

Nothing is known about the persons who made the entries, about whether they are related in any way to either party or whether they are describing true events and impressions. Moreover, the authors' meaning and the import of the blog entries are far from clear.

FN4. This should not be construed as a ruling by the Court that entries on Internet blogs could not, on a different record, be reliable and admissible.

(The case was as consumer confusion case on whether "Mooo Tracks" ice cream infringes upon "Moose Track" ice cream. Blue Bell Creameries, L.P. v. Denali Co., LLC, 2008 WL 2965655 (S.D. Tex. July 31, 2008)).

You can look at this from two perspectives, the blog comments were kept out. On the other hand, there were some criteria listed for their exclusion. If these were met, would the comments be allowed into evidence here? It would seem so, why shouldn't they be? Look to the next round of cases to have greater foundations laid down concerning the inclusion of blog comments as evidence.

Like many attorneys I talk with, I'm already seeing more of my clients who are relying on blogs or websites for much of their news. The constantly dwindling size of my newspaper backs this up too. Some do believe, "If I read it, then it's true," but as we know, that's often not the case.

Reliability, validity, authenticity are continuing concerns of justice and in the short term, it seems the web won't make things easier in these areas. Here the law still has much to work out regarding how it's going to keep pace with the web, social media, web 2.0 or whatever name or thing is next. Smart trial lawyers will need to keep pace with these evidentiary possibilities as more and more communications and events are recorded somewhere someplace electronically. Appellate courts and lawyers should see interesting and intellectually stimulaing times ahead in this area of law. While some of the tools of proof may be new, the principles remain the same -- it may just take a little time to connect the two.

I just returned from a real estate closing involving a probate estate in Weymouth, Mass. It was a nice transaction where the buyers sold a property in South Weymouth (in the morning) and then turned around and bought a property from my sellers in North Weymouth. We had to scramble to pull it all together and obtain a temporary executor appointment and a license to sell real estate from the probate court, but that's another story -- it all worked out perfectly. During the closing, one of the sellers asked, "How long should I keep all these documents." Generally, the more important something is, the longer you should keep it. With today's technology I suggest keeping electronic copies of documents even beyond the times recommended. Depending on the documents, typical retention peiods range from 7-10 years for some items to 1-3 years for others. Nonetheless, from experience there are several probate and real estate documents I don't think you should destroy unless you are sure you won't need them:

• Discharge of mortgage (unless you are absolutely sure it's been recorded)
• HUD Settlement Statement
• Death Certificate
• Probate Appointments
• EIN Numbers or Taxpayer ID Documents (i.e. SS-4)
• Release of Liens

Here are some other answers from a quick search on the web:

• IRS website discussing how long to keep records.
• Chart from Bankrate.com

Remember, if you do make electronic copies, make sure you have a reliable backup system in place.

An interesting article on law.com recently discussed the issue of lawyers asking jurors about their medication use. With so much of the population on medication, is drug use something that should be questioned of potential jurors? If so, how far should questioning go? Do we ask a general question? Whether the use of medication will interfere with a juror's duties, or do we delve deeper into more specific questions about the person, their conditions, and their treatments? The article, by Julie Kay, offers pros and cons while raising issues likely to continue making headlines(juror falling asleep in murder trial, someone goes off their medications during trial...).

As an attorney-advocate there may be times when seeking this information makes sense for my client. As the lawyer for my client I have the duty the pursue what's in my clients best interests. Personally, however, I think when we start asking jurors to divulge what medication they're taking, we're crossing a finer line. We have to wonder if the jurors' themselves aren't thinking, "Who is actually on trial, here?" Of course there are going to be exceptions to every rule, but speaking from a policy perspective, I'd rather have privacy rights' invasions remain the limited exceptions and not become the standard rule.

"Mediation’s Seven Deadly Sins - Avoiding the Seven Sure-Fire Ways to Torpedo Your Mediation, Upset Your Client and Enrich the Other Side" was the name of a discussion sponsored by the Section of Dispute Resolution held during the 2008 Annual American Bar Association Meeting in New York.

While mediation provides an opportunity to examine settlement, it also provides an opportunity to examine the other side, their case, and how a party may respond in court. One of the panelists, Joel Davidson, said

He sees the mediation process as a chance to get his point across in a specific way. He said he likes to show the person on the other side that I know the issue well.

... mediation provides the opportunity to examine how clients handle themselves. If a client does not come across rationally during mediation, I know that in advance of a trial...

Mediation, however, can also provide a receptive forum for an apology. Often parties want to apologize but are told not to apologize by their attorneys. The attorneys often fear an apology could be used as an admission of liability against them in court and/or reduce their bargaining position in settlement discussions. Handled properly, however, a sincere apology during mediation can sometimes go a long way towards resolving a a brooding conflict. Davidson notes mediation may,

... provide an opportunity for clients to either apologize for a wrong or acknowledge a misunderstanding. This simple communication may be enough to move a case toward settlement.

More and more, I'm finding people want to resolve their Massachusetts divorce, personal injury, or business case in mediation. There are a number of factors that contribute to this (control over the outcome, avoid formality of court, ease of scheduling, ...), but I'm sensing the Mass. economy is playing a role in this increase too.

