Posts Tagged ‘Personal Representative’

Common-Law Marriage, Divorce and Probate, All In One Case

Here’s a question we hear frequently: how long does a couple have to live together in order to be considered married? The answer in Arizona: until the wedding ceremony.

In other words, Arizona does not recognize “common-law” marriages. That strong, direct statement, however, masks a more complicated answer. Arizona, like every other state, will recognize a marriage that was validly established in another state — so if a couple living in, say, Oklahoma (which does recognize common-law marriages) meets that state’s requirement to be treated as validly married, and they then move to Arizona, they will be married under Arizona law, as well.

No state, however, has a concept of concept of common-law divorce. That is, a divorce must be granted by a court, and can not be established by the couple simply acting as if they were divorced. And no state recognizes bigamous marriages — so if a couple is already married (by common-law or by a formal state-recognized marriage), neither spouse can enter into another marriage, whether by common-law or regular ceremony.

Try telling all that to Rhonda Brown, an Oklahoma woman who seems to have a fairly fluid concept of marriage. She and Bobby Joe Brown were married in 1995, and they had three children together. After a few years of marriage, though, she told her husband that she could not continue to live with him if he did not stop sleeping with other women, and when he did not change, she moved out on her own.

Rhonda moved around Oklahoma and Kansas for several years. She had children by another man (they were removed from her care by the Kansas authorities). According to her testimony, she and Bobby Joe still saw one another occasionally.

At one point Rhonda even “married” another man — though she said she always thought of the second marriage as a “sham.” How did that happen? According to her, she and Jimmy had been long-time friends and had always agreed they would marry one another if it was necessary for one to help the other out. After Jimmy’s release from prison, his grandparents let him live with them and supported him, but told him he needed to get married. When Rhonda agreed to visit his grandparents and tell them that she and Jimmy were going to get married, his grandparents immediately called a minister and had the ceremony that same day. She never saw Jimmy again, she said.

Meanwhile, Bobby Joe had moved in with another woman, Ami. Although they never had a marriage ceremony, Ami said that they always acted as if they were married, and held themselves out as husband and wife. That’s the very definition of common-law marriage in most states where it is permitted — including Oklahoma. They even had two children together and, according to Ami, they were a married couple in almost every respect. One problem: Bobby Joe was still married to Rhonda.

Then, in 2013, Bobby Joe died in a motorcycle accident. Ami filed a petition with the local probate court, alleging that she was the surviving spouse and asking for appointment as personal representative of his estate. The probate judge approved her appointment as personal representative; Ami did not mention Rhonda or give her notice of the proceedings.

Rhonda ultimately learned about the probate of Bobby Joe’s estate, and sought to remove Ami as personal representative. She pointed out that she had priority for appointment as Bobby Joe’s legal spouse, and that she was one of the heirs of his estate. The probate court heard testimony about the complicated relationship — and then denied Rhonda’s claim to priority for appointment.

The Oklahoma Court of Appeals affirmed the probate court decision, and Rhonda asked the state Supreme Court to review the ruling. The Oklahoma Supreme Court also agreed that Rhonda should not be appointed to administer her husband’s estate.

It is important to note that the state courts did not find that Rhonda and Bobby Joe were divorced, or that Bobby Joe and Ami were validly married. The ruling was ultimately based on concepts of “estoppel” — Rhonda could not make the legal argument that she was married to Bobby Joe because she had participated in another marriage, even though she claimed that her second marriage was a sham. To be more precise, the ban against her asserting her status as surviving spouse might be said to be partly because she admitted to a sham marriage — the courts decided that she should not be permitted to argue two inconsistent things in two different state proceedings. Estate of Brown, November 1, 2016.

The decision in Bobby Joe’s probate appeal was not unanimous, by the way. Six of the nine Justices of the Oklahoma Supreme Court agreed that Rhonda should not be allowed to seek appointment as personal representative, while three argued that there had been no divorce and Rhonda was still entitled to handle Bobby Joe’s estate.

It is also worth noting that the Oklahoma courts did not decide that Rhonda was not Bobby Joe’s surviving spouse. Though she could not insist on her priority for appointment as personal representative, the state Supreme Court decision does not say that she is not entitled to a share of Bobby Joe’s estate. That argument might be made later, back in probate court. We’ll let you know if we hear about it.

