Episode Transcript
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Speaker 1 (00:00):
Good morning, Welcome to Life Happens Radio. Are you prepared?
This is our weekly radio program for baby boomers and
their families where we address the challenges we all face
as we age. We talk about.
Speaker 2 (00:09):
Aging as a lifestyle, the issues that must be confronted,
and the careful planning that's required to avoid crises in
the future. Life Happens will provide you with tools to
educate and prepare yourselves for events like retirement, protecting your
income and assets, planning to pay for nursing, home and
home care, special needs, Wilson trusts, planning for an untimely death,
and resolving disputes in and out of court. As laws
(00:31):
change and the need for planning evolves, Life Happens will
be here to make sure that you and your family
needs are served.
Speaker 1 (00:39):
So good morning everybody. I'm Aaron Connor from Pure O'Connor
and Strauss. We are if you don't know this is
your first time listening. Is stay planning Attorneys. We talk
about wills and trusts, medicaid, when we get towards the
end of our lives, we talk about trust litigation, We
talk about how to deal with special needs, and today
(01:01):
we have a new victim have a first time radio
person and that's Dylan Newkirk. Good morning, Dylan, Good morning, Aaron.
Happy to be here.
Speaker 2 (01:12):
Dylan has been with our firm as a started as
a law clerk, Win.
Speaker 3 (01:18):
Dylan back in May of twenty three.
Speaker 2 (01:21):
Okay, so a little while, and he has taken the
bar exam and he has passed the bar exam, so
congratulations on that, thank you. And he will be admitted
here in about a month.
Speaker 3 (01:33):
Right yep, middle of January.
Speaker 2 (01:35):
So and then his life is over because life as
an associate is difficult trying. H Yeah, maybe I'll just
stop there because otherwise no one will ever go into it.
Speaker 3 (01:56):
But it's gonna say you're not helping us.
Speaker 2 (01:59):
No, but you know, having been there and been through it,
I certainly know. I mean it was fairly long time ago,
but I do have pretty pretty stark memories of the
associate life. So but we're happy to have Dylan currently, Dylan.
Dylan is focused on a state administration, so what that
(02:23):
means is probate petitions and we'll talk some about that.
Speaker 1 (02:29):
Can be a trust administration too, which is a much
easier process.
Speaker 2 (02:33):
And he is also working for Frank Hemming in her
office with Medicaid and some long term care. So when
people come on, we try to expose them to as
much as possible in a reasonable amount of time and
then give them some illusion of choice about what.
Speaker 1 (02:50):
Practice areas are going to work in. So but but
as I said, we're happy to have Dylan. We have
we have a lot of work to get done.
Speaker 2 (03:03):
And we are fortunate in that respect. But we that
means we need people, and certainly I'm happy to throw
this out there too. If you know of an associate
or a lawyer looking for work in this area, you
can certainly send their resume our way at info at
purolaw dot com because we have a couple of open
(03:23):
positions and we could we could use very much to
fill those positions. But after all that digression, so Frank
and I have done the radio together, probably more than
I've done it with anyone else, certainly more than I've
(03:43):
done it with Lou. Lou and I have done it together, right,
but that's uncommon now. Occasionally it's like.
Speaker 1 (03:51):
A kickoff of something or a holiday show. We have
done those together. But this year I don't think that
will be the case, based on how it times out.
But Frank and I always mentioned sports a little bit,
and uh, you know, if if you're won Soto, I
dislike you, but you should do some mistate planning because
(04:17):
hopefully you've already done some, but now now you're really
going to have some some things you need to take
care of and kind of set you set it.
Speaker 2 (04:27):
Up for probably perpetual wealth for a long time at
those numbers. You know, I'm not saying it can't be squandered,
but it would be very difficult.
Speaker 1 (04:38):
So one.
Speaker 2 (04:43):
I'll forgive you if you give us a call to
do your planning. You know some other things I've seen
in the newest Dylan is a.
Speaker 3 (04:55):
Bills fan, unfortunately, right, So.
Speaker 2 (05:00):
The Bills just had a portion of their team purchased
by a private equity group yep, and the NFL just
recently allowed this.
Speaker 1 (05:08):
But they can only own, I think, up to ten percent.
They can't ever be a managing partner of the NFL.
Speaker 2 (05:14):
But what's interesting about this is there's a number of
reasons that an owner might do that, right. It might
be they need some liquidity, right, and I've seen that.
Speaker 1 (05:28):
Is it Mark Davis, whoever the Raiders owner is the
son of Al Davis.
Speaker 2 (05:32):
I can't think of this first, he's done it a
couple of times. Because you can be very wealthy but
not very liquid, right, So if you own a team,
you have this multi billion dollar asset, but you don't
have necessarily billions in the bank, right, And one way
to get some liquid is to sell off a portion
(05:52):
of that team. And that's what Mark Davis has done.
From what I've read from a Bill's perspective, that's not
necessarily why they're doing it, right, but it does make
it a little easier maybe to do some estate planning
if you don't own one hundred percent or seventy percent
of the team, and the bills owners of really owner
(06:16):
or owners have already kind.
Speaker 1 (06:17):
Of been through it a little bit, right, yep. I
mean what went on with the wife?
Speaker 4 (06:24):
So from my recollection of it, it was there's Terry
and Kim Pigula who were married and were both owners
of the team.
Speaker 1 (06:36):
Right.
Speaker 4 (06:36):
Kim unfortunately went through some really bad health issues over
the past couple of years, to the point that she
was incapacitated and unable to make decisions for herself. As
she was in the hospital, her daughter wrote along.
Speaker 3 (06:58):
What was it called?
Speaker 1 (06:59):
I think it was? Was it an Instagram post or
was it something.
Speaker 3 (07:02):
Like she wrote like a blog post about it.
Speaker 4 (07:07):
And I guess the family was really struggling to figure
out how to.
Speaker 3 (07:12):
You know, preserve all of their their.
Speaker 4 (07:16):
Rights in making decisions there, right, because you went from
two people down to one, right and trying to get
ability to act.
Speaker 2 (07:27):
Yeah, I think there's a couple of notable things there.
First of all, their daughter is a world class tennis player. Yes,
so making some good money in her own right, probably too.
But it doesn't just happen like these things happen to
wealthy people. They happen to regular people too, right, So
just because people are wealthy doesn't mean they have a
(07:49):
good plan in place. It means probably more that they
should have a good plan in place. But as we
say every day, everybody needs a good plan, right, anything can.
Speaker 1 (07:59):
Happen at any time.
Speaker 2 (08:00):
I'm don't have to end up with your family in
a courtroom fighting over things or trying to get control
of your medical decisions or assets or whatever it may be.
Get out and do some planning, and that's that's critically important.
But here we are at a very high level of wealth.
You know, we're talking one percent of the one percent probably.
(08:21):
I mean, if you own an NFL team.
Speaker 1 (08:24):
Yeah, and.
Speaker 2 (08:26):
Things hadn't really been prepped in the way that they
should have been, and that's kind of amazing. But there
are a few sports owners that have had guardianships filed
against them. The owner of the Texan instead, that must
have resolved out of court because that kind of went away.
(08:47):
The news about that the owner of the Saints had
a guardianship filed against him at one point, and that
was more of a fight with the ex wife or
the new wife excuse me, kids against.
Speaker 1 (09:01):
The new wife.
Speaker 2 (09:04):
That didn't really go well for the kids, unfortunately for them.
Speaker 1 (09:08):
And then there now is the one that's been mortalize
seems strong. But in the series Ballers, I think it is.
It is about the La Clippers and what happened to
their owner when he lost capacity and essentially was forced
to sell the team. So those are the big world items,
(09:31):
well even to a smaller scale, right. Hal Steinbrunner is
a very fortunate person because in the last I don't know,
forty or fifty years, there's been one year of no
estate tax and his father happened to die in the
one year of no estate tax. So I know that
(09:52):
his father purchased the Yankees.
Speaker 2 (09:54):
George Steinbrenner we're talking about in nineteen seventy three for
three million dollars from CBS. He died in twenty oh
nine or ten, whatever it was.
Speaker 1 (10:03):
They were certainly worth more than three million dollars, and
they got all of that appreciation.
Speaker 2 (10:08):
Without paying tax, which is very unusual. So sometimes you
get lucky, but most of the time you don't. I'm
sure that there was some plan in place there, but
what that was, we don't really know.
Speaker 1 (10:24):
So we like to stay topical. We like to stay
in the news, right, So we've reviewed a few things
that have been going on.
Speaker 2 (10:34):
I saw an article about it. I'm gonna call her
a TikToker. I don't know if that's technically correct or not.
Digital media creator, you know whatever they like to be
called now, digital content creator. So and I think it's
a pretty gross situation, frankly, morally, just in all sorts
(10:57):
of ways. So I think what we'll do is we'll
take our first break.
Speaker 1 (11:03):
And when we come back, we will get into that
and some other news stories that show the value of planning.
Speaker 2 (11:10):
This is Life Happens Radio. Aaron Connor Puerre o' connor
and Strauss. We'll be back after this. Welcome Back to
Life happens Radio Aaron Connor, pure Connor and Strauss joined
by radio neophyte Dylan Newkirk. I have to pause so
I don't say dialog.
