19 amjur trials on suing a decedants estate[1]

19 AMJUR TRIALS 1 19 Am. Jur. Trials 1 (Originally published in 1972)

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American Jurisprudence Trials Database updated April 2010

Actions by or Against a Decedent's Estate Daniel F. Carmack[*] ARTICLE OUTLINE I Introduction and Background A Generally 1 In general 2 Scope 3 Definitions 4 Types of actions involving a decedent's estate 5 Fact situations giving rise to action 6 Objectives of the parties B Effect on Action of "Dead Man" Statute 7 In general 8 Actions to which statute applies 9 Testimony barred by statute 10 Testimony not barred 11 Waiver of statute II Client Interview 12 In general; interview checklist 13 Evaluating the client 14 Fees and charges 14.5 Attorneys' fees chargeable to estate III Presenting Claims Against Estate; Time Limitations For Prosecution A Presentation of Claims 15 In general 16 Requirements of nonclaim statute 17 Utilizing available probate court procedures 18 Inspecting fiduciary's administration of estate B Time Limitations for Prosecuting Claim 19 In general; effect of statute of limitations and nonclaim statute 20 Waiver of statute of limitations by the fiduciary IV Locating, Interviewing, and Selecting Witnesses A Locating and Interviewing Witnesses, Generally 21 In general 22 Locating witnessesfor claimant 23 Locating witnessesFor fiduciary 24 Interviewing witnesses B Expert and Lay Opinion Witnesses 25 In general 26 Selection V Documentary Evidence 27 In general VI Selecting the Remedy

2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

28 In general; actions available to claimant 28.5 Challenging qualifications of estate fiduciary 29 Actions available to fiduciary 30 Arbitration of claims VII Selecting the Forum; Venue 31 In general; jurisdictions in which action can be brought 32 Venue 33 Instituting action in federal court VIII Pleadings 34 ComplaintAction for value of services 35 ComplaintAction for partnership accounting 36 AnswerAction for value of services 37 AnswerAction for partnership accounting 38 Motions and demurrers IX Settlement 39 In general 40 Procedure and tactics 41 Illustrative settlement X Discovery 42 Interrogatories and depositionsParties 43 Interrogatories and depositionsWitnesses 44 Motions for production and inspection XI Trial Preparation 45 Planning plaintiff's caseaction for personal services 46 Planning plaintiff's caseAction for partnership accounting 47 Planning the defenseAction for personal services 48 Planning the defenseAction for partnership accounting 49 Planning a rebuttal 50 Preparing the record 51 Trial briefs 52 Advisability of jury trial XII Pretrial Conference 53 In general 54 Clarifying the issues 55 Stipulating admissibility of documents 56 Final settlement efforts XIII Trial 57 Selecting the jury 58 Opening statementof plaintiff in action for personal services 59 Opening statementOf defendant in action for personal services 60 Opening statementOf plaintiff and defendant in action for partnership accounting 61 Presentation of plaintiff's caseAction for personal services 62 Presentation of plaintiff's caseIllustrative presentation 63 Presentation of plaintiff's caseAction for partnership accounting 64 Presentation of defendant's caseAction for personal services 65 Summation in action for personal servicesPlaintiff 66 Summation in action for personal servicesDefendant 67 Preparation of proposed findings of fact and brief on the law in an accounting suit Research References


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I. Introduction and Background A. Generally 1. In general [Cumulative Supplement] The problems involved in handling litigation, either for or against a decedent's estate, confront lawyers engaged in all forms of advocacy, not merely those specializing in probate practice. They concern as well lawyers who maintain a business practice exclusively, because, quite obviously, a lawyer who represents business organizations, including partnerships and close corporations, may eventually need to determine the proper method of settling partnership accounts upon the death of a partner, or to effect the transfer of the interest of a deceased stockholder to the survivor or survivors. Many lawsuits involving large sums of money or property of substantial value lend themselves to a division of labor between the business-probate lawyer and the trial advocate. Quite often, however, the small size of the stake in the controversy makes such a division economically unfeasible. Consequently, the lawyer engaged in general practice must also familiarize himself with the statutes and procedure relating to the administration of a decedent's estate if he is to represent properly a client who has a claim against, or who is indebted to, a decedent. Litigation involving a decedent's estate is, therefore, a type of law practice common to practitioners in all fields, and this article is designed primarily to aid the general practitioner. CUMULATIVE SUPPLEMENT Editor's Comment: See also Will Contests, 96 Am. Jur. Trials 343. Cases: Decedent's general personal representative, rather than her literary personal representative, had authority to make decisions regarding out-of-state will contest, involving both literary and non-literary rights, which was pending at time of decedent's death, where codicil appointing literary personal representative gave him control over literary rights that decedent owned or would come to own, but did not expressly give him authority to pursue rights over other literary works, and obtaining control of literary rights was not direct cause of action being pursued in will contest. NMSA 1978, 45-1-102. Estate of Kerouac, 1998-NMCA-159, 966 P.2d 191 (N.M. Ct. App. 1998), cert. granted, (Oct. 28, 1998). [Top of Section] [END OF SUPPLEMENT] 2. Scope It is proposed in the present article to discuss generally the problems encountered in litigation when one of the parties to an action is deceased. However, since it is not feasible to cover in detail all possible actions that might be brought by or against a decedent's estate, emphasis will be placed on problems that are common to such actions. Therefore, reference should be made to other articles in this series for a consideration of strategy and tactics in particular factual situations.[1] There are, of course, certain types of litigation that by definition involve a decedent's estate, or at least involve his


