Weird Judgments

In last week's story, found here (Part 1, Part 2, Part 3 ) I told you about an old divorce decree from 1940's Virginia. When we received a copy of it, I was blown away by some of the recitals it contained.

Any judgment will contain a few "recitals."  Recitals are statements of procedural matters, and sometimes contain findings by the court that are required for the judgment to be entered.  

The divorce decree between Faye's parents contained a recital that both the husband and wife were of the Caucasian race.  When I first read it, I did a straight double take.  Then I remembered that back when Faye's parents were married, the law in the state of Virginia  prohibited marriage between a black person and a white person. This was referred to as the crime of miscegenation.   

The law was challenged, and ultimately the U.S. Supreme Court struck it down as unconstitutional in 1967.  

There's this weird thing that happens in cases:  many times, case names strangely reflect the underlying facts. The case in which the Supreme Court struck down the Virginia marriage law is Loving v. Virginia, which is kind of awesome,  isn't it? 

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Faye's Story (Part Three)

Today's blog is the final and third part of a client story.  Part One is the back story and context.  Part Two is the will contest. You should read these first if you haven't already done so.    

(CAVEAT: Even though a lot of details are public record, the names and relevant identifying details have been altered in order to maintain any potential attorney-client privilege). 

By the time we reached the point in Faye's story where we determined that the Will was not admissible to probate, almost two years had passed.  During this time, Faye hired a private investigator in Virginia to search for the adoption papers for John and Frank.  We knew that John and Frank were most likely adopted in Virginia, but we did not know exactly where in Virginia and we were not one hundred percent sure that they had not been adopted in Maryland.  This is because very soon after when we believed that the adoption occurred, John and Frank’s adoptive parents moved to Maryland where they lived until their deaths.  The private investigator looked in all of the likely places in Virginia, and then focused his attention on Maryland.  Finding the adoption papers for John and Frank was a two and half year ordeal.  

The investigator first found the probate records of the adoptive parents.  Both the mother and father’s Will referenced John and Frank as their adoptive sons and left them everything.  Nevertheless, this was not direct proof of the adoption.  What we needed was direct evidence of the adoption: a certified copy of the decree of adoption.  So, the investigator kept going and even located the school where John and Frank attended K-12 grade, on the theory that their adoption papers would be in the records.  Unfortunately, this school burned to the ground with all of the records in it.  

After exhausting all potential sources for the adoption paperwork in Maryland and Virginia, Faye then hired an attorney in Virginia in the city where she knew her mother lived after her father left.  This is where we found the divorce decree which stated that four of the five children had been “adopted out” and that Faye was in her father’s custody.  Unfortunately, the divorce decree which recited that four of the five children were “adopted out” this was not direct but rather indirect evidence of the adoptions as well so the search continued. 

Our attorney in Virginia searched long and hard for the adoption paperwork in the town where the divorce was entered, to no avail.  He then turned his attention to where we knew either Faye’s parents had lived or where we believed John and Frank’s adoptive parents lived just prior to their move to Maryland. 

A final hearing was set on the issue of which of the children were legally entitled to inherit and we were set to proceed with the indirect evidence on hand, as well as Faye's testimony.  Without the direct evidence, it would be a decision for the court to make as the trier of fact based on all of the documents and testimony.  If you've never been in this position, let me tell you:  it stinks.  Knowing without doubt that something is true, and being unable to prove it with incontrovertible evidence is the pits both for the client and the attorney.  It would be a massive understatement to say we were stressing over the outcome of this hearing.

Then, for once in her life, luck finally intervened in Faye's favor.  Literally 24 hours before the hearing I received two phone calls.  The first phone call was from Faye.  In going through the attic at her mother’s house she found a box containing all of the adoption paperwork for all four of the adopted children.  None of the paperwork was certified; however, I was confident that I could at least convince the court to give us sufficient time to obtain certified copies now that we knew where to look.  As I hung up with Faye our Virginia attorney called to tell me that he had located the adoption file for John and Frank and that he was overnighting me a certified copy of the adoption papers.  

Once all of the dust settled, John and Frank were forced to drop their remaining action.  Faye inherited one hundred percent of her mother’s estate under the intestate statute because she was the only child who was still legally her mother’s child.    

These events happened a long time ago.  I recently saw Faye at the courthouse and I am sad to say that life continues to be unkind to her.  Faye is one of those people who just seems dogged by tragedy.  Her relationship with John and Frank was irreparably damaged by their actions in the probate.  She still has no contact with Mike (by his choice), and she has no relationship with her nephews by her sister Eliza.  

