Wealth Law Blog : Oregon Asset Protection Lawyers & Attorneys : Samuels Yoelin Kantor Seymour & Spinrad Law Firm : OR Estate Planning, Fiduciary Litigation

Astonished Florida attorney David A. Shulman recently wrote on his blog about a sales pitch from a company that provided the paid services of "video wills," without the company providing any explanation that such videotaped wills are entirely inadmissible in Florida. 

That is, one cannot avoid the legal requirements for the execution of a valid will simply by saying on a video that they want Daughter Susie to have the house and Son Bobbie to have all of the personal property.  You must conform with the applicable statutory requirements.  

Accordingly, video wills are not an option - certainly not in Florida, nor in Washington or Oregon, where I practice.   (ORS 112.235:  "A will shall be in writing....."RCW 11.12.020(1) "Every will shall be in writing....")

Additionally, as a fiduciary litigator, let me caution against videotaping the execution of a handwritten will.  It may be seen as a way to ensure the person signing the will has the capacity to do so, and has not been unduly influenced to sign the document.  However, such evidence has the potential to backfire if the person signing the will makes an unusual statement or presents a mannerism that a judge or a paid expert could review - without knowing the person well - and find it as evidence to overturn the will.   

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A handwritten will may still be valid in a state that doesn’t normally recognize them, if you have the right facts. 

Many states (let’s label it “State A”) recognize that a will executed in a foreign state (“State B”), pursuant to the laws of State B when executed, can also be valid in State A. For example, see ORS 112.255(1)(c) and RCW 11.12.020. This can come into play when you are dealing with states that recognize holographic (handwritten) wills, like California, and states that do not recognize such wills, such as Oregon and Washington.

So do not be dismissive about a holographic will. Where was it executed? Did it comply with the statutory requirements for a valid will in the state in which it was executed? 

Domicile is another important issue when looking at a will. Domicile is not as simple as where somebody owns a home. Domicile, generally, means the place where a person resides and intends to remain permanently to the exclusion of other locations. To determine if there is a change in domicile, generally courts look to: (1) the decedent’s residence; (2) the decedent’s intention to abandon the prior domicile; and (3) an intention to acquire a new one.   

The reason domicile is important is that State A may recognize that a will executed pursuant to the laws of a different state of the decedent’s domicile at the time of execution, or domicile at the time of the testator’s death, is still valid in State A. Oregon and Washington recognizes this approach. ORS 112.255(1)(b); RCW 11.12.020. It’s important to note that it’s not an “and” test, it’s an “or” test, so look at both options, if applicable.  

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From time to time we will publish recent local cases or legislative bills:

Man murdered his mother, stepbrother, and his mother's boyfriend.  Jury found him not guilty by reason of insanity.  The mother's estate then received money from a wrongful death case.  In re Estate of Kissinger ruled the slayer could not inherit from his mother's estate because the Washington slayer statute applied and the slayer was treated as having predeceased his mother.  RCW 11.84.010.    

Comment:  It's good when the law aligns with common sense; just because the jury finds you not guitly by reason of insanity does not mean you still get to inherit for your misdeeds.   

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From time to time we will publish recent local cases or legislative bills:

Oregon Senate Bill 403

Senate Bill 403 makes a very small amendment to ORS 30.030, which deals with the dispersal of damages received from a wrongful death action. Originally the remainder of damages from a wrongful death claim could only be dispersed in a manner similar to intestate succession. Senate bill 403 amends ORS 30.030(5) to allow the remainder of damages to be dispersed in any way agreed by the beneficiaries or in a manner similar to intestate succession. 

This bill became effective on March 31, 2009.

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  From time to time we will publish local cases and legislative bills:

State v. Boyle, -- P.3d --, 2009 WL 1313755 (Or App)

Background: Fifteen years after the decedent’s death, the state of Oregon opened probate in order to attempt to collect approximately $80,000 worth of medical assistant payments the state made on the decedent’s behalf before his death. The personal representative disallowed the claim as untimely. The state filed a separate action based on the denial of their claim.

Holding: The only statute of limitation that applies to claims by the state against an estate for medical expense reimbursement is ORS 115.005(2)(a). This statutory provision only requires that claims be filed within 4 months of probate opening. Since the state did this, their claim was allowable.

