4 of 4: Common Arguments in a Post-Conviction Argument – New Evidence of Innocence

New Evidence of Innocence is another common argument in a post-conviction argument. The United States Supreme Court, in Schlup v. Delo, states that actual innocence allows the reviewing tribunal to consider the probative force of relevant evidence that was either excluded or unavailable at trial. But will any new evidence suffice? Not exactly. The Court in Schlup v. Delo, also tells us…

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3 of 4: Common Arguments in a Post-Conviction Argument – Misconduct by the Prosecution

Misconduct by the prosecution can transpire in a multitude of ways, such as suppression of evidence and making improper remarks to a jury. In 1935, the United States Supreme Court stated in Berger v. United States that a prosecutor “…may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he…

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2 of 4: Common Arguments in a Post-Conviction Argument – Juror Misconduct

The Rules of Evidence restrain juror testimony, which makes gathering evidence to prove juror misconduct more difficult. Federal Rules of Evidence 606(b)(1) provides that jurors may not testify about what was said in jury deliberations, the effect of anything on the juror’s vote, or the mental processes concerning the outcome of the case. This rule covers a significant amount…

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1 of 4: Common Arguments in a Post-Conviction Argument – Ineffective Counsel

Ineffective counsel can transpire in a multitude of ways. In sum, if an attorney fails to zealously advocate and thoroughly prepare for a client’s case, there is a potential for an ineffective counsel argument. Did the attorney fail to object to the state’s damaging evidence? Did the attorney fail to request an obvious jury instruction? Did the attorney fail…

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Can You Challenge an Estate Plan During the Testator’s Life?

If you believe a loved one was unduly influenced to change their estate plan, can you object to the estate plan during your loved one’s life? Or, is the case not ripe until after your loved one’s death? This issue was recently litigated in Maryland.

In this case, Amy had filed a petition for guardianship over her mother, Andrea. In her petition, she tried to have her mother’s estate planning documents set aside, including a revocable trust, several wills, and powers of attorney. Amy contended that Andrea had been subjected to undue influence at the hands of Andrea’s sister, Lisa.

Amy and her mother had a strained relationship at best, having had a major falling out in 2018. Andrea told Amy, “I never hear from you unless you want something.” After the falling out, Andrea updated her estate planning documents to exclude Amy as a beneficiary.

The trial court dismissed Amy’s claim of undue influence. Amy appealed. Likewise, Andrea and Lisa appealed, seeking sanctions against Amy. Should Amy be able to object to her mother’s estate planning documents during her mother’s life if Amy believes undue influence occurred?

The appeals court said no. Amy did not have standing while her mother was still alive because Amy didn’t have a property interest in her mother’s assets or estate at this time. The court referred to long-standing case law that said, “To have standing, a plaintiff must have a legally protected interest, whether provided by statute or arising out of contract, tort, or property ownership.” Obtaining the status of heir only occurs after the Testator’s death.

In addition, the court stated that pre-death claims could waste the court’s time. After all, the Testator could change their will in the future, the Testator could die without any property, or the contestant could die before the Testator did. The same principle can also be applied to revocable trusts. Finally, Amy did not put forth any arguments that Lisa, as agent, acted improperly in her duties so the powers of attorney were also not successfully challenged.

By Jill Roamer, J.D., CIPP/US at https://blog.eldercounsel.com/can-you-challenge-an-estate-plan-during-the-testators-life.

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What Elements Must be Met for a Hardship Waiver?

Federal law, specifically 42 U.S. Code § 1396p(c)(2)(D), dictates that a state must establish procedures that allow a Medicaid applicant to receive needed care via a hardship waiver. In these cases, the applicant (or their spouse) had made a transfer during the look-back period that would otherwise incur a penalty whereas the applicant would not be eligible to receive Medicaid…

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The Importance of the Language Used in a Legal Document

Language can be tricky, imprecise, and confusing. When drafting legal documents, it is important to convey a certain meaning without needing external input on deciphering that meaning. After all, these documents may need to be interpreted after the person expressing their wishes has died or is incapacitated. Having a legal document with a term that can be ambiguous can lead to family discord, a lack of the Grantor’s intent being carried out, and even litigation.