The greatest irony of the whole thing is that the only asset in the estate was a home.  Not even a particularly valuable home, just a nice little house in a slightly shabby neighborhood.  The most vicious litigation I've ever seen was in probate and in every single case the litigants were not fighting over things, but a mother's love.  

Faye and her brothers never really resolved that issue by fighting over the house and they probably never will.

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Copyright 2013 Julie Ann Sombathy All Rights Reserved

Faye's Story (Part Two)

Today's blog is the second part of a three part client story.  Part One is the back story and context. You should read it first if you haven't already done so.  Part Two is the will contest.  Part Three (coming Friday) is the conclusion. 

(CAVEAT: Even though a lot of details are public record, the names and relevant identifying details have been altered in order to maintain any potential attorney-client privilege). 

Unfortunately, the adoption papers which Faye's mother kept in her Bible disappeared after the funeral.  Since the loss of the adoption paperwork worked to their benefit, John and Frank were the obvious suspects.  Because the adoptions occurred so long in the past and in another state, we had to hire a private investigator to find proof of the adoptions.  As for Eliza, a search of local records found a copy of her obituary which clearly referenced her adoptive mother and her natural mother.  This was enough to convince Eliza’s sons that they should back out of the litigation and they did so early on.   John and Frank on the other hand were also well aware that they had been adopted by an aunt and uncle, but were adamant that they were not adopted.  John and Frank were in it for the cash.  Because we could not find their adoption paperwork we had to proceed on their Will contest.     

In any Will contest regarding the proper execution of the Will, the most important people are the two witnesses to the Will.  If the Will is self proven, the notary is the third most important person.  If the two witnesses give testimony which contradict each other, or show that the Will was not executed properly then the proponent of the Will will lose on that ground.  So in the course of things, I found myself in Pensacola deposing the two witnesses to the holographic Will.  The witnesses were unrelated to each other in any way except they were both friends of Faye and her mother.   On the day that Faye’s mother executed her Will, they were having a party at her house which sounded like a cookout.  Both witnesses gave consistent testimony regarding the manner in which they witnessed the Will.  Unfortunately for Faye, the witnesses’ testimony also completely invalidated the Will.

Apparently, Faye’s mother hand wrote her Will and signed it.  During the party, she asked the first witness to witness her signature.  This part was done correctly in that Faye’s mother showed the signed Will and then attested to her signature to the witness and asked the witness to sign as a witness.  The problem is that the first witness witnessed the Will while the second witness was on the back deck drinking a beer.  Thereafter, the first witness went to the restroom and the second witness came in and Faye’s mother repeated the process.  Thus, neither witness was in presence of each other at all, much less in the presence of Faye's mother and each other, as is required by the Will statute. 

The end result of this was that Faye’s mother was intestate.  The brothers were counting on this because then they would inherit (under their reasoning) an intestate share of their mother’s estate.  Because Faye’s mother was not married at the time of her death her estate would be divided into four equal shares:  one each for Faye and her two brothers John and Frank, and one to be divided by Eliza’s children.  Everyone agreed that Mike had been adopted by strangers, so there was never any suggestion that he would inherit any of Faye’s mother’s estate.    

So, Faye's entire inheritance turned on proving the adoption of John and Frank by the aunt and uncle.  This proved to be incredibly difficult and ultimately required the services of a P.I. and an attorney in two different states as well as some luck.

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Copyright 2013 Julie Ann Sombathy All Rights Reserved

Faye's Story (Part One)

Today I am posting another old client story.  This story is told most easily in three parts.  Today is the back story and context. Part Two is the will contest.  Part Three is the conclusion. 

(CAVEAT: Even though a lot of details are public record, the names and relevant identifying details have been altered in order to maintain any potential attorney-client privilege). 

I once had a client named Faye.  Her story spanned 60 years, took place in four states, involved a child abduction, adoptions, greed, theft, and a mother's overwhelming guilt. This is Faye's story. 

Faye was the youngest of five children.  The oldest two of her siblings were her brothers John and Frank.  The next oldest sibling was her sister Eliza.  Her closest sibling in age was her brother Mike.  When Faye was about five her father announced that he wanted a divorce.  The family lived in Virginia.  This was in the late 1940's.  Faye’s mother had no marketable skills and no college education, without which a woman in that day could not really make enough money to support herself, much less her five young children.  Before the divorce was even filed, Faye’s father picked her up at the playground and drove all the way to California.  Faye lived with her father in California until she was a young adult, with no contact at all with her mother.  In essence, her father kidnapped Faye and left the four older children with their mother to fend for themselves.  Faye's father never supported her mother or his other four children and acted as if they did not exist. 