Speaker 1 (11:31):
So long story. We'll get into that. But that's that's
how he's known around the office. So, but Kase, you
missed that. Dylan is our newest associate, waiting for his
admission pending the Character Committee, which is not generally a
huge hurdle. So he'll be working full time with us
(11:55):
as an associate very soon.
Speaker 2 (11:59):
So I wanted to talk about some things I've seen
in the news, and you know, I really do believe
that truth is stranger than fiction, And any time I've
had cases come in with strange facts, I really feel
like they were so strange sometimes you couldn't make them up.
(12:19):
One of my favorites as a fact pattern not great
for people the people involved was a downsta case where
a gentleman nicely might be called a rascal. I suppose
(12:40):
there's not a lot of good words separates from his wife,
says he's divorced, produces fake divorce papers to a potential
new wife, they get married quote unquote, but it's not
a valid marriage because he's still actually married to his
(13:03):
first wife. But she didn't know that. Then the first
wife came in and elected against his estate because she
was his wife and he had actually been providing her
with support over the time periods. The new quote unquote
(13:24):
wife had no idea that she was not the real wife. So,
I mean, you know, husbands, if you scrout up out there,
there's always somebody who did worse. So I mean, you know,
you know, you forget to get the perfect gift, maybe
you'd just be like, well, I'm not this guy.
Speaker 1 (13:40):
Right.
Speaker 2 (13:41):
So, just in the last couple of weeks, I tend
to read the New York Post for amusement. Sometimes it's newsworthy,
sometimes it's just kind of craziness.
Speaker 1 (13:56):
But I did recently see a story that put my
estate litigation ears up. Let's say, and the headline of
the story is, young influencer faces backlash after dancing too much,
dancing next to much older boyfriend in the hospital bed.
(14:19):
Quote I got on the will okay, can't make it up.
Can't make it up.
Speaker 2 (14:26):
And you can see the guy in the video, and
I mean he obviously does not appear appear to be
doing well, but he looks like he would have some
cognition about what's going on. So the article gets into
that a little bit. She's twenty two, he's eighty five.
(14:47):
That would be a bigger age gap than I think
I've ever personally witnessed in the office. I've certainly seen
some large age gaps, but sixty three years seem questionable
at best, and certainly looks like a case of potential
(15:10):
on do influence or fraud not doesn't really pass the
eye tests, And I don't know, seems like this gentleman
must have had some means because later in the article
here there's a picture of them together at Cardier. And
(15:33):
if you're not familiar with Cardier, the fact that you
have to say it with a French accent should give
you an idea that it is in fact expensive.
Speaker 1 (15:42):
And its jewelry and watches and et cetera.
Speaker 2 (15:46):
And they were apparently spending twenty thousand dollars on her
at Cardia. So if this was your dad, I would
feel bad for you, right, seems like he's being taken
advantage of. Now how she found him, I have no idea, right,
did he reach out to her? She somehow trolling for
(16:09):
wealthy older men.
Speaker 1 (16:10):
I don't know. I don't I don't even know how
one goes about looking for that person. But you know
the will.
Speaker 2 (16:23):
So let's talk about what would happen in this scenario.
So let's say that there is in fact this will, right,
what happens?
Speaker 4 (16:32):
First, Ellan, Well, we'd have to someone would have to
check the will, figure out who's the executor, who's the
nominated executor, and that person would have to then petition
the court, the Surrogate's Court in New York for letters testamentary,
which would involve giving notice to every one of his
(16:58):
next of kin and legal errors.
Speaker 1 (17:02):
Right, So let's talk about just who that would be, right. So,
I'm assuming there's not a wife.
Speaker 2 (17:11):
That's probably the only way the story could get more ridiculous. Right, So,
assuming there's no wife, if there are children, even if
they are not included in the will, at least in New.
Speaker 1 (17:23):
York State, they need to be put on notice.
Speaker 2 (17:27):
And if they were my client, I certainly would not
be advising them to sign a waiver and consent to
this will, right, Because what that waver and consent basically
says is that I agree that this is the last true,
valid will and testament that if this was your father,
(17:48):
that your father signed right, and that basically extinguishes all
rights other than essentially an accounting or maybe removing a
fiduciary if they don't move the estate along. But your
ability to challenge the will is out the window at
that point. So in any questionable situation, we don't advise
(18:13):
signing a waiver and consent. Certainly you should consult with
an attorney prior to.
Speaker 1 (18:18):
Doing so so. And when you don't sign a waiver
and consent again in New York, you get served with
something called a citation, And Dylan, what's a citation.
Speaker 4 (18:33):
Citation is in order to show cause. It gives you
the date of a court date, a date, time and location,
and if you can show up to object to the will,
or you could not show up, or you could show
up and just say that everything is fine.
Speaker 2 (18:53):
Yes, wide spectrum of things like that that happen some.
Although most courts are in person now, many of them
allow virtual appearance. I think maybe just one of them
still does almost all virtual appearances, although I think that
will be ending. But in the era of virtual appearances,
(19:14):
people from out of state can jump on a zoom
all right, it's the team's technically, but.
Speaker 1 (19:19):
And that has made it.
Speaker 2 (19:21):
Easier for people to object, and sometimes people appear and
just say yeah, I'm good. Well, I don't know why
people do that, because that's a huge waste of time.
If that's the case, sign the waiver and consent. But
if you get served with a citation and you are
not on board, you need to appear on the citation date,
(19:43):
or better have an attorney appear for you on the
citation date, because they know what they're doing.
Speaker 1 (19:49):
This is not really a DIY project.
Speaker 2 (19:52):
Okay, to be fair, some of you could do a
DIY project that I can't do. Right, I'm not going
to do my bathroom over really generally good at that
stuff and not super patient, so I've learned that I'd
rather just pay somebody to do it. My father is
pretty good at it, but we don't work well together, so.
Speaker 1 (20:10):
We don't do that either.
Speaker 2 (20:12):
So you know, sometimes you just have to pay a
professional to do the job. And a state litigation is
somewhere where you don't want to hire somebody who does
speeding tickets and real estate work, and you want someone who.
Speaker 1 (20:26):
Does this kind of work.
Speaker 2 (20:27):
The surrogate court, Dylan, where you interned prior to working
for us, is kind of its own little kingdom. It
has its own procedure act it is.
Speaker 1 (20:41):
It works on petitions and not complaints.
Speaker 2 (20:43):
Right, So in the other litigation world you file a complaint,
that's not what you do here. And there are a
lot of provisions of the law that are unique to
a surrogate court, so it's not a let's dabble here
kind of thing. I can imagine that when you were
interning in the curcuates court, you could tell the difference
(21:05):
between a lawyer who's there often and who's not.
Speaker 4 (21:08):
You definitely can you look at the form of the
way that they write and everything is completely different.
Speaker 2 (21:17):
Yeah, and that's important. And familiarity with the judge is
also generally important. Sometimes it can be a.
Speaker 1 (21:23):
Bad factor, the judges not.
Speaker 2 (21:27):
Really in love with you. But I mean, really, if
you're a good lawyer, you're able to separate the client
and you, and it's important to.
Speaker 1 (21:39):
Do that.
Speaker 2 (21:41):
And know that sometimes you have to work the judge.
Sometimes you have to work your client. Probably all the time.
It's a combination of those two things. Just in varying
degrees on which side right well, and you're working the
other side. So it's really like a three dimensional problem
and we're all trying to get to a solution that
(22:02):
we can live with. Right, very very few times is
something like a complete victory, right and litigation that doesn't
really happen. I mean, it can happen, It's happened, but
it's not something that I would certainly say it would guarantee,
and it's not something that is going to happen without
spending a large, large amount of money.
Speaker 1 (22:25):
And litigation adds up fast. And look, it's just the
way it is.
Speaker 2 (22:31):
And when you get to a litigation, you really have
two parties that are already hardened because you wouldn't be
there if you weren't.
Speaker 1 (22:39):
Right. So, in this case with a TikToker.
Speaker 2 (22:44):
Which we will get probably a little more in depth
of what would really happen when we come back, would
not be a simple case, would not be a cheap case,
and more than likely, in my opinion, would be a
case where everybody would settle because this TikToker wants to
walk out with something. It's not going to walk out
with nothing unless you're willing to probably spend huge amounts
(23:05):
of money because even if you win at the trial level,
there can be an appeal. Right This process can go
on for ten or twelve years if they really want
it to. And that's not good for anybody other than
the lawyers. So we come back. We're going to delve
more into this estate litigation area. This is Life Happens Radio.
I'm Aaron Connor from Pierre O'Connor and Stroyers today joined
(23:28):
by our newest attorney, Dylan Newkirk, and we'll be back
right after this. Welcome back to Life Happens Radio. I
hope everybody is having a good start to their weekend.
Aaron Connor, Puerre O'Connor and Strauss. Dylan is still here.
He's survived his first half of a radio show. We'll see,
we'll see if he makes it to the final segment.
(23:50):
That's still in Newkirk, our newest attorney. We are talking
about when it hits the fan, you might say, in
a state and will area. And we have been talking
about a twenty two year old TikToker.
Speaker 1 (24:04):
That's what the article says. So I guess I was
correct in that who had made her way according to
her into an eighty five year old man's will and
danced next to his bed while he was dying.