In a recent case out of Texas, the meaning of the word spouse was litigated. Here, the Grantor left a share to her son’s spouse. To whom did spouse refer? Did it refer to the son’s spouse at the time the trust was established and executed, or did spouse refer to his wife at the time the trust was administered after the Grantor’s death?
Here, Grantor Amanda was unmarried and had one child, William. At the time Amanda executed her irrevocable trust, William was married to Cynthia. They had 2 children together. In various provisions of the trust document, the phrase my son’s spouse was used to delineate certain property and rights to. In a few Trustee provisions, Cynthia’s actual name was used.

William and Cynthia were married for about thirty years. After their eventual divorce, William married Carol. A few years thereafter, William’s children brought suit against him, individually and as Trustee of the irrevocable trust, arguing that he breached his fiduciary duties. In the suit, the children named Cynthia as an interested party because she was a beneficiary of the trust. But was she?

Both Cynthia and Carol laid claim that the use of spouse in the trust document referred to themselves. The trial court ruled in Cynthia’s favor, stating: “The terms “spouse,” “primary beneficiary’s spouse,” and “son’s spouse” referenced in the Trust Agreement Establishing the William W. Ochse III Family 2008 Trust are unambiguous and specifically mean Cynthia Cadwallader Ochse, to whom William W. Ochse, III, was married at the time the trust instrument was established and does not mean any subsequent spouse of William W. Ochse, III, including but not limited to Carol Dicker Ochse.” Carol and William appealed.

The district court used the four-corners analysis, meaning the court interpreted the Grantor’s intent from the language used within the document. The court didn’t guess at the Grantor’s intent, but instead focused on the meaning of the words used in the document.

William and Carol argued that since Amanda didn’t name Cynthia specifically but instead used the term spouse, it was descriptive to mean whomever William was married to at the time. They argued that Amanda used Cynthia’s name elsewhere in the document, in the Trustee provisions, so why wouldn’t she use her specific name when devising property if she meant to point to that specific person? And they pointed to the obvious fact that Cynthia was indeed not William’s spouse; Carol was.

Cynthia argued that when Amanda executed the trust document, she was William’s spouse and Amanda meant her when referencing spouse in the document. The district court agreed, stating that when Amanda executed the trust, she meant to refer to Cynthia. It was apparent from the case that the length of William and Cynthia’s marriage played a role in interpreting the provision. Amanda had known Cynthia for decades and probably wouldn’t have contemplated their divorce. Would the result have been the same if it were a short marriage or if Cynthia and Amanda had a tumultuous relationship?

How much time, energy, and money were spent on this litigation? Was the family able to heal after all the arguments were heard? Would Amanda still want her son’s ex-wife to benefit from the trust? Who knows. But this litigation could have been avoided if exact language were used, naming Cynthia instead of using the word spouse, or adding a definition for the word spouse to mean whomever William was married to at the pertinent time.

Document creation and assembly doesn’t have to be a burden. Contact us today to get started on your important documents.

By Jill Roamer, J.D., CIPP/US at https://blog.eldercounsel.com/the-importance-of-the-language-used-in-a-legal-document

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Stan Lee Estate Settles Lawsuit Against Former Agent

Stan Lee’s Estate Settles Lawsuit Against Former Agent

Stan Lee, the legendary comic book creator, died in November 2018 and his estate has been in litigation ever since.

Stan’s wife had died in July 2017 and thereafter Stan had named Jerry Olivarez, a publicist, as agent under a power of attorney. The Compliant in the probate case alleged that Jerry did several unscrupulous acts: dismissed Stan’s lawyer and hired his own without disclosing the conflict of interest; fired Stan’s banker and transferred roughly $4.6 million out of Stan’s account; duped Stan into loaning him $300,000; bought an expensive condo using Stan’s money; and more. The suit listed several causes of action, including financial abuse of an elder, fraud, and misappropriation of name and likeness. Jerry denied the allegations.

A settlement has been reached in the case for an undisclosed amount and now the probate case can proceed. However, there are still some pending claims in the case against Stan’s former attorney, Uvi Litvak. Also notable is a criminal case being pursued by Los Angeles prosecutors against Stan’s former business manager, Keya Morgan. His case has been pending since 2019 and he is facing several felony charges including theft, embezzlement, and false imprisonment of a senior.

