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Wednesday, August 22, 2012

Readers, can you help with some legal advice?

This is a personal matter, and frankly, I'm hesitant to discuss it in public. But I can't afford a lawyer, and I'm not sure where to turn next in my research. There's nothing for it but to state my conundrum and hope that someone out there can help. In the past, my readers have been kind enough to give me very intelligent advice on various topics.

For various (good) reasons, I'm giving the stripped-down version of a situation that is somewhat more complex. Here it is:

My "stepfather" -- who was a well-known figure in his corner of what we may broadly call the performing arts -- died about ten months ago. He left behind a somewhat substantial estate. He and I did not always get along, to put it mildly.

Today I learned that his affairs have remained in limbo throughout the past year because -- in all this time and after much searching -- no-one can find the original of his will from the year 2000. A lawyer has a copy.

(I put "stepfather" in quotes because he and my mom led everyone to believe that they were married, even though I later learned that they never actually tied the knot. Back in the 1960s and '70s, people told white lies to please a judgmental older generation.)

My brother recently went through a box of old family stuff -- including a few dorky high school photos of yours truly -- and found an earlier holographic will from 1979. "Holographic" means handwritten. In this will, the "stepfather" left everything to my mother. She died in 1981; my brother and I are her sole heirs.

The 2000 will (in which, it seems, the beneficiary is his surprisingly young then-current girlfriend) is not holographic. However, only a photographic copy exists; a lawyer has it. The 1979 will is an entirely handwritten original. It is dated and witnessed by individuals whom I believe to be still alive.

The "stepfather" never married anyone in his life and has absolutely NO living blood relatives.

If my brother and I mount a challenge to the 2000 will, do we stand a snowball's chance in hell?

This all took place in my old home state of California, natch. 

I'll reveal the name of my "stepfather" one of these days, once this is all sorted out. Amusing stories will be told.

Any help you can give me will be very much appreciated. 
Comments:
Joseph;

I am not a lawyer, but lawyers seem to be the only beneficiaries of this situation. Probate alone is enough to eat substantial assets, if not all. You will need a lawyer. The only tax lawyer I know worth crap is John Ambrecht of Santa Barbara. It's been decades since I talked with him, but that's all I have. If it's a large estate (subject to Fed Estate Taxes) it may be a case where he can set aside the retainer, but if he's as good as he used to be, he doesn't have to. But with a modest consultation fee, perhaps he can give you some tips.

As you may be aware, Lawyers are most competent at figuring out your cash position, using that up,then dumping you.

Sorry to be so negative.

Ben
 
My sympathies. My late uncle remarried and his widow did a number on my poor cousins. I mean down to where she sold the beloved fishing rods which were to be given to his son.

Attorneys will usually give you a free consult. If you get a number of them you should be able to sort out if it's worth it to proceed.
 
Ben, I'll keep all that in mind. Right now, I'm just looking for a very rough idea as to what a lawyer MIGHT tell me if I consulted one.
 
I will e-mail you.

WV
 
I vaguely recall something about a handwritten will trumping a typed (with no notary)if fraud is suspected. I know my dad's will was trumped by a couple of initials that my despicable black sheep uncle got him to sign on his death bed while whacked out on morphine. I couldn't get a lawyer to take it to court (the estate wasn't worth enough to justify the costs) though both said I had a case.
 
Joseph, I'm not a lawyer but I've had some dealings. So here are my informal comments (make sure you get some proper legal advice). Any court would obviously have to weigh the merits of the competing wills. A bona fide hand written and signed will has a lot of legal weight behind it. The court assessing the other will would have to consider a number of factors:

(1) The 2000 will is only a photocopy. My understanding is that these are generally not legally admissible absent strong supportive testimony because they can be forged.

(2) Much would depend on when the lawyer says he received this second will, under what circumstances, was there any other written correspondence from your stepfather at the time to the lawyer, and so forth.