fiduciary as a nominal party, some of which are also treated elsewhere in this series, for example, will contests,[2] and wrongful death actions.[3] Other actions, with which this article is similarly not concerned, include one for declaration of the rights of persons interested as beneficiaries in a decedent's estate,[4] and one for abatement or revival of existing litigation after the death of one of the original parties. However, if in the latter case, the action does not abate or it is successfully revived, and a trial ensues, problems similar to those discussed herein may arise. To illustrate the problems that may be encountered when a decedent's estate is a party, particular attention will be given to two kinds of litigation, which together seem to involve most of the problems: (1) actions at law for personal services, and (2) partnership accounting suits that would ordinarily invoke the chancery powers of the court. The death of a party almost always results in the interposition of preliminary technicalities of administration that are not present in ordinary lawsuits. These technicalities vary from jurisdiction to jurisdiction, and it is not possible in an article of this length to treat them with any particularity. However, reference to certain general trends in the law is necessary and will be made herein in order to cover the subject adequately. 3. Definitions Certain terms will be used in this article to describe the parties involved in the types of litigation with which the article is concerned. Definitions of the most important of these terms are provided in the paragraphs that follow. In this regard, it will be noted that a decedent's estate cannot sue or be sued except in the name of the personal representative of the decedent, that is, the executor or administrator.[5] However, to avoid continual repetition of the phrases "personal representative" or "executor or administrator," the discussion shall use the all-inclusive word "fiduciary." It should, therefore, be understood that, while the term "fiduciary" includes trustees of testamentary and inter vivos trusts, trustees in bankruptcy, guardians, creditors' committees, agents, and many other categories of persons who represent others, it will, in this article, refer exclusively to executors and administrators. The fiduciary's opponent will frequently be referred to as "the survivor," to indicate a party who had transactions with a person who has since died. The word "claimant" will also be used when appropriate, as when a claim for personal services is involved. However, that term is obviously unsuitable when a fiduciary is the plaintiff in the litigation, and it is of questionable accuracy in describing either (or any) of the parties to a partnership accounting involving a decedent's estate. Moreover, the word "claimant" does not seem at all useful when discussing the "dead man" statute.[6] 4. Types of actions involving a decedent's estate [Cumulative Supplement] It must be emphasized that the administration of a decedent's estate is in part a liquidation proceeding for the benefit of the decedent's creditors, who have a claim to the assets of his estate for the satisfaction of the debts owing to them that precedes any claims by the beneficiaries.[7] Indeed, in some states, if there are no debts, or if decedent's successors are able and undertake to pay creditors, they are permitted to take possession of the property without administration.[8] Since a decedent's creditors occupy a priority status with respect to the assets of his estate, a lawyer representing the fiduciary administering the estate should remember that his client owes a duty to those who present claims. Claims should never be denied out of hand. The lawyer should also remember that the purpose of administration statutes is to complete the administration proceeding as expeditiously as possible. Litigation is always time-consuming and should therefore be avoided if at all possible. The legal elements of an action for personal services are (1) performance of the services, (2) with the expectation of receiving pay, and (3) at the request of the party for whom the services are performed, or acceptance of the benefits of the services by the recipient under circumstances indicating an intention to pay for them in some way.[9] The law will not aid a


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volunteer nor, unless the agreement was express,[10] will it grant relief to one whose relationship to the recipient would require the inference that the services were performed out of a sense of duty. While, in the case of the action for services, the decedent's estate will almost always, if not always, be the defendant, the estate may be either the plaintiff or the defendant in a partnership accounting suit. The factual elements that must ordinarily be established in a partnership accounting suit are (1) the existence of a partnership, (2) the terms of the partnership contract, (3) a demand for an accounting, (4) a refusal to give an accounting, or the making of a defective accounting, and (5) possession by the defendant of all or a part of the partnership assets. In most cases, it could be supposed that the surviving partner or partners would remain in possession of the partnership assets upon the death of a partner, so that the estate would be the plaintiff. However, this is not necessarily true, for if the deceased partner was the active partner, the others being merely investors or silent partners, or if there was merely the appearance of a partnership, the business being actually a sole proprietorship of the decedent, his estate will probably have custody of the business assets. Whether the decedent's estate is plaintiff or defendant, the controversy usually results from the conviction of the party out of possession that he has not been accorded a just share of the profits or assets of the business. CUMULATIVE SUPPLEMENT Cases: Authority to act for estate: Under New York law, decedent's nephew was not liable for breach of oral contract pursuant to which appraiser sought payment for services rendered in assessing items of personal property of decedent's estate, after estate's executor informed him that services were no longer needed; even though decedent's nephew initially contacted appraiser for purpose of possibly retaining him to evaluate items of estate's property, was son of estate's executors, and allegedly represented that he was acting on behalf of estate's executors, existence of estate as principal was disclosed, and there was no evidence that decedent's nephew possessed power to bind estate, that he represented such power to appraiser, or that he intended to be personally bound by contract between estate and appraiser. Melnitzky v. Rose, 299 F. Supp. 2d 219 (S.D. N.Y. 2004); West's Key Number Digest, Limitation of Actions 216(1). The executor or administrator of an estate occupies a fiduciary relationship in respect to all parties having an interest in the estate including heirs, beneficiaries under the will, and creditors, and, as a fiduciary, has the duty towards these parties to protect their legal rights in the estate. Hecht v. Superior Court (1993) 16 Cal App 4th 836, 20 Cal Rptr 2d 275, 93 CDOS 4531, 93 Daily Journal DAR 7656. Generally, a judgment cannot be rendered for or against a decedent or the personal representative of a decedent's estate until the personal representative has been made a party; however, that rule has not been followed blindly, but only to prevent prejudice to the parties. Thus, in an action by the purchaser of a home against the sellers, the realtor, and the realtor's salespersons for fraud, misrepresentation, breach of fiduciary duty, breach of contract, negligence, and intentional infliction of mental distress, any error the trial court committed in entering summary judgment in favor of one of the salespersons after his death was harmless, since none of the parties were prejudiced by the untimely death. Plaintiff had a full opportunity to present evidence in opposition to the motion, choosing not to do so for reasons wholly unrelated to the death. The death was not disclosed by any of the parties, thus giving the trial judge no occasion to consider it. Moreover, assuming the salesperson left an estate of any substance, the estate could not have been prejudiced by a judgment of dismissal in the salesperson's favor. Sacks v. FSR Brokerage, Inc. (1992, 2nd Dist) 7 Cal App 4th 950, 9 Cal Rptr 2d 306, 92 Daily Journal DAR 8844. In action by children of decedent's daughter arising out of alleged improprieties of decedent's son in handling decedent's property, court erred in dismissing complaint with prejudice where it alleged facts that could support claim for wrongful


interference with testamentary expectancy; complaint alleged that decedent had prepared will leaving all her assets to her son and daughter in equal shares, with their shares to go to their issue if either predeceased decedent, that daughter had managed decedent's property until daughter became ill, that son had then taken over and had transferred all or great majority of assets to himself, to himself and decedent jointly, or to third parties, and that after decedent's death, son refused to probate will, claiming he owned all of decedent's assets; court should have allowed children of daughter to amend their complaint, even though it had inartfully requested probate of will while maintaining that decedent had desired her assets to pass outside of probate. Henshall v. Lowe (1995, Fla App D2) 657 So 2d 6, 20 FLW D 1046. The trial court erred in dismissing an action without leave to amend, where a person injured while testing a circular saw being sold on behalf of the estate filed a tort action against the personal representative of the estate, and the action was dismissed without leave to amend on the ground that the representative could only be personally liable for the acts alleged in the complaint, because the estate could be liable for the tort of its personal representative, provided the tort was committed in the course of estate administration. Schumann v. Weathers (1994, Fla App D5) 643 So 2d 690, 19 FLW D 2181. The following four elements are required to establish equitable jurisdiction for accounting: (1) need for discovery; (2) complicated nature of accounts; (3) existence of fiduciary or trust relationship; and (4) inadequacy of legal remedies; of these, existence of fiduciary relationship is most critical element. Shaner v. System Integrators, Inc., 63 S.W.3d 674 (Mo. Ct. App. E.D. 2001); West's Key Number Digest, Account 1.

