Wednesday, January 26, 2011


When those we love pass away, every family hopes that the legal and financial aspects of the deceased’s estate will settle easily and without argument.  Most of the time the deceased’s estate is resolved without incident.  However, there are times when an heir is disappointed in his/her portion of the estate. When this happens, the heir looks for someone to sue.  In the law, we call this person the “Disappointed Heir.” 

Dealing with a Disappointed Heir can be challenging. After all, the Disappointed Heir expected to receive a certain bequest but it was taken away. Right or wrong, the Disappointed Heir wants vindication for the loss.

There are two classic fact patterns for a Disappointed Heir to obtain “revenge.” The first one is where the Disappointed Heir is a truly rotten son/daughter and the deceased writes him/her out of the estate plan.  This Disappointed Heir will say and do just about anything to get back the money, including by bringing a court action.  The second classic fact pattern is when the bad son/daughter commits some wrongful act to cause the good son/daughter not to receive a bequest.  This often happens through some act of fraud such as changing the deceased’s will, causing an incompetent testator to sign a new will, or taking the money before it can be distributed.  However, in either case, a nasty legal battle over the estate is inevitable.    

So, how can you avoid or limit your family’s involvement in a legal battle after you die?  With a little bit of planning, you can avoid tens of thousands in litigation fees for the beneficiaries by performing a few simple acts when you create your estate plan:

1.  Doctors Evaluation:  Obtain a doctor’s opinion declaring you competent and declaring that you have the mental capacity to make a will. This declaration should be done with the assistance of an attorney so the declaration addresses legal issues paramount to competency.

2.  Hold a Family Meeting:  Hold a family meeting, with outside witnesses present, describing why you chose to make certain bequests or did not make certain bequests. 

3.  Draft a Letter:  Draft a letter to family members describing why you chose to make certain bequests and/or did not make certain bequests. 

4.  Prepare a Video of Yourself:  Prepare a video of yourself reading the will/estate plan and discussing why you decided to make certain bequests.  Be sure to explain why you disinherited the heir. Once again, the family meeting, letter, and video needs to address important legal issues so I recommend having the assistance of an attorney. 

5.  File a Declaratory Lawsuit:  You may take the extraordinary step to file a lawsuit against all possible beneficiaries and ask the Court to declare you competent to make the will/estate plan.  This final step is most likely “over kill.”  However, you may find it necessary to do so under your specific facts.   

If you are in a legal battle with a Disappointed Heir or you are the Disappointed Heir, seek good legal help.  The litigation process is not easy.  The last will and testament is frequently upheld because the burden of proof is on the person challenging the will.  However, from a practical stand point, even if the will is in your favor, you must carefully construct a litigation to prove the person was competent to make the will.  This process is full of unintended pitfalls if you do not perform it correctly. 

The vast majority of people’s estates pass to the beneficiaries without incident. Families and friends recognize the good intentions of the testator and typically follow his or her will. However, when things go wrong, they can go very wrong and painful litigation will ensue.    

Monday, January 17, 2011


Last week Arizona passed SB1101 to address threats by the Westboro Baptist Church that its members would picket the funeral of Christina Taylor Green, a nine-year old victim of the Rep. Gabrielle Gifford shooting.  The new bill makes it a class 1 misdemeanor to picket or protest within 300 feet of the property line of any residence, cemetery, funeral home, church or other establishment, before, during or after a funeral.   

In October, I posted an article discussing the undecided U.S. Supreme Court case, Snyder v. Phelps, which regards a multi-million dollar emotional distress verdict spawned by a Westboro Baptist Church funeral protest.  In that case, Phelps and the Westboro Baptist Church argued before the U.S. Supreme Court that funeral protests are a protected form of the free speech.  Therefore, the multi-million dollar verdict against Phelps and other protester defendants should be overturned. 

The new Arizona law will have no effect on the outcome of Snyder v. Phelps .  However, the new Arizona law, SB1101, is related because it is designed to limit the type of speech that Westboro Baptist Church argued it was entitled to speak--funeral protests.  After all, SB1101 funeral protesters will be limited in the times of the protests and the location of the protests.  