People seem inclined to seek resolving their MA disputes fairly and quickly while avoiding the high costs and endless delays contentious litigation can sometimes bring. While not all cases can be resolved in mediation, many can. There's really nothing to lose in mediation. In the end, the parties have to agree on the ultimate solution in mediation (they can have an attorney review their agreement first or participate in the mediation with them).

I've been thinking about this more and more as I've begun to formalize our mediation practice offerings at Wilson & Whitaker, LLC. I've created a temporary website focusing solely on mediation as our Weymouth law firm continues to expand our mediation services. Let me know your thoughts and what questions you may have about mediation practices or disputes Massachusetts lawyers deal with.

When a Massachusetts will is contested by lawyers in court for "undue influence", who has to prove what?

A recent Massachusetts Appeals Court case Germain v. Girard deals with a will, a trust, and issues such as: presumptions and burdens of proof (as well as offers of proof.) At the core of the case is a claim of undue influence and the status, if any, of a fiduciary. The case is interesting on its facts but also in the implications one can read from the decision.

 Factual Summary

 George had a will leaving everything to Theresa (Wife).  George gets sick but has a potential big lawsuit due to his condition.  Theresa has a daughter, Paula (Daughter), who is married to Alan.  Alan helps an aging George and Theresa over the years with various financial matters.  Alan become a trusted adviser to George. Alan contacts lawyers for George (about the potential lawsuit). George decides to change his estate documents based on the potential claim. Alan has lawyers draw up a new will and trust for an ill George.  An attorney (who had never spoken to George, only Alan) visits George in the hospital and the new estate planing documents are signed.  Under a new trust, instead of Wife getting everything (as she did under the old will), the anticipated significant settlement proceeds will be placed in a trust. Under the trust, Wife will have no control over the trust or the trust's funds.  Instead, Wife will be entitled to funds during her lifetime, however, these amounts are discretionary and decided solely by Daughter (in Daughter's role as the Trustee.)  Daughter, in addition to being a trustee, is also an interested remainder beneficiary.  That is, after Wife passes away, Daughter stands to receive a significant amount of money so long as it remains unspent during Wife's lifetime. While there are other facts involved, these give us a background for our general discussion on will contests and undue influence claims in Massachusetts

 
Review of Law as Examined by the Appeals Court:

In a will contest involving allegations of undue influence, the burden of proof ordinarily rests with the party contesting the will. … However, in cases involving a fiduciary, the fiduciary who benefits in a transaction with the person for whom he is a fiduciary bears the burden of establishing that the transaction did not violate his obligations. … [quotes removed]

Burden of Proof

Burdens of proof are topics people don’t think of much in civil cases but we always seem to think of them in criminal cases. We all know the mantra that the prosecution has the burden of proving the defendant’s guilt beyond reasonable doubt.  This means the prosecution has the affirmative burden of proving the defendant’s guilt. 
The defendant does not need to prove his or her innocence.  The question is not if the defendant is innocent, the fundamental question is, “Did the prosecution prove guilt?”  Here the court is saying when someone claims undue influence in a will contest, then the person making the claim usually has the duty to prove the charge of undue influence.  However, this does not apply when a fiduciary is involved and the fiduciary also benefits from the transaction.  In these cases, the fiduciary is assigned the burden of proof and the fiduciary must prove the transaction did not violate the fiduciary’s obligations.

Ultimately, Germain v. Gerad largely comes down to who has the burden of proving what.  The trial judge found the Wife had the duty, but the Appeals Court disagreed.  Instead the Appeal Court discussed the uncertain nature of “fiduciary” relationships and then concluded that the burden of proof falls upon Daughter to prove Alan did not exert undue influence over George.  In reviewing this area of law, the court states:

 "Although some fiduciary relationships, such as that between guardian and ward, are created by law, others arise from the nature of the parties' interactions.  The 'circumstances which may create a fiduciary relationship are so varied that it would be unwise to attempt the formulation of any comprehensive definition that could be uniformly applied in every case.'" … "Where the fiduciary relationship is not one created by law, the existence of the relationship ordinarily is a mixed question of law and fact for which the party asserting the relationship bears the burden.” …

The court found the,

 … [trial] judge's subsidiary findings leave no doubt that Alan stood in a fiduciary capacity toward George in the preparation of George's 2004 will and related documents.  The judge found that George placed his trust and confidence in Alan, based upon a close relationship over ten years.  George trusted Alan to manage his household affairs and expenses while George and Theresa were in Florida for significant portions of the year.  Of even greater significance with reference to the present case, George entrusted to Alan all responsibility for overseeing the preparation of his 2004 will and related documents, and George's deteriorating health left him wholly dependent on Alan's assistance toward that end.

There is likewise no doubt that Alan stood to benefit from the transaction in which he was involved.  Though Alan was not named a beneficiary under the will or the trust, his wife, Paula, was.  Under the principles enunciated in Cleary … his status as a fiduciary subjects his actions to heightened scrutiny.  Though Alan was not a party to the petition (by reason of the fact that he was not a beneficiary under the will), in circumstances where a fiduciary stands to receive a benefit indirectly we see no reason why the burden shifting prescribed by Cleary … should not be applied to the direct beneficiary (here Paula) from whom the fiduciary's (here Alan's) indirect benefit derives.  Accordingly, under Cleary, the judge should have placed on Paula the burden of establishing that Alan did not exert undue influence on George in connection with the 2004 will and trust.