(3) The length and strength of the girl friend's association with your stepfather would also figure here if a court decided to give some weight to the photocopied will.

(4) Depending on answers to the last question, and the length and strength of your mother's involvement with your stepfather (and his involvement with the children) the courts might just divide the assets in some way. That outcome has to be considered.

I'd be tempted to get your lawyer to at least give notice to the other one that you may wish to contest the will and request any documentary evidence they may seek to rely upon in support of their 2000 claim. (It's worth a try).

Your lawyer should also advise you if there is any legal notice that needs to be provided to the courts in any particular time frame if you are to safeguard any financial interests you may have.

Also, I'd be asking my lawyer to inquiry about the court rules on the admissibility of evidence in a civil proceedings like this. It may well be that the 2000 will might be knocked out on procedural grounds alone when up against a recognizably legal document. (I really think this is a crucial aspect.)

You should be able to get an initial legal assessment of your case without committing to actual and expensive proceedings so go ahead and get some legal advice if you can.

Good luck.
 
Joseph, there are some other aspects in play here as well.

(5) The lawyer who holds the 2000 will may or may not be named as the executor of the estate. If he is the executor then he should not be acting for Girlfriend X. There may well conflict of interest aspects there that could play to your advantage. If she goes to court with him as legal rep and your side points out that he is the executor of the estate then the court may decide the conflict is legally unacceptable and throw out her claim leaving you as the winner.

(6) State laws may well apply here, especially where the wills were signed, and especially if Girlfriend X and your stepfather were recognized as cohabiting as husband and wife by state law standards. ask about the specific state laws that apply in regard to (i) wills and (ii) admissible evidence.

(7) Are there any witness signatures on the 2000 will? Who are they and where can they be contacted, if at all?

(8) Importantly -- do NOT contact the lawyer for girlfriend X to indicate intention to contest the will until you have received legal advice, especially in regard to filing any required notice of intent to contest before any relevant court. If you signal that you are going to contest the other side may move swiftly to pre-empt you.

(9) If you can get a copy of the 2000 will without arousing too much suspicion that would allow your lawyer to provide a better assesment of the legal merits of both documents.

Cheers.
 
Have you thought of posting your question on a open thread at Talk Left? Lotsa lawyers there!

http://www.talkleft.com/
 
I'm not a Catholic and don't understand limbo. Is the limbo thing because of the weakness of the opposition's claim as it stands, or because of a battle with your side which has already begun?

Hopefully it's the former, because if the opposition haven't got enough to get the estate out of limbo without fighting against the 1979 will, how can they have enough to prove the 2000 will against the 1979 will? This is assuming the 1979 will would be fine if that's all there was.

I'd have thought you'd be more motivated to look shit up! :-) In England there are some sites where you can sometimes get decent advice free, such as www.swarb.co.uk. Sure, there's always some annoying idiot who says go to a lawyer, but lawyers use the site to preen in front of each other, and once you've got a handle on the anthropology you can use the apes' behaviour to your advantage ('Here, piggy piggy', as they taught me in spook classes... :) )

In England, someone wanting to claim on the basis of a will has to 'prove' the will. I don't know what's this called in the US, but have the opposition tried to do this and been told by a court to go and find the original, or find the witnesses, or find some reason why their bit of paper shouldn't be ignored? If so, how long can they keep the estate in limbo without having to come up with something?

Or have they pushed to the front of the queue, camped out, and it's up to you to make a court application, on the basis of the 1979 doc, to get them out of the way? If so, what would they then have to do to?

How much would it cost for you to act in person to file your claim, file a caveat, or begin a warning process, whatever it's called, and see how they respond? Is the other side's lawyer making money out of the estate being in limbo?

If it were England, you would actually have a will, whereas they'd only be making a case that there was a different will. They'd carry a fair-sized burden.