Comment: 15 years? The state sure has a long memory. But if the claim had also been subject to some other statute of limitation (like 6 years for a contract claim), then the claim could be disallowed.
 

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QUESTION:  Does Grandpa have the mental capacity to sign his last will and testament, leaving you his very large estate and disinheriting your ungrateful, meddling, younger brother? 

ANSWER:  Depends on who you ask. 

When Grandpa has peacefully passed, without the ability to confirm his written intentions, you will argue he was as quick as a fox and sharp as a tack, until his very last breath.  Infuriated Brother will argue Grandpa was about two sandwhiches shy of a picnic.

The truth is somewhere in between, often leading to estate litigation. 

 There are generally four requirements for testamentary capacity: 

1. The person must be able to understand the act in which he or she is engaged (the execution of the will);
2. The person must know the nature and extent of his or her property (mind you, it need not be the specific dollar amounts or account numbers);
3. The person must know, without prompting, the claims, if any, of those who are, should be, or might be the natural objects of the person’s bounty (family members); and
4. The person must be cognizant of the scope and reach of the provisions of the document (not the full legalities of each clause - that's why you hire attorneys to prepare them in the first place).

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Were you Just Being Helpful in driving dearly departed mother to her attorney's office to sign her will - or were you Unduly Influencing her to prepare an invalid document? 

That may be just one of the many facts in the long and winding road of undue influence estate litigation where both sides can convincingly argue that the same facts prove their very different cases.

In Oregon, In re Reddaway’s Estate, 214 Or. 410, 421-427, 329 P.2d 886 (1958), identifies seven factors or guidelines that have been raised in undue influence cases:

1. Procurement. The beneficiary participates in preparing the will. This can cut both ways: Was it natural that mother asked the favored son to get estate documents together or was it an example of exerting undue influence?
    
2. Lack of independent advice.  A beneficiary who participates in preparing the will and has a confidential relationship with the testator has a duty to see that the testator receives independent, disinterested advice.  That is, it looks really bad when you take your feeble aunt to your attorney of 35 years, rather than her normal attorney or a truly neutral lawyer. 
3. Secrecy and haste. Was the will kept from family members who might otherwise have been the natural objects of the testator’s bounty, or done in secrecy and/or haste?  Yet again, it can cut both ways when it may be entirely natural that the ne’er-do-well child was not told of changes to the will, but the same child will argue mom "always" told him of her financial decisions.
4. Change in the testator’s attitude following close association with the beneficiary.
5. Change in the testator’s plan of disposing of property. Were there unexplained changes from previous wills or from intestate dispositions?  "Unexplained" is the key word.
6. An unnatural or unjust gift to the beneficiary as compared to those who otherwise would naturally be expected to take.
7. Susceptibility to influence. A testator who is physically sick, emotionally or mentally confused, or becomes dependent on the beneficiary is susceptible to influence.

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From time to time, we will publish blurbs on recent local court opinions and state legislation:

Brown v. Hackney, -- P.3d --, 2009 WL 1394832 (Or App 2009)

Background: Brother of the decedent, a beneficiary through intestate (without a will) succession, challenged the payment of the personal representative from funds acquired through the settlement of a wrongful death action initiated by the personal representative.

Holding: The personal representative may be compensated based on the proceeds of a wrongful death settlement. ORS 116.173 bases personal representative compensation on the “whole estate” which is greater than the intestacy “estate.” The decedent’s “whole estate” is “comprised of all property both within the jurisdiction of the probate court as well as property outside the jurisdiction of the probate court.”

Comment:  This fight was over an amount of $5,200.  $5,200!  Really!?!  Can't we negotiate matters like grownups, instead of taking them up to the court of appeals? 

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From time to time, we will publish blurbs on recent local court opinions and state legislation: 

Harris v. Jourdan, 218 Or App 470, 180 P.3d 119 (2008)

Background: Will contest involving a decedent that executed multiple wills. Each will was a drastic departure from the previous will. One beneficiary of a previous will challenged the probate of the most recent will based on undue influence. Will proponent claimed that beneficiary of prior will did not have standing to challenge the will because she, in fact, had procured the previous will through undue influence.

Holding: Beneficiary of prior will is not required to demonstrate that prior will could survive a will contest in order to have standing to contest the will that is currently in probate.

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