Nothing for the Nurse

Hughette ClarkEight years ago, near the end of her already long life, Hughette Clark set out to perform some estate planning. Ms. Clark was the heiress of an American copper magnate, who, among other things, spent time as a senator, established a railroad (at the height of the railroad era), and established Las Vegas. Clark county (where Las Vegas is) is named for him. A good chunk of this wealth passed to Ms. Clark upon her father’s death. Her estate plan, like most, sought to distribute this vast wealth to those she knew in life.

There are a number of interesting things about this case, but the first is the reclusive nature of Ms. Clark. She owned expansive real estate in California, Connecticut, and New York, but lived the last 23 years of her life in New York City Hospitals. This may have contributed to her impressive longevity, 104 years. Near the end of her life, the caretakers of her properties had not seen her for decades.

From an estate planning viewpoint, however, the most striking development here is that instead of using a will, which seems otherwise valid, a settlement was entered this week which includes distant relatives who were otherwise absent. Originally, her last will left portions of her estate to the hospital she resided in for over 20 years, her nurse, her accountant, and her attorney, who could be considered the people who were closest to her, although they were also on her payroll. During her estate planning process, however, she had apparently drafted another will several weeks before the final iteration, one which kept a portion of her wealth inside her family. The end result of a good deal of legal back-and-forth is that about nineteen of her half-great-grandnieces and half-great-grandnephews are cut in, over 10 million dollars in legal fees come out of the estate, and the lawyer, the accountant, and the nurse get nothing. For good measure, the lawyer and the accountant may be sued for malpractice.

Many of the articles I see on this mention the fact that the nurse, who otherwise would have inherited $30 million, was muscled out of the will. A good number of these accounts, however, fail to consider that the nurse also received gifts from Ms. Clark roughly totaling the same amount, when Ms. Clark was still alive.  The feeling of most of the coverage I’ve seen is that the poor loyal nurse was cheated out of her just reward by greedy distant relatives, but anyone who is given a 1.2 million dollar Stradivarius violin, and several Manhattan apartments could hardly be characterized as destitute. The nurse will have to give back to the estate roughly $5 million of gifts, these gifts having been deemed excessive (no word on whether this includes the violin). Contrary to most of what I see about this, it doesn’t appear that the loyal nurse was thrown out on the street.

There are some wide-ranging implications here, however. The family challenged the will on the grounds that Ms. Clark lacked mental capacity at the end of her life, but both of the wills were drafted in 2005, with the will the relatives favored drafted only six weeks before the final will that excluded them. If you assume Ms. Clark lacked capacity for the last will, it may raise questions of capacity for her first will (the one favored by the relatives). Also, any estate planning attorney worth his salt will have a system in place to defend against claims of this nature. For example, we typically have the witnesses declare in front of the notary that the testator appears to be of sound mind, among other things. The attorney’s failure to be able to prove capacity at the time of the will is curious.

While it’s impossible to say for sure that  Ms. Clark’s wishes were followed, it is safe to say that over $10 million could have remained in the estate if her estate had avoided litigation.

Now this is an epic divorce

No end in sight for decade-long Conn. divorce case

Connecticut divorce case that has been going on for 10 years and involves insider trading and wrongful termination suits.

This does seem concerning from a limited liability perspective

Craig Zucker: What Happens When a Man Takes on the Feds

Remote texter can be liable for traffic accident

From ABA Journal:Remote texter can be held liable for distracted driver’s crash, appeals court rules

In a case of first impression, a New Jersey appeals court has held that a remote texter can be held liable to third parties for injuries caused when the distracted driver has an accident.

However, that is only true if the individual sending the texts from another location knew they were being viewed by the recipient as he or she was driving. And, in the case at bar, the trial court correctly held that insufficient knowledge was shown to defeat a motion for summary judgment by the defendant texter, 17-year-old Shannon Colonna, the Appellate Division of New Jersey Superior Court ruled. An accident that caused serious injury to two motorcyclists occurred within less than 30 seconds of when phone records show the driver, 18-year-old Kyle Best, last received a text from her.

“We conclude that a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving,” explains the court in a Tuesday opinion. (PDF). “But we also conclude that plaintiffs have not presented sufficient evidence to prove that Colonna had such knowledge when she texted Best immediately before the accident.”

There was no evidence that Colonna “actively encouraged” Best to text her while he was driving, the court said, and “Colonna did not have a special relationship with Best by which she could control his conduct,” the appellate panel said.

Be careful with those threat letters – they can get you sued!

From ABA Journal: Harvard law prof Lessig sues record company, claims copyright threat violated law

A Harvard law professor who is an expert on copyright issues decided to sue after an Australian record company accused him of infringement by using a French band’s song in a lecture posted on YouTube.