 The court discussed 4 considerations that are usually present in a case of undue influence:

1. unnatural disposition has been made,
2. by a person susceptible to undue influence to the advantage of someone,
3. with an opportunity to exercise undue influence, and
4. who in fact has used that opportunity to procure the contested disposition through improper means.'" 

The court found:

George's rapidly deteriorating health, combined with the absence of any direct communication between him and the attorneys preparing his will, left him vulnerable to Alan's influence, and Alan's role in initiating contact with his own attorneys, and thereafter conducting all communications with them, clearly gave him the opportunity to exert such influence.

Because the trial judge placed the burden of proof on the wrong party, and because there was evidence to support a contrary conclusion, his conclusion that there was no undue influence cannot stand. 

 Other Matters and Practice Considerations:

Trustees as Later Beneficiaries

The court stated,

…Paula's dual roles as trustee and remainderman create an obvious conflict of interest which, though not improper per se, created an incentive for her to preserve rather than distribute the trust corpus.

What does this mean for estate plans? Often an adult child or children are named trustee(s) of the parent's trust during the parents' lifetime. Following the parents' deaths, the children become beneficiaries. How is this "obvious conflict of interest" to be handled under best practices?  Anyone considering becoming a trustee and a beneficiary may want to explore these issues in greater detail. 

Offers of Proof and Failures to Make Them Can Cost You Your Case

The Appeals Court discussed an evidentiary issue that all trial lawyers and pro se litigants (self-represented) need to take note of.  In this case, the Wife claimed the judge made an error by, “refusing to allow Dr. Howard Sachs [her expert witness] to offer his opinion regarding George's testamentary capacity to execute the 2004 will and related documents..." She did not, however, make an offer of proof at trial to indicate what this expert's testimony would have been.  The court held:

Absent an offer of proof, she cannot demonstrate that she suffered any prejudice as a result of the challenged evidentiary ruling.  … Her contention that the judge erred in finding that George possessed testamentary capacity fails as well; to the extent the contention rests on her assertion that Dr. Sachs's excluded testimony would have dictated a contrary conclusion, it rests on speculation (in the absence of an offer of proof) concerning what his testimony would have been.

What does this mean? The court is saying, if Wife wanted to rely on the Doctor’s expert testimony to prove something then she should have made an “offer of proof” (when the Doctor’s testimony was not allowed at trial.)  What’s this “offer of proof?”  It's basically the testimony or evidence that's being excluded or what would have been shown if it had been allowed.  As you can guess, failure to address this issue, that is, to make a timely offer of proof, can cost you a case.  Thus, since Wife’s argument rested on Doctor’s testimony, the argument fails because the testimony was not allowed.  In this case, you can’t appeal the suppression of an opinion when it wasn't declared what the opinion would prove.  There's an important lesson to be learned by all – make sure you make an offer of proof when the judge rules against you, because failure to do so may leave you with nothing to stand on down the road.

What Happens Next - Remand and The Role of the Different Courts?

So you ask, how does the story end? I don't know, at least, not yet. Following an appeal a case may be remanded. This means the case is sent back to trial court for additional actions based on the appellate court's opinion. This is an example of how in our judicial system appellate courts generally rule on questions of law, while facts are decided by judges or juries at the trial court. The situation can be tricky, however, when the line between the two is blurred or not well defined. Recall the court's word's from above:

 Although some fiduciary relationships, such as that between guardian and ward, are created by law, others arise from the nature of the parties' interactions.  The 'circumstances which may create a fiduciary relationship are so varied that it would be unwise to attempt the formulation of any comprehensive definition that could be uniformly applied in every case.' … Where the fiduciary relationship is not one created by law, the existence of the relationship ordinarily is a mixed question of law and fact... …

From the SJC, a Diagram (see below) showing the Massachusetts Court System. Also, a resource titled, Representing Yourself in a Civil Case: Things to Consider When Going to Court.

The new MA rule will read:

Rule 1.14 Client With Diminished Capacity

(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b) When the lawyer reasonably believes that the client has diminished capacity that prevents the client from making an adequately considered decision regarding a specific issue that is part of the representation, is at risk of substantial physical, financial or other harm unless action is taken, and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action in connection with the representation, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.

Many families in Massachusetts have questions about probate law and what to do with a will after someone has passed away. While not a list of required steps, Angela Barker provides a helpful guide in Ten Things to Do to Prepare a Will for Probate. In MA, I'll add:

1. Prepare a list of assets owned by the deceased;
2. Determine if the estate is valued above or below $15,000; and
3. Arrange for a meeting with a local probate attorney.

While the last on the list may sound a little self-serving, a local probate lawyer is accessible and generally knows the unwritten rules that are followed in each local county. If you have the above information with you and the estate is valued less than $15,000, then many law firms, including our Weymouth law office, can usually complete the entire probate process in one meeting for a reasonable fee. The same is true in intestate cases (where a person died without leaving a will). These quicker and less costly probate proceedings are known as Voluntary Executor (or Executrix) and Voluntary Administrator (Administratrix) -- the different versions have traditionally been used to denote the gender of the person petitioning for the probate process to commence, although present usage of the masculine form (ending in "or") is often used to denote male or female appointments..