Why do we care about common-law (and other fluid concepts of) marriage in Arizona, where only properly recorded marriages are valid? For two reasons: (1) people who move to Arizona from Oklahoma, Kansas, Montana — or one of the handful of other states which recognize common-law marriages — might bring their confused marital statuses with them, and (2) we are constantly both surprised and intrigued by the complicated ways people live their lives.

It has been more than a decade since we last reported on common-law marriages, incidentally. In our 2013 newsletter article on the subject, we reported that fifteen states then recognized some form of common-law marriage. Today that number is down to eleven, with some dispute as to the status in one or two of those.

Trustee Not Personally Liable for Trust Business

JUNE 23, 2014 VOLUME 21 NUMBER 23

It’s a small point, but important — and the Arizona Court of Appeals reiterated it in a decision released last week. So it seems to us that it would be appropriate to call attention to this simple rule: generally speaking, a trustee is not personally liable for her (or his) actions as trustee.

There are, of course, exceptions. A trustee may so intermix her personal interests and those of the trust that she is liable both personally and as trustee. There are some trusts that will be treated as the alter-ego of the trustee — so that creating the trust does not shield the trustee from personal liability. Sometimes the trustee’s actions are so clearly wrong that she might be liable, to trust beneficiaries or others. But in the vast majority of cases, a person acting as trustee can bind the trust without exposing herself to liability.

This concept is not esoteric. It is central to the whole idea of trusts. If you name your daughter as trustee, she needs to know that she can administer the trust without exposing her own assets to liability. If you take over a trust after the death or disability of someone else, or even if you are a professional trustee, you need to be comfortable that you will not be liable for the ordinary business of running the trust.

How was this issue involved in last week’s Arizona court case? It was simple: a trust owned a piece of real estate, and the trustee signed a listing agreement to get the property sold. Later the trust canceled the listing agreement, and the listing agent sued the trust — and the trustee — for the amount specified as payable in the listing agreement upon early termination. A jury found in favor of the listing agent, and judgment was entered against both the trust and the trustee. The trustee appealed, arguing that she should not be liable for the trust’s violation of the terms of the agreement — even if she was the one who both signed and terminated the listing agreement.

The Arizona Court of Appeals reversed the jury verdict against the trustee individually, while upholding the judgment against the trust itself. There were arguments about whether the real estate agent was actually qualified to act, and whether he breached his duties to the trust — but those arguments only went to whether the trust could terminate the listing agreement without paying damages. For our purposes, the important part of the court decision is the simple observation that when a trustee signs as trustee, she is not personally liable on the contract. Focus Point/Kantor v. Johnson/Oak Acres, June 19, 2014.

This principle is actually pretty straightforward, and well-established. Why would the listing agent argue that the trustee should be personally liable in this case? Apparently because when she signed the listing agreement, she did not write “as trustee” or similar language on the contract. But, noted the appellate court, her signature only appeared once, and she couldn’t be signing that one time as both trustee and individually — and there was no dispute that the trust, not the trustee, owned the property being listed. Besides, the contract terms clearly indicated that they were between the listing agent and the property’s owner, and the trust was the owner.

Although the listing agent argued that a handful of cases from other states supported holding the trustee liable, the Arizona court disagreed. In some of those cases, noted the court, the trustee had expressly signed as an individual, guaranteeing the performance of the agreement by the trust. In one other, the trustee had failed to make the argument before the trial court (and so was deemed to have waived it). In yet another case, the officers of a corporation signed in one place as officers and another without any designation — and they were deemed to have been signing in both capacities.

So what does this simple appellate case tell trustees about the discharge of their duties? It just makes sense to clearly indicate that you sign “as trustee” when you are acting in that capacity — it helps head off any argument, even if it is otherwise obvious that you are acting as trustee. The same can be said for someone acting under a power of attorney, or for the personal representative of a decedent’s estate. Just to be safe and clear, after your signature you should write something like “as Trustee of the Pyramidal Trust Dated January 7, 2010” or “as agent for John Roe,” or “as personal representative of the estate of Jane Roe” (substituting, of course, the actual names of the individuals or entities as appropriate).

