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Messy Inheritance Case Makes Fun Reading – but leaves only questions

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It’s 1931 and Tough Guy (“TG”) impregnates Mom then dies shortly thereafter in a street fight over Mom’s affections. TG dies before his baby is born.  TG’s baby grows up and has one child.  That child (TG’s grandchild) dies many years later, leaving no will and no issue, no surviving parents or grandparents, but an estate of about $500,000 (enough to litigate).   Because of a dearth of offspring, the issue is whether TG was a good enough parent to inherit under Michigan’s intestate laws.  If he was good enough, TG’s son by another mother (who is a half uncle to the decedent) would inherit half the estate.  The case is called In re Estate of Kenneth James Koehler. To read the case, click on the name.

Michigan law includes provisions in MCL 700.2114, designed to punish absent and deadbeat parents. Essentially that law says that a sperm donor dad (or egg donor mother) who either doesn’t acknowledge their child or fails to support their child during that child’s minority is not treated as a parent for inheritance purposes.  In this case, the Court says the exception wouldn’t apply to TG because he was never alive when his child was born, and therefore never had a chance to neglect his child financially or emotionally.  So, half-uncle gets a windfall.

This case comes about because of a law that seeks to punish bad parenting through the probate process. As with many well-meaning statutes, the devil is in the details.  It feels right that a bad parent shouldn’t inherit from his/her child’s (or in this case, grandchild’s) estate.  But seriously, if the story was different, say TG had been shipped off to war after impregnating his girlfriend and died a war hero, would anyone really be arguing that his side of the family wouldn’t be entitled to a share?  And maybe more interesting, what if TG had lived for a couple months after his baby was born, and during that short time period ignored the child and provided no financial support, would that be enough to cut him out?  What if TG didn’t die, and acted like a parent for one year but then disappeared for the next 17?

The case is published – so it matters.

Colleague Phil Harter sees this as a case in which bad facts are making bad law. He points out that the case deviates from the prior law with respect to proof issues. A link to Judge Harter’s analysis is click here.

MFDA Chimes in on Funeral Rep Law

The Michigan Funeral Directors Association contacted the author of this blogsite and offered a different perspective with respect to, in fact, takes exception to, the conclusions offered in my prior post regarding the anticipated funeral representative law, and specifically with the proposition that the funeral representative will have a legal obligation to follow the known wishes of the decedent. Following is a legal opinion obtained by the MFDA on this issue:

Including “funeral representative” in the definition of “fiduciary” does not support the conclusion that a funeral representative would owe a fiduciary duty to the deceased person.  In other sections of the statute, EPIC expressly provides duties that a fiduciary owes, and to whom a fiduciary owes those duties.  EPIC does not impose a fiduciary duty to a deceased person.  Specifically, MCL 700.1212 provides that “[a] fiduciary stands in a position of confidence and trust with respect to each heir, devisee, beneficiary, protected individual, or ward for whom the person is a fiduciary” (emphasis added).  EPIC further provides that “[a] fiduciary shall invest and manage fiduciary assets solely in the interest of the beneficiaries.”  MCL 700.1506 (emphasis added).  Finally, EPIC enumerates remedies available in the event of a breach of fiduciary duties.  However, those remedies again only contemplate “[a] violation by a fiduciary of a duty the fiduciary owes to an heir, devisee, beneficiary, protected individual, or ward for whom the person is a fiduciary…” MCL 700.1308.

Nothing in EPIC discusses or otherwise imposes a fiduciary duty to a deceased individual.  This proposition is further buoyed by Senate Bill 551’s language that “a funeral representative… is presumed to have the right and power to make decisions about funeral arrangements and the handling, disposition, or disinterment of a decedent’s body, including, but not limited to, decisions about cremation, and the right to retrieve from the funeral establishment and possess cremated remains of the decedent immediately after cremation.”  MCL 700.3206(1).