Stan Lee’s case highlights how very important it is to be aware of and take steps to prevent senior abuse. Stan was extremely wealthy, with access to virtually any resource or planning strategy, but still fell victim to fraud and abuse. The Centers for Disease Control and Prevention states that out of those aged 60 and above, 1 in 10 will experience elder abuse. For tips on how to prevent elder abuse and reporting resources, visit the National Center on Elder Abuse.

By – Jill Roamer, J.D., CIPP/US

Shared courtesy of The Elder Counsel Blog – https://blog.eldercounsel.com/stan-lees-estate-settles-lawsuit-against-former-agent 

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Everyone Should Plan for Long Term Care

everyone should plan for long-term care


The U.S. Department of Health and Human Services states that almost 70% of folks aged 65 and over will need some type of long-term care in their remaining lifetime. What will this care look like? How will this care be paid for? How will the senior’s family be affected? Answering these questions and creating a plan is a major part of elder law.

Long-term care insurance can be very expensive and hard to qualify for. Instead, many folks would prefer to qualify for long-term care Medicaid benefits. Planning for care allows the senior to have flexibility and options when the time comes for the need for long-term care.

Why does planning need to be done? There are both income and resource limits when qualifying for long-term care Medicaid. In addition, there are penalties for transferring assets during a certain period before the Medicaid application is submitted. Qualifying for long-term care Medicaid involves many rules and procedures that can be confusing, vexing, and time-consuming. Planning can minimize the frustration of the application process and maximize the ability to protect the senior’s savings.

When does planning need to be done? As with most things, the sooner the better. If a plan is put into place while the senior is healthy and not in need of care, an elder law attorney can likely protect most of the senior’s assets. But if a plan is not put into place and the senior finds that they need care soon, some of their assets can still be protected and a plan can still be advantageous.

Who can help with long-term care planning? An elder law attorney! The goal of the elder law attorney is to give the senior information and choices. A plan will be put into place that is best suited for the senior’s goals and family situation. This way, the senior can have peace of mind knowing that if care is needed, they won’t leave their family in a stressful situation. Also, the senior can be assured that their hard-earned savings is protected to leave a legacy for their loved ones.

Elder Law is Lifetime Planning

By – Jill Roamer, J.D., CIPP/US 

Provided courtesy of The Elder Counsel Blog at https://blog.eldercounsel.com/everyone-should-plan-for-long-term-care

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Why have a trust instead of a will?


When faced with the issue of deciding how to go about devising your estate to your family and loved ones, the sheer amount of options can be overwhelming. Many people think a simple will is the best way to distribute their estate. While a will is certainly better than nothing (and roughly 50% of Americans do not have a will, so if you have one you’re doing pretty good!) at our office we point to three major benefits of having a trust over a will: Cost, Privacy, and Control.


One disadvantage of only using a will is your loved ones will have to go through what is called “probate” in order to actually receive what you left to them.

“Probate” refers to the court proceeding whereby a judge determines what the terms of your will are and who gets what. This probate process can become a bitter, arduous process if there was no will, if you left certain terms of your will ambiguous, or if your loved ones disagree on who should get what. A particularly bad probate experience can tear a family apart. Regardless of how contentious the probate process is, the cost of probate in Tennessee is typically at least $1,500 to $3,000, and can go much higher than that depending on the complexity of the estate.


Additionally, the probate process is public record, meaning that your assets are publicized. The reason for this is so that creditors are put on notice that they need to make any claims they have against the estate. Aside from the discomfort many may have with their assets being made public, the publication of your assets can also lead to “inheritance scams,” where predators find the publication of your estate and try to trick your family out of some or all of their inheritance.


One last concern that can arise with a will is that your control of your assets after your passing is more limited than with a trust. The reason for this is once the court completes the probate process, it does not want to get involved with the management of your assets. With a trust, however, your assets will be managed by a trustee, a person or persons given the job of ensuring your assets are distributed as you wanted long after your passing.


Because of the inevitable cost of probate, the benefits of keeping your assets private, and the additional control you have over your assets with a trust, at Adam Rodrigues Law we encourage our clients to place their assets in trust. For the same price or cheaper than you are likely to pay in the probate process, you can place all of your assets in what is called a “Revocable Living Trust.” By doing this you will avoid probate, and the distribution of your assets will go through the hands of a trusted trustee instead of the probate court. Moreover, if you are interested in setting up any asset protection for some of your assets, we can also discuss how some form of an Irrevocable Trust might be suitable for you.

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