Even if you do not add that language, you probably are not creating any possible personal liability — at least in any document that is clear about your signature being in a representative capacity. Be very, very cautious, however, about language that seems to include some personal liability — if a pre-printed form recites, for instance, that you are signing “as trustee, and personally as guarantor”, take the agreement to an attorney for review before signing. At the very least, strike out the offending language. Acting properly on behalf of someone else should not cost you personally.

Definitions For Common Estate Planning Terms


Judging from the questions we field online and from clients, there is a lot of confusion about some of the basic terms commonly used in estate planning. We thought maybe we could do a service (and make our own explanations a little easier) by collecting some of the more-common ones — and defining them. Feel free to suggest additional terms or quibble with our definitions:

Will — this is the starting point for estate planning. It is the document by which you declare who will receive your property, and who will be in charge of handling your estate. Note, though, that if you have a “living trust” (see below), your will may actually be the least important document in your estate planning bundle.

Personal representative — this is the person you put in charge of probating your estate. It is an umbrella of a name, encompassing what we used to call executors, executrixes, administrators, administratrixes and other, less-common, terms. If you use one of the old-fashioned terms in your will, that probably won’t be a problem — we’ll just call them your “personal representative” when the time comes. Note that your personal representative has absolutely no authority until you have died and your will has been admitted to probate.

Devisee — that’s what we call each of the people (or organizations) your will names as receiving something.

Heir — if you didn’t have a will, your relatives would take your property in a specified order (see “intestate succession” below). The people who would get something if you hadn’t signed a will are your “heirs.” Note that some people can be both heirs and devisees.

Intestate succession — every state has a rule of intestate succession, and they are mostly pretty similar. The list of relatives is your legislature’s best guess of who most people would want to leave their estates to. Think of it as a sort of a default will — in Arizona, for instance, the principles of intestate succession are set out in Arizona Revised Statutes Title 14, Chapter 2, Article 1, beginning with section 14-2101 (keep clicking on “next document” to scroll through the relevant statutes).

Escheat — that’s the term lawyers use to describe the situation where you leave no close relatives, or all the people named in your will have died before you. Escheat is very, very rare, incidentally. Note that the Arizona statute eschews “escheat” in favor of “unclaimed estate.” There is a different, but related, concept in the statutes, too: if an heir or devisee exists but can’t be found, the property they would receive can be distributed to the state to be held until someone steps forward to claim their share. That is not an unclaimed estate, but an unclaimed asset.

Pourover will — when you create a living trust (see below), you usually mean to avoid having your estate go through probate at all. If everything works just right your will won’t ever be filed, and no probate proceeding will be necessary. Just in case, though, we will probably have you sign a will that leaves everything to your trust — we hope not to use it, but if we have to then the will directs that all of your assets be poured into the trust.

Trust — a trust is a separate entity, governed by its own rules and providing (usually) for who will receive assets or income upon the happening of specified events. Think of a trust as a sort of corporation (though of course it is not, and it is not subject to all of the rules governing corporations). It owns property and has an operating agreement — the trust document itself. There are a lot of different types of trusts, and usually the names are just shorthand ways of describing some of the trust’s characteristics.

Testamentary trust — the first kind of trust, and the oldest, is a trust created in a will. Of course, a testamentary trust will not exist until your estate has been probated, so it is of no use in any attempt to avoid probate. But  you can put a trust provision in your will so that any property going to particular beneficiaries will be managed according to rules you spell out. Testamentary trusts are relatively rare these days, but they still have a place in some estate plans.

Living trust — pretty much any trust that is not a testamentary trust can be called a living trust. The term really just means that the trust exists during the life of the person establishing the trust. If you sign a trust declaration or agreement, and you transfer no assets (or nominal assets) to it but provide that it will receive an insurance payout, or a share of your probate estate, it is still a living trust — it is just an unfunded living trust until assets arrive.

Trustee — this is the person who is in charge of a trust. Usually we say “trustee” for the person who is in charge now, and “successor trustee” for the person who will take over when some event (typically the death, resignation or incapacity of the current trustee) occurs. There can, of course, be co-trustees — multiple trustees with shared authority. Sometimes co-trustee are permitted to act independently, and sometimes they must all act together (or a majority of them must agree). The trust document should spell out which approach will apply, and how everyone will know that the successor trustee or trustees have taken over.