So, does the new law violate the First Amendment? Answer: Quite possibly.  A similar funeral protest law in Missouri was found unconstitutional in August, 2010.  (A copy of the ruling can be found here.)  Arizona's law is a restriction on free speech.  Restrictions on free speech are Constitutional if the restrictions meet "tests" concocted  by the Supreme Court to guide lower court judges.  In the Missouri case, the Court found that law could not meet two of the tests:  (1) Whether the law serves a significant goverment interest, and (2) Whether the law is narrowily tailored to meet that interest.

These test are complex and beyond the scope of this ariticle.  However, from a practical stand point, the tests are designed to allow limits on speech that is disruptive to everyday society.  So, what makes speech disruptive?  Frequently govement regulations in the name of public safty are upheld. A good example would be a law that causes protesters to hold signs below a certain size and height so that the signs do not block street signs; or a law that causes protesters to not protest near street intersections so as to not interfere with traffic. 

We will need to wait and see whether this law becomes another hot button at the U.S. Supreme Court.  However, given the Missouri case, this law could once again put Arizona in the national spotlight. 

Tuesday, January 4, 2011


For some time now, Julian Assange, founder and editor of the website WikiLeaks, has been publishing U.S. government secrets that he allegedly received from an army private employed at the Pentagon. See article from Wall Street Journal. The army private allegedly downloaded thousands of secret and classified documents from his Pentagon computer and, thereafter, delivered the documents to WikiLeaks and its editor. Now people are calling for Mr. Assange to be prosecuted under the Espionage Act. See article from Wall Street Journal.

If you have not seen it, this is what the Wikileaks website looks like.  You can currently reach Wikileaks at

The Espionage Act makes it a crime for a person to be in possession of a U.S. government secret and transmit that secret to another party who is not entitled to receive it. Certainly in this case Mr. Assange is in possession of U.S. government secrets and has transmitted it, via the web, to the world. Therefore, at first glance there appears to be some justification for investigating further whether the Espionage Act applies to these acts.

The rub here is that the First Amendment right to free speech possibly trumps the Espionage Act. This blog post is not to make an opinion about whether or not Mr. Assange has violated the Espionage Act and/or is protected by the First Amendment. Rather it is to point out the similarities between the case of New York Times vs. the United States, aka the Pentagon Papers case, and let you determine whether Mr. Assange is protected by the First Amendment right to free speech.

In the Pentagon Paper case, the U.S. government sought to enjoin (or stop) the New York Times and other newspapers from publishing a classified study entitled, “History of U.S. Decision-Making Process on Vietnam Policy” and other government secrets. Just as in the Wikileaks matter, in the Pentagon Papers case a government informer revealed top secret papers to a third party, journalists. Thereafter, the Journalists sought to publish the secrets.

When the government learned of the Pentagon Papers leak, it sued to stop the publication on the theory that the publication would violate the Espionage Act. Lower courts enjoined the publication of the secret papers. However, when the injunction made its way to the Supreme Court, the Supreme Court ruled that the U.S. Government was not entitled to stop the publication of the confidential report.

Justice Black delivered the opinion of the court denying the injunction against the New York Times. In the opinion, Black states, “I believe that every moment's continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment.” Justice Black further states that the continued injunction “would make a shambles of the First Amendment.”

As if these words were not clear enough, Black went on to write the following:
Madison and the other Framers of the First Amendment, able men that they were, wrote in language they earnestly believed could never be misunderstood: "Congress shall make no law . . . abridging the freedom . . . of the press . . . ." Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.

In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.
Justice Black’s elegant words showed unequivocal support of a newspapers’ right to publish government secrets. Mr. Assange has published government secrets and for that there have been calls to prosecute him as a criminal. However, given the ruling of the U.S. Supreme Court in the Pentagon Papers case, is there any room to doubt that the press may publish a government secret? If Justice Black was writing the decision, what would he say about Wikileaks? Now that you have read the words of the constitution and the opinion of the Supreme Court, you make up your mind whether or not Julian Assange is a criminal or deserving of First Amendment protection.