Posts Tagged ‘Montana’

DIY Wills — Another Example Showing Why You Should Hire a Lawyer

OCTOBER 6, 2014 VOLUME 21 NUMBER 36

We occasionally relate stories about people who have prepared their own wills without the help of competent professional advisers (like, for a primary example, a qualified attorney). When we do, we intend to make several points:

  1. The cost of getting a lawyer to prepare your will (and trust, and powers of attorney) is probably quite a bit less than the contest after your death might cost. Of course, disgruntled heirs can file contests of lawyer-prepared wills, too — but the odds are lower, the likelihood of success much lower, and the family friction lessened when a lawyer is involved in preparing the will.
  2. Do-it-yourself wills might accomplish exactly what the signer intended, but it’s often hard to tell — the likelihood of ambiguity or miscommunication is much higher when no professional is involved.
  3. Even though a self-prepared will might ultimately be successful, it can take years, costs tens of thousands of dollars (occasionally more) and destroy family relationships — all bad results that you can mitigate by getting your estate plan prepared by someone who knows what she or he is doing.

All of this should be considered against a reality: will contests are rare. They are much rarer, in fact, than people usually suspect. Despite popular literature, even wills that are arguably defective are more likely to be honored than challenged.

That is all by way of background to this week’s story. We are going to ask you to play Probate Judge, so pay attention. Let’s start, as the Judge often does, with the document itself. Here is the entire text of Bruce Morrison’s will (we’ve changed only the names):

On this date 7-18-2011 – I am here with my neighbor of over 30 years – [Bruce Morrison] – I am here to write down his last “will” – He is in good spirits, alert and sound of mind. On this date Bruce has asked me to write down the desires he has in regards to his earthly possessions. “I Bruce Morrison do will all my earthly possessions to my daughter Betty Harrison that lives in California, she can do with them what she likes.”

[signed] Toni Robertson 7/18/2011

[signed] Richard Robertson 7/18/2011

[signed] Bruce Morrison 7/18/2011

Bruce died two months later. He left two daughters — Betty (the daughter mentioned in the will) and Randi (who is not mentioned at all). Randi filed a probate petition for a determination of intestacy — arguing that Bruce died without a valid will. Betty countered that his will was valid, that she had been left his entire estate, and that Randi should receive nothing.

As the will contest developed, a number of additional facts were laid out:

  1. The night the will was signed, Bruce had just been released from the hospital after a series of tests. At the time he signed he may not have known it yet, but he was terminally ill with (as yet) undiagnosed cancer. He had been prescribed — and was taking — the painkiller hydrocodone, which can also affect competence, attention and understanding.
  2. Bruce’s hand was shaking too much to write out the will himself. He asked his friend Toni to write out the will for him, and she later testified that he dictated the part that begins “I Bruce Morrison do will…”. The entire document, however, is in her handwriting, not his.
  3. The sequence of signatures was that Bruce signed first, then Toni. Then Toni suggested that her husband should also witness the will — he had been in another room during the writing and signing. Richard came into the room with Bruce and Toni, and asked “So, Toni wrote your will; did she sign it too?” Bruce responded “no, that’s my shaky handwriting.” Richard then signed above Bruce’s signature, next to his wife’s.
  4. Although both Randi and Betty agreed that Betty was indeed Bruce’s daughter, he was not listed as her father on Betty’s birth certificate.

Both Randi and Betty asked the Montana probate judge hearing the case to grant summary judgment on the basis of the evidence they had collected. In such a ruling, no actual trial is conducted — the parties simply argue that there is no interpretation of the available evidence under which the other side could prevail.

Betty argued that the will was properly executed and reflected Bruce’s wishes. She pointed out that she was not involved in its execution, and that there was no real dispute about Bruce being her father.

Randi, on the other hand, pointed out that Bruce was taking heavy medications that would make him susceptible to undue influence. The fact that he had not been listed on Betty’s birth certificate made it unclear who would be “the natural objects of his bounty,” according to Randi. She also argued that the fact that Bruce signed when one of his witnesses was out of the room made the will invalid — and that his statement (“no, that’s my shaky handwriting”) should not be admitted to prove the validity of the will because it would be hearsay.

OK, acting Probate Judge — it’s time for your ruling. Is the purported will of Bruce Morrison valid? Does his daughter Randi receive any share of his estate?

The Montana probate judge’s ruling: the will was valid and effective. The possibility of undue influence is not the same thing as evidence that there really was such influence, and Randi had produced no affirmative evidence in that regard. And the statement of Bruce confirming his signature was not hearsay, but acknowledgment that he was adopting the will as his own.