Grantor trust — this is a term mostly used in connection with the federal income tax code, but sometimes used more widely. In tax law, it means that the trust will be ignored for income tax purposes, and the grantor (or grantors) will be treated as owning the assets directly. Most living trusts funded during the life of the person signing the trust will be grantor trusts — but not all of them. Outside of tax settings the term “grantor trust” is often used more loosely, and it can sometimes mean any living trust whose grantor is still alive.

Revocable trust — means exactly what it sounds like. Someone (usually, but not always, the person who established the trust) has the power to revoke the trust. Sometimes that includes the power to designate where trust assets will go, but usually the trust just provides that upon revocation the assets go back to the person who contributed them to the trust.

Irrevocable trust — a trust that is not a revocable trust. Oddly, though, a trust can have “revocable” in its name and be irrevocable — if, for example, Dave and Sally Jones create the “Jones Family Revocable Trust,” it probably becomes irrevocable after Dave and Sally die. Its name doesn’t change, however.

Special needs trust — any trust with provisions for dealing with the actual or potential disability of a beneficiary can be said to be a special needs trust. Usually, but not always, a special needs trust is designed to provide benefits for someone who is on Supplemental Security Income (SSI), Social Security Disability (SSD) or other government programs. Sometimes the money comes from the beneficiary, and sometimes from family members or others wanting to provide for the beneficiary.

There’s more. A lot more, actually. Has this been helpful? Let us know and we’ll add to it in coming weeks. In the meantime, a reminder: ask your estate planning lawyer for help with these concepts. Don’t be embarrassed that they seem complicated — they are complicated.

Some Advice About Selecting Fiduciaries For Your Estate Plan

APRIL 20, 2009  VOLUME 16, NUMBER 37

When it comes time to complete estate planning, our clients usually have clear ideas about who should receive their property, what health care decisions they would want made — even how they feel about cremation, burial, organ donation and most of the other issues that must be addressed. What stumps more clients than any other issue? Who to name as trustee, personal representative (what we used to call an “executor”), and agent under health care and financial powers of attorney.

Some of the common questions we hear from clients about whom to select:

Is it acceptable to name a child who lives out of state? Yes, at least in Arizona, which does not require in-state residency for any of the various fiduciary roles. With e-mail, fax machines, overnight delivery and other modern communications options, there is usually little difficulty for your son on the east coast (or even your daughter in Japan) to communicate. In fact, we frequently observe that we may have an easier time communicating with your the Iowa sister you named as agent than your nephew who lives on the east side of Tucson.

There is one small exception to that rule, and it is more practical than legal. We generally counsel that the ideal health care agent should live near you. Reviewing medical records, talking to doctors and caretakers, and developing a clear picture of your condition is much easier for someone nearby.

Can I name several, or all, of my children as co-agents, co-trustees, etc.? Yes, though we may try to discourage you from naming multiple fiduciaries. To the extent that you are trying to avoid family disputes, it is our experience that giving everyone equal authority tends to encourage disagreements. We will probably suggest that you might want to name your daughter (the banker) as financial agent, and your son (the nurse practitioner) as health care agent — and each as back-up to the other. If you really want to give them joint authority, though, there is no legal reason not to do so.

Speaking of which, is it better to name different people to health and financial roles, or give the same person authority over everything? There is no clearly correct answer. You know your family (and their strengths and weaknesses) much better than we do. If there is one person who is capable in all areas, by all means give that person authority as health care agent, financial agent, personal representative and trustee. You can segregate the roles as a means of providing checks and balances, or to give everyone reassurance that you value their input.

Do I have to tell everyone involved who will have which authority? No. But as a practical matter, we encourage you to do so. We want your daughter to realize, for instance, that she is the one who needs to make arrangements if something should happen to you. We hate to see someone show up, ready to act — and then find out they have no role. That creates confusion, and obviously can engender hard feelings.

We hope that you will share your estate planning documents with all your family (and any non-family members named as trustee, agent, or personal representative). There is no legal requirement that you do so, but it does increase the likelihood that any problems can be worked out while you are still alive, competent and in charge of your own decisions.

