Author: Mariah Gravley

Telltale Signs of a Possibly Invalid Last Will and Testament

If you practice in estate planning, you may have a potential client come to you seeking to contest a decedent’s Last Will and Testament. When considering whether to contest such a document on a client’s behalf, you should consider the telltale red flags that are present when a will is likely invalid. Doing so will help you to identify successful legal bases to challenge the disputed will. Below is a non-exhaustive list of the most frequently present issues regarding improperly drafted (or executed) wills.

● Changes near the end of life: When a decedent makes changes to his or her prior estate plans and executes a Last Will and Testament close to their death, a person seeking to challenge the will should consider whether the decedent had enough mental capacity to execute the will and whether they were susceptible to improper influence of others, causing the changes;
● Changes after new Power of Attorney: When someone takes over control of the decedent’s healthcare and finances and shortly thereafter a new will is drafted and signed that includes that person, there is a presumption that the will is invalid;
● Questionable mental capacity: If the Last Will and Testament was executed at a time when the decedent’s mental capacity was questionable due to an intervening event or medical condition, the will may be invalidated due to lack of mental capacity;
● Attorney becomes beneficiary: When the attorney of the decedent becomes a substantial beneficiary of the estate, there is a presumption that as a matter of the new will is invalid and the burden shifts to the proponent of the will to show the will is legal by way of clear and convincing evidence;
● Technical faults: A will can have issues with the way it was drafted, its content, and even how it was executed. This includes failing to meet the required formalities mandated under applicable statutes. Any of these issues can successfully invalidate a will;
● Drastic changes without apparent reason: When there is a significant change in a decedent’s estate plans without any intervening factors that lead to the changes, this can be a sign of undue influence, lack of mental capacity, or some other concerns and the will should be looked at closely.
While the above is not an exhaustive list, they are the most typical situations that are involved when a will is successfully challenged. If you have a potential client that is seeking to contest a Last Will and Testament, look for the above hallmark signs of invalidity in your quest to successfully challenge the document.

Lawyer Suspended for Coaching Client During Virtual Trial Through Chat Function

An Arizona lawyer agreed to a two-month long suspension of his license after he was accused of coaching his client during a virtual trial by using the chat function on GoToMeeting, according to an article published by the American Bar Association (“ABA”) Journal.

 

The Situation

 

According to Law.com, the attorney was accused of messaging a client in a divorce proceeding during cross-examination by her estranged husband. The trial occurred in superior court Maricopa County, Arizona in September of 2020. The trial was conducted in a hybrid situation, where the judge was physically present in the courtroom and the other parties participated through GoToMeeting. The judge did not realize that the attorney was coaching his client until she had the opportunity to review the chat during cross-examination. According to the agreement for discipline by consent, the attorney was instructing the client to provide specific and substantive answers to questions being asked.

 

The judge instructed the attorney to stop, who agreed, but also claimed that the messages were the equivalent of him nodding or shaking his head in the courtroom while his client was being cross-examined in person.

 

Ethics Violations

 

The attorney conditionally admitted to violating several ethics rules including:

 

  • Fairness to opposing party;
  • Conduct prejudicial to the administration of justice; and
  • Conduct involving fraud, deceit, or misrepresentation.

 

All attorneys are subject to a “code of ethics,” no matter the jurisdiction under which their legal practice falls. Professional ethics is a code that governs the conduct of attorneys engaged in the practice of law and those who are not but are licensed. In fact, all professionals (attorneys or not) who work in the legal field are held to a certain level of professional ethics and duty toward the client, opposing party, court, and others. The code of professional conduct trumps all other duties, particularly when there is an ethical conflict of interests.

 

Every state has the responsibility of setting their own ethics rules that govern attorney behavior, which lay out guidelines for its state bar associations and attorneys seeking clarification on ethical choices they are confronting.

 

The judge ordered the attorney to complete the license suspension, which begins March 1st, plus a two-year probationary period, according to the final judgment. The attorney’s ethics lawyer indicated to Law.com that although his client has admitted inappropriate conduct and taken responsibility, he is also a young lawyer and the incident happened at the beginning of the pandemic when everyone was trying to figure out protocols with video proceedings.