Law professor Larry Lessig claims he was protected by the fair use doctrine when he showed copycat video clips of people dancing to the Phoenix song “Lisztomania,” report the Boston Globe and the National Law Journal (reg. req.). The copyright threat by Liberation Music was a bad-faith takedown notice that violated the Digital Millennium Copyright Act as well as his free speech rights, he alleges in the suit (PDF).

Lessig told the National Law Journal he is concerned about an increase in baseless takedown claims spurred by automated content technology developed by YouTube and other companies. “If we are successful, the costs of that bad behavior will be clearer to these copyright owners, and if it is, I am hopeful we will have less of this abuse,” he said.

Former DA Arrested for Hiding Evidence

Former Williamson County District Attorney Ken Anderson was arrested and booked into jail and then released on bail Friday after a specially convened court found that he intentionally hid evidence to secure Michael Morton’s 1987 conviction for murder.
In a blunt and scathing ruling, District Judge Louis Sturns said Anderson acted to defraud the trial court and Morton’s defense lawyers, resulting in an innocent man serving almost 25 years in prison.

From Statesman.com:

Judge finds that Anderson hid evidence in Morton murder trial

Attorneys – Here is How Not to Please the Court

A judge ordered the arrest of a Minnesota attorney with a small Wisconsin-based religious group who repeatedly made anti-Catholic slurs in court filings and failed to show up for a Wednesday hearing on whether she should be sanctioned for her statements.

U.S. Bankruptcy Judge Nancy Dreher held Naomi Isaacson in contempt for her absence. Isaacson was already in contempt for failing to turn over documents in a long-running bankruptcy case involving a subsidiary of the Shawano, Wis.-based group, the Dr. R.C. Samanta Roy Institute of Science and Technology. Dreher said Isaacson will remain jailed until she produces the documents or gets someone else to do it.

The judge also ordered Isaacson and another attorney, Rebekah Nett, to pay $5,000 apiece in penalties.

Dreher had ordered them to appear Wednesday to show cause why she should not sanction them for a memo they filed in November that the judge said was “replete with unsupported and outrageous allegations of bigotry, deceit, conspiracy and scandalous statements against this court … and bankruptcy courts in general.”

Judge orders Minnesota attorney arrested for anti-Catholic slurs

Supreme Court Haiku

Supreme Court Haiku Reporter

The Data is In – Tort Reform is Baloney

From Statesman.com: Tort reform’s slight impact no shock

It shouldn’t have surprised anyone that a new study found that tort reform didn’t lower health care costs in Texas, at least health care costs associated with Medicare. To a large degree, tort reform is an article of political faith empirically averse to contrary facts.
As the American-Statesman’s Mary Ann Roser reported this week, a study by University of Texas law professor Charles Silver and colleagues from Northwestern University and the University of Illinois looked at Medicare spending in Texas between 2002 and 2009 and found no evidence that capping medical malpractice payouts led to lower health care costs.
In 2003, Texas voters narrowly amended the state Constitution — 51.1 percent to 48.9 percent — to limit payouts in medical malpractice lawsuits. The vote was held on a Saturday in mid-September rather than the usual Tuesday in November because tort reform’s supporters wanted to guarantee a low turnout. It was a shameful but smart political move: Low turnout favored tort reform’s passage.
Proposition 12, as the proposed amendment was known, put a $750,000 total cap on the noneconomic damages, such as pain and suffering, a jury can award a victim of medical negligence: $250,000 maximum from a doctor and $500,000 from a hospital or other medical institution. It did not limit actual damages — payments to cover lost wages, medical bills, disability and so on.
We tepidly supported the proposition. After all, voters were being asked to limit their rights should they fall victim to medical error. Still, reservations noted, we crossed our fingers in the hopes the amendment would reduce medical malpractice insurance premiums.

NY AG Sues Banks For Deceptive Practices, False Documents

New York State Attorney General Eric Schneiderman on Friday sued three major U.S. banks, accusing them of fraud for using an electronic mortgage database that resulted in deceptive and illegal practices.

Schneiderman filed the lawsuit against Bank of America Corp (BAC.N), Wells Fargo & Co (WFC.N) and JPMorgan Chase & Co (JPM.N) in New York state court in Brooklyn.

The lawsuit is over the banks’ use of MERS, the Mortgage Electronic Registration System the industry created in the mid-1990s to track the ownership and servicing of residential mortgage loans.

Schneiderman claims the system is plagued by inaccuracies. The lawsuit also names MERS and its parent as defendants.

“The mortgage industry created MERS to allow financial institutions to evade county recording fees, avoid the need to publicly record mortgage transfers and facilitate the rapid sale and securitization of mortgages en masse,” Schneiderman said.

Schneiderman’s lawsuit claims that banks saved $2 billion in recording fees by using MERS.

The suit also said the use of MERS resulted in the filing of improper NY foreclosures and created “confusion and uncertainty” over property ownership interests.

New York sues banks over electronic mortgage system