When asked, "What are my chances at winning at trial?", most lawyers in Massachusetts or elsewhere would reply, "It depends." A recent article in the New York Times is offering some percentages and cost estimates that will likely raise a few eyebrows.

The article entitled, Study Finds Settling Is Better Than Going to Trial, discusses a study finding settlement is statistically generally the best option. The article indicates plaintiffs were wrong to go to trial in 61% of the cases and defendants were wrong to proceed to trial in 24% of cases. Both were wrong because they could have settled the case for an amount better than what was achieved at trial.

The article reports:

...in just 15 percent of cases, both sides were right to go to trial — meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered.

It's worth noting, however, that the estimated cost for making the wrong choice was a lot greater for defendants ($1.1 million) than it was for plaintiffs ($43,000).

While numbers are one factor to consider in proceeding to trial, the issues of civil justice, correcting a wrong, or having your day in court are worth something of societal value too. These are issues that can't be measured in dollars or percentages, but at the same time lawyers need to advise their client's to pursue their best interests. In the end, the right question may not only be: "What are my chances of winning at trial?" but also ,"Why do I want to go to trial?" The decision is always the clients and it's a decision that should be based on what is right for them, even when it's against all odds.

Often it's tempting to take an legal document found on the internet (sometimes prepared by a lawyer), make a few changes, and recycle the attorney's language to create any number of legal documents. Massachusetts consumers and businesses are smart and think, "Why pay a lawyer in Massachusetts when it's available for free online?" In some cases perhaps they could be right, in others they could be disastrously wrong. The key is to know the difference and that's where consumers and businesses can often fail. Is it worth the risk? Can what you don't know hurt you? Some examples to consider before answering:

LANGUAGE ISSUES

Real Estate Law - A party signs a "Standard Form" Offer or "Standard" Purchase and Sale Agreement, but later learns there were some key changes made to a few important words in the "standard" agreement. Just because it says "standard" don't think it is.

Employment or Discrimination Law - A company fires an employee and offers a severance package. The employee signs the severance agreement and cashes the severance check. Later the employee sues for age discrimination on the basis that the Older Workers' Benefit Protection Act ("OWBPA") was not explicitly followed. Why? Because the severance agreement made reference to 154 employees being affected by the terminations when, in fact, only 152 employees were. A federal court case covered in a Labor & Employment Law Update, Peterson v. Seagate, No. 07-2502, 2008 U.S. Dist. LEXIS 42179 (D. Minn. May 28, 2008), dealt with these facts. Here the employee's release was void, the employee kept the severance money, and the employee could also sue the employer under the Age Discrimination in Employment Act ("ADEA").

Divorce Law - An unsuspecting spouse signs the divorce agreement with all kinds of technical language concerning taxes and other issues which the other spouse has had reviewed by his or her lawyer, but tells you he or she just got it off the internet.

PROCESS ISSUES

In other cases, it's not just the language but also the process that must be followed to insure your wishes are followed.

Will - A parent has two adult children: one is a loving caregiver and the other hasn't been heard from in years. The parent decides to make a will leaving everything to the caregiver. The caregiver signs the will as a witness. Did you know the caregiver could now receive nothing and the other child everything?

Business Law or Trusts - A couple forms an LLC or Trust but fails to follow the steps needed to treat the LLC or Trust as a separate legal entity. The LLC or trust may end up providing no protection and leading to liability which hadn't been properly planned for.

Real Estate Deed - A simple deed is taken from the internet or copied from the public records at the local Registry of Deeds. Names are substituted and the deal goes forward. Later the buyer learns a probate estate matter was involved and the government has a lien against the property. This would have been found if a customary title exam was conducted. Guess who may now be on the hook for the lien amount?

RULES VS. PRINCIPLES

Last night, after a quick run from Weymouth to Hingham and back, I was reading a Law Practice article discussing the difference between our legal system and the U.K.'s approach to electronic evidence and discovery issues ("e-discovery") ("electronic data discovery" or "electronic data disclosure" known as "EDD"). The article contained a comment that I found interesting:

All the interviewees agreed that in the U.K. EDD is principles based, whereas in the United States it's rule based. Everyone believed that this is the biggest difference-and that the principles-based system is better.

While this is a good theoretical point to consider in reviewing this new area of law, it's not a debate you want to find yourself dealing with in a case that involves your interests. As you can see from above, our rules-based laws can lead to results that may not always agree with your principles or your intent. Think twice the next time you cut and paste.  Often when a legal document is involved, there's something of real value at stake.  Most times when a client asks me to look at "something" they found on the internet, it has serious flaws when applied to their specific circumstances.  Luckily, we can fix this before it's too late.  Those who come in after the fact and seeking help -- they don't tend to make the same costly mistake twice.

A new area of medical malpractice law has arrived in MA and it concerns what is known as the "Loss of Chance Doctrine." The Boston Globe's, Denise Lavoie, writes:

The state's highest court ruled yesterday that doctors can be held liable for negligence that reduces a patient's chance of survival, even if the patient's prospect for recovery was already less than 50 percent.

The Massachusetts Supreme Judicial Court (SJC), in a decision written by Chief Justice Margaret Marshall, held:

Where a physician's negligence reduces or eliminates the patient's prospects for achieving a more favorable medical outcome, the physician has harmed the patient and is liable for damages...