After Faye’s father abducted her from the playground, her mother fell apart.  Ultimately, Faye’s three brothers and sister were put up for adoption by her mother.  The two oldest boys, John and Frank, were adopted by Faye’s father’s brother and his wife.  Thus, while they were legally adopted, their last name never changed.  Faye’s sister was adopted by an aunt who lived in Panama City.  Her last name changed because the aunt was married.  Faye’s youngest brother was adopted by total strangers;  his last name changed to reflect his new familial relationship. 

Faye was reunited with her mother in her early adulthood.  At that time, her mother had gotten herself back together and moved to Panama City to be close to Faye’s sister.  Faye came back to live with her mother in Panama City when she was a young adult.  Faye lived with her mother on and off throughout her mother’s life.   Before Faye’s sister turned thirty, she died in a car accident leaving two small sons.  In the last few years of Faye’s mother’s life, she was reunited with John and Frank.  They made numerous visits to Panama City to see their mother and would often stay with her. 

Faye's mother never got over having to put her children up for adoption. While she ultimately reunited with four of her five children, the youngest son, Mike, wanted nothing to do with his "birth" family.  Faye's mother kept a Bible on her bedside table.  In the Bible were copies of the adoption papers for all four of her children.  It was the first thing she saw in the morning and the last thing she saw at night: a physical manifestation of her failings.  Anyone who knew Faye's mother, knew her story and the guilt she struggled with to the end of her days.

Faye’s mother died and Faye hired me to probate her estate. This case was unique in so many ways.  Faye’s mother’s Will was a holographic Will.  What this means is that the Will was entirely handwritten.  A holographic Will in Florida is perfectly legal as long as all of the formalities required by the Will statute are followed.  The formalities are pretty simple.  First, the person signing the Will (Testator or Testatrix)  must sign at the end.  Second, the Testator must then either affirm their signature to two witnesses (“this is my signature, please witness it”) or actually make the signature in the presence of two witnesses.  Next, and the part which most often is not performed correctly, the two witnesses must witness the signature in the Testator’s presence and in the presence of each other.  A notary is not required in order to properly execute a Will; however, if you wish to make the Will self-proven then the Testator and both witnesses must sign again with the same formalities and the notary must notarize all three signatures.  A self proving Will is ideal because it does not require the testimony or oath of a witness to allow admission of the Will to probate.  Click here for more detail on wills and probate.    

Faye’s mother’s Will left everything to Faye and named Faye Personal Representative.  Everything appeared to be in order, so we filed a Formal Administration.  Faye’s brothers intervened together with Eliza’s two children claiming that they were entitled to a share of the estate and contesting the Will.  A Will can be contested in Florida for three main reasons:  first, a Will may be contested on the basis that it was improperly executed;  second, a Will can be contested because it is the product of “undue influence;”  third, a Will can be contested on the basis that the Testator was incompetent at the time the Will was executed.  Undue influence is a topic in and of itself and it was not raised in this case.  The contest was based on claims of improper execution as well as incapacity of Faye’s mother.  

Testamentary capacity is a different evaluation from mental capacity.  In Florida, testamentary capacity means that you are able to identify the natural objects of your bounty, you comprehend the nature and extent of your assets, you are oriented to time and place, and you are capable of understanding the legal effect of the documents that you are signing.  This is a very minimal standard. An oft cited case held that "even a mad man may sign a will during a lucid interval."

When we first received the intervention pleadings,  we foolishly though that we would be able to resolve the matter quickly because John, Frank, and Eliza had been legally adopted.  In Florida when a person is legally adopted they are no longer the blood relatives of their natural parents or anyone related to their natural parents, and are immediately treated as a blood relative of their adopted parents and anyone related to their adopted parents.  So, in essence, adoption in Florida changes your blood lines by  legal fiction.  There are three main exceptions to this rule, found at Florida Statute chapter 732.108(1)(a)-(c)(2013)(click here for the text). For this reason we believed that simply showing the court that John, Frank and Eliza had been adopted would be sufficient. 

That is not how things turned out, and what started as a simple probate with a handwritten will turned into a three year saga with several dead ends and turns before resolution was finally found.

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Copyright 2013 Julie Ann Sombathy All Rights Reserved