Randi appealed, and the Montana Supreme Court affirmed the probate judge’s ruling. The state’s high court agreed that Bruce’s declaration that he had signed the will was not hearsay, since it was not being introduced to prove the truth of what he said but instead to show that he had declared the will to be his. Randi’s arguments about undue influence would not suffice to create a dispute in the absence of real evidence. In Re Mead, September 30, 2014.

In this case Bruce’s real wishes seem to have been carried out, but that doesn’t change our main point: there was unnecessary cost, delay and friction occasioned by having a friend write out a one-sentence will and signing under challenging circumstances. Maybe Bruce simply didn’t have time to get his will prepared by a professional, but his estate — and his favored daughter Betty — would have been better served if he had found the time. Maybe he felt like it was an emergency and he needed to get something done that July evening, but the next day he could have — and should have — called a lawyer’s office to make an appointment on the first available date to get the job done right.

Conservator’s Accounting Approved in Contentious Proceeding

APRIL 11, 2011 VOLUME 18 NUMBER 13
The Montana Supreme Court identifies him as “J.R.” to protect him from public identification, but it is possible to get quite a feeling for him, his family and the two different conservators appointed to handle his finances. In 2006, when the legal proceedings started, J.R. was 78 years old. His wife had died three years earlier, and J.R. had become confused and vulnerable. He had five children (and three step-children); one of them, his daughter Marsha, had filed a petition asking the court to appoint a conservator to handle her father’s assets.

Just before the hearing on the petition another daughter, Robin, arrived from her home in Massachusetts and took J.R. back to live with her. She did not tell either the lawyer representing Marsha or the lawyer appointed to represent J.R. himself. It would not be her final failure to cooperate with the Montana courts.

A probate judge in Helena appointed a local private case manager as J.R.’s conservator. Seven months later she asked the judge to relieve her from the role. She could not discharge her obligations, she told the judge, because persistent family interference and undermining of her actions made it impossible to protect J.R. or his estate.

The new conservator was a Helena CPA, Joseph Shevlin. The judge chose Shevlin partly because he had a long career and excellent reputation in the accounting practice, and he was known for his estate planning expertise.

J.R.’s assets included a Helena condominium filled with his personal property, plus a brokerage and a bank account. Mr. Shevlin was instructed to sell the condo and to use J.R.’s money to help pay for his care. The judge specifically instructed Mr. Shevlin not to provide any of J.R.’s money to his family members unless it was for his direct care.

Two years later several of J.R.’s family members (and J.R. himself) filed petitions seeking to transfer the conservatorship to Massachusetts, to direct Mr. Shevlin to create a trust and transfer J.R.’s assets to the trust, to remove Mr. Shevlin as conservator, and to order him to return fees he had collected during his tenure. The probate judge held three days of hearings on those requests (and Mr. Shevlin’s objections), and ultimately entered orders removing Mr. Shevlin as conservator, appointing J.R.’s brother as successor, approving Mr. Shevlin’s accountings and dismissing claims of breach of fiduciary duty.

J.R. appealed to the state Supreme Court, which affirmed the probate judge’s orders. The appeal raised several legal issues:

  • J.R.’s attorneys’ failure to call an expert witness to testify about Mr. Shevlin’s standard of care. Although every fiduciary is held to a high standard, professionals serving as fiduciaries are required to use any specialized skills. Mr. Shevlin argued that this meant a challenge to a conservator who is also a CPA meant that an expert witness was required to provide testimony as to the standard of care and any breach. The trial judge agreed, but the Supreme Court did not. No expert testimony was required when the complaints, as here, did not touch on specialized skills. Still, the high court noted that J.R. had not met the standard of proof required anyway — and so the probate judge’s misreading of the law was of no moment in his case.
  • The probate judge had removed Mr. Shevlin as conservator, and J.R. argued that by itself demonstrated that he had acted inappropriately. Not so, ruled the appellate court — in this case, the removal was clearly because it was in the best interests of all parties and not because of any wrongdoing by Mr. Shevlin.
  • J.R. complained that Mr. Shevlin had not provided funds for his care; that the condo had been held for too long before sale and ultimately sold at too low a price; that Mr. Shevlin should have agreed to transfer J.R.’s assets to a trust in Massachusetts (to be managed by his daughter Robin and a Massachusetts lawyer retained to help get J.R. qualified for public benefits). The trial judge considered each of those allegations and determined that there were good explanations for Mr. Shevlin’s actions, and that his work was made incalculably more difficult by J.R.’s family’s refusal to recognize the conservatorship or cooperate with him. None of them merited requiring Mr. Shevlin to return his fees, and they were not the basis for his removal. The Supreme Court agreed.
  • More significantly, Mr. Shevlin (a) did not file an inventory, as every conservator is supposed to do within 90 days, and (b) did not file his first annual accounting until 19 months after his appointment, and (c) sold some of J.R.’s personal property (apparently furniture from his condo) to himself. The trial court had disapproved of each of these actions, but ultimately decided that they did not harm J.R. The first conservator had filed an inventory (though it did not include personal property in the condominium) and J.R.’s daughter Robin had demonstrated that she was very familiar with the condo’s contents. The accounting was late, but it included voluminous explanations and backup. The sale of personal property to himself clearly violated a conservator’s duty not to permit conflicts of interest, but the items had been identified as things that might be abandoned or sold rather than shipped to Massachusetts, and Mr. Shevlin did pay full value. All in all, agreed the Supreme Court, these lapses did not rise to the level that would authorize ordering Mr. Shevlin to return his fees or to remove him for cause.
  • J.R. objected both to Mr. Shevlin’s fees and those of the attorney he hired to represent him in the dispute. As to the former fees, the probate judge ruled that his rates were reasonable, the amount of work and time necessary, and his actions appropriate. As to the latter, the probate judge found that it was necessary to retain counsel to deal with a contentious proceeding and that those fees should be paid from J.R.’s estate. The Supreme Court agreed on both counts, noting that “a large number of Shevlin’s fees and those of his counsel were attributable to the failure of some of J.R.’s children to cooperate with or even recognize the existence of the conservatorship.”

In the Matter of the Conservatorship of J.R., 2011 MT 62 (April 5, 2011).

 

Montana High Court Approves “Death With Dignity” Request

JANUARY 4, 2010  VOLUME 17, NUMBER 1

Retired truck driver Robert Baxter, a Billings, Montana, resident, was dying of leukemia. He wanted to be able to choose the time and manner of his own death, and he turned to his physicians. He asked for a lethal dose of medication; his doctors sympathized, but declined to give him the prescription he wanted. They were concerned, they said, that doing so might expose them to criminal charges for assisting Mr. Baxter to commit suicide.

While suicide itself is usually not illegal, assisting another person to commit suicide is a crime in most American states. With the exception of Oregon and Washington (where state voter initiative actions have expressly legalized physician-assisted suicide in narrow circumstances), the notion of what is often called “physician aid-in-dying” has run up against the assisted-suicide prohibition.

Mr. Baxter and his physicians, with the assistance of a group called Compassion & Choices, decided to do something about Montana’s law. They asked the courts for an order recognizing Mr. Baxter’s rights under the Montana Constitution to seek his physicians’ assistance in ending his life, and those physicians’ authority to respond to his request.

In December, 2008, a state trial judge agreed, ruling that Montana’s Constitution promised its citizens both dignity and privacy. Those guarantees, said the judge, extended to the right of a physician to prescribe a lethal dose of medications. The Montana Attorney General appealed the ruling to the state’s Supreme Court.

On December 31, 2009, the state high court affirmed the trial judge’s ruling — though it used different logic to do so. Noting that it is always preferable to resolve issues without relying on Constitutional analysis if possible, the court ruled that Montana law would prevent the prosecution of a physician authorizing a lethal dose of medication for a competent, terminally ill patient requesting that prescription.

The court’s statutory analysis focused on the doctrine of “consent.” A patient who requested the lethal prescription has consented to the doctor’s actions. That would prevent a criminal prosecution, so long as the consent did not violate public policy — and the high court determined that no public policy considerations would be affected.

This circumstance can be distinguished, said the court, from the case of a noisy, dangerous fight between bar patrons who might “consent” to one another’s assault. No other individuals, and therefore no legitimate public policy, would be endangered by allowing physicians to respond to a patient’s request. Baxter v. State, December 31, 2009.

The Montana Supreme Court decision was not unanimous. Four of the seven Justices agreed with the majority opinion authored by Justice W. William Leapheart (one of those four, Justice John Warner, wrote separately to urge the Montana Legislature to take up the issue and resolve any uncertainties). One, Justice James C. Nelson, would have gone further — he argued for upholding the trial court’s Constitutional analysis. Two (Justice James A. Rice and District Judge Joe L. Hegel, sitting as a special Justice) would have reversed the trial court and found that “physicians who assist in a suicide are subject to criminal prosecution.”

Ironically, Mr. Baxter did not benefit directly from the court’s ruling. He died in 2008, the same day the trial judge ruled in his favor, and without ever having learned of his victory in either the trial court or the state Supreme Court.

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