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The Importance of Retaining Qualified Counsel

By Frieda Gordon, Esq. and Erin Zivic, Esq.

A recent case in our office has taken an interesting journey, revealing twists and turns created by lawyers throughout the country which we believe to be of interest to our readers.

A client contacted our firm to represent him in an action to establish a conservatorship of his father's person and estate. The client lived on the West Coast, but his father, a widower in his 80s, lived on the East Coast. During the course of our representation we learned that, after the father's wife passed away, another woman moved into the father's home to provide him with day-to-day care. Eventually, this much younger woman married our client's father. The client then discovered that this woman was using his father's money and believed that she was attempting to isolate his father from him.

When the son discovered the alleged acts, he took immediate action to have his father moved to the West Coast. He was not comfortable with a stranger caring for, and possibly taking advantage of, his father. In order to ensure an end to the abuse, the client hired an attorney in his father's home state and commenced a proceeding to nullify the father's marriage to his caretaker. In the proceeding, the son alleged that the father did not have the mental capacity to enter into the marital relationship. The proceeding later changed from a nullity proceeding (which renders the marriage to have never existed) to a dissolution proceeding.

Prior to the resolution of the dissolution proceeding, the father passed away. The significance between a nullity proceeding and a dissolution proceeding soon became apparent. If a party dies before a judgment is entered in a dissolution of marriage proceeding, the parties are considered married until the death of one of the parties. In a nullity proceeding, if a Party dies before a judgment is entered, the case may still proceed towards a determination of nullity. If the marriage is nullified, there are significant consequences related to the decedent's property. For example, the surviving Party will no longer be entitled to any of the marital property. Because our client decided to change the matter in the other state to a divorce proceeding, once the father passed away, his divorce case ended and it was determined that, at the time of his death, he was still married to his caretaker.

Approximately one month after the father passed away, the son, as the result of an unexpected illness, also passed away. The son was never married and he had no children. The son left his entire estate to a dear friend. This friend was then tasked with winding up the father's conservatorship and estate, as well as that of his son's estate. Upon hiring our firm, she learned that, in their home state, the father and his first wife originally executed separate trusts naming an out-of-state bank as Trustee. Later, they hired a different attorney who, she alleges, improperly attempted to revoke the trust, improperly attempted to reconvey a real property deed from the trust to the father and wife as individuals, and never had the deed delivered and recorded. Several attempts to contact this new out-of-state proved fruitless, as, unfortunately, the out-of-state attorney is in the late stages of an illness and is unavailable to assist in the matter.

While, the father's second "wife" created multiple obstacles to winding up the estate and conservatorship proceedings, thus causing everyone to unnecessarily incur attorney's fees and headaches, the father and his first wife also created problems, as the validity of the earlier trust will now have to be litigated. There is the likelihood that both the father and his first wife's estate will have to be probated out of state and the father's estate probated in California. Thus, the multiplicity of actions will result in statutory as well as extraordinary attorney's fees for the probate of three estates.

If the son and father had each retained qualified and experienced counsel, this whole matter could have turned out quite differently. The father would likely have had the nullity granted. The caretaker could have been found lacking in standing to block the legal proceedings. The father's property could have been administered through his trust without any legal proceedings. There would have been no probate. And, lastly, there would have been reduced legal fees, reduced headaches, quicker disposition of the estates and increased peace of mind.

In an effort to ensure avoiding experiences such as this one, be sure to hire legal counsel that is trained in the relevant area of law. The Partners at Cooper-Gordon LLP each have over thirty years of experience in family law, probate, trust administration, estate litigation, and estate planning. Please consider them for your legal needs and call for an initial consultation at a reduced rate.