Speaker 2 (24:19):
I guess suffering. So the morality of that I think
is pretty clear, right. I Also, if you get a
jury trial, I don't think that's going to play very
well for her. Now, this happened in Canada, right, So
I don't know what the Canadian laws are like, but
(24:44):
I can't imagine that they're that different than ours, So
not in.
Speaker 3 (24:48):
This field anyway.
Speaker 2 (24:49):
Yeah, but here, if this had happened, the will would
have been filed if she's the executor, which I would
doubt out, but you never know. She could be right,
There could be another executor who would refuse to file
this will.
Speaker 1 (25:05):
All right.
Speaker 2 (25:05):
So sometimes we have an executor appointed under a will
and they don't believe it's a valid will, right, which
becomes so they might go find the prior will, if
that still exists, right, believing it to be the last
validly executed will and testament, because that's what's important, right.
(25:27):
It's not just your last will and testament, but it's
your last validly executed will and testament. Now, most times
those are the same document, but not always so. In
a situation like that, that person will go file the
prior will. Then it would be incumbent on this TikToker
to produce the new and file a petition for the
(25:48):
new will, and then we're off to the races, and
the lawyer meeterer is running, okay, really running. So at
that point you have com competing petitions for probate. Can't
make it one word, it's not compissions, right, So, and
generally what will happen is the newer will petition will
(26:12):
get heard first, right, because if that's valid, the other
petition doesn't matter, So it would be a waste of
resources to go back to what the probably in this
scenario more likely is the valid will, right, So that
petition gets filed, the children ninety nine percent are going
(26:32):
to file objections to that will, right, and that would
be it's a product of undue influence, it's fraud, duress,
maybe lack of due execution, depends on what it looks like, right.
There are limited grounds to do that, and this just
sounds like an undue influenced case to me.
Speaker 1 (26:54):
Undue influences, though pretty.
Speaker 2 (26:56):
Typically hard to prove, right unless you have messages for
from someone saying you know, I'm gonna hurt your children
unless you put me on the will, or you know
your other kids are all criminals. And you know, in
today's text world, we have more of this than we
used to. When things were done on the phone or
just verbal, we had less evidence to be able to find.
(27:18):
Now at least we subpoena phone records and be like, oh,
this is uh yeah, this is pretty.
Speaker 1 (27:23):
Bad and that does happen.
Speaker 2 (27:29):
Subpoena can be your friend. Supoena can also not be
your friend if you're the one getting it. So so
generally speaking, they would file objections. They would look for
some discovery or do some discovery, then file objections, although
this seems like a case where you'd file objections right
out of the gate because it's not even questionable that
you're going to object.
Speaker 1 (27:51):
Sometimes you do discovery to determine whether.
Speaker 2 (27:53):
You're going to object to a will, to see what
went on, to see if there's any.
Speaker 1 (27:58):
Anything nefarious really, or.
Speaker 2 (28:01):
You know, whether things were done right. Then in New
York you get a what's called a fourteen oh four hearing,
and what.
Speaker 1 (28:09):
Is that done?
Speaker 4 (28:10):
Fourteen oh four hearing is a time when you bring
in the attorney drafts person and the witnesses to the will,
and they have to testify about the execution of that
of the will, making sure that everything was done validly.
That there's a slew of questions that need to be
(28:32):
asked of the person signing the will, asking did they
go through those questions? Did they declare it as their
last will and testament?
Speaker 1 (28:40):
That's right?
Speaker 2 (28:43):
It's are you generally familiar with the contents of this document?
So the way I ask it, right, it goes on
to let's say your wife and then onto your children.
Speaker 1 (28:52):
They say yes, which they have to do verbally. Right,
does that fulfill your wishes? Right?
Speaker 2 (28:59):
So you have to know what's happening. You have to
know that that's what you want. Then you have to
declare it to be your last will and testament. Then
you have to authorize the witnesses and the testing witnesses.
And if you do all of that, then you can
sign the document and it's been properly executed, assuming that
(29:19):
there are two.
Speaker 1 (29:19):
Witnesses, right, and we do the a testing Affidavid, which
I'll ask you to explain a second right then, and
that needs to be notarized by a person who's not
a witness. So what is that a testing affidavit?
Speaker 4 (29:35):
For the testing affidavit is saying that, yes, I was
the witness to this the person who executed their last will.
They requested that we that I sign as a witness.
We went through all of the questions, and it really
helps when if anything goes into litigation that if we're
(29:59):
ever asked did any of this happen, we have a
document that we signed and in front of someone else
saying that we did go through all of this, it
was validly executed to our knowledge.
Speaker 2 (30:13):
Right, it's done contemporaneously, right, so it can be done
after the fact. It can be sometimes it's done years
after the fact because it wasn't there with the original
document and we have to track it at least one
person down. Yep, that's not really a good practice because
anything done in the moment, you're going to have much
(30:35):
better knowledge.
Speaker 1 (30:36):
Right. I don't even know how many wills I've witnessed
over the years, right, one thousand probably? I mean, could
it be two thousand? Sure?
Speaker 2 (30:47):
I would be very hard for me to figure that out.
And Lou Lou, who's been doing this since nineteen eighty whatever, okay,
mid eighties, mid eighties, not the early eighties.
Speaker 1 (30:58):
But you know, I don't.
Speaker 2 (31:03):
Even know ten thousand, probably I don't know. You know,
we couldn't put a number on it. So do you
think that if someone came back to you and they're, like,
in two thousand and eight, you executed this will, do
you can you tell me about it? Ninety nine percent chance?
(31:23):
Now right, I'm going to remember some people right because
of their personality or the situation. And Frank especially will
tell you that I remember more than I probably want to.
We will talk about a file, and it's just the
way that my mind works that I just remember things
unless my wife tells me something. My wife tells me something,
(31:46):
I don't remember it. But other details I can tell
you whatever you want to know. So it's weird how
that works, but that's how it works. But generally speaking,
we're not going to have any personal, remaining personal knowledge
about that will execution, and that's why it's very important
to do that a testing affidavit, which is in our
(32:09):
world what we call prime offacia evidence of valid execution, right,
which means that the other side has a tough road
to hoe to say that this isn't a validly executed will.
It's not impossible, but it's certainly more difficult than the absence.
And we see lots of errors about wills.
Speaker 1 (32:28):
Right, you can't have the in law be a witness
on a will. That's an interested party. Okay, that's a
bad idea. It's going to lead to a will likely
getting tossed. You can't have a direct beneficiary being a
witness on a will, and you can't have someone who
doesn't have capacity being a witness.
Speaker 2 (32:49):
And one witness isn't going to get it done either
requires two. So I mean, there are a lot of
things that go into a will. This is why you
don't buy a DIY kit. And even if you were
to get all of those things right, the kit itself
is going to be deficient in several ways. So again,
I'm not going to buy a kit to do step
(33:11):
by step.
Speaker 1 (33:11):
Plumbing in my house. I certainly encourage you not to
do that with your legal planning because.
Speaker 2 (33:20):
There's things you need to ask about. Right, So let's
just assume there are other things in this will of
this eighty.
Speaker 1 (33:26):
Five year old.
Speaker 2 (33:27):
Right, if he has a child who happens to predecease him,
and he has a minor grandchild, well we need to
account for that, right. And we have a case right
now where there was kind of sort of a miner's
trust set up under a will, but then it wasn't funded.
(33:47):
So what's generically, Dylan, what's happening there?
Speaker 4 (33:51):
So, typically the way it would work under most wills
is that we would write in what's called a miner's
trust saying that anyone who's under pick your age, whether
it's eighteen, twenty one or twenty five, if they're going
to receive any money, they have to take it in
a trust. Someone's going to be the trustee for them.
(34:13):
Make sure that they don't blow through all that money, kid, right,
not great with money.
Speaker 1 (34:18):
Right, generally, don't make good decisions. Correct.
Speaker 4 (34:21):
However, in this will there was some not to call
it outdated language, but it's just not the language that
we would typically see anymore.
Speaker 1 (34:31):
How was a will significantly older than they the time
the person died?
Speaker 4 (34:36):
Yes, okay, Yeah, the will was executed and I believe
two thousand and three, okay.
Speaker 2 (34:41):
So twenty years I must, yeah, right, So that's not
to say a will doesn't expire, right in a you know,
in fact, when you expire, the will comes to life
very strangely.
Speaker 1 (34:54):
But.
Speaker 2 (34:57):
It's really a good idea to look at a will
every so often, probably three to five years, right, or
a big life change like someone has died, if you
have new grandchildren, we want to make sure. We just
want to make sure everything's where it should be. And
it's not necessarily a big lift or most times really
we don't have to do anything, but it's better to
(35:19):
be sure. And this will should have been probably reviewed
at least two or three times in the intervening intervening.
Speaker 4 (35:25):
Period probably, and I believe if it was, then all
they did was just add names of grandkids versus changing
the language in the way it was written.
Speaker 2 (35:37):
Right, And you can, unfortunately, amenda will and that's called
a cottaicil. We do not do cotta cells because it's
just better to do an entirely new will. Because if
the cotdaicil is not valid and you've crossed, you know,
knocked somebody out or diminished their share, you're just looking
(36:00):
for a problem. And certainly if you've removed somebody by cottasil,
they still have to get noticed because they're on the
will that the.
Speaker 1 (36:07):
Codaicil goes to.