Further, Senate Bill 551 specifically enumerates the order of who has priority in determining funeral arrangements and the disposition of the body.  A funeral representative has priority over all others (except service members whose remains are disposed of in accordance with federal statute).  MCL 700. 3206(3).  Importantly, MCL 700.3206(3) does not provide that a  funeral representative is beholden to any stated requests made by the deceased.

Finally, in outlining the powers of a personal representative, which is also defined as a fiduciary, EPIC makes following the written instructions of the decedent merely permissive, not required.  “Subject to sections 3206 to 3208, before or after appointment, a person named as personal representative in a will may carry out the decedent’s written instructions relating to the decedent’s body, funeral  and burial arrangements.”  MCL 700.3701 (emphasis added).  Clearly, if being included as a fiduciary under EPIC required following such instructions, this language would be both unnecessary and conflicting with that duty.

Long Sought Funeral Fix Awaits Signing

Funeral photo

It appears that the people of Michigan will soon be able to appoint a “funeral representative.” A funeral representative is a person who is authorized to make funeral and other arrangements regarding the disposition of the remains of the appointing person after that appointing person is dead.  The appointment can be made in a will, a patient advocate designation, or a separate document.

Seems simple, and it is, but getting to this point hasn’t been easy. The Probate Section of the State Bar has worked on this issue for years in fits and starts, but with only nominal successes. This new process was endorsed by the funeral industry – and they got the job done. Good for all of them and all the other groups that have joined in the efforts to make this happen. (Special shout out to our friends at the Michigan NASW chapter; and to Senator Tonya Schuitmaker, the bill’s sponsor).

Currently, Michigan law gives a decedent’s “next of kin” the authority to control the funeral process, and the law provides little direction regarding how to deal with situations where “next of kin” can’t agree, or where the known wishes of the decedent are contrary to those of the deciding family member. Under the new law, we get to choose who we want to be in charge.  Further, and perhaps most importantly, as the law currently exists, the “next of kin” in charge has no legal obligation to follow the wishes of the deceased person regarding their funeral arrangements.  Whereas the new law, by statutorily defining a funeral representative as a “fiduciary,” obligates the funeral representative to follow the known wishes of the decedent.  All good. NOTE: This assertion that the funeral representative’s fiduciary status would obligate them to direct disposition in manner consistent with the known wishes of the deceased is disputed by some, including the Michigan Funeral Directors Association. The opinion of the MFDA is detailed in the subsequent post on this blog site: “MFDA Chimes in on Funeral Rep Law.”

The new law has been passed by both the State House and Senate, and awaits the Governor’s signature, which he is expected to do.

To read the bill in the form it passed both houses, click here.

To read a summary of the key provisions of the law from the House Fiscal Agency, click here.

 

Litigation Strategies(ramblings) Part VIII: Squatting In the Bush

When I was here, I wanted to be there; when I was there, all I could think of was getting back into the jungle. I’m here a week now… waiting for a mission… getting softer. Every minute I stay in this room, I get weaker, and every minute Charlie squats in the bush, he gets stronger.

Those are lines from the film Apocalypse Now, spoken by the main character as he is beating himself up (literally) in a hotel room while waiting for a new mission.  I know that litigation is nothing like war.  But the feelings expressed by this movie character suggested thoughts I’ve had about litigation, and specifically about the challenge of being engaged in litigation while trying to balance other parts of life and the practice.  So here we go…

In the heat of a contested case, the litigator is on the road going to court, staying in hotels at night and taking depositions during the day, fielding motions and firing back. It has a feel of battle at times – even between the most collegial attorneys.

It’s hard to bounce in and out of litigation. Hard to be intense and let go.  Stress goes with the territory.  You’re watching your step all the time, while also trying to see ahead.  Anticipating. Strategizing. Waking up at night with a pad of paper next to your bed.

Probably part of the reason so many trial lawyers turn to alcohol.

You have a team, but in the end, the lead attorney calls the shots.

The work is draining. I’ve heard it said: “There are only so many trials in a lawyer.” I think there is some wisdom in that.

To be good, your skills have to stay sharp -your attitude has to be in the game. You can’t just pick it up and put it down.

