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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.

 

Investigation Exposes Weaknesses in Vatican City’s Judicial System

Investigation Exposes Weaknesses in Vatican City’s Judicial System

 

A recent criminal investigation into a Vatican City real estate investment has revealed weaknesses in the Holy See’s judicial system, including a lack of protections for those accused. The result, it seems, is that the judicial system and procedures are incompatible with European norms.

 

Understanding Vatican City

 

Never a democracy, the Vatican instead has been a moral authority on a global scale and at the same time a monarch. The pope has the ultimate power — being the supreme legislator, executive, and judge — who can make laws and regulations (and waive them) as well as hire and fire officials, prosecutors, and judges. Marc Odendall, a former long-time papal advisor recently gave up his consulting roles in protest of the grave issues he saw coming out of the real estate probe because something had to be done.

 

The Investigation

 

The probe was into a 350 million-euro London real estate investment. The investigation came to light in October, 2019 when the pope’s security officials raided the offices of the central government of the Holy See — the Vatican secretariat of state. These body guards also raided the AIF, the Vatican’s financial watchdog authority. Notably, Pope Francis had personally authorized the raids in response to information that a trusted ally had alerted the Vatican’s prosecutors of questionable circumstances surrounding the investment. The Pope defended the raids on the AIF despite steep criticism.

 

While the investigation portrayed Pope Francis as a leader who was cracking down on corruption, there is evidence of financial mismanagement by Vatican officials, including agreeing to pay tens of millions of euros in fees to Italian middlemen. Suspects of the investigation claim Pope Francis was aware of the payment, even that he purportedly personally approved it, and that top Vatican leaders authorized the transaction.

 

Vatican Law

 

The case itself is highlighting the limitations embedded in Vatican law, which is based on Italian code from 1889. Not only is this code no longer in use in modern-day times, but compared to modern legal systems, it also diminishes the rights of defendants during an investigative phase of a case. One example of this is Pope Francis authorizing the Holy See’s prosecutors to us a “summary rite” during the investigation. This allows them to deviate from typical procedures and grants them discretion to interrogate and perform searches and seizures without any oversight from an investigating judge.

 

Complexity of International Law

 

The real estate investment investigation at Vatican City highlights how complicated international law can become. If you are pursuing a lawsuit against an international defendant, the last thing you want to be concerned with is proper service of process. The team at Ancillary Legal can handle all of your processing needs so you can focus on the substantive aspect of your case. Contact us today.

Lawyer Sanctioned for Frivolous Filings

A lower court imposed sanctions on a lawyer who filed lengthy and frivolous filings in a dispute with his brother. The Atlanta-based 11th Circuit Court of Appeals upheld the sanctions for the Florida-based bankruptcy attorney. The pleadings, according to reports, were riddled with exclamation points, rants, and at one point even quoted Bugs Bunny.

The Case

In its December 15 unpublished per curiam opinion, the appellate court placed sanctions on the man. The behavior by the bankruptcy attorney included comments during a deposition telling opposing counsel to “shush, shush, shush” as well as frivolous filings, one of which included a haiku in a motion seeking reconsideration of a court ruling. The bankruptcy attorney further quoted Looney Tunes character Bugs Bunny when arguing that the sanctions motion against him was lacking specific allegations.

According to the opinion, the sanctions started from the attorney’s self-representation in litigation that began with a probate case and then moved into bankruptcy court. Initially appointed as the personal representative of his mother’s estate, the attorney was then removed by the court based on his brother’s request due to filing for bankruptcy and listing the brother as holding a non-priority unsecured claim. The brother, on the other hand, alleged that the debt was a result of the attorney converting the estate property for personal use and, therefore, was not dischargeable in bankruptcy court. The attorney claimed the bankruptcy court lacked jurisdiction; in response, his brother filed for sanctions.

Monetary Fines

At a sanction hearing, the bankruptcy court ordered the attorney to pay his brother nearly $3,000 in attorney’s fees. After attending a hearing on the underlying bankruptcy case, the brother again filed for sanctions. Ruling on the merits of the case, the bankruptcy court held that the attorney acted in bad faith throughout the litigation, awarding the brother nearly $10,000 in costs. According to the bankruptcy court, the attorney suffocated the docked with frivolous and unnecessarily long pleadings as well as asked repetitive and rude questions in depositions. The court further noted the attorney was wrong when he claimed the bankruptcy court lacked jurisdiction over his brother’s claim.

A district court noted that the bankruptcy court lacked authority to impose sanctions and, therefore, interpreted its order as a recommendation imposing the same sanctions. The attorney appealed. Not only did the 11th Circuit uphold the lower court’s sanctions, but placed additional sanctions of almost $3,500 for expenses incurred by the attorney’s brother for the appeal justifying its decision on the attorney’s baseless arguments, according to an article by Law360.

 

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