Wednesday, March 23, 2011


Many people ask whether they need an attorney to draft a will or whether they can do it on their own. In Arizona, the answer to that question is that you do not need an attorney to draft a will—a will does not fail because it is drafted by a non-lawyer.  That said, I have yet to find a non-lawyer that understands the legal requirements of a will or common pitfalls in will drafting.  Moreover, I have seen too many self-made wills that are lawsuits waiting to happen.  

The case of Gloria Waterloo, decided by the Arizona Court of Appeals on March 8, 2011, illustrates that a well drafted will is the “ounce of precaution” that avoids “the pound of cure.” Ms. Waterloo had an estate with a value of at least 3 million dollars. One month before she died, she decided to will some or all of her estate to a certain Rabbi Zack Zimmerman.

No doubt Ms. Waterloo believed that her will was adequate to probate. However, her will made reference to a “list of final instructions” that did not exist. Therefore, the trial court declined to probate the will because it could not ascertain Ms. Waterloo’s “complete intent  . . . without knowing what was to be contained in the list of instructions.” On appeal, the Court of Appeals reversed the trial court sending the will back to probate because a will “should be admitted to probate as a will even though all of its terms are not capable of being enforced.”

So what’s the moral of this case? You do not need an attorney to draft a will. However, a qualified attorney knows how to draft a will that probates without needless litigation. If you have a poorly drafted will, you may end up like Ms. Waterloo, spending tens of thousands in attorneys’ fees just to have her last wishes fulfilled. I doubt it is your desire to have your money expended in this way. Therefore, I highly recommend that a qualified attorney prepare your estate plan. 

Wednesday, March 2, 2011


The Supreme Court ruled on March 2, 2011, that the Westboro Baptist Church has a constitutional right, under the Free Speech Clause of the First Amendment, to picket at the funerals of our fallen soldiers.  The court went on to reason that the First Amendment is a defense to the tort of intentional infliction of emotional distress.  The opinion can be found here. 

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The facts of this case arise out of the picketing of the funeral of Lance Corporal Matthew Snyder.  At the picketing Fred Phelps and followers of the Westboro Baptist Church held signs outside the funeral of Cpl. Matthew Snyder that read “Thank God for Dead Soldiers,” “Fags Doom Nations,” “America is Doomed,” “Priests Rape Boys,” and “You’re Going to Hell.”  After the funeral, Cpl. Snyder’s father filed suit against Fred Phelps, his daughters, and the Westboro Baptist Church for, among other things, intentional infliction of emotional distress.  His father won a multimillion dollar award. An appeal of the award followed on the theory that the First Amendment protects this type of speech. 

In ruling against Snyder, the U.S. Supreme Court reasoned that the First Amendment serves as a defense to torts when the speech in question is of a public concern rather than a private concern.  Speech is of a public concern when it can “be fairly considered as relating to any matter of political, social, or other concern to the community,” or when it “is a subject of general interest and of value and concern to the public.” Whether the statement is “inappropriate or controversial . . . is irrelevant.”   

The court went on to reason that the content of the Westboro Baptist Church’s speech is a public concern and, therefore, entitled to special protection under the First Amendment.  However, the court further reasoned that choice of when and where to conduct picketing is “subject to reasonable time, place, or manner restrictions” so long as the regulations are “content neutral.” 

Only one justice dissented the majority opinion, Justice Alito.  In that dissent, Justice Alito summoned the voice of the people.  His words are worth mentioning: 

Petitioner Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right. They first issued a press release and thus turned Matthew’s funeral into a tumultuous media event. They then appeared at the church, approached as closely as they could without trespassing, and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury.  The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.

Our hearts go out to the Snyder family.  This ruling will be difficult to handle.