[Top of Section] [END OF SUPPLEMENT] 5. Fact situations giving rise to action [Cumulative Supplement] Although the immediate cause of an action to recover for personal services or for a partnership accounting involving a decedent's estate cannot always be said to be the death of one of the parties, death of a party is frequently the moving cause of the litigation. It removes the person upon whom someone else may have placed reliance, and vests control of the decedent's business interests or property in another person or in a group of persons whose attitude towards the survivor may be unconcerned or even hostile. The employee or associate of the decedent can no longer look toward an ultimate partnership with him; even if a partnership existed, the death of a partner dissolves it.[11] Following the death of the promisor, the person who performed services for him may now discover that there is no will, or, if there is a will, that it does not name him as a beneficiary. Quite often, such actions grow out of legitimate transactions; an old person is sick and feeble and needs physical help in performing the ordinary functions of daily life. He has no relatives who are close to him, so he asks a neighbor or a friend for help, or actually employs a fulltime housekeeper. Typically, the employer or recipient is a person who has only a modest amount of cash at his disposal, or is, at least, one whose spending habits are close; otherwise, it could be expected that he would pay for the services, and the person performing them would expect to be paid, on a current basis. As a result, the employer may orally promise to leave the employee specific property, such as his house, in return for the employee's services, or may, in general terms, promise, in return for such services, to see that the employee is well compensated after the employer's death. He may actually make such a will, in keeping with his promise to compensate his employee, but, thereafter, having become influenced by another person, perhaps by a relative who may finally have assumed the obligation of caring for him, may make a new will. As indicated previously, when the promisor dies it then becomes apparent that the person performing the services has been left without the promised consideration for his services. Perhaps the recipient never really intends that the person caring for him have anything for his labors and, in effect, attempts to defraud him by doing nothing


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about making the promised will. On the other hand, the claimant may have been the sole initiator of the relationship, having volunteered his services in the expectation that he could influence the recipient to make him his heir. Thus, counsel is concerned with relationships that might have continued to exist indefinitely without litigation were it not for the occurrence of an event that is entirely extraneous to the facts upon which the legal relationship was based. To this extent, the actions that will be used as examples for purposes of discussion are unique. An action on a note or for personal injuries sustained in an accident might involve a decedent's estate only incidentally. Such litigation would be initiated because of other considerations, such as nonpayment of the note or the insurance company's failure to make a satisfactory offer of settlement, and would be brought whether or not death had intervened. Thus, it may be postulated that both exemplary types of litigation involve, as one of their factual elements, an attempt to repair broken hopes frustrated by death, and the conscious or unconscious tendency of the surviving party to the transaction will be to construe the facts in the way most beneficial to himself. In any of these cases, a lawsuit against the recipient's estate to establish the claim for services will very likely result. If the transaction is valid, both parties have acted honestly, and there has been no interference by third parties, the person who performed the services will receive his inheritance, and the matter will be concluded. If, however, a claim is required to enforce payment, the heirs, no matter how remote or how disinterested they were in the decedent's welfare during his lifetime, will almost certainly oppose payment of the claim vigorously. Since they will probably control the administration of the estate by virtue of the fact that one of their number is the fiduciary, an acquiescence is probably not to be expected. Even a fiduciary who has no personal interest in the estate will undoubtedly feel duty-bound to offer some resistance, because such claims are, at best, vague and do not lend themselves to accurate evaluation. The fiduciary, being in a position of trust, must act in the best interests of his principals, who are[12] the decedent's creditors and his heirs. He cannot, without personal liability, permit the estate to be depleted. CUMULATIVE SUPPLEMENT Cases: In action by woman seeking compensation for services rendered to decedent, with whom she and her children had lived for four years and by whom she had child, court did not err in denying woman's claim, even though she had helped decedent with farming when he became disabled, and had fed, clothed, bathed, and generally taken personal care of him and children, where there had been no express contract between woman and decedent, and where there could be no contract implied in law given absence of evidence that decedent had known that woman expected money compensation for her services and had accepted them on that basis. Wade v. Brooks (1992, SC App) 413 SE2d 333. [Top of Section] [END OF SUPPLEMENT] 6. Objectives of the parties The claimant or survivor will have a personal and immediate financial interest in the resolution of the controversy. His lawyer must, therefore, have as his primary objective the achievement of the best possible monetary result for his client. The fiduciary, on the other hand, is essentially a stakeholder or conduit of rights and property. Any financial interest he may have in the outcome will result from his wearing another hat, for example, as a creditor or as one of the next of kin of the decedent. His ultimate objective should be to carry out his trust as expeditiously as possible while still performing his fiduciary obligations. Naturally, he will wish to protect himself from any personal liability or surcharge on his accounts. The fiduciary's lawyer must, therefore, conduct his representation in such a way that his client will be fully protected and the administration proceeding concluded at an early date. In the conduct of the case by the fiduciary's lawyer, therefore, the


importance of dollars and cents will be somewhat diluted by these other considerations. B. Effect on Action of "Dead Man" Statute 7. In general [Cumulative Supplement] A discussion of the "dead man" statutes enacted by the various states, which concern the competency of certain witnesses to testify when a decedent's estate is involved in the litigation, may seem to be more appropriate to the portion of this article dealing with the subject of the trial or preparation for trial. It is inserted here, however, because the lawyer's evaluation of the testimonial evidence available in such cases to him or to his adversary influences, or should influence, everything he does from the initial interview onward. Many cases involving a decedent's estate are won or lost because one side or the other overlooks the peculiar problems of proof that are presented by the "dead man" statute in force in the jurisdiction. Practically all jurisdictions disqualify as a witness, or limit the scope or effect of the testimony of, a party or one interested in a suit when the adverse party is the personal representative of, or successor in interest to, a deceased or insane person.[13] This disqualification, first applied at common law as to parties and interested persons generally,[14] is perpetuated by the so-called "dead man" statutes with respect to parties opposing a deceased or insane person's representative.[15] The purpose of such statutes is two-fold: (1) to put the parties on an equal footing so that when one party in interest is silenced by death or insanity, the other is also silenced by the statute, and (2) to remove the temptation to perjury that might exist if the interested party could testify without fear of contradiction.[16] Some statutes disqualify the surviving party absolutely as to all events occurring before the decedent's death; others provide a partial disqualification, applying only to conversations or transactions with the deceased or insane person; while still others permit the party to testify without such restrictions, but provide that no judgment shall be entered in his favor unless his testimony is corroborated.[17] In any event, the attorney proposing to prosecute a client's claim against a decedent's estate must be aware that he may need more than the testimony of his client to make his case, and, conversely, the attorney defending such a claim should be cognizant of the possible incompetence or limited utility of such testimony. CUMULATIVE SUPPLEMENT Editor's Comment: See also Terms of Oral Contract with Decedent, 39 Am. Jur. Proof of Facts 2d 91. [Top of Section] [END OF SUPPLEMENT] 8. Actions to which statute applies [Cumulative Supplement] "Dead man" statutes apply typically to contract actions. Moreover, unless specifically excepted, tort actions are also included within the ambit of such statutes.[18] This might be overlooked if the particular statute refers to "transactions" with the decedent, thereby creating the impression that only contractual relationships are protected. However, a statutory prohibition couched in terms of "transactions" with the decedent would not preclude testimony by the survivor in a tort action