Beneficiary Form in Substantial Compliance With 401(k) Rules


James Marier was married to his wife Kathleen for twelve years, until the couple divorced. As often happens, Mr. Marier continued to maintain a good relationship with his step-daughter, Tracy Marks. Her children called Mr. Marier “Grandpa Jim,” and he continued to spend holidays with his ex-wife, his step-daughter and the grandchildren.

Mr. Marier had a 401(k) retirement plan through his work, and after his divorce named his mother as its primary beneficiary. Later, after a visit from his sisters, he decided to break from his family altogether, and he wrote a will naming his step-daughter as personal representative and primary beneficiary. He also decided to change the beneficiary to leave his 401(k) plan to Ms. Marks.

Mr. Marier filled out the change of beneficiary form, listing Ms. Marks as his primary beneficiary. In the space marked “relationship” he apparently wrote in something, but then covered the entry with white-out. The form as sent to the plan administrator left the space blank. The administrator, in turn, mailed the form back to Mr. Marier with a note that he needed to complete empty space, and noting that “white-out is not accepted.”

Unfortunately, Mr. Marier’s health was declining rapidly by that time. When the form arrived he had just undergone surgery for a brain tumor, and the form was never returned to the 401(k) administrator. Mr. Marier did call the administrator’s office at one point, and asked who was named as his beneficiary; the individual who spoke with him looked at a scanned copy of the form and assured him that his step-daughter was his primary beneficiary.

When Mr. Marier died, the 401(k) administrator initially determined that the last beneficiary designation was improper and began the process to pay the plan balance to Mr. Marier’s mother’s conservator. Ms. Marks objected, arguing that she had been properly named as beneficiary. The administrator then decided that the failure to fill in the relationship line was “not a material omission,” especially since previous beneficiary designation forms on file adequately identified her, but turned to the courts to determine who should receive the account balance.

The trial court found that the 401(k) plan required that the form be properly completed, and ordered the money paid to Mr. Marier’s mother. The Eighth Circuit of the U.S. Court of Appeals disagreed, however, ruling that the plan’s decision to accept the form as being in substantial compliance, even though the administrator then turned the matter over to the courts, was sufficient to leave the account to Ms. Marks. Marks v. Irwin Bank & Trust, October 19, 2006.

Probate Fee Dispute Leads to Additional Attorney’s Fees

APRIL 12, 2004 VOLUME 11, NUMBER 41

Kathryn Gordon’s will named her sister, Nancy Molet, to handle her estate. Based on that will Ms. Molet was appointed as personal representative. Like most individuals in such circumstances, Ms. Molet hired an attorney to help her get through the probate process.

Eventually Phoenix attorney Harvey Finks billed the estate $25,710 for his representation of Ms. Molet. She, in turn, billed the estate $10,885.50 for her work as personal representative.

The ultimate beneficiaries of Ms. Gordon’s estate were her daughter June Pierce and Ms. Pierce’s five children. The beneficiaries objected to the size of the legal fees and the Ms. Molet’s fee, and they filed a formal objection with the court.

Attorney Finks pointed out to Ms. Molet that he would likely be called as a witness during the trial on his fees, and so she retained another attorney—Phoenix lawyer Paul Blunt—to represent her for the fee dispute.

Eventually Ms. Molet, Mr. Finks and the estate beneficiaries agreed that it made sense to submit the dispute to binding arbitration. In that type of proceeding, both sides would make abbreviated arguments and put on their cases more informally. They both agreed to be bound by the arbitrator’s decision.

The arbitrator approved most—but not all—of the requested fees. He reduced Mr. Finks’ fee by $2,510 to $23,200, and he lowered Ms. Molet’s fee by almost $5,000, to $6150. Then Ms. Molet submitted Mr. Blunt’s fees for payment by the estate, arguing that she had hired him in her capacity as personal representative.

The Phoenix probate judge decided that Ms. Molet would have to pay her own attorney’s fees. Judge Jane Bayham-Lesselyong decided that “it would be inappropriate” for the estate to pay the cost of defending the fees themselves.

The Arizona Court of Appeals disagreed. In the appellate court’s view, the question was really only whether Ms. Molet acted in good faith when she hired counsel to defend her fees. The heirs argued that Mr. Blunt’s representation benefited only Ms. Molet and not the estate. The appellate court agreed that it is relevant to consider whether the estate or the heirs received any benefit from the representation, but decided that the inquiry should be made as a part of the determination of whether Ms. Molet acted in good faith. Estate of Gordon, March 30, 2004.

