Douglas R. Peterson Attorney at Law

Ex Spouse's Complaint for Contempt for Health Insurance Backfires

A recent unpublished decision of the Appeals Court indicates how litigation can have unintended consequences. In this case the divorced parties entered into a separation agreement which became part of the divorce decree. Regarding health insurance, the agreement, and thus the decree, required the ex husband to maintain health insurance for his ex wife "as long as it is available to him through his present or any subsequent employer and for so long as the plan allows." Language just like this or very similar to it finds its way into almost every separation agreement where one of the parties has had the health insurance as a benefit of employment. In this case the employer had decided to no longer provide the benefit and the insurance was terminated. The ex wife then brought a complaint for contempt alleging that the ex husband was in violation of the terms of the agreement and thus the court decree. The probate judge decided that the language of the agreement was  plain and clear on the point and denied the contempt order. But the judge went one step further and ordered the ex wife to maintain her own health insurance (probably in consideration of the new Massachusetts universal health care legislation which mandated coverage for all). She appealed and the Appeals Court agreed with the judge as to the interpretation of the agreement, but also ruled that the judge was without authority to order the ex wife to maintain her own coverage. Parties should not forget that litigation particularly in the area of family law can often be a two edged sword.

The Prospect of Probating A Copy of a Will No Easy Proposition

Occasionally the question comes up of the possibility of probating a mere copy of a decedent's will. In a world where photocopies and fax copies are almost universally accepted (including now copies of our canceled checks with our bank statements), people are surprised to hear how difficult that can be. In Massachusetts the law provides an evidentiary presumption that where the original will cannot be located, the testator destroyed it with the intention of revoking it, or, in other words, a presumption that the will was in fact revoked. The proponent of the copy must overcome this presumption with a preponderance of  evidence that the will was not revoked. Preferably this would take the form of credible evidence that around the time of the decedent's death he or she was talking about the will as if it still was in effect and otherwise acting in conformity with such belief. In the recent case of In the Matter of The Estate of Beauregard,the Supreme Judicial Court's opinion shows just how difficult the burden of overcoming that presumption with other types of evidence can be. In that case the will was signed on June 11, 2003 and the testator died a few weeks later on July 19, 2003. The testator was found to be "young, healthy and competent". Although the original will could not be found, there was a copy amongst the decedent's effects. Without more evidence the probate judge decided that he "could not draw any inference that the will was accidentally lost  by the decedent." The SJC went on to say "This is not to say that the facts in this case could not have been weighed differently. A copy of the will was discovered in the decedent's home. If he were competent, as the judge found, then he likely would have destroyed any copies, as well as the original, had he intended to revoke the will. Also, the temporal proximity between execution of the will and death provided little time for the decedent to change his mind. However, it is ‘not enough to show that a different conclusion might well have been reached ... Our examination of the evidence does not lead to the inevitable conclusion that the judge's findings, based on his view of the evidence and his evaluation of the witnesses' credibility, are clearly erroneous." It is important that the maker of a will keep someone, the named executor, the attorney, a trusted family member, informed of where the original will is located and updated on any change in that location.


A Do It Yourself Will Again Leads to Expensive Family Litigation

The case of Hershman-Tcherepnin v. Tcherepnin, et al. decided in 2008 by the Supreme Judicial Court again points out the dangers inherent in preparing one's own will and not having an attorney experienced in wills prepare it. The Court states that: "The testator executed his will on March 13, 1998, approximately one month before he died on April 11, 1998. He drafted the will himself using a computer software program (the record is devoid of any information about the will-drafting software)."