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as to the physical situation or the conduct of the deceased not connected with or influenced by the conduct of the witness.[19] A statutory exception applicable to "negligence" actions does not include workmen's compensation cases.[20] CUMULATIVE SUPPLEMENT Cases: The dead man's statute does not apply when the action is not against the executor or administrator of an estate and the claim does not represent a demand against the estate. I.C. 9-202, subd. 3; Rules of Evid., Rule 601(b). Rowan v. Riley, 139 Idaho 49, 72 P.3d 889, 50 U.C.C. Rep. Serv. 2d 1127 (2003); West's Key Number Digest, Witnesses 128. "Party," as used in the Dead Man's Statute, means the witness must be a party to the issue, or if merely a party to the record then to be incompetent the witness must have an interest in the issue in favor of the party calling him and adverse to the estate. West's A.I.C. 34-45-2-4. Lasater v. House, 805 N.E.2d 824 (Ind. Ct. App. 2004), transfer granted, opinion vacated, IN RAP 58(A), (Sept. 29, 2004); West's Key Number Digest, Limitation of Actions 140(1). An interest which would render a witness incompetent to testify under the Dead Man's Statute is one by which the witness will gain or lose by the direct legal operation of that judgment; interest must be direct, present, certain and vested, it must be a real and legal interest, it must be adverse to the estate, and a bias or sentiment is not itself sufficient. West's A.I.C. 34-45-24. Lasater v. House, 805 N.E.2d 824 (Ind. Ct. App. 2004), transfer granted, opinion vacated, IN RAP 58(A), (Sept. 29, 2004); West's Key Number Digest, Limitation of Actions 140(2). Dead Man's Statute did not apply in attorney disciplinary proceeding to preclude attorney from testifying how he handled $200,000 down payment in real estate transaction wherein he represented vendor who subsequently died; although attorney testified as witness in his own behalf or interest, he did not testify against executor, administrator or survivor of vendor, but rather, against Disciplinary Committee. McKinney's CPLR 4519. In re Zalk, 10 N.Y.3d 669, 862 N.Y.S.2d 305, 892 N.E.2d 369 (2008); West's Key Number Digest, Witnesses 171. Dead Man's Statute only applies to testimony against the executor, administrator or survivor of deceased; it does not foreclose testimony that potentially cuts against these parties' interests in contingent future proceeding. McKinney's CPLR 4519. In re Zalk, 10 N.Y.3d 669, 862 N.Y.S.2d 305, 892 N.E.2d 369 (2008); West's Key Number Digest, Witnesses 171.

[Top of Section] [END OF SUPPLEMENT] 9. Testimony barred by statute [Cumulative Supplement] As indicated above,[21] the purpose of "dead man" statutes is primarily the exclusion, or limitation of the scope or effect, of testimony by a surviving party. Persons other than the surviving party who may be disqualified, depending upon the wording or interpretation of the statute of the particular jurisdiction, include the spouse of the surviving party;[22] predecessors in interest, such as a claimant's assignor;[23] sureties;[24] a co-obligor;[25] and generally those persons against whom the judgment would operate as a bar or against whom the judgment might be introduced into evidence.[26]


Though the statutory disqualification applies only to transactions or conversations with the decedent, the adverse party may, nevertheless, not be permitted to testify as to services performed with the decedent's knowledge, on the ground that the effect of such testimony would be to show an implied contract to pay for the services.[27] Some statutes disqualify the personal representative[28] and heirs[29] as well as the adverse party. CUMULATIVE SUPPLEMENT Cases: For the purpose of application of the Dead Man's Statute, an adverse interest that would render a witness incompetent under the statute is one by which the witness will gain or lose by the direct, legal operation of the judgment. West's A.I.C. 3445-2-4(d)(2). In re Guardianship of Knepper, 856 N.E.2d 150 (Ind. Ct. App. 2006), decision clarified on reh'g, 861 N.E.2d 717 (Ind. Ct. App. 2007) and transfer denied, 869 N.E.2d 458 (Ind. 2007); West's Key Number Digest, Witnesses 140(3). Executrix's testimony concerning promissory note she found among decedent's effects was offered in her capacity as executrix, not as an agent of decedent, and thus, section of dead man's statute, providing that testimony of a decedent's agent regarding a transaction agent had with a party to the suit renders the party against whom the evidence was adduced competent to testify, did not apply to make alleged parties to promissory note competent to testify, where decedent, not executrix, negotiated note, and executrix was not party to transaction. West's A.I.C. 34-45-2-6. J.M. Corp. v. Roberson, 749 N.E.2d 567 (Ind. Ct. App. 2001); West's Key Number Digest, Witnesses 176(1).

[Top of Section] [END OF SUPPLEMENT] 10. Testimony not barred [Cumulative Supplement] Where the interest of coparties is several and not joint, one coparty is ordinarily permitted to testify in favor of another, although he may be barred from testifying for himself.[30] Accordingly, a decedent's personal representative cannot prevent a witness who does not have a joint interest with the survivor from testifying in the latter's behalf by making the witness a nominal party to the action.[31] In states where the statutory disqualification runs to communications or transactions, the adverse party may give his opinion as to the handwriting or signature of the decedent, at least if his opinion is derived from information other than that gleaned from his participation in the transaction at issue.[32] Generally, a director, officer, or managing agent is permitted to testify on behalf of his corporation and against the fiduciary of a decedent's estate,[33] unless the statute disqualifies "agents" of a corporation and not merely "parties."[34] Similarly, the competency of a stockholder to testify for the corporation may depend upon whether the statute bars "interested persons" or only "parties."[35] Generally, the agent of a personal principal is not disqualified from testifying for his principal, whether the latter is the surviving or the deceased party, and even though the transaction was with the agent, provided that he has no direct interest in


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the litigation.[36] However, if the principal was present during the transaction, the agent may be so identified with the principal as to disqualify him as a witness to the same extent as the principal.[37] Moreover, if the agent is deceased, his principal may be incompetent to testify against the other party's estate.[38] Under some circumstances, introduction of the decedent's deposition by the adverse party will remove the latter's disqualification.[39] Whether the statutory disqualification is absolute or partial,[40] it generally would not apply to events occurring after the decedent's death.[41] CUMULATIVE SUPPLEMENT Cases: Identification of deceased's signature: Donee's testimony, which was offered to establish his deceased mother's gift of a lithograph was barred by Maryland's Dead Man's Statute; however, statute did not bar donee's identification of mother's signature on the deed of gift. West's Ann.Md.Code, Courts and Judicial Proceedings, 9-116. Estate of Genecin ex rel. Genecin v. Genecin, 363 F. Supp. 2d 306 (D. Conn. 2005); West's Key Number Digest, Witnesses 164(3). Dead Man's Act did not bar decedent's estate from questioning plaintiff motorist whether automobile accident which gave rise to lawsuit occurred on road with 30-mile per hour speed limit; question concerning fact that existed independent of collision did not fall within substantive requirements of Act, and plaintiff did not have standing to raise Act. S.H.A. 735 ILCS 5/8-201. Moran v. Erickson, 231 Ill. Dec. 484, 696 N.E.2d 780 (App. Ct. 1st Dist. 1998). In action between administrators of two estates, state dead-man statute did not preclude testimony by attorney for defendant administrator, as attorney's right to recover fees from estate was not contingent upon successful defense of estate, and attorney was testifying for defendant rather than on his own behalf. Popham v. Taff (In re Estate of Sewart) (1995, 1st Dist) 274 Ill App 3d 298, 210 Ill Dec 175, 652 NE2d 1151, reh den (Jul 21, 1995).