Speaker 2 (36:09):
And you're really just setting yourself up for failure, and
the cotta still has to be proven, just like the
will has to be proven. So it's an extra dance
that really doesn't need to happen, and it's not a
best practice, so I would say certainly want to avoid that.
Speaker 1 (36:26):
So we'll take our last break. We come back. We're
going to talk a little bit more about what this
litigation would look like and some other litigation that's going
on with Rupert Murdoch which should be.
Speaker 2 (36:37):
Interesting, so hold on for that. A Mareon Connor. This
is Life Happens Radio from pierro' connor and Strauss, and
we'll be right back after this. Welcome back to the
last portion of Life Happens Radio for this week, A
Marion Connor from Pierre O'Connor and Strauss. Still he made it,
(36:58):
joined by Dylan Newkirk, our newest associate. We have been
talking about some cases that would be litigated and some
rather disgusting fact patterns, and we had talked about a
twenty two year old TikToker who got on the wheel
of her eighty five year old boyfriend. At least according
to her, my boyfriend might be a bit strong. I
(37:20):
don't really know. He was the influency. But that's where
we're at, and we were just talking about what that
litigation would look like. We had talked about a fourteen
oh four and what you would be looking to disprove
if you were the family right that the will was
either invalid or the person lacked capacity, maybe they had
(37:47):
been unduly influenced. Right, That seems like the most common
or viable avenue for that one. After that you really
would go through more discovery. Maybe you would take her deposition.
And really in that case, it's kind of the lawyer's
(38:08):
job to there's two ways you really can handle the deposition.
If I suppose, if you want the case to end,
you can kind of, you know, within reason, verbally rough
them up, meaning that like you're going to show them
what a trial would actually look like. Right, generally, that
is not the best, in my opinion, tack to take,
(38:30):
because a deposition is an information gathering tool, and the
harder you go at somebody there, the less information you're
going to get. Now, some people don't want to give
up any information, and it may in fact turn into
the ladder, but begin as an information gathering So that's
all a reactive kind of thing that you have to
do when you get to that place. But a trial,
(38:53):
certainly cross examination or direct examination depending on who calls
the witness, could be pretty ugly for that person, and
certainly there's not going to be any sympathy for them.
And I don't know what portion of the estate and
how much that's worth, but it certainly seems.
Speaker 1 (39:10):
Like a case that should settle.
Speaker 2 (39:14):
If not, I mean for her to go away entirely, again,
you'd have to go to trial when and not get appealed.
Speaker 1 (39:24):
From beginning to end. That's at least one hundred thousand.
Speaker 3 (39:26):
Dollars and months and months.
Speaker 1 (39:29):
Yeah, emotional cost too. I tell this to our clients
all the time.
Speaker 2 (39:33):
Look, there's absolutely an economic cost, but there's also an
emotional cost to what you're doing, and moving on with
your life has value because it's not necessarily it's not
good for your mental health. It may actually not be
good for your physical health too to fight this battle,
depending on how old you are and where you're at,
So all of that's got to go into the hopper
when you try to decide what you want to do and.
Speaker 1 (39:54):
How you're going to do it.
Speaker 2 (39:58):
Not all of our litigation involved just wills, though sometimes
it involves a trust right. Sometimes it's to remove a
trustee because they've gone off the rails, or occasionally they've
become incapacitated while a trustee, but maybe not to a
degree where they.
Speaker 1 (40:17):
Think they're incapacitated.
Speaker 2 (40:19):
Right, So the way our trust is written is, generally speaking,
any trustee can be removed for incapacity upon notice to
them that that's the reason they're being removed. Generally they
have ten days or so to get a doctor's note
to say that they are in fact capacitated, and that
would a void that I can't think of a time
(40:41):
that that has happened, but there is a procedure there
if in fact they have capacity and we just have
a bad actor out there saying no, you don't have it.
Speaker 1 (40:50):
Right. Bad judgment in and of itself is not incapacity,
and people often confuse that you can make Look, I've
got friends with that judgment. Do sometimes I think they're incapacitated,
maybe right, But bad judgment is not an incapacity. You know,
(41:13):
other times people agree that they are having a problem
and they need help. Right.
Speaker 2 (41:17):
We have that in the guardianship world, where it's called
a person in need of a guardian okay, colloquially a
PING and or a PNG, and you can only get
a PNG on consent though, right, you can't get a
person in need of a guardian without consent.
Speaker 1 (41:36):
Otherwise.
Speaker 2 (41:37):
The big thing for a person in need of a
guardian is they're not determined incapacitated, so it's kind of
a nice allowing them to retain more dignity than they
would otherwise in.
Speaker 1 (41:50):
The guardianship process. And back from there, that's you know,
a totally different type of litigation which I don't really
want to get into, but other truck. This litigation is
often an accounting saying essentially what happened to the money? Right?
Did you use it on yourself? And sometimes there's trust
(42:10):
litigation too. There's get interpretations by the court, which is
unusual because that's generally not allowed. Right.
Speaker 2 (42:21):
So the Supreme Court, very early on in this came
out with anion there are no advisory opinions, right. There
has to be an actual dissticiable matter.
Speaker 1 (42:31):
Before the court.
Speaker 2 (42:33):
In the surrogatece court, there is a section that allows
you to get advice and direction from a surrogate's court
and occasionally we use that in the interpretation of a
trust provision right now, Obviously it's a trust provision that
we didn't write because.
Speaker 1 (42:50):
When we write them, we feel like we know what
they say. Now that might not always be true, right.
Speaker 2 (42:55):
But but one of the other uh ones can be
a construction provision, right or a reformation, and I think
that's essentially what Rupert Murdoch was trying to do.
Speaker 1 (43:09):
So, Dylan, can you give the people some idea about that?
Speaker 3 (43:12):
Yep.
Speaker 4 (43:13):
So, Rupert Murdoch has what was called the Murdoch Family
Irrevocable Trust, which holds all of his business subsidiaries, Fox News,
The New York Post, all of his media. It follows
along the lines of succession quite well, as he has
(43:35):
four children who will have voting interests upon his passing.
Speaker 3 (43:42):
Is that all of his children or dos he have
more than Oh he's got more than that.
Speaker 4 (43:45):
I thought, Okay, it's just the four oldest children have
voting interests, and upon his passing it would be they
would each have an equal voting interest. But just recently
he went to the court, the probate court in Nevada
(44:05):
and requested to have his trust reformed because, in his eyes,
in the best interest of all of his beneficiaries all
of his children, that his oldest son should be the
only one with a voting interest. Coincidentally, he's the most
conservative out of all of his children.
Speaker 3 (44:27):
His two other two of his.
Speaker 4 (44:31):
Other children who are set to have voting interests are
not as conservative as he would like, and he thinks
that they would ruin the company.
Speaker 2 (44:43):
That's not really a great ground to go in on, right,
that were we are ideologically not the same?
Speaker 1 (44:53):
Yep?
Speaker 2 (44:53):
Well, one, you created this trust, right, so who created
the problem?
Speaker 1 (44:57):
He did? Is this a me problem or you problem?
Guess what? It's really more of a you problem? Right?
And you could have done other things? Yeah? Right? You
could have retained certain powers. Yep.
Speaker 2 (45:09):
Now maybe I defer to lou. Maybe there's some estate
planning reason need retain more power over this trust. I
don't know, but going in and saying that no matter,
and even if you're going to frame it, I guess
the best thing you could do is frame it as
a business issue, right, so that the value of the
estate will go down. Such a strained argument because the
(45:33):
channel will not be conservative enough.
Speaker 1 (45:35):
Is that really essentially what the argument is?
Speaker 4 (45:38):
The argument is, yes, that it would lose some of
its right wing slant, Yeah, and would be pulled more
towards the middle and that would be bad for business.
Speaker 3 (45:48):
Wow, which is an interesting argument.
Speaker 2 (45:52):
Yeah, yeah, yeah, I don't know.
Speaker 1 (45:57):
That's kind of I don't see. And the court didn't
go it, right. Did they have a hearing on it.
Speaker 4 (46:04):
They did have a hearing in front of a commissioner
who stated that this is out of the ordinary.
Speaker 3 (46:12):
It does not work.
Speaker 4 (46:14):
Because his other children obviously had to show up. They
had to be given notice because they are beneficiaries, right,
and so they got to have their day in court
as well, and they clearly won, stating that taking their
voting interests away is actually harming beneficiaries.
Speaker 1 (46:37):
Right. Well, I don't think that's really hard to fathom. Right,
So we're coming up to the end of the show here.
But that that is a wild case and one probably
that I would not take, although I guess if Rubert
Murdoctor is your client, you kind of have to do
what he wants you to do continue to get paid.
Speaker 2 (46:55):
Unfortunately, I would want the kid's case because I think
that would be stronger. I'm sure that they also have
a few dollars a couple of nickels to rub together
so thank you for listening to Life Happens Radio this week.
I will not be on again before the holidays here,
so I just want to say happy holidays to everybody
out there. Dylan, did you know an okay job today
(47:17):
in the radio? Pretty okay? If anybody who knows me
knows that, that's that's how I grade people. I'm a
tough grader. So thank you for listening. I hope you
have a great rest of your weekend, enjoy your holidays.
This has been Life Happens Radio, Aaron Connor, Pierre O'Connor,
and Strauss. If you have a question, give us a
qualifive one eight four.
