NJ Ethics Opinion Bans Web-Based Lawyer Referral Services Run by Avvo, LegalZoom and Rocket Lawyer

A joint opinion by three New Jersey Supreme Court committees bans web-based services that match litigants with attorneys run by Avvo, LegalZoom and Rocket Lawyer due to ethics concerns.

A bar association in New Jersey requested a formal opinion on whether it is ethical for New Jersey lawyers to participate in on-line lawyer referral services offered by Avvo, Legal-Zoom, and Rocket Lawyer for customers of the companies. The inquiry was jointly considered by the Advisory Committee on Professional Ethics, Committee on Attorney Advertising, and Committee on the Unauthorized Practice of Law. The Committees issued a joint opinion backlisting the referral services. See, ACPE Joint Opinion 732; CAA Joint Opinion 44; and, UPL Joint Opinion 54

The Committees found that New Jersey lawyers may not participate in the Avvo on-line lawyer referral service. The Avvo program improperly requires a lawyer to share a legal fee with a non-lawyer in violation of Rule of Professional Conduct 5.4(a). Avvo also requires lawyers to pay an impermissible referral fee in violation of Rule of Professional Conduct 7.2(c) and 7.3(d).

The Committees also found that LegalZoom and Rocket Lawyer avoided the problems that plagued the Avvo website but operated legal service plans through their websites that were not registered with the Administrative Office of the Courts as required by Rule of Professional Conduct 7.3(e)(4)(vii). Therefore, the Committees found that New Jersey lawyers may not participate in the legal plans offered by LegalZoom and Rocket Lawyer.

Joint Opinion 732 of the Advisory Committee on Professional Ethics is annexed here ACPE Joint Opinion 732

The Law Office of Donald D. Vanarelli website:http://vanarellilaw.com/

Presumption of Revocation Does Not Apply in Lost Will Case; Copy of Will is Entitled to be Probated

The testator, Harold Becker, executed a Last Will and Testament leaving his estate to his youngest son, Brandon (the child of the Mr. Becker’s second marriage), to the exclusion of his older sons, Scott and Stuart (the children of his first marriage). Mr. Becker’s will appointed his second wife (the couple were divorced but later reconciled) as executor of the will. Brandon had a long-time history of drug abuse and incarcerations, and Mr. Becker’s attorney testified that he left his estate to Brandon because, under the circumstances, Brandon was unable to care for himself financially.

After Mr. Becker died, his second wife sought to probate a copy of the will, claiming that the original could not be located. Mr. Becker’s two older sons filed an answer, asserting that Mr. Becker had destroyed the will because he wanted all of his children to be equal beneficiaries of his estate. They also claimed the will had been the product of undue influence by the second wife, but they later abandoned the undue influence claim.

A bench trial was conducted, during which Mr. Becker’s long-time personal attorney testified that Mr. Becker executed the will in his office, and that he intended to name Brandon as the sole beneficiary of his estate. According to the attorney, he mailed the original will to Mr. Becker. Mr. Becker’s second wife testified that Mr. Becker showed her the will upon receipt from the attorney’s office, and mailed the original will to Brandon in prison. Brandon testified that he received the will and that, because he was being transferred to a new prison facility, Brandon mailed the original will to a childhood friend for safekeeping. According to Brandon, that friend promised to safeguard the will, but later lost contact with Brandon.

In contrast, Mr. Becker’s older son, Scott, testified that his father had told him that he was planning to leave his estate to Brandon, that Scott strongly objected to the plan, and that Mr. Becker later told Scott that the will was gone.

The trial judge concluded that the testator had relinquished his possession of the will by sending it to Brandon, and that therefore the presumption of revocation did not apply. The judge found no basis to conclude that Mr. Becker had destroyed or revoked the will, and admitted the copy of the will to probate.

Mr. Becker’s older son Scott filed a motion for a new trial, claiming that after the judge rendered his decision, Scott’s attorney hired an investigator who discovered information that conflicted with trial testimony. That motion was denied, and Scott appealed.

On appeal, Scott argued that a new trial was warranted because the trial court erroneously failed to apply the presumption of revocation, and that the proponent of the will had failed to overcome that presumption by clear and convincing evidence. Scott’s arguments were rejected by the Appellate Division.