[Top of Section] [END OF SUPPLEMENT] 11. Waiver of statute [Cumulative Supplement] While a "dead man" statute seeks to redress testimonial imbalance, it does not always accomplish that precise result. In some situations, the statute will serve its purpose by interposing an insuperable barrier to testimony by the surviving party. However, in other situations, the statute will be largely ineffective, mainly because of the operation of the doctrine of waiver. For example, if the surviving party makes out a prima facie case without himself testifying, the attorney representing the estate may find it necessary to cross-examine the survivor to establish some point of his defense. However, if he does so, he may thereby waive the protection of the statute and open the door to testimony by the survivor on other aspects of the case that would otherwise have been excluded by the statute.[42] Waiver may also result under particular statutes from taking the deposition of the surviving party, serving him with interrogatories, or directing other discovery procedures to him.[43] Under other statutes, courts have declined to find a waiver unless the deposition, interrogatory, or other discovery proceeding is introduced in evidence.[44] Moreover, in some jurisdictions, the survivor may refuse to testify on deposition unless the fiduciary waives the statute for the purposes of all hearings and proceedings in the case.[45]


In those jurisdictions in which the statutory disqualification applies only to conversations and transactions with the decedent, inquiry of the survivor as to other matters probably would not effect a waiver of the statute's protection.[46] However, where the statutory disqualification is couched in absolute terms, as applying to any event occurring before the decedent's death, any inquiry directed to the survivor concerning a predeath occurrence may operate as a complete waiver of the statute.[47] Other acts on the part of the decedent's personal representative, such as the introduction of testimony of the decedent taken de bene esse,[48] may result in waiver of the statutory protection. Disqualification under a "dead man" statute may also be "waived" by failure to make timely objection or by objecting on the wrong ground.[49] In view, therefore, of the manifold ways in which the protection of the "dead man" statute may be lost, it behooves the lawyer for the estate to make a meaningful analysis of the case, rather than placing his entire reliance on the statute. CUMULATIVE SUPPLEMENT Cases: Administrator of decedent's estate and decedent's sister waived the applicability of the dead man's statute, in action challenging decedent's inter vivos transfer of farm to caretakers, when administrator and decedent's sister designated caretaker's deposition testimony, which related to matters or transactions concerning decedent, in support of their motion for summary judgment. Rules of Evid., Rule 601; West's A.I.C. 34-45-2-4. Carlson v. Warren, 878 N.E.2d 844 (Ind. Ct. App. 2007); West's Key Number Digest, Witnesses 178(4). Grandchildren waived any objection to testimony from testator's financial advisor based on a violation of the Dead Man's Statute, in proceeding to restore assets that alleged testator's sister fraudulently named herself as beneficiary on some of testator's accounts, where financial advisor was not entitled to any of the funds in accounts, and grandchildren never objected to financial advisor's testimony based on the Dead Man's Statute. West's A.I.C. 34-45-2-4(d)(2). In re Guardianship of Knepper, 856 N.E.2d 150 (Ind. Ct. App. 2006), decision clarified on reh'g, 861 N.E.2d 717 (Ind. Ct. App. 2007) and transfer denied, 869 N.E.2d 458 (Ind. 2007); West's Key Number Digest, Witnesses 181. Mere taking of a deposition does not waive applicability of dead man's statutes nor does requesting an admission constitute a waiver of incompetency of witness receiving that request, but when a party uses a deposition or admissions in court, the party is in fact using the information for an evidentiary purpose; if the deposition testimony concerns matters within scope of the dead man's statutes, then the party who offered the deposition testimony into evidence has waived the incompetency of the witness, because that party has relinquished the benefit bestowed by the statutes. IC 34-45-2-4 et seq. (1998 Ed.). J.M. Corp. v. Roberson, 749 N.E.2d 567 (Ind. Ct. App. 2001); West's Key Number Digest, Witnesses 178(1). By introducing the deposition testimony of respondent in which she testified that she received money from decedent following a withdrawal from decedent's savings account, executor of decedent's estate waived the protection of the Dead Man's Statute and opened the door to the otherwise incompetent testimony of respondent at the hearing on executor's petition seeking discovery and delivery of the proceeds of a bank account and other property allegedly belonging to decedent at the time of her death. McKinney's CPLR 4519. In re Estate of Lamparelli, 6 A.D.3d 1218, 776 N.Y.S.2d 665 (App. Div. 4th Dep't 2004); West's Key Number Digest, Limitation of Actions 178(4).

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[END OF SUPPLEMENT] II. Client Interview 12. In general; interview checklist [Cumulative Supplement] As in any other case a lawyer undertakes he must first acquire a general familiarity with the facts as they are understood by the client, and with the proofs available to establish the pertinent facts.[50] However, in cases involving decedents' estates, the lawyer must investigate more carefully the availability of witnesses and documentary evidence than might be his practice otherwise at the initial interview due to the limitations imposed by the "dead man" statute on use of the real parties in interest to prove his case. This aspect of the initial interview is more important to the lawyer representing the surviving party than it is to the lawyer for the fiduciary because, of course, the latter has the option of waiving the statute, if necessary, to establish his position. The following is a list of factual matters relevant to a claim against an estate that should be the subject of inquiry by the lawyer representing the survivor at the initial interview with his client: 1. Names and addresses of the decedent, the fiduciary, and the fiduciary's lawyer. 2. Probate court case number. 3. Date of decedent's death. 4. Decedent's approximate age at death. 5. Date of appointment of fiduciary or of publication of notice to file claims. 6. Decedent's occupation. 7. General extent of decedent's property. 8. Decedent's indebtedness. 9. Decedent's family situation. 10. Whether will executed by decedent has been filed in his estate. 11. Client's knowledge of previous wills, if any, and of persons having custody of such wills. 12. Books of account or other records maintained by client relating to transactions with decedent. 13. Dates services were performed by client or when other transactions occurred with decedent. 14. Client's correspondence with the decedent relative to matters in issue. 15. Existence of formal, written contracts, such as partnership agreements, notes, or construction contracts.