 

Breach of Jurisdiction Agreements: Damages Under German Law

This scenario likely comes before litigators and arbitration lawyers who work in the space of international law. An American client believes it may have a seven figure claim against a foreign contractual partner. That foreign contractual partner refuses to pay the claim. Not surprisingly, the U.S. company wants to enforce this claim, preferably through its “home court” in the American judicial system. The American company has more confidence in U.S. courts and the effort and cost is low, making an action before the foreign court of the foreign contracting party something to avoid at all costs.

 

This all seems practical and feasible until the lawyer looks at the contractual agreement between the parties to see if there is a provision regarding jurisdiction. What if the parties agreed that the place of jurisdiction is outside of the United States? Indeed, such clauses are quite common in international contracts. In practice, however, jurisdiction agreements do not necessarily prevent parties from bringing a lawsuit before a court other than the agreed upon tribunal. This is because a hoped-for advantage before a party’s homecourt outweighs the risk of a dismissal due to lack of jurisdiction, at least under U.S. procedural rules. This is because under the “American rule,” each party bears its own legal costs. But this is not the case under German law.

 

German Law and Jurisdiction

 

In Germany, the rule is “loser pays” under Sections 91 et. seq. of the German Code of Civil Procedure (ZPO). A recent decision by Germany’s Federal Court of Justice (BGH) in October 2019 ruled on the substantive legal consequences of jurisdiction agreements. Specifically, the BGH held that a lawsuit brought in violation of a jurisdiction agreement could justify a claim for damages. Not only does the BGH ruling apply to contracts between private parties, but it likely also applies to jurisdictional clauses contained in arbitration agreements.

 

The underlying case involved an American telecommunications company that sued a German telecommunications company, alleging breach of contract. The lawsuit was filed in the U.S. District Court in Washington, DC. The German company challenged the lawsuit based, in part, on the parties’ agreement to exclusive jurisdiction by German courts in Bonn, Germany. The U.S. District Court agreed with the German company, and dismissed the action due to lack of jurisdiction. By that time, however, fighting the lawsuit cost the German company $200,000.00. The American telecommunications company then filed suit in Bonn, Germany, and the German telecommunications company filed a counterclaim suing for attorneys fees and costs as damages due to the Washington, DC lawsuit.

For more information on serving in Germany, visit our site. 

International Service of Process by Mail Allowed by Brazil’s Highest Court

The supreme court of Brazil, known as the Supreme Federal Court (STF), recently ratified the ruling of an American court regarding a legal dispute between an American and Brazilian company.

 

The Case

The matter at issue involves a decision by a New York court that ordered copyright distributor Latin Stock Brazil Produces to pay $362,740 USD to American company Shutterstock, which provides videos, images, and music. In order for the judgment to be enforceable in Brazil, however, the country’s judiciary had to ratify the New York Court’s decision.

Brazil’s Superior Court of Justice (STJ) accepted use of service of process by process of mail — a landmark ruling — the method by which was previously agreed to by the litigants in a clause in the contract between the parties. The parties further agreed in their contract that in the event of litigation, the matter would be resolved by a New York court where service of process can be perfected by mail. The STJ ratified the New York Court’s ruling as the agreement and acknowledgment receipt of mail was attached to the lawsuit.

 

The Ruling

 

The STF recently confirmed that a foreign court’s decision could be ratified without requiring a Brazilian company to be served with process in the legal dispute by letter rogatory. A letter rogatory is a formal request from a court to a foreign court for judicial assistant — typically asking the foreign court permission before performing a judicial act without which the foreign court’s sanction would result in a violation of that country’s sovereignty. The STF upheld a ruling of a lower Brazilian court, the Superior Court of Justice (STJ), that released an American company from the obligation of serving the Brazilian company through letters rogatory. According to an article published by Mondaq, between January 2015 and September 2020 the STJ granted nearly 90% of requests to ratify a foreign ruling. The STF held that the STJ’s judgment granting Shutterstock’s request was well-founded and also supported by the infra-constitutional law. Public policy also supported the decision as it provided greater legal certainty to foreign investors who wish to execute agreements with Brazilian companies — business relationships that can attract foreign capital to the country.

 

The Effects

After the STF endorsement of service of process by mail, numerous foreign companies now have the option of possibly establishing another method of process of service aside from letters rogatory, making international service both faster and cheaper. It is expected that companies with international agreements will include a similar clause in their contracts.

 

For service in Brazil, visit our site.