The Court's opinion provides a 5 step method for awarding damages:

Deriving the damages for which the physician is liable will require the fact finder to undertake the following calculations:

• 1. The fact finder must first calculate the total amount of damages allowable for the death under the wrongful death statute, G. L. c. 229, § 2, or, in the case of medical malpractice not resulting in death, the full amount of damages allowable for the injury. This is the amount to which the decedent would be entitled if the case were not a loss of chance case: the full amount of compensation for the decedent's death or injury.

• 2. The fact finder must next calculate the patient's chance of survival or cure immediately preceding ("but for") the medical malpractice.

• 3. The fact finder must then calculate the chance of survival or cure that the patient had as a result of the medical malpractice.

• 4. The fact finder must then subtract the amount derived in step 3 from the amount derived in step 2.

• 5. The fact finder must then multiply the amount determined in step 1 by the percentage calculated in step 4 to derive the proportional damages award for loss of chance.

EXAMPLE:

• Step 1. Suppose in a wrongful death case that a jury found, based on expert testimony and the facts of the case, that full wrongful death damages would be $600,000;

• Step 2. The patient had a 45% chance of survival prior to the medical malpractice;

• Step 3. The physician's tortious acts reduced the chances of survival to 15%'

• Step 4. The patient's chances of survival were reduced 30% (i.e., 45% minus 15%) due to the physician's malpractice; and

• Step 5. The patient's loss of chance damages would be $600,000 multiplied by 30%, for a total of $180,000.

See the full case, Robin K. Matsuyama, Executrix of the Estate of Kimiyoshi Matsuyama vs. Neil S. Birnbaum & Dedham Medical Associates, Inc.

Massachusetts laws prohibiting discrimination against people with disabilities in Massachusetts disability cases, arising under Federal and MA Discrimination laws, may have different meanings in different contexts.

If you are being discriminated against due to a disability or perceived disability there may be a number of legal claims for you to consider to aid in protecting your rights.The enforcement of disability discrimination laws can involve different courts or commissions and may require various types of expert evidence and testimony.

The MA Disability Law Center offers a chart on Massachusetts laws prohibiting discrimination against people with disabilities and provides some examples of legal resources which may be available as a starting place.

Attorney John Parry has authored the book, Disability Discrimination Law, Evidence and Testimony. A Comprehensive Reference Manual for Lawyers, Judges and Disability Professionals, which covers a host of topics your lawyer or disability advocate may consider in handling your disability discrimination case.

Additionally, The Massachusetts Office on Disability (MOD) has prepared an online pamphlet to:

increase awareness of the rights of persons with disabilities, both by persons with disabilities themselves and by the larger community. Other goals of the Office include: the elimination of discrimination against persons with disabilities; the creation of a barrier free environment; the improvement of the state’s services delivery system for persons with disabilities, and the creation of fully integrated and accessible education, housing, transportation and employment in the public and private sectors.

Topics listed include:

• INTRODUCTION
• ABUSE / NEGLECT / TREATMENT CONDITIONS
• ARCHITECTURAL ACCESS
• AUTOMOBILES & TRANSPORTATION
• DISABILITY COMMISSIONS
• EDUCATION
• EMPLOYMENT
• EQUAL RIGHTS
• HATE CRIMES
• HOUSING
• PUBLIC PLACES & PROGRAMS
• SERVICE ANIMALS
• TELECOMMUNICATION AND TECHNOLOGY
• VOTING
• WHEELCHAIRS
• ZONING

Attorney Kevin Whitaker serves as a town councilor and as an appointed member of the Town of Weymouth, MA Commission on Disabilities.

Do you know what's being said about you on the internet? Whether you're a Massachusetts small business owner, an individual, or a parent, are you monitoring the conversations about you, your business, or your family taking place on the internet?

Check out What Should Every Company Be Monitoring? for a list of ideas.

You can't respond to what you don't know about. I use alerts and RSS feeds to help stay on top of issues and conversations involving our Weymouth, MA law firm and our Massachusetts clients. With more and more reputation attacks and defamation cases arising on the internet (as well as speculative and plainly erroneous information), this is likely to be growth area in law and business.

This morning my daughter suggested we take the net (from that game where you hit the thing that looks like an empty ice cream cone) and use it to play volleyball.  I knew immediately she was talking about the net from the old badminton set because the "empty ice cream cone" was certainly the birdie we hit back and forth about a month ago.  In communication and in law context is everything -- both combined can lead to real value.

You shouldn't need to talk in legal mumbo jumbo to get your point across or to achieve the result you desire.  Find a lawyer who knows the law but also gets where you are coming from.  Seek out an attorney who will invest in building a relationship with you.  This is the foundation for providing value -- a real value that seeks to first understand and then meet your needs.  Anything else is just an empty ice cream cone...

While not a Massachusetts finding, the New York Times in an article entitled Legal Drugs Kill Far More Than Illegal, Florida Says, states:

An analysis of autopsies in 2007 released this week by the Florida Medical Examiners Commission found that the rate of deaths caused by prescription drugs was three times the rate of deaths caused by all illicit drugs combined.
...
The Florida report analyzed 168,900 deaths statewide. Cocaine, heroin and all methamphetamines caused 989 deaths, it found, while legal opioids — strong painkillers in brand-name drugs like Vicodin and OxyContin — caused 2,328.