16. Balance sheets, profit and loss statements, and physical inventory records relating to partnerships, proprietorships, or corporations in which decedent was interested. 17. Names and addresses of disinterested witnesses to transactions between the survivor and the decedent. 18. Client's contacts with representatives of the estate relative to his claim and result of such contacts. The inquiry suggested in Items 5 and 18 above may be important in determining whether the client's claim has been, or still may be, timely presented.[51] In the same connection, the existence of a will specifically directing payment of the client's debt may dispense with the statutory requirements relative to presentation of a claim;[52] for that reason, and others mentioned later, Items 10 and 11 are included as proper subjects of inquiry. Of course, the lawyer must begin evaluating the prospects of recovery immediately. Information that would be contained in a decedent's balance sheet and other financial records (Item 16), as well as knowledge of his physical assets (Item 7), are much more important than if the decedent were still living. There is no longer any possibility that the decedent's property available for satisfaction of his debts will be increased by his personal efforts. Furthermore, a debtor's death brings into play a schedule of priorities for the payment of his debts, as to which inquiry should be made (Item 8 above), based upon the nature of the debts or the identity of the claimants.[53] Therefore, the rewards for diligence in pressing a claim are not as great as they are in the debtor's lifetime when the first creditor to levy and enforce an execution on a judgment, is usually paid before subsequent lienors or general creditors. Thus, while a client might have a valid provable claim, the net worth of the estate may be such, or the priority of his claim may be so low, that legal action may not be advisable. The family situation (Item 9 above) is important in this regard because if a widow or minor children, or both, survive, there may be family allowances due them, which are paid prior to all creditors' claims and may substantially exhaust the assets of the estate. If no proceeding for administration of the decedent debtor's estate has been filed, it will be necessary to consider steps to initiate or to compel initiation of such a proceeding. For this purpose, it also will be necessary to know, among other matters, the extent of the decedent's assets, the names and addresses of the family members primarily responsible for the administration, and whether the decedent executed a will. CUMULATIVE SUPPLEMENT Cases: Attorney-client privilege: Trustee for estate was entitled to discovery from fiduciaries of estate, including access to attorney-client advice and accounting advice previously provided to fiduciaries; trustee was the current holder of the attorney-client privilege, and the power to assert the privilege, or waive it, passed from predecessor trustee to the current trustee in order to effectuate the continuous administration of the estate. In re Estate of Fedor, 356 N.J. Super. 218, 811 A.2d 970 (Ch. Div. 2001); West's Key Number Digest, Witnesses 217.

[Top of Section] [END OF SUPPLEMENT] 13. Evaluating the client In cases of the type under consideration, the lawyer must evaluate his prospective client in more depth than might otherwise be required.[54] The finality of death quite often leaves business unfinished, thus tempting the survivor to try to


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make dispositions in accordance with his own expectations rather than as justified by existing facts. While there are many people who assist aged persons out of kindness, there are others who are motivated by more material inducements. If the survivor was a mere volunteer acting in the hope of a reward or in the belief that he could influence the invalid to make a testamentary disposition in his favor, and if the decedent did not express his gratitude as expected, the survivor will probably convince himself that something is owed him. In the same way, a person who has managed a business for a decedent, perhaps contributing greatly to its value through his own personal efforts, might tend to create a partnership out of a mere compensation arrangement based on profit-sharing. The decedent may even have held out the possibility of a partnership as an inducement to greater efforts on the manager's part. But if the elements establishing full participation in the profits and losses are not present, or if the prospective partnership was never consummated, the claim will fail. A lawyer who cannot or will not make an independent assessment of the client's capacity for self-delusion or dishonesty will do a disservice to both the client and himself. In the case of the pseudopartnership, the client would be better advised to maintain the good will of the decedent's successors with a view toward a possible purchase of the business on fair terms to himself than to insist on an accounting as to a fancied partnership with the decedent. These considerations present the lawyer with a moral and ethical problem. The fact that he is an advocate, not a judge or jury, does not excuse him from the duty of exercising some judgment as to his client's sincerity and integrity. This is particularly true in cases of this type, where the opposite party to the transaction on which the claim is based is not available to give his side of the story. While there are, to be sure, many cases in which the survivor is imposed upon by a decedent who promised much, while intending to deliver little or nothing, the possibility of fraud resulting from prosecution of unfounded claims is always present and should be guarded against. 14. Fees and charges [Cumulative Supplement] Compensation should be discussed by the lawyer and the client at the first conference, and this discussion should be initiated by the lawyer.[55] In addition to fostering the trust that is the foundation of a solid lawyer-client relationship, a full and frank disclosure of the required financial arrangements will probably discourage unwarranted litigation. A contingent fee will be appropriate in case of a claim for personal services, particularly when the client is not engaged in the business of rendering services of the type for which claim is made, as where the claim is for care given an aged person. [56] In the case of claims arising from services rendered in a professional or commercial relationship, in which attorney fees incurred in enforcing the claim may be deductible as a business expense for income tax purposes, an hourly or similar basis of compensation should also be considered. The appropriate contingent percentage will vary from one locality to another, but it seems that a one-third share of the recovery for the lawyer, whether or not the suit is ultimately tried, should be the minimum,[57] since the development of competent proofs demands more investigation, technical skill, research, and skill in trial than would be the case if the decedent were living and amenable to suit. Indeed, for these reasons, a retainer or suit fee is indicated in most cases, which fee may be applied against the contingent fee if recovery is had or retained if suit is unsuccessful.[58] Although partnership accounting suits are frequently handled on strictly an hourly or per diem basis, rigid adherence to such a practice will, in many situations, be unfair to the client or to the lawyer. While the lawyer's charges should not necessarily be directly proportionate to the time spent in prosecuting the litigation, they should reflect both the time spent and the results achieved. It is a well known fact that a minimum amount of time spent in knowledgeable, skilful negotiations quite often produces a more satisfactory and valuable result to the client than interminable hours of legal research and courtroom time. The important thing for the lawyer to remember is that a surviving partner is a man engaged in a business that he probably wishes to preserve at a cost he considers just, at least to himself. He will expect his relationship with his counsel to be businesslike, and will bear in mind the federal income tax implications of his legal costs. If he does not understand the tax consequences, his counsel should be prepared to educate him on that point. In any case, however, the practice of submitting