Trapped by their own success, in quiet moments, in the back of the courtroom or in the hall outside the court, seasoned trial lawyers commiserate. The conversation is always the same – very little variation:

“Are you busy?”

“Yes – too busy. You?”

“Yes, me too. Trying to slow down.”

“Me too.”

Slowing down is always a pipe dream. It’s the experience and sharpened skills that clients want – and are willing to pay for.  And so the push and pull becomes how to stay sharp, stay in the game, and stay sane.

Is it fun?

I don’t speak for everyone – but I think everyone who does this work enjoys some part of it. There is a “high,” as it were, that comes with being the ringmaster – facing a skilled adversary – standing in the courtroom and calling witnesses, cross examining others.

Is it fun?

Maybe more like what the movie character describes – a place that’s comfortable but uncomfortable at the same time.

[OK – I think I’m done with this series on litigation for the time being. I’ll try to get back to other topics now.  Thanks for your patience.]

Litigation Strategies Part VII: The Hands that Rock the Cradle

Petitions, motions, discovery. It all matters.  But when it comes to winning the guardianship/conservatorship case, there is an additional element – managing the court-appointed players.  Specifically, the guardian ad litem (“GAL”) and doctor (usually a psychologist but sometimes psychiatrist) who conducts the independent medical evaluation.

The GAL

While all judges are different, most judges give great weight to the recommendations of the GAL, and in more than a few counties, the judge will practically defer to the report and recommendations of the GAL when making a decision.

So that means to the lawyer needs to do everything within their power to get the GAL on their side, or at least neutralize them. Start communicating early – but don’t be pushy.  Typically GALs begin their investigation at the last minute, and prepare their reports the day before a hearing.  But that doesn’t mean you can’t have a friendly conversation early on to let them know what the case is about (a la your spin), and let them know that you and your clients are available when needed if more information would be helpful.

While the Court Rules allow an attorney to call the GAL as a witness and cross examine the GAL on their report – the goal is to avoid that. In most counties, the same GALs appear over and over before the same judge.  They have a relationship.  Beating up on the judge’s friend doesn’t necessarily advance your case – even if you do a great job of it.

The Doc

Likewise, even when you bring your own medical expert to court, the judge in most counties is going to give greater weight to the doctor they commonly appoint than to the experts retained by the parties, who the judge may perceive as hired guns.

Accordingly, as with the GAL, the sooner you establish communications with the court-appointed medical expert, the better. Unless the Court specifically orders attorneys not to communicate with the doctor, I highly recommend sending the doctor a letter outlining the case (a la your spin) and offering to provide more information or discuss the matter with them at a convenient time.

Another term to know in this context is “historian.” When doctors evaluate people for cognitive impairment, they almost always turn to the person who came with the impaired adult to the appointment for information that is used in their report to verify whether the things the impaired adult describes are consistent with what is actually going on. In the medical reports, this person is often called the “historian.”

While the doctor may appreciate that in a contested matter everyone has a different perspective, and may believe that s/he can glean helpful facts from the historian without adopting the historian’s perspective on the case, if the doctor likes the historian, the doctor will often present an opinion that is at least not adverse to that historian’s legal position.

SO – if at all possible, you want your client to be the historian. If that cannot be accomplished, your carefully crafted written summary to the doctor is all the more important, and may need to include information undermining the credibility of the person who the doctor can expect to meet when the impaired adult is brought to the appointment (aka, the historian).

Conclusion

Appreciate the important role played by the GAL and the court-appointed doctor in guardianship/conservatorship cases. Winning without them is an uphill battle.  Bring them on board early and keep the lines of communication open.  In these types of cases, they are the hands that rock the cradle. Recognize that they may well control the outcome of the case from behind the bench – and act accordingly.

Litigation Strategies Part VI: When in Doubt Depose

Most people can’t just look at other people’s emails, tax returns or bank accounts. They can’t ask them questions about their intentions, their prior statements or their relationships with other people, and require them to answer truthfully and completely.  But lawyer’s can – if there is a case pending, and if it is “relevant” to that case.