The article also states,

The report’s findings track with similar studies by the federal Drug Enforcement Administration, which has found that roughly seven million Americans are abusing prescription drugs. If accurate, that would be an increase of 80 percent in six years and more than the total abusing cocaine, heroin, hallucinogens, Ecstasy and inhalants.

Martha Neil at the ABA Journal blog reports:

The pet dog of deceased Leona Helmsley is losing $10 million of the $12 million that the 87-year-old hotel heiress left him in her will when she died last year, disinheriting two grandchildren.

But the elimination of most of Trouble's trust fund isn't expected to put a dent in the 9-year-old Maltese pooch's luxe Florida lifestyle, which costs about $190,000 annually, reports the New York Post.

At least the dog can still maintain a humble lifestyle at $190,000 a year.

Imagine getting divorced, thinking the law states after divorce your ex is no longer your life insurance beneficiary. You don’t name a new beneficiary thinking the payout will go to your estate.

Maybe not...

Marla Presley in her firm’s website discusses a case in Penn, decided May 9, 2008 where the Penn. Superior Court ruled that the Employee Retirement Income Security Act (“ERISA”) preempts a state law that mandated the revocation of beneficiary designation upon divorce. The gentleman had filled out the beneficiary form listing his wife as the primary and his nephew as the contingent beneficiary. After his divorce he never changed the form. The ex got it all. Probably not the result that was intended.

Beneficiary designation forms are an often overlooked area of estate planning that can have dire consequences if not taken care of. I represented one person in a case where the beneficiary form was executed, put in an envelope, but never mailed. It became an expensive stamp.

Massachusetts train crashes are recoverable against the MBTA and its operators. I previously discussed this in my post on commuter train crashes and compensation for personal injuries or fatalities, "Personal Injuries and Commuter Train Crashes in Massachusetts: Seeking Compensation for Injuries Involving the Massachusetts Bay Transportation Authority (MBTA)." Some may ask, “What are the outer limits of the state’s liability in a commuter train accident?”

Massachusetts General Laws (M.G.L.) Chapter 161A, Section 43 addresses the liability policy requirements for commuter rail train service (the MBTA and the operating railroad company). The law provides for a liability insurance policy with annual policy limits of at least $75,000,000 subject to self-insured retention of at least $7,500,000.

Liability beyond the available insurance coverage is disclaimed in the statute, but this law does not apply to third parties who may be at fault for a train accident. Nonetheless, this ceiling does seek to cap liability for the Commonwealth of Massachusetts. If a maximum recovery is likely to be paid out, you may consider being among the first to settle so you are not prevented from a recovery based on the state’s liability cap. That is, once the maximum amount of funds are dispersed to other claimants, it will be hard (if not impossible) to receive your fair share.

A child left out of a will in Massachusetts may still be able to recover under their parent's will.

M.G.L. Chapter 191, Section 20 discusses the rights of children not included in a will (intentionally or by mistake). Timeliness, however, is critically important. Don't delay if you have been omitted from a will, act quickly to safeguard your interests.

The law states, “If a testator [decedent leaving a will] omits to provide in his will for any of his children, whether born before or after the testator’s death, or for the issue of a deceased child, whether born before or after the testator’s death, they shall take the same share of his estate which they would have taken if he had died intestate [without a will], unless they have been provided for by the testator in his life time or unless it appears that the omission was intentional and not occasioned by accident or mistake; provided, however, that no such child or issue shall take any share in any real property in the testator’s estate unless a claim is filed in the registry of probate by or in behalf of such child or any of such issue within one year after the date of the approval of the bond of the executor.”

If you are Massachusetts passenger injured in a commuter train accident (or MBTA bus or trolley accident), then several options for compensation may be available to you. You may have an actionable claim (i.e., for negligence) against the train’s operator or owner, as well as claims against other responsible parties.

You must, however, take action in a timely manner. If not, your claims or compensation rights will be forfeited. Massachusetts General Laws (M.G.L.) Chapter 161A, Sec. 38 states, in part, “The authority [MBTA] shall be liable … for personal injury and for death … in the same manner as though it were a street railway company.” Additionally this section establishes a two year statute of limitations for these claims.

Although a report from the Association of American Railroads indicates Massachusetts experienced a 21% decline in train accidents between 2006 and 2007, train accidents continue occurring and may involve serious injuries or fatalities as demonstrated by recent events.

Recently headlines discuss multiple fatalities involving Amtrak trains. Last evening a commuter rail crash took place involving estimates between 100 to 300 people. Injuries were reported to range from a broken leg to back or spine injuries, with details still unknown. Due to the large number of passengers involved, at least three different medical facilities provided care: Caritas Hospital in Norwood, Good Samaritan Hospital in Brockton, and Milton Hospital in Milton, Massachusetts.

This commuter train was apparently struck by a runaway freight train. The freight train, loaded with lumber, was believed to have “rolled” for two to three miles before crashing into the commuter train.

Channel 5 News reported a, “freight train car rolled into a commuter train in Canton on Tuesday afternoon, injuring several people.” FOX video shows the scene of the crash and includes reactions from some passengers.