to the client periodically a transcript of the attorney's time record, showing the dates that services were performed, the nature of the services rendered, and the time spent in each instance, is recommended. The lawyer should also consider the advantage to himself and to his client of periodic, partial billings on account. Partial billings would necessarily be based almost entirely on time spent, but need not prejudice counsel's right to take results into consideration at the time of final billing. Partial billings, in addition to being easier to pay than one large, lump sum, allow the client to see where he stands and where he might be going in the matter of his legal costs, thus promoting in him a more pragmatic attitude toward compromise. The attorney for the fiduciary is in a slightly different position. In most cases, he will have acted as the fiduciary's legal counsel prior to the controversy with the claimant. In addition, the reasonableness of his fee as an item of credit in the fiduciary's accounts will generally be a matter for review by the probate court. This is tantamount to saying that the court will fix the fee, although, theoretically, the fiduciary is liable personally for any excess of the amount he charges to attorney fees over the amount allowed by the court. In addition to the amount of time spent and the result obtained, the court will look also to the availability of estate funds to meet the charge. Thus, the need for a discussion of fees at the initial conference between attorney and fiduciary may not be as apparent as in the case where the client is the survivor. The lawyer should bear in mind, though, that compensation for services rendered in the unsuccessful defense of a valid claim that the fiduciary ought, in the exercise of ordinary prudence, to have paid in his capacity as trustee for the primary benefit of creditors may not be allowed by the probate court.[59] Therefore, insistence by the fiduciary client upon the defense of a claim that the lawyer in the exercise of his independent judgment deems proper for payment should prompt the lawyer to suggest that the client seek other counsel or to demand that the fiduciary personally guarantee payment of his fee for services rendered in defending the claim. CUMULATIVE SUPPLEMENT Cases: Letter written by attorney testator to future attorney for his estate, directing that his executor pay attorney fee for legal services rendered to estate at rate of 7 percent in consideration of many favors extended him by attorney, including sharing of office space and rendition of services at reduced rates, was unenforceable where legal services to estate were not satisfactorily performed; attorney's fee fixed in letter was not gift but compensation for services expected to be performed. If letter were considered in nature of retainer agreement, award of counsel fees thereunder presupposed satisfactory performance of services. Re Estate of Mehr (1991) 152 Misc 2d 419, 576 NYS2d 993. [Top of Section] [END OF SUPPLEMENT] 14.5. Attorneys' fees chargeable to estate [Cumulative Supplement] CUMULATIVE SUPPLEMENT Cases: Attorney whose client died while client's medical malpractice action was in the discovery phase, and who was denied permission to pursue the case by personal representative of client's estate, was entitled to recover in quantum meruit the reasonable cost of the legal services provided to client before his death, even though attorney had contingent fee arrangement


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with client that did not provide for attorney fees in the absence of a monetary recovery; attorney-client relationship and contingent fee contract both terminated upon client's death, and there was nothing in the record to indicate that attorney was discharged for cause. In re Estate of Simmons, 362 Ill. App. 3d 944, 299 Ill. Dec. 302, 841 N.E.2d 1034 (5th Dist. 2005); West's Key Number Digest, Attorney and Client 134(2). In settling account of attorney who acted as temporary administrator of decedent's estate, award for 120 hours of legal services would be reduced to award for 50 hours of legal services where (1) attorney submitted 17 pages of time records to support claim, but court could only find 45 to 50 hours of recorded time for actual legal services, and (2) remainder of entries consisted primarily of telephone calls to various persons involved in providing goods or services to farm that was major asset of estate, writing of letters on unknown subjects, and conducting other unspecified business, or time spent visiting farm. Re Estate of Passuello (1992, 3d Dept) 184 AD2d 108, 591 NYS2d 542. In action by temporary administrator against estate for extra compensation for attorney's fees, such fees were reduced, where work done on decedent's farm was not legal service, office services did not fit within ambit of statute, and list of "general legal work" contained such vague and generalized descriptions that it was insufficient to establish that acts were legal as opposed to executorial in nature. Re Estate of Passuello (1992, 3d Dept) 184 App Div 2d 108, 591 NYS2d 542. In final executors' accounting in which court was required to determine fees of several attorneys or firms which rendered services to estate, attorneys' fees would be limited to amount which might reasonably be awarded to single attorney or firm representing both coexecutors since (1) although coexecutors were within their rights in employing separate counsel, practice of retaining separate counsel leads to duplication of legal services and excessive fees, and (2) decedent's estate and estate of decedent's husband, who died one month earlier, were administered essentially as one estate and thus economies of time and effort were realized. Re Estate of Mergentime (1992, Sur) 155 Misc 2d 502, 588 NYS2d 736.

[Top of Section] [END OF SUPPLEMENT] III. Presenting Claims Against Estate; Time Limitations For Prosecution A. Presentation of Claims 15. In general [Cumulative Supplement] Historically, the probate court has jurisdiction with respect to decedents' estates only over the probate of a will and the administration of a testate or intestate estate, that is, the collection, valuation, and liquidation of the assets and distribution of the proceeds to the creditors and heirs or legatees, in accordance with their relative priority. While few states have given the probate court jurisdiction to determine the validity of claims, this power ordinarily is vested in the courts of general primary jurisdiction.[60] In other words, although statutes relating to decedents' estates commonly require claims to be "presented" or filed in the estate,[61] if litigation is necessary to enforce his claim, the creditor must have recourse to the same court in which he would have sued if death had not intervened. Thus, the lawyer handling a contested claim must contend with two sets of procedures, and, as is more fully explained later, each of them may be subject to a different limitation period.[62] Counsel should bear in mind, however, that this duality presents advantages, as well as the disadvantages inherent in being required to keep abreast of two procedures, one of which he may not be particularly familiar with. For example, the requirement for presentation of claims, while primarily intended to promote expeditious administration by barring claims not promptly prosecuted, also gives each side the opportunity to gather information about the other's position and, in that process,


ought also to promote settlement negotiation. Moreover, the creditor's status as a party interested in the administration of the estate enables him to make sure that no actions are being taken that might prejudice his interests. Further, the probate court record should contain a complete revelation of the estate's assets, something that is not available in any public records to one who intends to sue a living person; from such information, the creditor may appraise his chances of receiving payment of his claim. It may devolve upon the claimant to create not only a defendant but also, at the same time, a fund from which to be paid. It has already been pointed out that an administration may not be required legally.[63] It follows that in some instances the decedent's family may not seek administration of his estate even though there are assets in existence. In such cases, a creditor may have the right to force an administration, and may even be able to control the appointment of an administrator, if there are no available individuals who would have a right to act as such.[64] Thus, a creditor's just claim may not be defeated merely because others have not sought administration and there is no one to sue, or because all of the decedent's assets have not been made available to satisfy the claim. CUMULATIVE SUPPLEMENT Editor's Comment: For an annotation collecting and analyzing the cases in which the courts have discussed the effect, if any, that the death of a husband has on a provision in a spearation agreement requiring him to make periodic payments for the support and maintenance of his wife, see 5 A.L.R. 4th 1153. Cases: Letter by attorney for decedent's estate addressed to creditors in which attorney stated that he needed further information before acting on creditors' claim, stated that "it would be safer to disallow the claim pending receipt of the requested documentation" and advised creditors that claim would be barred if requested material were not received within 60 days, pursuant to statute, did not constitute rejection of claim within meaning of statute so as to initiate running of 60-day period; on record presented, letter was not sufficiently clear and unequivocal. Law Office of William F. Brattain II v. Anderson (In re Estate of Evans) (1995, Alaska) 901 P2d 1138. Formal requirements: Creditor's letters to decedent's wife were insufficient to create a valid claim against decedent's estate, even though decedent's wife was appointed executrix of the estate; creditor's initial letter was sent to decedent's wife in her individual capacity, after wife informed creditor that decedent had passed away creditor chose not to file a claim with the court, there was no evidence that creditor wrote to decedent's wife in her capacity as executrix, and there was no unequivocal intention to pursue a claim against decedent's estate expressed in the letters. S.H.A. 755 ILCS 5/18-2. In re Estate of Lane, 345 Ill. App. 3d 1123, 281 Ill. Dec. 487, 804 N.E.2d 113 (4th Dist. 2003), appeal denied, 209 Ill. 2d 581, 286 Ill. Dec. 165, 813 N.E.2d 222 (2004); West's Key Number Digest, Limitation of Actions 227(1). Claim against insolvent decedent's estate for legal fees and disbursements incurred in connection with prosecution of personal injury action on behalf of decedent during his lifetime, which was settled after filing of note of issue, was preferred debt with priority over claims of all other creditors, and payment of legal fees and disbursements would be authorized. Re Estate of Tella (1989) 144 Misc 2d 570, 545 NYS2d 59.

