DerryNews.com, Derry, New Hampshire

May 23, 2013

Attorneys are better than an Internet form

About the Law
Andrew Myers

---- — We just got married and our families do not get along. If something happens to one of us, we want to will everything to each other, to the children we plan to have, or to another person we choose.

Can we make out an “iron clad” will and make it so that if anyone challenges the will they are out?

One option for making sure your property passes according to your intentions upon your death, without unhappy relatives disrupting the process, is to insert an “In Terrorem” clause in the will.

A properly drafted In Terrorem clause tells the court that you’ve intentionally made the property designations in the will, and if anyone contests, their objections should be dismissed by the court. Further, this clause directs the court to assess any fees and costs against the person contesting.

Two of the nastiest pieces of litigation I’ve ever been involved in were will contests. The courts in both cases looked for this simple will provision, which had not been included by the drafters – not my office. So, the cases racked up time and fees unnecessarily.

The other option to avoid a lengthy and expensive will contest is to adopt a revocable trust and to convey all property into the trust. A trust is a private document and keeps your affairs out of probate court.

To implement either of these options with legally enforceable documents consult an attorney. Quickie Internet forms generated in a one-size-fits-all format fail to address your individual facts and circumstances. Such forms will very likely collapse if challenged.

Are voicemail messages allowed as evidence in a trial? I have a family court final hearing coming up. My ex has tried to accuse me of horrendous things to make me look like an unfit parent.

On the other hand, voicemail messages from the ex and our child prove otherwise. We are both “pro se” without attorneys. I can’t afford it. Will I be able to get these voicemails in as evidence?

If done correctly, voice mails would be admissible as admissions by a party-opponent. This rule of evidence gets you around the hearsay rule because your ex, with whom you are embroiled in this case, has admitted something contrary to their position in the case. Prior statements by opposing parties are almost always exceptions to the hearsay rule.

However, before getting those voice mails admitted, you must establish a proper foundation and authenticate any recording you have. Such rules of evidence can get fairly complex in the execution.

I know you’ve said you “can’t afford” attorneys. But, based on what’s at stake here, your child, you can’t afford not to have representation.

Also, considering the heavy burden of an appeal if you lose the case, including an appellate attorney, the cost of transcripts and other expenses, it is best to go into the hearing fully prepared.

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Andrew Myers of Derry has law offices in Derry and North Andover. He is a member of the American Association for Justice and the New Hampshire Trial Lawyers Association. Send questions to andrew@attorney-myers.com.