Among laypeople, discovery is one of the least understood and most frightening aspects of being involved in litigation – and rightfully so. The scope of relevance in a case is anything that is reasonably calculated to lead to admissible evidence. That means, the things the lawyer wants to ask or look at don’t need to be directly admissible in a case – only that by looking at these things, or getting these answers, the response might lead them to something that might be admissible.  That’s pretty broad.

Tools of discovery include: subpoenas, interrogatories, requests for production, requests for admissions, and the granddaddy of them all, depositions.

When I started practicing law I was in awe of, and fell in love with, the deposition. I’m still in love, and if anything, my love has only deepened with time.

As I tell young lawyers coming into the litigation arena, depositions are when you learn your case. Until you sit across the table from someone (a court reporter having already “sworn them in”) and hear them tell their side of the story; watch them fidget as they try to avoid explaining the uncomfortable aspects of their position; see them try to stick to the answers they’ve rehearsed, and dodge the probing follow up questions you present; you really only have a superficial understanding of the strengths and weaknesses of your case.

Laypeople are completely ill-prepared for the process. They want to tell their story, but they fear being tricked by wily lawyers – as they should be, and they are often coached beforehand about how to respond to critical inquiries.  As a result, the process is often unpredictable.  Truths may come spilling out of nowhere. Veils might come tumbling off.  Witnesses often break free of their boundaries and take off on tangents that illuminate the core dynamics behind the case.  Conducting a deposition can be exhausting, but at the same time exhilarating.  Maintaining composure and staying focused are key.  Preparation is critical, but remaining in the moment and ready to follow tracks you didn’t see coming is equally important.

For young lawyers, being responsible for depositions can be intimidating. The other attorney may be more seasoned and know more tricks of the trade – tossing out objections, asking leading questions of a non-adverse witness, attempting to badger your client into statements they didn’t intend to make.  Depositions can become heated between lawyers as each tries to control the atmosphere.

There is an art to deposing a witness, and skills necessary to preparing your client for their own deposition. Some of that can be taught, but a lot of it can only be learned by doing.  From my way of thinking, if you’re going to litigate, you have to get comfortable with – no – learn to love –  this key element of the discovery process – the deposition.

Litigation Strategies Part V: Kissing Frogs

The topic of this post is: How to gather information at an initial meeting with clients seeking representation in an undue influence case, from a lawyer’s perspective.

Start with the proposition that nearly all will and trust contests, and many financial exploitation cases, are, at their core, undue influence cases. Lack of capacity is commonly pled, but in all but a few cases, the real issue is undue influence.  Essentially, the case comes down to a story about someone persuading a vulnerable adult to sign something that accrued a benefit to that person, and caused a harm to someone else (the prospective client).  The document that got signed could be a will, a trust amendment, a deed, a life insurance beneficiary designation, or any number of other documents of that type.

I spend a lot of time talking to potential clients about these types of cases, but only agree to take a few. As we say in the office, we kiss a lot of frogs to find a few princes.  The goal is not to get bogged down with cases that are uneconomical, unwinnable, or both.  While no simple formula controls the decision to accept or forego a case, what follows is my list of the things that seem most important to me in deciding whether a prospective undue influence case seems worthwhile.

