Law Blog

In an interview, the great Bruce Lee once expounded upon the amazing qualities of water.  He viewed its properties as a guiding philosophy to be followed by martial artists looking to improve their fighting abilities.  And he was right, water is pretty impressive.  When it’s a torrent it can tear down a forest, as a stream it can gradually split a mountain, and at the same time we drink it to keep hydrated and stay alive.  But apparently if you drink too much of it you can die from something called water intoxication, which is exactly what happened to a woman 2 years ago.  Remember that case?

Well, the family of the deceased wife looking to win a Nintendo Wii for her kids sued.  Now after two years of litigation, the jury has finally reached a verdict in favor of the aggrieved family and levied a damage award of $16.6 million to be paid by the radio station.

In case you guys have forgotten about this one (and I don’t blame you as I can barely remember whether or not I brushed my teeth this morning) the woman’s name was Jennifer Lea Strange.  She was a 28-year-old mother of three children who entered into a radio contests in California to win the then very elusive Nintendo Wii (which, by the way, is no longer quite as elusive and cheaper to boot).  The contest required contestants to drink large amounts of water and then hold in their urine.  The contestant who could drink the most water while resisting the urge to use the bathroom the longest would win the coveted video game system.  Strange won the contest, but ultimately and unfortunately lost her life in the strange (no pun intended) process.

Now some of you may be wondering why in the hell would anyone subject themselves to this kind of suffer for what is essentially an electronic toy.  Well, regardless of whether or not you have children, I think everyone (except probably my parents) can all understand the very pressing need to get a person we love that “perfect gift.”

More importantly, however, Strange’s case serves as a reminder to corporations, businesses, and people in general everywhere of why you should think twice before committing poorly thought out acts that can lead to serious harm or death.  And that should you decide to go forward with said poorly thought out act, if you’re a radio station have enough sense to stop and heed the deluge of warnings from your listeners.

The sad truth is LegalMatch receives many wrongful death cases every year, cases that could have been easily prevented but for the negligent actions of another party.  Wrongful death cases are not just incredibly costly from an economic standpoint (i.e. lawyers fees and the potential for incredibly large jury awards for compensatory, punitive, and emotional distress damages), but from a purely human perspective, cases of negligence resulting in serious injury or wrongful death means that a person has suffered deeply and permanently.  And that the harm is not only limited to the immediately damaged party, but also that party’s family.  The toll is emotional, physical, and financial.

So what’s the lesson here?  It’s the same one that my dad has been telling me since I was born: Don’t be stupid.

According to the U.S. Census Bureau, by 2030, about 20% of the U.S. population will be age 65 or older and by 2050, this aging segment of the U.S. will represent 88.5 Million people versus the 38.7 Million in 2008. (See U.S. Census Bureau) The increasing age of the Baby Boomer population comes with a significant transfer of wealth either through wills, trusts or through state mandated intestacy laws.  And, it raises an issue concerning how prepared Americans are in developing their estate plans, whether their estate is valued in the millions or in the thousands.

Contributing to this significant transfer of assets is an increase in the number of will contests being brought today, particularly as it relates to step-families.  Children of these families are rapidly learning that the second (or third) spouse often has significant if not greater rights than the children; intestacy shares can range from 1/3^rd to as much as ½ of the decedent’s estate when there is no will.  (Before Your Parent’s Say ‘I Do’ Again)

Even when there is a will, sometimes a new spouse will change not only the family dynamics but also the dynamics of the will or family trust.  Most Americans are familiar with Anna Nicole Smith’s short-lived marriage and protracted court battles that continue even after her death. (Daughter to Inherit Mother’s Estate ).  Anna’s litigation, however, is not atypical although most people’s estate assets are significantly less than the Marshall fortune.

In fact, some children are proactively approaching their parents about their estate plans before their parents die.  SmartMoney.com profiles Neil Finkel whose 80+ year-old father placed a large percent of his multi-million dollar estate into a trust for his son.  However, Finkel’s Dad married a woman 30 years his junior. Amy, the new spouse, and Neil subsequently waged a 2-year court battle over the father’s dwindling assets which were being eroded by the spending habits of the new wife.  Although the case was settled, it’s unlikely that the rift in the family will be healed and it could erupt again after Dad Finkel’s death.  (Before Your Parent’s Say ‘I Do’ Again)

During the past five years, tens of thousands of people have used LegalMatch to find an attorney to represent them in filing a lawsuit to contest a will or to defend the estate against a will contest.  Not surprisingly, many of the most popular states for will contests have a high concentration of residents age 65+.  Plus, this top 10 state list comprises over 55% of LegalMatch’s will contest customers: 

Your will or trust will have lasting implications on your heirs after your death, particularly in those families where there are step-children or multiple spouses.  Probate litigation is generally protracted and can tear families asunder.  Developing a proactive estate plan, even if your estate assets are small, should help to reduce family tension after your death.  However your estate plan is crafted, you will be communicating a strong message to your family. The properly drafted will can stand the tests of probate court and ensure that your intent is followed after death.

As the baby boomers approach their golden years, many are planning to leave legacies and to provide for their families’ well being by drafting estate plans.  However, as I looked over the thousands of cases posted on LegalMatch, it seems that a sizeable number of wills are challenged in court. 

According to LegalMatch case data from the past 5 years, 61% of people claiming an interest in the estate of the decedent (the person who dies) involve a written will.  Most commonly, children brought these lawsuits (43%); parents (16%), grandkids (9%) and spouses (5%) were less likely to take legal action. 

So, why are these wills being challenged?  People seek to prevent or stop a will from being probated for a number of reasons.  Commonly, plaintiffs claim that:  1) the will reflects a mistake of the testator, 2) the testator wrote his will under undue influence, fraud, or duress, or 3) the testator lacked testamentary intent or the capacity to write his will in the first place.

While a minority (23%) of the LegalMatch will contests that I evaluated involved decedents who died intestate (without a written will), according to a 2007 Harris poll, 55% of U.S. adults don’t have a will or estate plan.  This trend is even more prevalent among minorities: only 32% of African Americans and 25% of Hispanic Americans have wills, compared with 52% of White Americans. 

According to the same Harris poll, however, more Americans are making living wills (also known as health care directives), perhaps in response to widely publicized disputes such as the Terry Schiavo case.  Respondents’ number one reason for not making a will?  They thought they didn’t have enough assets to worry about.  Other popular responses were:  1) I don’t want to think about dying or being incapacitated, 2) I don’t know who to ask about drafting a will, and 3) procrastination. 

While crafting your will to withstand legal challenge may seem complicated, a good lawyer should be able to do this competently.  However, there is one simple thing that all laypersons can do: make your will accessible!  I found that 17% of LegalMatch will contests indicated that the parties did not even know if a will existed!  Remember, even the most carefully drafted will won’t do a bit of good if it can’t be found. 

Maybe the knowledge that their children will most likely be the ones to hash things out in court will motivate parents to start drafting their wills with care.  Also, while it’s troubling to know that so many people leave their estates unsettled, it’s also comforting to know that legal action can be taken even if the decedent fails to leave a will or alert his loved ones that a will exists at all.