The reported decision does not indicate how much the estate paid in legal fees and costs to defend Ms. Molet and Mr. Finks. It seems likely, however, that it was more than the reduction in the original fees ordered by the arbitrator.

Without “Testamentary Intent” Handwritten Note is Not a Will


In 1978, shortly after his mother’s death, Donald Gilbert wrote this note on a three-by-five note card:

“Dear Lillian, 11-27-78. I’ve been very depressed—I can’t stop crying for Mom—in my death I’ve left everything to you and the children. Don’t be angry with me. Love, Don.

Mr. Gilbert died seventeen years later. His cousin Lillian Miller claimed that the note was a will, and that she and her children should inherit his estate.

California, like Arizona, recognizes “holographic” wills. A holographic will is one substantially (or, as in the case here, entirely) in the individual’s handwriting and signed by the individual. While wills usually must be witnessed by at least two persons, holographic wills do not require any witnesses. If Mr. Gilbert’s note card was a will at all, it would be valid under California law.

As is usually the case, of course, the facts were more complicated than that. After Mr. Gilbert’s death Ms. Miller had secured appointment as administrator (what in Arizona and many other states would be called “personal representative”) and had handled the estate for two years. During that time she had misused Mr. Gilbert’s funds; the probate court ultimately ordered her to repay $837,525. If she and her children were the sole devisees, however, her misuse of funds probably would not cause her any problems.

The probate court determined that the note was in Mr. Gilbert’s handwriting. One friend testified that Mr. Gilbert had said he had prepared a will; another friend swore that Mr. Gilbert had said the exact opposite. Considering all the evidence, the probate court decided that the note card was Mr. Gilbert’s last will and that Ms. Miller and her children should inherit the entire estate.

The California Court of Appeals disagreed. For the appellate court, the key question was whether Mr. Gilbert intended the note card to be a will. It would not be enough, said the court, just to determine that the note reflected what Mr. Gilbert intended to do. The note referred to a past act when it said “I’ve left everything to you….” In that case, the note was not itself a will, even though it was in Mr. Gilbert’s handwriting and signed by him.

Since no other will could be found, and there were no children or spouse surviving, Mr. Gilbert’s estate went to his cousins—including Ms. Miller, but also including several others. It is unclear how much money remains in the estate, or how much Ms. Miller will have to repay. Estate of Gilbert, October 16, 2003.

Will Was Not Revoked By Written, Signed “Revokation”

JULY 19, 1999 VOLUME 7, NUMBER 3

Jose C. Martinez lived and died in Belen, New Mexico. Mr. Martinez was the father of ten children, and in 1984 he had signed a will leaving his real estate to two of the children.

In 1995, Mr. Martinez signed a document called “Revokation of Last Will and Testament of Jose Martinez.” This document indicated Mr. Martinez’ intention to revoke the “previous WILL which was exeucted approximately Twelves years ago.” The “Revokation” was also signed by one of his daughters, was notarized and apparently was filed with the Valencia, New Mexico, County Clerk.

Mr. Martinez died two years later. He had executed no new will since 1984, and so the question for the courts was whether the 1984 was still valid, or had been effectively revoked.

After the trial court found that the will had been revoked and that Mr. Martinez’ estate would be divided equally among his ten children, one of his daughters filed an appeal. Interestingly, the daughter who appealed would actually receive less under the will if it was admitted to probate; although she had been named as Personal Representative under the will, she was not one of the two children who would share Mr. Martinez’ real property, which apparently was the bulk of his estate.

New Mexico (like Arizona and 14 other states) has adopted the Uniform Probate Code. One provision of the Code sets out how a will may be revoked. As adopted in both New Mexico and Arizona, two methods of revocation are permitted. A will can be revoked either by a new will which expressly revokes the previous will (or which is so inconsistent with the previous will as to effectively revoke it), or by “performing a revocatory act on the will….” A “revocatory act” is defined to include “burning, tearing, canceling, obliterating or destroying the will or any part of it.”