What's the provenance of the copy? Where, when, by whom, and why was it made? Any reason to suspect it may not be genuine? Any evidence that such a will was actually made, other than the photocopy? Any evidence that goes to the contrary? Undue influence?

What happened to the original? Why wasn't it found with your 'stepfather's' effects? People usually leave wills in safe places. Any reason to think he may have destroyed it, meaning to revoke it? (If that's what he did, then the copy is worthless.)

How many copies were made? What happened to the others? Why does anyone make a copy of a will anyway?

Best of luck to yourself and your brother, whatever you decide to do!!
 
California inheritance law is notoriously convoluted and specialized to that state. If you contest the will - and a photocopy is pretty dubious evidence, given the ease of falsification - be prepared to spend several thousand dollars on a top-quality California lawyer specializing in inheritances.

One saving grace is the top-flight lawyers charge about the same as the hacks, so research the best lawyers in that area of California.
 
b: The Catholic church has revoked limbo. Which is too bad, since limbo, as described, seemed kind of groovy.

I can't give too many specifics in public. But the 2000 will was made by a lawyer and the only copy is in the lawyer's office. It is quite possible that the "stepfather" intentionally destroyed the original.

There is also the question of whether the second will explicitly revokes the earlier one. I have not seen the 2000 will yet and do not know the wording. The lawyer who drew it up may not have known of the earlier will.

Last night I was told that the 2000 will leaves everything to a trust, not to a named beneficiary. I don't know anything more about that at this time.

In response to an earlier question: I don't believe that my "stepfather" cohabited with his May/December paramour. She lived in New York. However, I ran across an interview with my "stepfather" which was allegedly conducted in his "midtown Manhattan pad." (In his world, people still say "pad.") The existence of such a pad came as a surprise to me! I don't know who actually owns that place.
 
So no more prayers for the souls of the dead, then?

The limbo thing doesn't translate well across the Atlantic, and I don't understand what stage the other side have taken things to, but on the basis of some experience in this area in the English jurisdiction, I would say as follows.

Consider filing the 1979 will, because it is clearly a will and not an indication that a will might have existed, and see what the opposition does next.

Check out whether you could file a caveat, to ensure that they can't take things further without warning you first. If nothing else, this should ensure that you get a copy of the copy of the 2000 will.

Isn't it considered good practice in the US for wills almost always to contain revocation clauses? E.g. you write "I revoke all previous wills and codicils" even if you've never made any. Since the 2000 will disposed of "everything", a revocation clause wouldn't be needed (except perhaps in relation to the expression of wishes that did not take the form of bequests), but if it was drawn up by a lawyer, then I would have thought it would include one.

In England, if a will that contains a revocation is revoked by destruction, then the whole if it is revoked, including the revocation. The immediately preceding will then comes back into effect.

Was the original of the 2000 will ever in the lawyer's office? If yes and your 'stepfather' took it out, what does the lawyer's attendance note say as to any reason he gave?

If he never let his lawyer keep the original, then presumably he put it somewhere that was at least as safe as a lawyer's office, and if it wasn't with his bank, or another lawyer, or in his filing cabinet, or under his mattress, then given that people usually only write wills so that other people can use them once they're dead, and given that he was serious enough to instruct a lawyer to draft his will in the first place, an argument could be made that since he was the last known keeper of the original (?), and it wasn't found with his stuff, he probably destroyed it.

So that's you sorted out in Manhattan...
 
b, I like what you've said. That's all I can say right now.

I've never been to Manhattan. Wouldn't want to live there, but I wouldn't mind visiting!

Thanks for all the interesting comments, everyone. And if anyone else can give me some pre-indication as to what a lawyer might tell me...
 
I must say I'm a bit unimpressed by this lawyer. A client signs a will and takes the original away leaving a photocopy with the lawyer. If this lawyer had any kind of expertise he would understand that such a document is legally second rate. He should have been keeping the original, asking for a duplicate, or even having the client sign a supporting affidavit of some kind. Something doesn't seem right about a lawyer holding on to such a second rate document.
 