  1. Who prepared the document? Was it prepared by an attorney?
    1. If not, who did? Who witnessed it? Where did this take place?
    2. If prepared by an attorney, who made the appointment and how did the person who signed the documents get there? Who went with them? Who was in the room when the document was signed? Was there a prior relationship between this attorney and the benefactor?
    3. Skill level and reputation of that lawyer.
  2. What are the relationships of the parties and interests involved?
    1. Second marriages.
    2. Caregiver child.
    3. Favoritism between siblings.
  3. Is there a history of financial dependence?
  4. Is there a pattern of alienation from family and friends?
  5. Where did the vulnerable person live, and who lived with them?
  6. Physical dependence.
    1. Was the person who made the change housebound?
    2. Could they drive? If not, who drove them?
  7. Was there a fiduciary relationship between the vulnerable adult and the benefactor?
  8. Was the person who signed the documents experiencing age-related cognitive impairments: dementia, paranoia, depression. Are contemporaneous medical records available and what would they say?
  9. Non-age related personality traits. Was someone involved overly controlling, manipulative, narcissistic?
  10. How long ago did this occur? If it did not occur recently, did it just come to light? If not, why wasn’t something done sooner?
  11. How much money are we talking about?
  12. What are the respective financial positions of the parties? Can one party simply wear out the other party on legal fees?
  13. What witnesses who have nothing to gain or lose by the outcome of the case are available? And what will they say?
  14. History of relationships of people involved. Does it make sense in the big picture that this person or these people are favored?
  15. Drug and alcohol use and history of person who made the change and people who benefited or were harmed?
  16. Credibility. How do the potential clients appear? Is the way they present consistent with a wronged individual, or an individual seeking simply to upset something they knew was coming?
  17. What county? What judge?

Undertaking litigation of any type, and undue influence cases in particular, involves a substantial commitment of time and resources. These cases are never easy.  The initial interview is a delicate thing.  Clients deserve to be heard, and the attorney needs to be able to guide and educate the client on the value of their case – the likelihood of success, the prospects of a favorable settlement, and the costs (emotional and financial) of pursuing the action.  At the same time, the attorney needs to be efficient in obtaining enough information to be able to assess whether the matter is one that makes sense for the lawyer and the firm.  The outline above is designed to accomplish both objectives, and to help the attorney making this decision to distinguish between the frogs and the princes.

To read other posts in this series, click below:

Litigation Strategies Part I: I Love You But…

Litigation Strategies Part II: Telling Stories

Litigation Strategies Part III: Bulldog Lawyers

Litigation Strategies Part IV: Getting Homered

And So It Ends – Perhaps

The Ketchum case discussed in more detail in a prior post was just released. It is a published Court of Appeals opinion.  Click here to read the case.

This case arises in the context of a series of cases that have been decided by the COA since Michigan first adopted an “estate recovery” law in 2007. Each case has addressed the proper interpretation of that statute.  In each case the position of the Department of Community Health has been upheld.  The same is true in Ketchum

Whereas prior cases focused on the issue of proper notice to impose an estate recovery claim, Ketchum was the first case to address the so-called “home of modest value” exemption; which purports to exempt an amount from estate recovery, which amount is equal to 50% of the average home value in the county in which the house is situated. The issue was whether this exemption is as simple as the statute suggests, or whether the home value is only one factor in determining whether this “hardship waiver” is available.  As explained in prior posts, the requirements for obtaining this exemption as set forth in DHHS policy go far beyond the simple valuation analysis.

In Ketchum, the decision of he COA turns on the unusual fact that after the death of the Medicaid beneficiary, the house was sold. Accordingly, it could be argued that the case does not foreclose the possibility that situations in which the house is retained would not be controlled by this decision.  But the dicta of the case suggests otherwise.  The COA takes pains in its decision to equate this case to prior estate recovery decisions, and specifically to the provisions of the statute that allow DCH to negotiate terms and conditions regarding Michigan’s estate recovery program, and to include additional requirements not specifically addressed in the law.

This whole process of watching the law of estate recovery go from a statute, to policy and then through the Courts to clarify the appropriateness of policy; and where the line between law and policy is drawn, would make a great case study for law students. The suggestion could be made that the deck was stacked against advocates in the process, and that each of these opinions, adopting the Department’s position, was driven less by a desire to “get it right” than by the desire to endorse the Department in whatever they chose to do.  Aging advocates will no doubt be left with some frustration – perhaps justified.  In any event, this is our system.

While there remain legal theories that could continue this battle, it is uncertain whether anyone will have the time or inclination to pursue those avenues. In the meantime, this appears to be the end.

Click here to read the prior post on Ketchum.