Dealing with the MBTA on your personal injury claim can be challenging. Your case deserves the attention of an experienced attorney to distinguish your case from the many others being reviewed by the MBTA’s lawyers. In fiscal year 2008, the MBTA law department had a total budget of just under $5.5 million dollars and was expected to handle between 4,000 to 5,000 claims and settle over 1,000 of these while being involved in over 500 lawsuits.

The legal and administrative issues arising with the MBTA are not for the uninitiated. These cases may generally take time to resolve and can also be delayed by fiscal policies related to the timing of settlements and available government funding.

In Massachusetts, several state laws can apply to train accident victims. If you’ve been injured in a train accident, then don’t go it alone. Contact us to review your case and to determine your compensation rights before it’s too late.

Massachusetts personal injury and wrongful death cases may involve outstanding medical bills or liens that should be considered before trial or settlement occurs. A lien is basically the right to take another's property if an obligation is not discharged.

For instance, your health insurer may be entitled to a lien against your personal injury case for medical bills arising from a car accident and paid by your insurer. The same could apply to an estate following a fatality. The size of liens or outstanding medical bills in Massachusetts may factor heavily in settlement offers, counteroffers, settlements or jury awards.

A study of 100 cases (involving personal injury, employment, medical malpractice, automobile accidents, and contracts) suggested civil case mediation has about an 80% effectiveness rate, but the rate can be increased if mediators consider the effect of liens in mediations.

As an attorney in Weymouth, Massachusetts I have negotiated liens in a number of personal injury and wrongful death cases. As a mediator in places like Boston, Quincy, or Wrentham, I have seen liens overlooked and not even mentioned by either the plaintiff's or the defendant's lawyer.

Often a lien against your case can be negotiated along with a final settlement (with a lien holder agreeing to accept less than 100% of its lien amount.) A lien may be negotiated to avoid delays, minimize the risk of losing at trial or arbitration, or as contribution toward legal fees involved in obtaining a recovery.

If you have a slip and fall, car crash, or any type of personal injury or wrongful death case in Massachusetts potential liens often arise. This is true even when you are only an injured bystander or a passenger in a car that was rear ended. It is best to make sure all potential lien issues are dealt with before settling your case.

I often consider the effect of liens when valuing a case for our clients. Whether the lawsuit involves a case in Norfolk, Plymouth, Barnstable, Suffolk or other counties, we have successfully negotiated lien amounts, avoided some liens altogether, or had defendant insurance companies take full responsibility for our clients' outstanding liens and medical costs.

If you have a personal injury case in Massachusetts, inquire about the potential liens on your case. Failure to address liens upfront may lead to insurance companies assessing your case for less than it is worth. Insurers often defend their lower offers on cases where no liens exist by arguing the full amount will go to you free and clear (and not shared with a third party). Finally, it is also wise to remember, liens may end up being paid 100% from your settlement or recovery.

Protect your final recovery by ensuring any potential liens are resolved before your case is settled. An unexpected lien is not something you want to learn about only after closing your case and investing your settlement proceeds or recovery elsewhere.

I attended an interested training last evening at the Norfolk Probate and Family Court in Canton. The training is part of a pilot program allowing lawyers to represent clients on a limited basis in probate and family law maters.

This program is being offered in three counties with discussions of its expansion at the end of the year. Under the pilot program the attorney and client enter a fee agreement for a limited purpose (i.e., attend one day at court, review a case, draft documents or pleadings, coaching, conduct or respond to discovery...). The analogy being made here is to transactional law where clients routinely seek advice on only part of a matter -- like a buyer asking an attorney to review a purchase and sales contract for a set fee.

The testing of this concept in Massachusetts probate and family law litigation matters is a new and interesting development, but one that has been growing in other states (California and Maine were given as examples).

Continue reading "Massachusetts Limited Representation Probate & Family Court Pilot Program" »

John R. Ellement of the Boston Globe reports. A Suffolk Superior Court jury awarded a Boston couple a total of $325,000 yesterday, ruling that they suffered emotional distress when a city funeral home lost and possibly cremated the remains of their stillborn. The boy was one of twins. The company held the infant's remains inside plastic bag in a refrigerating unit. Eventually the family was told the boy's remains had been lost and may have been mixed with a cremated old woman. Can anyone comprehend why a trial like this occurs? It's unbelievable, they actually made the mother and father continue suffering for five years litigating their dead son's dignity.

Medical malpractice claims (or other claims) involving Massachusetts residents vacationing in a foreign country may need to be pursued in that foreign country. This issue was discussed in a Massachusetts woman's lawsuit (through her estate) involving her trip to the Dominican Republic. In Marilyn Gianocostats and George Gianocostas, Administrators of the Estate of Jennifer Gianocostas vs. Interface Group-Massachusetts, Inc. doing business as GWV International (SJC-10017, Slip Opinion), the court wrote,

"When... conduct occurs in a foreign country... [and] ... concerns medical services provided to travelers by residents of that country, our interests may have to bend to those of the foreign jurisdiction. The balance tips decisively in favor of a foreign jurisdiction when a primary issue to be litigated is the standard of medical care that may be (or has been) obtained there."