The appellate court noted that, under certain circumstances in which an original will cannot be located, a rebuttable presumption may arise that the testator destroyed the will with the intent to revoke it:

If such a will was last seen in the custody of the testat[or] or [he] had access to it the fact that it cannot be found after [his] death raises the presumption that [he] destroyed it animo revocandi. This presumption may be rebutted [by clear and convincing evidence].

Although the trial court had found that the presumption of revocation did not apply because the father had surrendered his possession and access to the will when he mailed it to Brandon, Scott claimed that his father had access to the will as a result of his prison visits with Brandon, so the presumption of revocation should apply. The appellate court disagreed: although the testator allegedly visited Brandon in prison, there was no indication he could have obtained the will if he so desired.

Scott also claimed that his testimony that his father told him the will was gone proved the father destroyed the will. Rejecting this argument, the appellate court sided with the trial court’s conclusion: the testator’s alleged statement was ‘as likely a comment of appeasement as opposed to an accurate memorialization of destruction of the original will.’

Finally, Scott argued that he should be allowed a new trial based on newly discovered evidence that called into question Brandon and the second wife’s testimony. Scott asserted that he had no reason to anticipate their trial testimony (that Brandon received the will in prison and forwarded it to his friend) prior to trial, because there was no indication of these alleged facts in the complaint. The court rejected this argument: Having made the strategic decision to forego discovery, defendant has no basis for requesting a ‘second bite of the apple’ by virtue of a new trial.

Copy of In re Estate of Becker can be found here In re Estate of Becker

For additional information concerning probate litigation and will contests, visit:http://vanarellilaw.com/will-contests-probate-litigation-elder-abuse-actions/#iplwc

The New York Times Editorial, June 15, 2017: Daughters Will Suffer From Medicaid Cuts

The New York Times, June 15, 2017

The Opinion Pages | Editorial

Daughters Will Suffer From Medicaid Cuts

Nearly one in five adult children at some point provide care for at least one elderly parent, according to a new study by the Center for Retirement Research at Boston College. The burden is particularly demanding for daughters, who spend as much time on such care as spouses of older adults, and as much time as sons, in-laws, grandchildren and other relatives combined.

House Republicans’ proposal to slash federal spending on Medicaid by some 25 percent over 10 years, shifting costs to states that could not afford them, would be devastating, because nursing homes, home care and community-based programs for the elderly account for almost two-thirds of Medicaid spending. One of the few ways that adult children can get help with caregiving duties is Medicaid’s support for seniors, which many middle-class people qualify for after spending most of their income and assets on long-term care. Cutting Medicaid could make it more difficult to qualify, so more adult children would have to care for their parents.

The stresses, which are already significant, would become extreme. The researchers at Boston College found that these caregivers spend an average of 77 hours per month with their parents, the equivalent of about two weeks of full-time work. That time is money. Calculations based on the American Time Use Survey indicate that caregivers effectively forfeited $522 billion in 2012 due to such duties; that is more than double the total cost of formal care, at $211 billion. Women caregivers were more likely than men to retire because of these demands, and those who kept working reduced their workweeks by three to 10 hours on average. Beyond this sacrifice, caregivers spend 35 percent of their own budget on parental care, surveys indicate.

Caregiving also takes a toll on physical and mental health. Women who care for parents report more pain, and significantly higher out-of-pocket costs for their own health care. Both women and men say they are more depressed and had poorer health because of parental care.

Even if Medicaid spending were not cut, demand for long-term care would rise as baby boomers age, leading to increased reliance on adult children and formal caregiving arrangements. That unfolding dynamic is not a concern for the distant future. The youngest baby boomers are now 52, the oldest are 71. More than half of 85-years-olds need help with one or more basic self-care tasks, including getting out of bed, walking across a room, going to the bathroom, bathing, dressing, eating, taking medicine, using a phone, shopping and cooking.

In the face of deep Medicaid cuts, a system of caregiving that is already clearly strained would implode.

If health, prosperity and dignity were driving policy making, lawmakers would be looking for ways to increase Medicaid coverage, not destroy it.

For additional information concerning Medicaid and public benefits planning, visit:http://vanarellilaw.com/medicaid-public-benefits-planning/

In Siblings’ Squabble Over Parents’ Property, Partition Award Against Sister Affirmed, But Frivolous Sanction Fees Reversed

In McDermott-Guber v. Estate of McDermott, parents deeded a one-half property interest in a vacant parcel to their daughter in 1986. The daughter and her husband began building a home on the property. According to the daughter, after her father died and left her mother as the sole owner of the remaining one-half interest, her mother asked her to revise the building plans to include a space for her; in return, her mother agreed to deed the remaining property interest to her daughter. The daughter did so, and construction was complete in 1996.