Speaker 1 (47:37):
Thanks
Good morning, Welcome to Life Happens Radio. Are you prepared?
This is our weekly radio program for baby boomers and
their families where we address the challenges we all face
as we age. We talk about.
Speaker 2 (00:09):
Aging as a lifestyle, the issues that must be confronted,
and the careful planning that's required to avoid crises in
the future. Life Happens will provide you with tools to
educate and prepare yourselves for events like retirement, protecting your
income and assets, planning to pay for nursing, home and
home care, special needs, Wilson trusts, planning for an untimely death,
and resolving disputes in and out of court. As laws
(00:31):
change and the need for planning evolves, Life Happens will
be here to make sure that you and your family
needs are served.
Speaker 1 (00:39):
So good morning everybody. I'm Aaron Connor from Pure O'Connor
and Strauss. We are if you don't know this is
your first time listening. Is stay planning Attorneys. We talk
about wills and trusts, medicaid, when we get towards the
end of our lives, we talk about trust litigation, We
talk about how to deal with special needs, and today
(01:01):
we have a new victim have a first time radio
person and that's Dylan Newkirk. Good morning, Dylan, Good morning, Aaron.
Happy to be here.
Speaker 2 (01:12):
Dylan has been with our firm as a started as
a law clerk, Win.
Speaker 3 (01:18):
Dylan back in May of twenty three.
Speaker 2 (01:21):
Okay, so a little while, and he has taken the
bar exam and he has passed the bar exam, so
congratulations on that, thank you. And he will be admitted
here in about a month.
Speaker 3 (01:33):
Right yep, middle of January.
Speaker 2 (01:35):
So and then his life is over because life as
an associate is difficult trying. H Yeah, maybe I'll just
stop there because otherwise no one will ever go into it.
Speaker 3 (01:56):
But it's gonna say you're not helping us.
Speaker 2 (01:59):
No, but you know, having been there and been through it,
I certainly know. I mean it was fairly long time ago,
but I do have pretty pretty stark memories of the
associate life. So but we're happy to have Dylan currently, Dylan.
Dylan is focused on a state administration, so what that
(02:23):
means is probate petitions and we'll talk some about that.
Speaker 1 (02:29):
Can be a trust administration too, which is a much
easier process.
Speaker 2 (02:33):
And he is also working for Frank Hemming in her
office with Medicaid and some long term care. So when
people come on, we try to expose them to as
much as possible in a reasonable amount of time and
then give them some illusion of choice about what.
Speaker 1 (02:50):
Practice areas are going to work in. So but but
as I said, we're happy to have Dylan. We have
we have a lot of work to get done.
Speaker 2 (03:03):
And we are fortunate in that respect. But we that
means we need people, and certainly I'm happy to throw
this out there too. If you know of an associate
or a lawyer looking for work in this area, you
can certainly send their resume our way at info at
purolaw dot com because we have a couple of open
(03:23):
positions and we could we could use very much to
fill those positions. But after all that digression, so Frank
and I have done the radio together, probably more than
I've done it with anyone else, certainly more than I've
(03:43):
done it with Lou. Lou and I have done it together, right,
but that's uncommon now. Occasionally it's like.
Speaker 1 (03:51):
A kickoff of something or a holiday show. We have
done those together. But this year I don't think that
will be the case, based on how it times out.
But Frank and I always mentioned sports a little bit,
and uh, you know, if if you're won Soto, I
dislike you, but you should do some mistate planning because
(04:17):
hopefully you've already done some, but now now you're really
going to have some some things you need to take
care of and kind of set you set it.
Speaker 2 (04:27):
Up for probably perpetual wealth for a long time at
those numbers. You know, I'm not saying it can't be squandered,
but it would be very difficult.
Speaker 1 (04:38):
So one.
Speaker 2 (04:43):
I'll forgive you if you give us a call to
do your planning. You know some other things I've seen
in the newest Dylan is a.
Speaker 3 (04:55):
Bills fan, unfortunately, right, So.
Speaker 2 (05:00):
The Bills just had a portion of their team purchased
by a private equity group yep, and the NFL just
recently allowed this.
Speaker 1 (05:08):
But they can only own, I think, up to ten percent.
They can't ever be a managing partner of the NFL.
Speaker 2 (05:14):
But what's interesting about this is there's a number of
reasons that an owner might do that, right. It might
be they need some liquidity, right, and I've seen that.
Speaker 1 (05:28):
Is it Mark Davis, whoever the Raiders owner is the
son of Al Davis.
Speaker 2 (05:32):
I can't think of this first, he's done it a
couple of times. Because you can be very wealthy but
not very liquid, right, So if you own a team,
you have this multi billion dollar asset, but you don't
have necessarily billions in the bank, right, And one way
to get some liquid is to sell off a portion
(05:52):
of that team. And that's what Mark Davis has done.
From what I've read from a Bill's perspective, that's not
necessarily why they're doing it, right, but it does make
it a little easier maybe to do some estate planning
if you don't own one hundred percent or seventy percent
of the team, and the bills owners of really owner
(06:16):
or owners have already kind.
Speaker 1 (06:17):
Of been through it a little bit, right, yep. I
mean what went on with the wife?
Speaker 4 (06:24):
So from my recollection of it, it was there's Terry
and Kim Pigula who were married and were both owners
of the team.
Speaker 1 (06:36):
Right.
Speaker 4 (06:36):
Kim unfortunately went through some really bad health issues over
the past couple of years, to the point that she
was incapacitated and unable to make decisions for herself. As
she was in the hospital, her daughter wrote along.
Speaker 3 (06:58):
What was it called?
Speaker 1 (06:59):
I think it was? Was it an Instagram post or
was it something.
Speaker 3 (07:02):
Like she wrote like a blog post about it.
Speaker 4 (07:07):
And I guess the family was really struggling to figure
out how to.
Speaker 3 (07:12):
You know, preserve all of their their.
Speaker 4 (07:16):
Rights in making decisions there, right, because you went from
two people down to one, right and trying to get
ability to act.
Speaker 2 (07:27):
Yeah, I think there's a couple of notable things there.
First of all, their daughter is a world class tennis player. Yes,
so making some good money in her own right, probably too.
But it doesn't just happen like these things happen to
wealthy people. They happen to regular people too, right, So
just because people are wealthy doesn't mean they have a
(07:49):
good plan in place. It means probably more that they
should have a good plan in place. But as we
say every day, everybody needs a good plan, right, anything can.
Speaker 1 (07:59):
Happen at any time.
Speaker 2 (08:00):
I'm don't have to end up with your family in
a courtroom fighting over things or trying to get control
of your medical decisions or assets or whatever it may be.
Get out and do some planning, and that's that's critically important.
But here we are at a very high level of wealth.
You know, we're talking one percent of the one percent probably.
(08:21):
I mean, if you own an NFL team.
Speaker 1 (08:24):
Yeah, and.
Speaker 2 (08:26):
Things hadn't really been prepped in the way that they
should have been, and that's kind of amazing. But there
are a few sports owners that have had guardianships filed
against them. The owner of the Texan instead, that must
have resolved out of court because that kind of went away.
(08:47):
The news about that the owner of the Saints had
a guardianship filed against him at one point, and that
was more of a fight with the ex wife or
the new wife excuse me, kids against.
Speaker 1 (09:01):
The new wife.
Speaker 2 (09:04):
That didn't really go well for the kids, unfortunately for them.
Speaker 1 (09:08):
And then there now is the one that's been mortalize
seems strong. But in the series Ballers, I think it is.
It is about the La Clippers and what happened to
their owner when he lost capacity and essentially was forced
to sell the team. So those are the big world items,
(09:31):
well even to a smaller scale, right. Hal Steinbrunner is
a very fortunate person because in the last I don't know,
forty or fifty years, there's been one year of no
estate tax and his father happened to die in the
one year of no estate tax. So I know that
(09:52):
his father purchased the Yankees.
Speaker 2 (09:54):
George Steinbrenner we're talking about in nineteen seventy three for
three million dollars from CBS. He died in twenty oh
nine or ten, whatever it was.
Speaker 1 (10:03):
They were certainly worth more than three million dollars, and
they got all of that appreciation.
Speaker 2 (10:08):
Without paying tax, which is very unusual. So sometimes you
get lucky, but most of the time you don't. I'm
sure that there was some plan in place there, but
what that was, we don't really know.
Speaker 1 (10:24):
So we like to stay topical. We like to stay
in the news, right, So we've reviewed a few things
that have been going on.
Speaker 2 (10:34):
I saw an article about it. I'm gonna call her
a TikToker. I don't know if that's technically correct or not.
Digital media creator, you know whatever they like to be
called now, digital content creator. So and I think it's
a pretty gross situation, frankly, morally, just in all sorts
(10:57):
of ways. So I think what we'll do is we'll
take our first break.
Speaker 1 (11:03):
And when we come back, we will get into that
and some other news stories that show the value of planning.
Speaker 2 (11:10):
This is Life Happens Radio. Aaron Connor Puerre o' connor
and Strauss. We'll be back after this. Welcome Back to
Life happens Radio Aaron Connor, pure Connor and Strauss joined
by radio neophyte Dylan Newkirk. I have to pause so
I don't say dialog.
