Monday, March 28, 2011

How much is enough? The Clear and Convincing Evidence Standard

How much proof do you need to meet the "clear and convincing" evidence standard to show a person intended a writing to be their will? In Estate of Stoker, the court of appeals for the Second Appellate District shows us in, shall we say, colorful detail.

The fact start out ordinary enough. Steven Stoker signed a will and trust in 1997. He died in February, 2008. His will nominated Destiny Gularte as the executor of his will. She petitioned the court for probate in March 2008, and sent a notice to the beneficiaries of the trust per Probate Code section 16061.7 and 16061.8, notifying them that they had 120 days to contest the trust.

In April 2008, Steven's daughter Denine petitioned the court to probate a later, handwritten will, signed in August 28, 2005. That will revoked the 1997 trust and gave his estate to his two children equally. There were no witness signatures to this will, but there were two witnesses to Steven's signing of the will. One witness testified at trial that Steven told her to get pen and paper. He then dictated the 2005 will to her, he then signed it and told her this was his last will and testament. Another witness saw Steven sign the will.

This was not all, though. Perhaps feeling the need to drive home the point unequivocally that he intented to revoke the 1997 will, he then, in front of the witnesses, proceeded to urinate on the original of the 1997 will, and then burn it.

The court first held that the petition to probate the 2005 will was sufficient to constitute a contest of the 1997 trust, since the will states specifically that it revokes the trust.

The court then got to the fun part. The Probate Code in California was amended in 2009 to allow wills that do not necessarily follow the formalities required for a valid will if it can be shown by clear and convincing evidence that the testator intended the will to be his or her last will when they signed it. (Prob. Code section 6110 (c)(2).) The court of appeal upheld the trial court's ruling that the clear and convincing evidence standard was met, that Steven Stoker intended to revoke the 1997 will, and that he also intended the 2005 will to be his last will.

Now you know what it takes to meet the clear and convincing evidence standard to show that an otherwise defective will (no witness signatures) was intended to be the testator's will. I will not, however, go so far as to counsel my clients to urinate on and then burn the wills they intend to revoke. If they want to do that it is up to them. I will say, though, that if they do decide to take that extra step, the Court of Appeals for the Second District will conclude that it meets the clear and convincing evidence standard.

Wednesday, March 2, 2011

Will JabberJury.com Render Litigators Obsolete? - Law Firm Business - Strategist

I don't typically re-post articles, but in this case I just couldn't help myself.

Will JabberJury.com Render Litigators Obsolete? - Law Firm Business - Strategist

Litigation is about half of my practice (the other half is a mix of estate planning, probate and trust administration). Somehow, I don't feel threatened by the likes of JabberJury. This is probably because the kind of dispute that someone would try to resolve through this web site is likely not the kind of dispute that needs a lawyer, and is very likely not the kind of dispute that I would take on, anyway.

With that said, I think JabberJury is a great idea. My heretical thought for the day is that too many people are too eager to hire lawyers to resolve their disputes, and the lawyers are often do too much work that has little benefit to their clients. Maybe as sites like JabberJury evolve, they can turn into something that really is a benefit to everyone.