Did Mr. Martinez revoke his will when he signed the “Revokation?” Assuming he was competent to do so, it may be assumed that his intention was to revoke the will. But, according to the New Mexico Court of Appeals, his failure to comply with the statute defeated his attempted revocation. The will was admitted to probate despite Mr. Martinez’ signature, and apparent intention, to the contrary. Estate of Martinez, June 8, 1999.

Arizona, since it shares the exact same language on revocation of wills from the Uniform Probate Code, should be expected to reach the same result. But the New Mexico opinion notes that the same result would probably have been reached even before the Uniform Probate Code’s adoption in that state, based on common-law principles regarding will revocation.

Some states, noted the New Mexico court, permit revocation of wills by a writing other than a new will. Usually, however, the revocation must comply with the same execution requirements as a will; in other words, a written revocation still would have to be witnessed by two people. Since Mr. Martinez’ “Revokation” did not meet that standard, it would not have been an effective document under New Mexico’s law even before the adoption of the Uniform Probate Code.

If Mr. Martinez was unable to locate the original of his old will, what could he have done to revoke it? Under the Uniform Probate Code and the law of many states, his only choice would have been to sign a new will which included revocation of the old document.

Florida Man’s Death May Lead To Claim Against Fiduciary

MARCH 10, 1997 VOLUME 4, NUMBER 36

John Montañez and Ouida Ray apparently had a stormy relationship. They were married in Florida in 1955 and their daughter Prudence was born later that year. Montañez and Ray divorced in 1956. In 1960 they remarried, and a second daughter, Rhoda, was born the next year. By February, 1961, Montañez and Ray were separated, never to have any significant contact again.

Although Montañez and Ray never divorced, Ray married another man in 1971. That marriage also ended in divorce.

Montañez was in the merchant marine, and so had little contact with his wife or two daughters. In fact, though he spent the last year of his life in a nursing home in Florida, none of his family even knew he was in the same state, much less visited him. He died in May, 1994, from septicemia, pneumonia and deeply infected bedsores.

During the year he spent in the Snapper Creek Nursing Home, Montañez had a court-appointed guardian and conservator, a private fiduciary organization known as Comprehensive Personal Care Services, Inc. After his death, Comprehensive was appointed Personal Representative of his estate. Snapper Creek Nursing Home promptly filed a claim for $20,696.23 against the estate, seeking payment for the care provided in his last months of life. Most of that claim arose from the costs of treating Montañez’ advanced bedsores.

Comprehensive objected to Snapper Creek’s bill, but quickly negotiated a settlement under which the estate would pay $15,000 and neither party would pursue any other claims against the other. Meanwhile, an heir-locator service found Ouida Ray, Prudence and Rhoda, and they became involved in the negotiations.

While Ray and her daughter Rhoda agreed to the proposed settlement, Prudence was not. She pointed out that the settlement would preclude her from bringing any further action against either Snapper Creek or Comprehensive, even if she could show negligence in the care of Montañez or the supervision of his guardian and conservator. The Florida court overruled her objections, and approved the settlement. It also authorized payment of $43,750 in attorney’s fees to Comprehensive.

At the same time, Ray alleged that she was entitled to a share of the estate as Montañez’ surviving spouse. Over the objections of Prudence, the trial court awarded her the widow’s share of the estate.

On appeal, the Florida Court of Appeals reversed. Noting that Comprehensive was not even qualified to serve as Personal Representative under Florida law, the Court of Appeals also saw an inherent conflict of interest in the settlement. Noting that “the Decedent’s death from septicemia and grossly infected bedsores raises the possibility that viable negligence and malpractice actions may exist by the estate against both Comprehensive and Snapper Creek,” the Court voided the settlement and ordered the appointment of a new Personal Representative.

The appellate court also observed that the Personal Representative of an estate has a duty to heirs and creditors not to settle litigation to the disadvantage of the estate. More fundamentally, the Personal Representative in this case (as a potential defendant) had a conflict of interest which made it impossible to settle the litigation fairly. In addition to voiding the settlement, the Court reversed the award of attorney’s fees.

On the subject of Ray’s right to a widow’s share, the Court of Appeals found that her subsequent remarriage (and divorce) barred her from making any claim. The opinion noted that when she remarried in 1971, she claimed on her marriage application that she had divorced Montañez in 1965, and she could not now claim otherwise. Estate of Montañez, Fla. Ct. of Appeals, February 12, 1997.

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