Speaker 1 (11:31):
So long story. We'll get into that. But that's that's
how he's known around the office. So, but Kase, you
missed that. Dylan is our newest associate, waiting for his
admission pending the Character Committee, which is not generally a
huge hurdle. So he'll be working full time with us
(11:55):
as an associate very soon.
Speaker 2 (11:59):
So I wanted to talk about some things I've seen
in the news, and you know, I really do believe
that truth is stranger than fiction, And any time I've
had cases come in with strange facts, I really feel
like they were so strange sometimes you couldn't make them up.
(12:19):
One of my favorites as a fact pattern not great
for people the people involved was a downsta case where
a gentleman nicely might be called a rascal. I suppose
(12:40):
there's not a lot of good words separates from his wife,
says he's divorced, produces fake divorce papers to a potential
new wife, they get married quote unquote, but it's not
a valid marriage because he's still actually married to his
(13:03):
first wife. But she didn't know that. Then the first
wife came in and elected against his estate because she
was his wife and he had actually been providing her
with support over the time periods. The new quote unquote
(13:24):
wife had no idea that she was not the real wife. So,
I mean, you know, husbands, if you scrout up out there,
there's always somebody who did worse. So I mean, you know,
you know, you forget to get the perfect gift, maybe
you'd just be like, well, I'm not this guy.
Speaker 1 (13:40):
Right.
Speaker 2 (13:41):
So, just in the last couple of weeks, I tend
to read the New York Post for amusement. Sometimes it's newsworthy,
sometimes it's just kind of craziness.
Speaker 1 (13:56):
But I did recently see a story that put my
estate litigation ears up. Let's say, and the headline of
the story is, young influencer faces backlash after dancing too much,
dancing next to much older boyfriend in the hospital bed.
(14:19):
Quote I got on the will okay, can't make it up.
Can't make it up.
Speaker 2 (14:26):
And you can see the guy in the video, and
I mean he obviously does not appear appear to be
doing well, but he looks like he would have some
cognition about what's going on. So the article gets into
that a little bit. She's twenty two, he's eighty five.
(14:47):
That would be a bigger age gap than I think
I've ever personally witnessed in the office. I've certainly seen
some large age gaps, but sixty three years seem questionable
at best, and certainly looks like a case of potential
(15:10):
on do influence or fraud not doesn't really pass the
eye tests, And I don't know, seems like this gentleman
must have had some means because later in the article
here there's a picture of them together at Cardier. And
(15:33):
if you're not familiar with Cardier, the fact that you
have to say it with a French accent should give
you an idea that it is in fact expensive.
Speaker 1 (15:42):
And its jewelry and watches and et cetera.
Speaker 2 (15:46):
And they were apparently spending twenty thousand dollars on her
at Cardia. So if this was your dad, I would
feel bad for you, right, seems like he's being taken
advantage of. Now how she found him, I have no idea, right,
did he reach out to her? She somehow trolling for
(16:09):
wealthy older men.
Speaker 1 (16:10):
I don't know. I don't I don't even know how
one goes about looking for that person. But you know
the will.
Speaker 2 (16:23):
So let's talk about what would happen in this scenario.
So let's say that there is in fact this will, right,
what happens?
Speaker 4 (16:32):
First, Ellan, Well, we'd have to someone would have to
check the will, figure out who's the executor, who's the
nominated executor, and that person would have to then petition
the court, the Surrogate's Court in New York for letters testamentary,
which would involve giving notice to every one of his
(16:58):
next of kin and legal errors.
Speaker 1 (17:02):
Right, So let's talk about just who that would be, right. So,
I'm assuming there's not a wife.
Speaker 2 (17:11):
That's probably the only way the story could get more ridiculous. Right, So,
assuming there's no wife, if there are children, even if
they are not included in the will, at least in New.
Speaker 1 (17:23):
York State, they need to be put on notice.
Speaker 2 (17:27):
And if they were my client, I certainly would not
be advising them to sign a waiver and consent to
this will, right, Because what that waver and consent basically
says is that I agree that this is the last true,
valid will and testament that if this was your father,
(17:48):
that your father signed right, and that basically extinguishes all
rights other than essentially an accounting or maybe removing a
fiduciary if they don't move the estate along. But your
ability to challenge the will is out the window at
that point. So in any questionable situation, we don't advise
(18:13):
signing a waiver and consent. Certainly you should consult with
an attorney prior to.
Speaker 1 (18:18):
Doing so so. And when you don't sign a waiver
and consent again in New York, you get served with
something called a citation, And Dylan, what's a citation.
Speaker 4 (18:33):
Citation is in order to show cause. It gives you
the date of a court date, a date, time and location,
and if you can show up to object to the will,
or you could not show up, or you could show
up and just say that everything is fine.
Speaker 2 (18:53):
Yes, wide spectrum of things like that that happen some.
Although most courts are in person now, many of them
allow virtual appearance. I think maybe just one of them
still does almost all virtual appearances, although I think that
will be ending. But in the era of virtual appearances,
(19:14):
people from out of state can jump on a zoom
all right, it's the team's technically, but.
Speaker 1 (19:19):
And that has made it.
Speaker 2 (19:21):
Easier for people to object, and sometimes people appear and
just say yeah, I'm good. Well, I don't know why
people do that, because that's a huge waste of time.
If that's the case, sign the waiver and consent. But
if you get served with a citation and you are
not on board, you need to appear on the citation date,
(19:43):
or better have an attorney appear for you on the
citation date, because they know what they're doing.
Speaker 1 (19:49):
This is not really a DIY project.
Speaker 2 (19:52):
Okay, to be fair, some of you could do a
DIY project that I can't do. Right, I'm not going
to do my bathroom over really generally good at that
stuff and not super patient, so I've learned that I'd
rather just pay somebody to do it. My father is
pretty good at it, but we don't work well together, so.
Speaker 1 (20:10):
We don't do that either.
Speaker 2 (20:12):
So you know, sometimes you just have to pay a
professional to do the job. And a state litigation is
somewhere where you don't want to hire somebody who does
speeding tickets and real estate work, and you want someone who.
Speaker 1 (20:26):
Does this kind of work.
Speaker 2 (20:27):
The surrogate court, Dylan, where you interned prior to working
for us, is kind of its own little kingdom. It
has its own procedure act it is.
Speaker 1 (20:41):
It works on petitions and not complaints.
Speaker 2 (20:43):
Right, So in the other litigation world you file a complaint,
that's not what you do here. And there are a
lot of provisions of the law that are unique to
a surrogate court, so it's not a let's dabble here
kind of thing. I can imagine that when you were
interning in the curcuates court, you could tell the difference
(21:05):
between a lawyer who's there often and who's not.
Speaker 4 (21:08):
You definitely can you look at the form of the
way that they write and everything is completely different.
Speaker 2 (21:17):
Yeah, and that's important. And familiarity with the judge is
also generally important. Sometimes it can be a.
Speaker 1 (21:23):
Bad factor, the judges not.
Speaker 2 (21:27):
Really in love with you. But I mean, really, if
you're a good lawyer, you're able to separate the client
and you, and it's important to.
Speaker 1 (21:39):
Do that.
Speaker 2 (21:41):
And know that sometimes you have to work the judge.
Sometimes you have to work your client. Probably all the time.
It's a combination of those two things. Just in varying
degrees on which side right well, and you're working the
other side. So it's really like a three dimensional problem
and we're all trying to get to a solution that
(22:02):
we can live with. Right, very very few times is
something like a complete victory, right and litigation that doesn't
really happen. I mean, it can happen, It's happened, but
it's not something that I would certainly say it would guarantee,
and it's not something that is going to happen without
spending a large, large amount of money.
Speaker 1 (22:25):
And litigation adds up fast. And look, it's just the
way it is.
Speaker 2 (22:31):
And when you get to a litigation, you really have
two parties that are already hardened because you wouldn't be
there if you weren't.
Speaker 1 (22:39):
Right. So, in this case with a TikToker.
Speaker 2 (22:44):
Which we will get probably a little more in depth
of what would really happen when we come back, would
not be a simple case, would not be a cheap case,
and more than likely, in my opinion, would be a
case where everybody would settle because this TikToker wants to
walk out with something. It's not going to walk out
with nothing unless you're willing to probably spend huge amounts
(23:05):
of money because even if you win at the trial level,
there can be an appeal. Right This process can go
on for ten or twelve years if they really want
it to. And that's not good for anybody other than
the lawyers. So we come back. We're going to delve
more into this estate litigation area. This is Life Happens Radio.
I'm Aaron Connor from Pierre O'Connor and Stroyers today joined
(23:28):
by our newest attorney, Dylan Newkirk, and we'll be back
right after this. Welcome back to Life Happens Radio. I
hope everybody is having a good start to their weekend.
Aaron Connor, Puerre O'Connor and Strauss. Dylan is still here.
He's survived his first half of a radio show. We'll see,
we'll see if he makes it to the final segment.
(23:50):
That's still in Newkirk, our newest attorney. We are talking
about when it hits the fan, you might say, in
a state and will area. And we have been talking
about a twenty two year old TikToker.
Speaker 1 (24:04):
That's what the article says. So I guess I was
correct in that who had made her way according to
her into an eighty five year old man's will and
danced next to his bed while he was dying.
