Can A Will Written on a Tablet Be Valid?

Posted July 30, 2013 in Estate Planning, Probate by Michael Lonich.

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July 30, 2013
Can A Will Written on a Tablet Be Valid?
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Apparently so, according to Ohio Probate Judge James Walther. Last year, Javier Castro needed a blood transfusion but chose to refuse the health care because of his religious beliefs. Unable to find a piece of paper and pen, Castro wrote and signed his will with a stylus on his Samsung Galaxy tablet while his brothers watched – and it’s valid. Judge Walther explained that Ohio law requires wills to be written, signed, and witnessed (much like in California) and technically, Javier’s electronic will met each of those requirements.  Does this mean you should consider drafting up a will on your tablet right now and forego that visit to your estate planning attorney? Probably not.

The requirements for a valid will in California are quite similar to those in Ohio. In California, a will must be in writing, signed, and witnessed by two individuals in the presence of the testator.* However, unlike in Ohio now, there is limited case law regarding the validity of electronic wills. In fact, very few states have addressed the issue.**

You might be wondering: so many aspects of our lives nowadays are electronic – from bills to communication devices – so why shouldn’t my will be electronic as well? Why are there so many guidelines to creating a proper will? Having an appropriately designed and executed will ensures your wishes are carried out in the manner you intended them to and decreases the possibility of fraud.  With little to no law to rely upon, until the California legislature develops a statute addressing what is required of an electronic will, it would be anybody’s guess whether your Samsung tablet will would be considered valid and probated in this state. Therefore, until that happens, it would be prudent to continue creating your will the traditional way – with your estate planning attorney.

If you are interested in creating an estate plan or have any questions regarding your current estate plan, please contact the experienced estate planning attorneys at Lonich & Patton for further information. The attorneys at Lonich & Patton have decades of experience handling complex estate planning matters, including  living wills and trusts, and we are happy to offer you a free consultation.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

 

*Cal. Prob. Code §§ 6110 – 6113.

**Nevada is one of the few states that have statutes concerning electronic wills (http://statutes.laws.com/nevada/title-12/chapter-133/execution/133-085).

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Sperm Donors: Are You (Legally) My Father?

Posted July 19, 2013 in Family Law by Lonich and Patton.

When actor Jason Patric broke up with his long-time girlfriend, Danielle, he told her he didn’t have any money to give her at the end of their ten-year-relationship – but he could give her his sperm so she could have a baby.  In return, Danielle agreed to never tell anyone, never to ask for child support, and made herself an appointment to be artificially inseminated (this is important). In 2009, Baby Gus was born, and true to his word, Jason never paid child support. Then last year, Jason decided he wanted to be part of Gus’ life after all and he filed for 50/50 custody. Fast forward to today, and Jason’s story has evolved from Hollywood headline-fodder into a California legislative bill: Senate Bill 115 (SB 115).

Under current law, sperm donors are not legally considered to be the natural fathers of the children born using their donated sperm except under certain circumstances.* Furthermore, Cal. Fam. Code § 7613(b) makes it clear that if a man provides his semen to a licensed physician, surgeon, or sperm bank for the purpose of impregnating a woman who is not his wife, the man is legally barred from claiming parentage of the child the woman conceives.**

For example, in a 1986 case, Jhordan C. v. Mary K., a man gave his semen directly to a woman to artificially inseminate herself. The Court held that these facts did qualify for the statutory preclusion of paternity, because a California statute required the semen be instead given to a licensed physician. Accordingly, the Court allowed the donor to raise his claim for paternity.*** Conversely, a strong aspect of Jason and Danielle’s case is that she was inseminated by a physician – their case was not statutorily barred because her pregnancy did not result from a do-it-yourself insemination.

The purpose of the current artificial insemination laws is to allow unmarried women and women married to an infertile spouse the freedom to conceive via a sperm donor without the fear that the donor would interfere following the baby’s birth by asking for parental rights. However, SB 115 now seeks to allow a specific group of sperm donors to claim parentage – any donor who has “received the child into his home and openly holds out the child as his natural child,” regardless of the method of conception, would be presumed to be the father of the child. SB 115 passed the California senate in April 2013 and now, it’s up to the California assembly to determine if the bill will be signed into law. This raises questions about what qualifies as “openly holding out” a child as one’s own. There are many definitions of the concept of “family,” and the impetus for agreements to claim, or not to claim a child can change over time.

Parental rights can be a complicated and confusing issue. If you have any questions regarding your parental rights and obligations, or you are simply looking for more information regarding your legal options, please contact our California Certified Family Law Specialists (as certified by the State Bar of California Board of Legal Specialization) at Lonich & Patton. Our attorneys have decades of experience handling complex Family Law proceedings and are happy to offer you a free consultation.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

 

*The Uniform Parentage Act, http://codes.lp.findlaw.com/cacode/FAM/1/d12/3.

