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Archive for the ‘Legal’ Category

Copyright 2006 Ronald Hudkins

In the not overly distant past, the writings of the testator were the only evidence of his or her intentions and mental capacity. Undue influence was harder to defend against when the only evidence was the testator’s writings and the recollection of those around them. Imagine the scene, the packed court room (perhaps I have a flair for the dramatic), the testimony as to the deceased’s mental health and the influence exercised over them by their final caretakers and close family members made the testator’s mental health and the influence of others over them a matter of the testimony of the living and those often involved in contesting or defending the will.

But new options exist today that make it far easier for the testator to present evidence after they have passed away. The first question to be asked in a contest involving mental capacity is that of mental deficiency. Mental deficiency is demonstrated by the testator not being able to comprehend what he/she owns, to whom he/she is giving it, and how it will be transferred in addition to the overall impact such transference will have on their estate as a whole. Previously this could only be done in writing and it was often suspected that the attorney representing the deceased might have helped that writing have all the necessary components, rendering the doctrine more flexible and open to jury or judicial interpretation than a clear matter of fact.

However, today the process can include having the testator explain on video tape what the asset is, how it is to be transferred and to whom, and the overall implications of that transfer to the overall estate. It is easier to see the deceased, to see whether he or she seems to understand all the implications and to see whether or not he/she is the type of person who is weak willed enough to be susceptible to undue influence. In addition, protecting your client by having them explain it in their own handwriting and, on a couple of different occasions, on video tape alters the essential landscape of the court room proceedings by making the deceased a witness.
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Copyright 2006 Ronald Hudkins

As the life expectancy of people in the United States increases, the reality of second and third marriages becomes more likely even for those who tend to marry for a long time if not until the death of their first spouse. Widows and widowers are increasingly likely to meet and decide that a second marriage is an excellent way to avoid spending their autumn years alone and that love is not the exclusive province of the young. It is often a surprise to adult children to meet the boyfriend/girlfriend or husband/wife of their elderly parents.

However, remarriage later in life creates a unique set of legal questions that those who are getting married don’t often think through. For example, many older clients take it for granted that their adult children will inherit from them when they pass away, because the majority of their property and life has been spent with their previous spouse who was often a co-parent to those children and the one who helped to build or sustain the family assets. But, a new marriage means that the marital property is governed by the laws of the new marriage. Absent any prenuptial agreement, the surviving spouse would, in most jurisdictions, receive at least half of the marital assets, which means that the adult children from the first marriage might be in for a big surprise if they think the family home that their family has owned for years will become theirs.

Another problem is that as people get older they often move to places where it is warmer. This means that they move to states where they have not traditionally lived before and these states not only have different (warmer) climates, but different laws as well. If they spend the colder months (or the entire year) in these states, it becomes increasingly likely that they will pass away in these states. But, are the laws of the state in which they pass away the ones that control the transfer of their assets or do the laws of where they have lived most of their lives control that transfer? If they have a will, then this question becomes even more complex. Often the real property (real estate) assets are governed by the laws of the state in which they sit, whereas the personal property (bonds, stocks, money, possessions) are controlled by the laws of the state that is their final residence.
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Good News for Employers wishing to change the terms of employment of employees, however, employers must still take care.

In Scott & Co v Richardson [2005], the Dependant, Mr Richardson, who worked for a Scottish firm of debt collectors, refused to accept his new terms of employment which required him to visit defaulting debtors during the evenings. Mr Richardson agreed to work evenings but only if this would continue to attract overtime payments as had previously been the case. Scott & Co tried for seven months to persuade Mr Richardson to change his mind but he refused, finally issuing an ultimatum that his employer should either accept his position or dismiss him. They chose to dismiss him.

At first instance, Scott & Co claimed that the change in working conditions was required to bring the company into line with new market practices and to allow them to plan work more cheaply and effectively. Mr Richardson argued that Scott & Co had failed to prove that there were advantages to the new working arrangements and that the real reason for the changes was to save money in overtime payments.

Mr Richardson succeeded in his claim for unfair dismissal and the Employment Tribunal held that it did not appear that the imposition of the shift system was of such discernible advantage that the only reasonable thing to do was to terminate the employee’s contract unless he would agree to the new arrangement.
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The case of Bell v The Spirit Group Ltd [2005] concerned a claim for unfair and constructive dismissal. The employment tribunal held that a series of acts, by the employer, cumulatively amounted to repudiation of the employee’s contract of employment.

The employee was a manager of a national chain of pubs and restaurants. He brought a complaint of unfair constructive dismissal against his employer in the employment tribunal on the grounds of failure to support him throughout a period of a year during his career. He alleged that:

he had been harassed by the senior managers regarding changes to his and his wife’s single contracts to a lower-paid joint contract;
he had been bullied and his grievance initially ignored;
his grievance had been partially upheld but the bullying had continued;
the employer’s conduct amounted to a fundamental breach of his contract of employment – the implied term of mutual trust and confidence (the cause of his resignation);
his dismissal had been unfair in all the circumstances.
The tribunal found that, in view of the cumulative effect of the course of conduct by the employer, there had been a fundamental breach of the implied term of mutual trust and confidence in the employee’s contract of employment, and it was that breach that had been the effective cause of the employee’s resignation. The employee’s claim of unfair constructive dismissal was upheld. The employer appealed to the Employment Appeal Tribunal (EAT) against that decision. The employer’s appeal was dismissed.
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