The mother resided in the home with her daughter and son-in-law until 2011. At that point, the mother obtained a domestic violence temporary restraining order against her daughter, and moved in with her son. Her daughter and son-in-law continued to live on the property.

In 2012, the daughter filed a quiet tile action against her mother and brother, alleging that she was the sole owner of the property. She alleged that her mother conveyed the remaining interest to her by an unrecorded deed dated in 1993, and that a 2011 deed conveying the interest to her brother was invalid.

Discovery revealed that, in 2001, the mother had her attorney prepare a deed (and later a corrective deed), both of which transferred her interest in the property to her daughter. The attorney retained the first of those deeds, and the mother gave her son the other deed to retain.

According to the mother, she never recorded or delivered the deed that would have given her daughter the remaining interest in the property, and she never intended it to be an inter vivos gift. Instead, the mother stated that she intended the deed to become effective on her death, to avoid inheritance taxes, but that she changed her mind and gifted the remaining property interest to her son because of her daughter’s mistreatment of her.

The mother and son moved for partial summary judgment, which was granted. The court ruled that the son owned an undivided one-half interest in the property, because there had been no delivery of the deed to the daughter, and no evidence of donative intent.

Next, the sister sought partition of the property, and credits for the costs of improving and maintaining the property over the years. On the issue of partition, the brother moved for summary judgment. The motion was granted in part: the trial judge ruled that partition credits could not be assessed against the brother before he took title to the property (the mother had died during the litigation, and her estate was substituted), and that the brother was entitled to credit for rental value of the property.

The parties then resolved the remaining issues, and final judgment was entered. The judgment provided that its enforcement would be stayed if either party appealed the interlocutory orders.

Thereafter, the son and the estate filed a motion seeking frivolous litigation sanctions. That motion was granted, although the amount awarded ($20,000) was a fraction of the amount claimed ($263,000).

On appeal, the Appellate Division affirmed the trial court’s orders, with the exception of the order for sanctions.

With regard to the summary judgment order declaring the brother to be the owner of the one-half property interest, the appellate court articulated the required three elements of an inter vivos gift:

First, there must be actual or constructive delivery; that is the donor must perform some act constituting the actual or symbolic delivery of the subject matter of the gift. Second, there must be donative intent; that is the donor must possess the intent to give. Third, there must be acceptance.

The appeals court disagreed with the trial court’s view that the proofs of intent had not been met, because the daughter and her husband submitted proof that, on several occasions, the mother had represented her intent to convey the one-half interest to the daughter.

Nevertheless, the appeals court agreed that the remaining two elements regarding an inter vivos gift had not been met, and that summary judgment in favor of the son was therefore appropriate. As to delivery, it was undisputed that neither deed had been delivered to the daughter, or that the mother had wanted the deeds to be delivered to her. The mother never relinquished control of her remaining half-interest in the property. In fact, the daughter was not even aware of those deeds until after the litigation commenced; consequently, the daughter was never in a position to accept the gift.

The appeals court also affirmed the partition orders, noting that a court may equitably reduce a tenant’s property interest based on expenditures made by the co-tenant, and that the occupying tenant could be required to give a credit for the value of his or her use and occupation. It agreed with the trial court that the son could not have been held responsible for partition credits prior to his ownership interest (although it could have been asserted against the mother’s estate).

However, the Appellate Division reversed the sanction award, finding that the trial court had abused its discretion on this issue: A grant of summary judgment without more does not support a finding of bad faith by the losing party. Because the frivolous litigation statute must be interpreted strictly against the applicant based on the principle that citizens are entitled to ready access to the judiciary,

When a frivolous litigation claim is based on the lack of a reasonable basis in law or equity, and the non-prevailing party is represented by an attorney who presumably advised the party to proceed, an award cannot be sustained unless the court finds that the party acted in bad faith in pursuing or asserting the unsuccessful claim.

The appeals court concluded that the sister’s claims had some legal and factual foundation, and that the brother had failed to establish that she acted in bad faith. Consequently, the fee award was reversed.

A copy of McDermott-Guber v. Estate of McDermott can be found here McDermott-Guber v. Estate of McDermott

For additional information concerning probate litigation and will contests, visit:http://vanarellilaw.com/will-contests-probate-litigation-elder-abuse-actions/#iplwc

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