**Unless the donor and the woman agreed otherwise in a signed writing prior to the conception of the child. http://www.leginfo.ca.gov/pub/13-14/bill/sen/sb_0101-0150/sb_115_bill_20130408_amended_sen_v97.pdf

*** Jhordan C. v. Mary K., 179 Cal. App. 3d 386 (1986).

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Domestic Violence: “Abuse” Encompasses More than Just Physical Blows

Posted July 12, 2013 in Family Law by Rachel Leff-Kich.

Domestic violence scholars have questioned the appropriateness of the ever-present inquiry, “why did she stay?” Professor and author Martha Mahoney describe the importance of understanding the complexity of women’s experience and struggle and “recast[ing] the entire discussion of separation in terms of the batter’s violent attempts at control.”*

“Every legal case that discusses the question ‘why didn’t she leave?’ implies that the woman could have left.”*  The threat of violence and the aggressor’s continued control preventing women from leaving, financial dependence, and emotional ties are some of the reasons she cites.*

Mahoney writes that battered women often struggle with denial (a defense mechanism which allows us to unconsciously “disavow…[the] external reality….which [is] consciously intolerable.”).** Victims of domestic violence also “tend to minimize the history of assault against them and the pain they have suffered.”**

Often this denial is a result of the belief that the abuse suffered is not “bad enough” to qualify as domestic violence.  Many Californians believe that they have to be hit or display bruising in order to be considered a victim of domestic violence. This notion, however, is very far from the truth.  The definition of “abuse” included in California’s Domestic Violence Prevention Act (“DVPA”) is intentionally broad.  There are many ways in which we can suffer abuse, including psychological abuse, stalking, financial abuse, and in some instances, even cyber-bullying. Take a look at the California Family Code statute that outlines what our state considers impermissible “abuse”:

“For purposes of this act, ‘abuse’ means any of the following:

a)      Intentionally or recklessly to cause or attempt to cause bodily injury;

b)      Sexual assault;

c)       To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another; or

d)      To engage in any behavior that has been or could be enjoined pursuant to Section 6320.”

Cal. Fam. Code § 6203.

The first two sections of Section 6203 (above) are easily recognized as traditional forms of domestic violence –  when a person suffers physical injury or sexual assault at the hands of their partner it is clear instance of DV. The last two prongs, (b) and (c), however, leave room for interpretation. Section (c) refers to what a reasonable, average person would find threatening to such an extent that they fear that they or someone else will be seriously harmed by the alleged perpetrator, and imminently.

Section (d), however, expands the concept of abuse to include more than violent abuse alone.  Section 6320(a) of the family code includes a long list of behaviors that can be halted by restraining order:

“The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, making annoying telephone calls…., destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.” Cal. Fam. Code § 6320(a).

As can be seen, the DVPA’s definition of abuse is intentionally broad, and a restraining order may be appropriate protection from a myriad of different kinds of abuse. One notable catch-all provision in Section 6320(a) is “disturbing the peace,” meaning that a restraining order may be granted against someone who is disturbing your peace. What does it mean exactly?  “[T]he plain meaning of the phrase “disturbing the peace of the other party” in section 6320 may be properly understood as conduct that destroys the mental or emotional calm of the other party.” In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497.

In Nadkarni, the husband broke into the wife’s email account, learned and tracked her constant whereabouts, and distributed personal and business information about the wife and her business interests.  This conduct, the wife alleged, caused her “to suffer ‘shock’ and embarrassment,’ to fear the destruction of her ‘business relationships,’ and to fear for her safety.” Nadkarni, at 1499.  It is important to note that the court found that because of the past physical abuse against her by the husband, the wife’s fears regarding the husband’s potential for further abusive conduct in the future were reasonable.

If your partner is harassing you or treating you in a way that “destroys your mental or emotional calm,” you may be a victim of domestic violence and you can seek relief from the court.  The Court has discretion to issue a restraining order pursuant to the DVPA if the court is satisfied by “reasonable proof of a past act or acts of abuse.”  See Nakamura v. Parker, 156 Cal. App. 4th 327, 334 (2007); Cal. Fam. Code § 6300.

This is huge for California residents because, “[a]buse takes many forms. It’s more than just the obvious slap in the face, punch, or push. It’s about power and control, any way possible.”*** Californians are no longer forced to suffer in silence but instead get a helping hand from the courts on their journey to a better home life. The purpose of DVPA is to prevent the reoccurrence of acts of violence and to separate the parties so the causes of violence can be resolved.  Cal. Fam. Code § 6220.  In addition, under the DVPA, after notice and a hearing the Court may issue an order for the payment of attorney’s fees and costs to the prevailing party.  Cal. Fam. Code § 6344.

If you believe that you may be suffering from domestic violence, or are contemplating a divorce, please contact our California Certified Family Law Specialists (as certified by the State Bar of California Board of Legal Specialization) at Lonich & Patton. Our attorneys have decades of experience handling complex Family Law matters and here to meet with you and offer you a free consultation. Life is too short to live with an abusive partner.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

 

 

*Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 Mich. L. Rev. 1 (1991).

