June 13, 2007

OK South Florida- I’m back.
 
I have had a few inquires over the past few weeks from concerned readers wondering if they had been dropped from the column email list. The truth of the matter is that as our clients’ lives and financial/estate planning needs continue to become increasingly more complex we find ourselves putting in longer and longer hours at the office. As a result, there isn’t much time to focus on writing this column. Hence, the dry spell.
 

ESTATE WARS CONTINUE

In our legal department, we continue to find ourselves either in Court or in our office conference room trying to mediate or settle disputes between family members over divisions of investment assets and property holdings. All too often these battles can get nasty and can result in irreparable damage to family relationships. Regardless of how well thought out or how carefully devised the estate plan is, family members with sudden concern for previously neglected parents/grandparents seem to be coming out of the woodwork more and more frequently.
 
For those Sopranos fans amongst you, the sudden devotion displayed by Tony’s sister Janice for Uncle Junior in the final episodes is a prime example of this phenomenon. Yes, there is an estate-planning lesson to be learned here. Tony also attempts to get through to Junior, now firmly in the grips of dementia, to find out where he has stashed his life’s “earnings.” In a rare show of compassion and the desire to do what is right, Tony is trying to secure this money for the newly orphaned children of his brother-in-law Bobbie, Junior’s long time, loyal assistant. Tony’s efforts are to no avail; it is too late and the money will probably never be found. Even in this mobster tale, the importance of having some planning completed and in place well in advance of possible disability is made evident.   
 
It is very painful to watch loving, well-intentioned family patriarchs or matriarchs struggle with family battles at a time in their lives when they deserve to be enjoying the fruits of their labor. In order to militate against such scenarios within your own families, I suggest that you all take the time to carefully think about the personalities and situations of your own children and their spouses, and the ramifications of each decision you make. The more specific you are in your own planning, the clearer the communications to heirs, and the less you leave open to chance or interpretation, the better your chances for avoiding disputes.
 
However, in many cases there is nothing that we as attorneys, or you as Testators can do. If potential heirs feel slighted, harbor resentments, or have money problems, they are often unwilling to accept their parents declared wishes as the final word. They hire attorneys to litigate for them and they press on with their weak cases even though the likelihood of success is negligible. They may waste hundreds of thousands of dollars in Legal fees and hundreds of hours of time in pursuing futile cases. This, unfortunately, is the result when family members do not act rationally, but rather when they act purely based on emotions. They maybe using the Courts to redress some perceived injustice, borne out of a family dynamic that has been in place for upwards of 50 years. Yes, gripes or grudges that have festered over the years, such as, “Dad always favored you” or “Mom always gave you more than you deserve” can cause an heir to enter the court system in a final attempt to get in the last word.
 
So, at the end of the day, even meticulously drafted documents with the utmost specificity may be challenged. But, with effective draftsmanship techniques in place, the true wishes of the testator will likely be carried out. Absent effective planning and protection, a legal challenge can be much more drawn out and the outcome much less predictable.               
 
PLEASANT COURT EXPERIENCES?

Miami jurors have yours truly to thank!

It was a little over a year ago that I wrote the piece on my daunting experience with the Miami-Dade Criminal Court Jury Duty system (Finding Christopher Reeve). In that article I was less than complementary about my long Jury Duty day and described how I survived it. Well, apparently that article was forwarded and passed around until it found it’s way to the actual court in question! I received a phone call from The Official Court representative, who was extremely eager to learn, in great detail, about all of my complaints and issues. He said he was committed to improving the system and would take my suggestions seriously. Fortunately, I haven’t been back to Criminal Court in any capacity since then, but perhaps my e-mail resulted in some positive changes for potential ands elected jurors…

A Thoughtful, Caring Judge

Speaking of Estate Wars and Courts, last week in my capacity as an attorney, I found myself in Civil Court trying to resolve yet another unfortunate family estate dispute. Without getting too specific about the case, the resolution was that after many wasted hours in time and many thousands of dollars in fees all parties agreed with the original medical opinion that the elderly patriarch (testator) in question did, indeed, have ‘limited capacity.’ Included in the court’s list of legal procedures he would no longer be able to initiate for himself, was the ability to enter into new contracts. Presiding Judge Arthur L. Rothenberg, was asked if that prohibition would include making or changing a Will, given that the common standard is that the Will maker needs only a few moments of lucidity at the time of signing in order to establish a valid Will. The subject in question, my client, did appear relatively lucid for brief periods of time.
 
Judge Rothenberg then launched into a very interesting philosophical tangent, questioning how a society such as ours would place a higher standard of cognitive function on entering into a contract then on making a Will. It certainly can be argued that a Will is at least as important, or even more important a document, in the context of our society than a contract. The Judge continued on to say that while other jurisdictions may have a higher standard for contracts, this was not to be the case in his Court Room. A day later, I was startled to receive a call from the Judge, making sure that neither I nor anyone else misunderstood his philosophical tangent or took it in the wrong way.

Austin A. Frye, MBA, JD, CFP®

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