Speaker 2 (24:19):
I guess suffering. So the morality of that I think
is pretty clear, right. I Also, if you get a
jury trial, I don't think that's going to play very
well for her. Now, this happened in Canada, right, So
I don't know what the Canadian laws are like, but
(24:44):
I can't imagine that they're that different than ours, So
not in.
Speaker 3 (24:48):
This field anyway.
Speaker 2 (24:49):
Yeah, but here, if this had happened, the will would
have been filed if she's the executor, which I would
doubt out, but you never know. She could be right,
There could be another executor who would refuse to file
this will.
Speaker 1 (25:05):
All right.
Speaker 2 (25:05):
So sometimes we have an executor appointed under a will
and they don't believe it's a valid will, right, which
becomes so they might go find the prior will, if
that still exists, right, believing it to be the last
validly executed will and testament, because that's what's important, right.
(25:27):
It's not just your last will and testament, but it's
your last validly executed will and testament. Now, most times
those are the same document, but not always so. In
a situation like that, that person will go file the
prior will. Then it would be incumbent on this TikToker
to produce the new and file a petition for the
(25:48):
new will, and then we're off to the races, and
the lawyer meeterer is running, okay, really running. So at
that point you have com competing petitions for probate. Can't
make it one word, it's not compissions, right, So, and
generally what will happen is the newer will petition will
(26:12):
get heard first, right, because if that's valid, the other
petition doesn't matter, So it would be a waste of
resources to go back to what the probably in this
scenario more likely is the valid will, right, So that
petition gets filed, the children ninety nine percent are going
(26:32):
to file objections to that will, right, and that would
be it's a product of undue influence, it's fraud, duress,
maybe lack of due execution, depends on what it looks like, right.
There are limited grounds to do that, and this just
sounds like an undue influenced case to me.
Speaker 1 (26:54):
Undue influences, though pretty.
Speaker 2 (26:56):
Typically hard to prove, right unless you have messages for
from someone saying you know, I'm gonna hurt your children
unless you put me on the will, or you know
your other kids are all criminals. And you know, in
today's text world, we have more of this than we
used to. When things were done on the phone or
just verbal, we had less evidence to be able to find.
(27:18):
Now at least we subpoena phone records and be like, oh,
this is uh yeah, this is pretty.
Speaker 1 (27:23):
Bad and that does happen.
Speaker 2 (27:29):
Subpoena can be your friend. Supoena can also not be
your friend if you're the one getting it. So so
generally speaking, they would file objections. They would look for
some discovery or do some discovery, then file objections, although
this seems like a case where you'd file objections right
out of the gate because it's not even questionable that
you're going to object.
Speaker 1 (27:51):
Sometimes you do discovery to determine whether.
Speaker 2 (27:53):
You're going to object to a will, to see what
went on, to see if there's any.
Speaker 1 (27:58):
Anything nefarious really, or.
Speaker 2 (28:01):
You know, whether things were done right. Then in New
York you get a what's called a fourteen oh four hearing,
and what.
Speaker 1 (28:09):
Is that done?
Speaker 4 (28:10):
Fourteen oh four hearing is a time when you bring
in the attorney drafts person and the witnesses to the will,
and they have to testify about the execution of that
of the will, making sure that everything was done validly.
That there's a slew of questions that need to be
(28:32):
asked of the person signing the will, asking did they
go through those questions? Did they declare it as their
last will and testament?
Speaker 1 (28:40):
That's right?
Speaker 2 (28:43):
It's are you generally familiar with the contents of this document?
So the way I ask it, right, it goes on
to let's say your wife and then onto your children.
Speaker 1 (28:52):
They say yes, which they have to do verbally. Right,
does that fulfill your wishes? Right?
Speaker 2 (28:59):
So you have to know what's happening. You have to
know that that's what you want. Then you have to
declare it to be your last will and testament. Then
you have to authorize the witnesses and the testing witnesses.
And if you do all of that, then you can
sign the document and it's been properly executed, assuming that
(29:19):
there are two.
Speaker 1 (29:19):
Witnesses, right, and we do the a testing Affidavid, which
I'll ask you to explain a second right then, and
that needs to be notarized by a person who's not
a witness. So what is that a testing affidavit?
Speaker 4 (29:35):
For the testing affidavit is saying that, yes, I was
the witness to this the person who executed their last will.
They requested that we that I sign as a witness.
We went through all of the questions, and it really
helps when if anything goes into litigation that if we're
(29:59):
ever asked did any of this happen, we have a
document that we signed and in front of someone else
saying that we did go through all of this, it
was validly executed to our knowledge.
Speaker 2 (30:13):
Right, it's done contemporaneously, right, so it can be done
after the fact. It can be sometimes it's done years
after the fact because it wasn't there with the original
document and we have to track it at least one
person down. Yep, that's not really a good practice because
anything done in the moment, you're going to have much
(30:35):
better knowledge.
Speaker 1 (30:36):
Right. I don't even know how many wills I've witnessed
over the years, right, one thousand probably? I mean, could
it be two thousand? Sure?
Speaker 2 (30:47):
I would be very hard for me to figure that out.
And Lou Lou, who's been doing this since nineteen eighty whatever, okay,
mid eighties, mid eighties, not the early eighties.
Speaker 1 (30:58):
But you know, I don't.
Speaker 2 (31:03):
Even know ten thousand, probably I don't know. You know,
we couldn't put a number on it. So do you
think that if someone came back to you and they're, like,
in two thousand and eight, you executed this will, do
you can you tell me about it? Ninety nine percent chance?
(31:23):
Now right, I'm going to remember some people right because
of their personality or the situation. And Frank especially will
tell you that I remember more than I probably want to.
We will talk about a file, and it's just the
way that my mind works that I just remember things
unless my wife tells me something. My wife tells me something,
(31:46):
I don't remember it. But other details I can tell
you whatever you want to know. So it's weird how
that works, but that's how it works. But generally speaking,
we're not going to have any personal, remaining personal knowledge
about that will execution, and that's why it's very important
to do that a testing affidavit, which is in our
(32:09):
world what we call prime offacia evidence of valid execution, right,
which means that the other side has a tough road
to hoe to say that this isn't a validly executed will.
It's not impossible, but it's certainly more difficult than the absence.
And we see lots of errors about wills.
Speaker 1 (32:28):
Right, you can't have the in law be a witness
on a will. That's an interested party. Okay, that's a
bad idea. It's going to lead to a will likely
getting tossed. You can't have a direct beneficiary being a
witness on a will, and you can't have someone who
doesn't have capacity being a witness.
Speaker 2 (32:49):
And one witness isn't going to get it done either
requires two. So I mean, there are a lot of
things that go into a will. This is why you
don't buy a DIY kit. And even if you were
to get all of those things right, the kit itself
is going to be deficient in several ways. So again,
I'm not going to buy a kit to do step
(33:11):
by step.
Speaker 1 (33:11):
Plumbing in my house. I certainly encourage you not to
do that with your legal planning because.
Speaker 2 (33:20):
There's things you need to ask about. Right, So let's
just assume there are other things in this will of
this eighty.
Speaker 1 (33:26):
Five year old.
Speaker 2 (33:27):
Right, if he has a child who happens to predecease him,
and he has a minor grandchild, well we need to
account for that, right. And we have a case right
now where there was kind of sort of a miner's
trust set up under a will, but then it wasn't funded.
(33:47):
So what's generically, Dylan, what's happening there?
Speaker 4 (33:51):
So, typically the way it would work under most wills
is that we would write in what's called a miner's
trust saying that anyone who's under pick your age, whether
it's eighteen, twenty one or twenty five, if they're going
to receive any money, they have to take it in
a trust. Someone's going to be the trustee for them.
(34:13):
Make sure that they don't blow through all that money, kid, right,
not great with money.
Speaker 1 (34:18):
Right, generally, don't make good decisions. Correct.
Speaker 4 (34:21):
However, in this will there was some not to call
it outdated language, but it's just not the language that
we would typically see anymore.
Speaker 1 (34:31):
How was a will significantly older than they the time
the person died?
Speaker 4 (34:36):
Yes, okay, Yeah, the will was executed and I believe
two thousand and three, okay.
Speaker 2 (34:41):
So twenty years I must, yeah, right, So that's not
to say a will doesn't expire, right in a you know,
in fact, when you expire, the will comes to life
very strangely.
Speaker 1 (34:54):
But.
Speaker 2 (34:57):
It's really a good idea to look at a will
every so often, probably three to five years, right, or
a big life change like someone has died, if you
have new grandchildren, we want to make sure. We just
want to make sure everything's where it should be. And
it's not necessarily a big lift or most times really
we don't have to do anything, but it's better to
(35:19):
be sure. And this will should have been probably reviewed
at least two or three times in the intervening intervening.
Speaker 4 (35:25):
Period probably, and I believe if it was, then all
they did was just add names of grandkids versus changing
the language in the way it was written.
Speaker 2 (35:37):
Right, And you can, unfortunately, amenda will and that's called
a cottaicil. We do not do cotta cells because it's
just better to do an entirely new will. Because if
the cotdaicil is not valid and you've crossed, you know,
knocked somebody out or diminished their share, you're just looking
(36:00):
for a problem. And certainly if you've removed somebody by cottasil,
they still have to get noticed because they're on the
will that the.
Speaker 1 (36:07):
Codaicil goes to.