**Julie Blackman, Potential Uses for Expert Testimony: Ideas Toward the Representation of Battered Women Who Kill, 9 WOMEN’S RTS. L. REP. 227, 228-29 (1986).

***Quote by Julie Saffren, Santa Clara University Law Professor and Domestic Violence attorney, from San Jose Mercury News, “Domestic Violence: Bill Targets Cyberbullying,” printed July 1, 2013; quote obtained with permission from Mrs. Saffren.

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Cohabitation Agreements: A Beneficial Tool For Both Parties

Posted July 8, 2013 in Family Law by Lonich and Patton.

So your relationship is going well and you’ve decided to start living together. Before couples get married, many consider creating a pre-nuptial agreement. But you’re just moving in together, just testing the waters – no harm, no foul, right? Not necessarily.

Although it may seem like no legal consequences can arise from simply living together*, California recognizes a particularly pesky action: the Marvin claim. In 1976, the California Supreme Court held that express contracts between non-marital partners are enforceable.** In Marvin, Lee and Michelle lived together as an unmarried couple for seven years and Michelle claimed Lee promised to take care of her for the rest of her life. Although Michelle was ultimately unable to provide proof of an implied contract, the Court’s holding was clear: express contracts between unmarried couples are fair game and enforceable.

As a result, with the sharp increase in the number of cohabitating couples in the past decade, a cohabitation agreement is a highly useful tool for unmarried couples to consider – much like a prenuptial agreement is for married couples. Some factors, amongst many more, to keep in mind when drafting a cohabitation agreement include:

  • Everything must be voluntary: cohabitation agreements must be entered into freely and voluntarily – just like prenuptial agreements.
  • Put everything in one document: include an integration clause that provides that the document signed by you and your partner constitutes the entire agreement – that there are no other outside agreements or oral agreements to be taken into consideration.
  • Put everything in writing: have a clause that requires all amendments to be made in writing, preventing the possibility that one party will later argue that later oral or implied changes were made to the original agreement.

A cohabitation agreement can benefit both the Lee’s of the relationship – the wealthier partner who has financially more to lose, and the Michelle’s of the relationship – the “weaker” partner who relied upon a partner’s promise to her financial detriment. If you are interested in creating a cohabitation agreement or reviewing your current cohabitation agreement, please contact our California Certified Family Law Specialists (as certified by the State Bar of California Board of Legal Specialization) at Lonich & Patton. Our attorneys have decades of experience handling complex Family Law matters and are more than happy to meet with you and offer you a free consultation.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

 

*1 in 4 people living together believes they have the same legal protections as married couples (http://www.guardian.co.uk/money/2013/mar/09/cohabitation-agreement-essential-non-married-couples).

**Marvin v. Marvin, 18 Cal. 3d 660 (1976)).

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Advanced Health Care Directive: Are You Prepared for the Unthinkable?

Posted July 2, 2013 in Estate Planning by Michael Lonich.

No one likes to be powerless, but isn’t it inevitable? Unfortunately, old age, illness, or tragedy will surely reveal itself in each of our futures in some way or another. Instead of waiting helplessly, hoping that you will never live a day in your life incapacitated, you can create a legal document that will ensure that your rights, dignity, and wishes will be protected if you ever become incapable of making or communicating decisions regarding medical care.

An advanced health care directive is a durable power of attorney and performs much like a living will. A power of attorney is a legal document used to appoint another person to make property and/or health care decisions on your behalf. It allows you (the principal) to grant authority to your appointed agent (also called your attorney in fact) to manage your financial matters or health care needs. This durable power of attorney for health care appoints an attorney-in-fact to make health care decisions based upon your specific and spelled-out wishes in the event that you become incapacitated. For example, a health care power of attorney allows you to express your wishes regarding life-sustaining treatment should the need for such treatment arise. It is important to provide detailed guidance for your health care agent in the power of attorney. Perhaps you want to donate your body to science or donate your organs to needy patients? If something like this, or any other particular request, speaks to you, it should be in writing.

So, what are you waiting for? Tragic accidents and heart attacks don’t come with warnings. In the end, having a plan in place is a compassionate step—no one should want their family to agonize over whether to let you live in a vegetative state or pull the plug. By carefully outlining your wishes, you can take some of the weight off of your loved ones’ shoulders during such a trying time.  Furthermore, you can even save your family money on hospital fees, ensuring that your spouse will not get saddled with astronomical medical bills on top of funeral expenses.

Talking about death is never easy, but if you are ready to discuss pulling together an advanced health care directive, please contact the experienced estate planning attorneys at Lonich & Patton for further information. The attorneys at Lonich & Patton have years of experience handling complex estate planning matters, including wills and living trusts, and we are happy to offer you a free consultation.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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