The testator was in a second marriage and had four children by his first marriage. The problem came in the language he used to dispose of his home. He intended that his wife be able to stay in the home for as long as she wished and that the title otherwise be shared with the four children equally. The problem was that the language did not make clear whether she had a life estate or a mere right of occupancy and protection from ouster and proceedings for partition that might be brought by the children. Because the testator was not a lawyer and whatever software he used was a poor substitute for one, the survivors became embroiled in a legal controversy that went all the way to the state's highest court after passing through the intermediate court of appeals. This bit of litigation clearly cost the litigants hundreds of times the value of the fees the testator potentially saved in drafting his own will. This case is another one of many that are beginning to show a trend of increased expensive litigation resulting from documents inartfully drawn by individuals who think they are saving a few dollars by acting as their own lawyers with widely available self help materials and software programs.

If You Still Want to Try Your Hand at Preparing Your Own Will, Consider This

Suppose you are in a second or subsequent marriage and have grown children from your first marriage. You want to leave your home to your current spouse, and a good portion of the rest of your estate to your children. The home has a home equity loan on it. If you die before the loan is paid off, do you or your family members know who will be responsible for paying off the mortgage? Will it be your spouse, or will the children have to pay out of their share? What about the family car with a lien on it? What if the home is jointly owned and doesn’t pass under the will? Still think you don’t need a lawyer for this?

 New Uniform Probate Code May Provide Good Reason To Revise Your Will Regarding Instructions on Last Wishes

The Uniform Probate Code passed earlier this year provides that executors may carry out written instructions of the decedent relating to the decedent's body, funeral and burial arrangements before they are even appointed by a probate court. This is a significant change from prior law and will result in some changes in practice when the law goes into effect in July of 2011. We have always advised that a will was usually a poor choice of place to outline such instructions because for the most part, no one would get around to sitting down to go over the will until after the funeral. Moreover, there was never any provision in the law to authorize someone who is merely a named but as yet unappointed executor to carry out such instructions. In cases of dispute, the law came down to issues of ownership of the decedent’s remains and standing as heirs and next of kin. From a practical standpoint, prepaid funeral arrangements have always been and will continue to be effective ways to have one’s wishes carried out and serve other purposes as well for Medicaid long term care eligibility. Nevertheless, this new provision does open up an opportunity for those who have unusually specific or controversial plans or whose plans may be expected to run into serious opposition from family members. Such instructions can be inserted into wills written now and will be enforceable if death occurs on or after July 1, 2011.

Supreme Judicial Court of Massachusetts Rules Retirement Does Not End Alimony Obligations

In a case decided on November 9, 2009 the Massachusetts Supreme Judicial Court has held that the voluntary retirement of an individual under an obligation to pay alimony at or after the normal retirement age of 65 does NOT enjoy a rebuttable presumption that the obligation to pay alimony should terminate. Instead, he or she must file a petition for modification and the trial judge is to make a determination based on the same multitude of factors to be considered under the law in deciding an initial alimony award. The Court does go on to state: "We agree that, generally, a supporting spouse's wish to retire at a customary retirement age will justify a reduction of the alimony award, even if the consequence is that the recipient spouse may be unable to sustain a lifestyle equal to that enjoyed during the marriage." In Massachusetts lawyers and litigants alike have been frustrated by the lack of clarity in the law of alimony. Although some probate judges may have their own propensities for applying the statutory factors in a rule of thumb fashion, there is no uniformity throughout the probate and family court department of the trial court. In significant litigated cases the issue can be a vast quagmire even more uncertain of result than the issue of child custody. There have been some efforts to reform the system including calls for a presumption such as was sought in this case. (Pierce v Pierce). The highest Court in the state has now weighed in and supports keeping the decision within the discretion of the trial judges subject to the application of the vague statutory mandates of section 34 of Chapter 208 of our General Laws. It is interesting to note that the following organizations advocated their positions on the issue to the Court by filing amicus briefs: the American Academy of Matrimonial Lawyers, Massachusetts Chapter; the Legal Assistance Corporation of Central Massachusetts; and the Women's Bar Association of Massachusetts and the Women's Bar Foundation of Massachusetts. If there is to be simplicity and uniformity in the law of alimony in Massachusetts similar to the situation obtained with the adoption of child support guidelines, it appears that it is going to take an act of the legislature to get there.