The Supreme Court in LaRue v. DeWolff ruled than individuals (not only Plans themselves) may bring actions for breach of fiduciary duties in 401(k) plans. Mr. LaRue had argued his holdings decreased $150,000 when plan administrators did not heed his requests to switch to safer investments. The question raised was whether the Employee Retirement Income Security Act (ERISA) allows account holders to sue plan administrators. With the answer now being "yes" estates may want to consider actions too. When warranted, it may be prudent for estate executors and administrators to investigate potential suits when a breach of fiduciary duty has occurred.

The estate of "Lord of the Rings" creator J.R.R. Tolkien is suing the film studio that released the trilogy based on his books, claiming the company hasn't paid it a penny from the estimated $6 billion the films have grossed worldwide, reports Alex Veiga. See the full article here The suit was filed in Los Angelos New Line Cinema. Veiga indicates the case could disrupt plans by New Line to make a two-film prequel based on "The Hobbit." As commerce, arts, and intellectual property rights expand globally, there will likely be a continued growth in probate related litigation worldwide. At the end of the day, reason indicates someone should eventually make a deal, but it gets tougher and tougher as the number of parties and countries' laws involved expands.

Michelle Nichols, in a Reuters article, reports Paris Hilton's grandfather, Barron Hilton, has announced his intentions to donate 97% of his estate to charity (about $2.3 billion) into the Conrad N. Hilton Foundation (including contribution to be valued about $4.5 billion). Has the family fortune come full circle? Conrad Hilton established the foundation in 1944 and when he died in 1979 left virtually all of his fortune -- including, according to media reports at the time, a 27 percent controlling stake in Hilton Hotels -- to the charity”, writes Nichols. She recounts, “Barron Hilton challenged the will and after a nearly decade-long legal struggle reached an out-of-court settlement to split ownership of the shares with the foundation in 1988, The New York Times reported fame and fortune mixed together with an estate challenge (and a historical theme) -- could make for some great television. Authors note: Forgive me, but I simply couldn't resist posting a Paris Hilton related entry following a Britney Spears post within the same week.

The mortgage meltdown crisis is coming to probate matters. When someone dies their property is generally passed according to either their estate planning documents or by operation of law. Since many people have been using the equity in their homes as credit cards (and have run up a high debt), what will happen in probate? When the owner dies --the property and the mortgage are left to deal with.

This is a situation you generally should deal with quickly. To determine what course of action to follow, you need to know the value of the property and the amount of debt owed. If there is plenty of equity, you can sell the property and pay the mortgage. But what about the opposite: when there is no equity or the mortgage is greater than the value of the home? Here it helps to get some help as soon as possible.

Raquel Maria Dillon, For The Associated Press, writes: "An attorney who claims to represent Britney Spears has filed papers to move her conservatorship case from the Los Angeles County Superior Court to federal court..." The attorney writes that Spears has not "received the benefit of a single hearing before the court," and "is being confined by the conservator to the private prison of her own home," and "raises the legal issue of whether an adult child may be subjected by her parents [her conservators] to their complete and total control in violation of her civil rights." Dillon writes, "Legal experts were doubtful that Eardley's bid to remove the case to federal court would succeed."

Continue reading "Britney Spears and Conservatorship Issues: Right to Counsel in Massachusetts or Elsewhere?" »

With Super Tuesday approaching, the field of candidates should be narrowing. As the debate continues where will the candidates land on the estate tax or death tax issue? Will this be an issue that appeals to an aging population looking to pass on their accumulated savings and wealth or will it stay in the background? Only time will tell.

Actor Heath Ledger, 28, died, apparently drug related. Here's yet another story of a smart, funny, and talented performer being lost in the prime of his life. Drugs change people and ruin lives. The damage they cause may even reach beyond the grave. Could drug use and overdose fatalities form the basis for legal challenges in probate matters? Sure. Overdose and drug use could certainly be raised as issues concerning mental capacity. Drug use -- prescription or street -- may have a growing impact on probate matters.

If you're in a business relationship, put it in writing -- don't rely on a handshake. A $15,000,000 claim against Navajo painter R.C. Gorman's estate was recently dismissed. An individual claimed he was owed half of Gorman's 30 million dollar estate due to their partnership. Another independent source had indicated the claimant had done "background work" for Gorman. Gorman's will had left the claimant $10,000.

Handshakes are tough to prove, especially in a probate dispute. When there is no writing to support your side of the story, you're generally going to have to make a very strong case to prevail. If you find yourself without a writing, sometimes seeking a compromise with the estate (on moral or some other grounds) may be best. An estate compromise agreement may allow you to enter into a settlement with the estate, but these documents, negotiations and reaching agreement can prove challenging from legal, tax, emotional and many other areas. Timing can also be very important.

Family care and inheritance issues can get ugly, fast. The late Perry Whatley's story dramatically illustrates this point. Whatley, at age 82, married his companion and caregiver. Whatley's niece and his new bride (note, now his sole heir) both sought to make decisions abou Whatley's care and his fortunes. Eventually their dispute lands in probate court.

Whatley was summonsed to a probate competency hearing. Instead of defending his competence in court, however, Whatley took flight abandoning his home and $2,000,000 in savings. The full story spanning Whatley's trial and tribulations from Texas to Massachusetts is reported in Lise Olsen's Houston Chronicle article, Perry Whatley battles probate court to the end. [When probate court threatened to take away his assets, Perry Whatley gave up and fled and ultimately died far from his home.]