Speaker 2 (36:09):
And you're really just setting yourself up for failure, and
the cotta still has to be proven, just like the
will has to be proven. So it's an extra dance
that really doesn't need to happen, and it's not a
best practice, so I would say certainly want to avoid that.
Speaker 1 (36:26):
So we'll take our last break. We come back. We're
going to talk a little bit more about what this
litigation would look like and some other litigation that's going
on with Rupert Murdoch which should be.
Speaker 2 (36:37):
Interesting, so hold on for that. A Mareon Connor. This
is Life Happens Radio from pierro' connor and Strauss, and
we'll be right back after this. Welcome back to the
last portion of Life Happens Radio for this week, A
Marion Connor from Pierre O'Connor and Strauss. Still he made it,
(36:58):
joined by Dylan Newkirk, our newest associate. We have been
talking about some cases that would be litigated and some
rather disgusting fact patterns, and we had talked about a
twenty two year old TikToker who got on the wheel
of her eighty five year old boyfriend. At least according
to her, my boyfriend might be a bit strong. I
(37:20):
don't really know. He was the influency. But that's where
we're at, and we were just talking about what that
litigation would look like. We had talked about a fourteen
oh four and what you would be looking to disprove
if you were the family right that the will was
either invalid or the person lacked capacity, maybe they had
(37:47):
been unduly influenced. Right, That seems like the most common
or viable avenue for that one. After that you really
would go through more discovery. Maybe you would take her deposition.
And really in that case, it's kind of the lawyer's
(38:08):
job to there's two ways you really can handle the deposition.
If I suppose, if you want the case to end,
you can kind of, you know, within reason, verbally rough
them up, meaning that like you're going to show them
what a trial would actually look like. Right, generally, that
is not the best, in my opinion, tack to take,
(38:30):
because a deposition is an information gathering tool, and the
harder you go at somebody there, the less information you're
going to get. Now, some people don't want to give
up any information, and it may in fact turn into
the ladder, but begin as an information gathering So that's
all a reactive kind of thing that you have to
do when you get to that place. But a trial,
(38:53):
certainly cross examination or direct examination depending on who calls
the witness, could be pretty ugly for that person, and
certainly there's not going to be any sympathy for them.
And I don't know what portion of the estate and
how much that's worth, but it certainly seems.
Speaker 1 (39:10):
Like a case that should settle.
Speaker 2 (39:14):
If not, I mean for her to go away entirely, again,
you'd have to go to trial when and not get appealed.
Speaker 1 (39:24):
From beginning to end. That's at least one hundred thousand.
Speaker 3 (39:26):
Dollars and months and months.
Speaker 1 (39:29):
Yeah, emotional cost too. I tell this to our clients
all the time.
Speaker 2 (39:33):
Look, there's absolutely an economic cost, but there's also an
emotional cost to what you're doing, and moving on with
your life has value because it's not necessarily it's not
good for your mental health. It may actually not be
good for your physical health too to fight this battle,
depending on how old you are and where you're at,
So all of that's got to go into the hopper
when you try to decide what you want to do and.
Speaker 1 (39:54):
How you're going to do it.
Speaker 2 (39:58):
Not all of our litigation involved just wills, though sometimes
it involves a trust right. Sometimes it's to remove a
trustee because they've gone off the rails, or occasionally they've
become incapacitated while a trustee, but maybe not to a
degree where they.
Speaker 1 (40:17):
Think they're incapacitated.
Speaker 2 (40:19):
Right, So the way our trust is written is, generally speaking,
any trustee can be removed for incapacity upon notice to
them that that's the reason they're being removed. Generally they
have ten days or so to get a doctor's note
to say that they are in fact capacitated, and that
would a void that I can't think of a time
(40:41):
that that has happened, but there is a procedure there
if in fact they have capacity and we just have
a bad actor out there saying no, you don't have it.
Speaker 1 (40:50):
Right. Bad judgment in and of itself is not incapacity,
and people often confuse that you can make Look, I've
got friends with that judgment. Do sometimes I think they're incapacitated,
maybe right, But bad judgment is not an incapacity. You know,
(41:13):
other times people agree that they are having a problem
and they need help. Right.
Speaker 2 (41:17):
We have that in the guardianship world, where it's called
a person in need of a guardian okay, colloquially a
PING and or a PNG, and you can only get
a PNG on consent though, right, you can't get a
person in need of a guardian without consent.
Speaker 1 (41:36):
Otherwise.
Speaker 2 (41:37):
The big thing for a person in need of a
guardian is they're not determined incapacitated, so it's kind of
a nice allowing them to retain more dignity than they
would otherwise in.
Speaker 1 (41:50):
The guardianship process. And back from there, that's you know,
a totally different type of litigation which I don't really
want to get into, but other truck. This litigation is
often an accounting saying essentially what happened to the money? Right?
Did you use it on yourself? And sometimes there's trust
(42:10):
litigation too. There's get interpretations by the court, which is
unusual because that's generally not allowed. Right.
Speaker 2 (42:21):
So the Supreme Court, very early on in this came
out with anion there are no advisory opinions, right. There
has to be an actual dissticiable matter.
Speaker 1 (42:31):
Before the court.
Speaker 2 (42:33):
In the surrogatece court, there is a section that allows
you to get advice and direction from a surrogate's court
and occasionally we use that in the interpretation of a
trust provision right now, Obviously it's a trust provision that
we didn't write because.
Speaker 1 (42:50):
When we write them, we feel like we know what
they say. Now that might not always be true, right.
Speaker 2 (42:55):
But but one of the other uh ones can be
a construction provision, right or a reformation, and I think
that's essentially what Rupert Murdoch was trying to do.
Speaker 1 (43:09):
So, Dylan, can you give the people some idea about that?
Speaker 3 (43:12):
Yep.
Speaker 4 (43:13):
So, Rupert Murdoch has what was called the Murdoch Family
Irrevocable Trust, which holds all of his business subsidiaries, Fox News,
The New York Post, all of his media. It follows
along the lines of succession quite well, as he has
(43:35):
four children who will have voting interests upon his passing.
Speaker 3 (43:42):
Is that all of his children or dos he have
more than Oh he's got more than that.
Speaker 4 (43:45):
I thought, Okay, it's just the four oldest children have
voting interests, and upon his passing it would be they
would each have an equal voting interest. But just recently
he went to the court, the probate court in Nevada
(44:05):
and requested to have his trust reformed because, in his eyes,
in the best interest of all of his beneficiaries all
of his children, that his oldest son should be the
only one with a voting interest. Coincidentally, he's the most
conservative out of all of his children.
Speaker 3 (44:27):
His two other two of his.
Speaker 4 (44:31):
Other children who are set to have voting interests are
not as conservative as he would like, and he thinks
that they would ruin the company.
Speaker 2 (44:43):
That's not really a great ground to go in on, right,
that were we are ideologically not the same?
Speaker 1 (44:53):
Yep?
Speaker 2 (44:53):
Well, one, you created this trust, right, so who created
the problem?
Speaker 1 (44:57):
He did? Is this a me problem or you problem?
Guess what? It's really more of a you problem? Right?
And you could have done other things? Yeah? Right? You
could have retained certain powers. Yep.
Speaker 2 (45:09):
Now maybe I defer to lou. Maybe there's some estate
planning reason need retain more power over this trust. I
don't know, but going in and saying that no matter,
and even if you're going to frame it, I guess
the best thing you could do is frame it as
a business issue, right, so that the value of the
estate will go down. Such a strained argument because the
(45:33):
channel will not be conservative enough.
Speaker 1 (45:35):
Is that really essentially what the argument is?
Speaker 4 (45:38):
The argument is, yes, that it would lose some of
its right wing slant, Yeah, and would be pulled more
towards the middle and that would be bad for business.
Speaker 3 (45:48):
Wow, which is an interesting argument.
Speaker 2 (45:52):
Yeah, yeah, yeah, I don't know.
Speaker 1 (45:57):
That's kind of I don't see. And the court didn't
go it, right. Did they have a hearing on it.
Speaker 4 (46:04):
They did have a hearing in front of a commissioner
who stated that this is out of the ordinary.
Speaker 3 (46:12):
It does not work.
Speaker 4 (46:14):
Because his other children obviously had to show up. They
had to be given notice because they are beneficiaries, right,
and so they got to have their day in court
as well, and they clearly won, stating that taking their
voting interests away is actually harming beneficiaries.
Speaker 1 (46:37):
Right. Well, I don't think that's really hard to fathom. Right,
So we're coming up to the end of the show here.
But that that is a wild case and one probably
that I would not take, although I guess if Rubert
Murdoctor is your client, you kind of have to do
what he wants you to do continue to get paid.
Speaker 2 (46:55):
Unfortunately, I would want the kid's case because I think
that would be stronger. I'm sure that they also have
a few dollars a couple of nickels to rub together
so thank you for listening to Life Happens Radio this week.
I will not be on again before the holidays here,
so I just want to say happy holidays to everybody
out there. Dylan, did you know an okay job today
(47:17):
in the radio? Pretty okay? If anybody who knows me
knows that, that's that's how I grade people. I'm a
tough grader. So thank you for listening. I hope you
have a great rest of your weekend, enjoy your holidays.
This has been Life Happens Radio, Aaron Connor, Pierre O'Connor,
and Strauss. If you have a question, give us a
qualifive one eight four.
Speaker 1 (47:37):
Thanks
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