Well, wxyz, I don't know the full facts yet. All I know is what my brother has told me.

Isn't this like a Grisham novel...?
 
It certainly IS like a Grisham novel, Joseph - exactly what I was thinking as I read the post and comments. I read Grisham's The Summons a few weeks ago and thought of it as I read here.
:-) I hope things work out to your advantage, and that your own legal potboiler has a happy ending.
 
just a few quick comments: in many/most jurisdictions, if the original will cannot be located, a legal presumption arises that it was revoked. (a photocopy may be 'proved' however) also, in many jurisdictions an original (it is not uncommon to execute duplicate originals - does the photo-copy refer to being executed in duplicates?) can be filed with the local registry of probate. you may want to check to see if that was the case, and if an original was filed, and then returned to/removed by the testator, that would be evidence of its revocation. honestly, many/most of these cases do not turn into the anna nicole smith variety, but settle after much negotiations.
 
Well as to the Will that named your Mother as Benefactor, if contains "if she should survive me" type clause then this could make that Will null & void.

There might be legal standing if you & your brother are using your "Stepfather's" surname. That would give weight to a family related understanding.

If a duly appointed officer of the court can attest to the validity, e.g. intent, of that document that would be a very strong factor. And may decidedly rule in favor of the named person(s) in the document.
 
Hey Joseph, Try www.avvo.com They actually have lawyers that will answer your question for free. And they usually respond the same day. You also have the option of remaining anonymous and of having the attorney contact you, if you desire.

--------------------------

My personal opinion only, a copy of a will is not enough, but if there are actual living witnesses to the creation of that will, that still presupposes that the copy was from the authentic, which seems dicey.

Hopefully an attorney can write a letter to the attorney of your step mom and a compromise can be worked out that basically saves all parties a ton in legal fees, making it worth it to all to compromise.
 
oops, should have written step babe instead?
 
Sandro, thanks. I will definitely try that site.

In fact...many, many thanks to everyone.
 
Anonymous: I would never use my pseudostepfather's surname. Not for ANY amount of money.

And there is no wording along the lines of "if she should survive me."
 
I most certainly think you have a case and should seek a good lawyer.

A couple of things: in California, if you discover a will, you must lodge it with the court within thirty days; in California, holographic wills do not require witnesses - they are proven to be authentic based on the handwriting. Given the decedent has some notoriety, that should be easy.

Was the copy of the will witnessed? Was the copy legalized (notarized or other forms of legalization)?

Also, as you probably know, there's a timer ticking - what stage of probate is the estate in?

As to what an attorney might tell you, the best, clearest way to know that is to look at precedent cases in California with similar facts.

Citizen K
 
Thanks K. I should get documents soon which will tell me the state of probate. I'm thinking now that I stand a fairly good chance...
 
I thought I had posted this, but I guess not. Re faux step dad's gf, if I've read between the lines and followed the breadcrumbs correctly, when her mortgage company hit her with a default on her NY coop, a SoCal PMB was given as her her home address -- even though she'd lived in that apartment for years.

If I haven't read between the lines and followed the breadcrumbs correctly, then never mind....
 
I WAS A SOLE HEIR/EXECUTRESS.THE LAWYER GAVE THE ORIGINALWILL TO A FAMILY. MEMBER; NO PRO BATING.THUS THE HOUSE WENT TO AUCTION.BUT THE FAMILY STOLE EVERYTHING in THE HOUSE.I WENT TO THE COURT.THERE WASNT A THING J COULD DO WITHOUT THE REAL WILL.THE LAWYER REFUSED TO HELP EVEN RETIRING A MONTH LATER.SO I LOST 46 YRS of MY MOM AND DADS LIFE.A HOME LOST TO AN AUCTION 165.000.00 FOR $9.000.00.I Do UNDERSTAND AND IT MAKES ME SICK





 
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