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16. Requirements of nonclaim statute [Cumulative Supplement] Many states have a nonclaim statute that requires creditors to present their claims to the fiduciary or to the court for allowance within a certain time after the fiduciary's appointment or after notice has been given to present claims.[65] If the claim is not presented within the prescribed period, it may be barred from allowance against the estate.[66] If the claim is presented within the period allotted and is rejected, there may be a specified time, less than that provided by the general statute of limitations, for filing suit.[67] It therefore behooves the lawyer for the claimant to know and to adhere strictly to the requirements of the nonclaim statute in his jurisdiction. There is disagreement as to whether the filing of a lawsuit on the claim within the period provided for presentation satisfies the presentation requirements of the nonclaim statute.[68] The better view would seem to be that, since one of the purposes of the statute is to give the fiduciary the opportunity to dispose of the claim either by payment or amicable settlement without litigation, prior presentation is required.[69] The claim should be prepared for presentation with some care. Obviously, if it is based on a book account, it should conform to the account. However, even if it is a claim that is not susceptible to precise documentation, such as a claim based on the reasonable value of work and materials furnished, it should be prepared with careful consideration of the probabilities of proof. The lawyer should keep in mind that the claim will, in the first instance, be passed upon by the court or by the fiduciary, both of whom have a duty not only to the lawyer's client but also to the other creditors and heirs. The claim should therefore be cast in such a way that it could be allowed by a reasonably prudent man. The claim may be unliquidated but, unless it is a tort action, its amount should not be so uncertain that it cannot be estimated realistically. The work performed, the services rendered, or the materials furnished, if proved, should be capable of valuation based on the standards of the community in which they are performed or furnished. The uncertainties inherent in evaluating pain and suffering and possible future disability are not factors in a quantum meruit claim. On the other hand, it is not recommended that the lawyer, acting on his belief that the estate will be unable to pay the actual value of the work, services, or materials provided, file a claim for an amount below the reasonable value thereof. This articial method of putting a value on the claim may be exposed in the testimony, and may adversely affect the claimant's credibility. Moreover, there is always the possibility that new assets may be discovered. Further, even if the estate finally does turn out to be insolvent, the claimant's percentage for dividend purposes will be greater if he establishes a larger claim. As an example, suppose that the claimant spent approximately four hours every day cooking, washing, and performing housework for the decedent over a period of three years prior to his death. If the normal wage for day help in the area during the time the services were performed was $12.00 per day, then a reasonable claim would be fixed in the area of $6,500.00 (365 days 3 years $6.00, the value of one-half day's work). CUMULATIVE SUPPLEMENT Cases: Lawsuit brought in federal court by a decedent's life insurer alleging that the policy was void because the decedent had breached the policy's suicide clause was not a "claim" within the meaning of the Probate Code's five-month limitations period, as it could not have been enforced against the decedent during his lifetime. Indiana Code 29-1-14-1(a)(1). In re Estate of Whitehead, 718 N.E.2d 1207 (Ind. Ct. App. 1999); West's Key Number Digest, Executors and Administrators 225(1).

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[END OF SUPPLEMENT] 17. Utilizing available probate court procedures [Cumulative Supplement] Lawyers for both the claimant and the fiduciary should make full utilization of procedures available in the probate court to obtain at least a de facto determination as to the validity of the claim. This would promote expeditious settlement of the claim and would be beneficial to both sides. Some states have statutes providing for more or less summary determination of claims in the probate court.[70] The hearing may be before the probate judge,[71] or before a referee[72] or arbitrators[73] appointed by the court. Many states allow interested parties to object to the allowance of claims.[74] If a state has such a statutory provision, an imaginative lawyer for the fiduciary might forestall plenary litigation by allowing a doubtful claim, after making sure beforehand that there is an interested party who is willing and able to contest the allowance in the probate court. In almost all of these procedural situations, there are mechanics available for complete retrial of the issue, but, in many instances, the survivor or the other parties in interest (that is, the other creditors or the heirs) may be satisfied with their day in probate court even if the result is adverse. A common error made by fiduciaries is to reject a claim out of hand. This will almost always result in a lawsuit, with all the attendant delay and increased expenditures of time and money by the estate. It would be expected that if the survivor has gone to the extent of making a formal claim, he probably has a lawyer and has already anticipated the possibility of having to file a lawsuit to enforce his claim. A minimum of inquiry, disclosure, and negotiation by both sides will usually cost only a little time, and may well result in a complete resolution of the issues. CUMULATIVE SUPPLEMENT Cases: Resolution of tort claim that decedent's daughter intentionally interfered with husband's and son's expectancies of inheritance was not required to fully adjudicate will contest alleging daughter's undue influence, and thus, probate court did not have plenary jurisdiction over tort claim; tort claim required proof of elements not relevant or necessary to probate court's determination of undue influence. R.C. 2101.24(C). Roll v. Edwards, 156 Ohio App. 3d 227, 2004-Ohio-767, 805 N.E.2d 162 (4th Dist. Ross County 2004), appeal not allowed, 102 Ohio St. 3d 1531, 2004-Ohio-3580, 811 N.E.2d 1150 (2004); West's Key Number Digest, Limitation of Actions 198.

[Top of Section] [END OF SUPPLEMENT] 18. Inspecting fiduciary's administration of estate A decedent's estate is a creature of the law, and its attributes are therefore a matter of public record. The lawyer for the survivor should follow the probate court records and dockets periodically to make sure that no action is taken by the fiduciary that might prejudice his client's rights.


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For example, it might become advisable to object to a fiduciary's inventory that omitted estate assets or that showed the decedent's interest in a business as a proprietorship rather than a partnership. Property may also have been excluded by the fiduciary on the theory that the decedent had made a gift of it in his lifetime or had transferred it in such a manner as to create a joint ownership with right of survivorship in another. Upon examination, it may develop that the decedent had failed in his assumed purpose because of some deficiency in the legal requirements for such a transfer or gift. The lawyer for the survivor should also verify that his claim, if allowed, is accorded the degree of priority provided by law. Moreover, where the probate statute grants family allowances as high priority claims, the fiduciary, particularly if he is a family member, may be tempted to secure high family allowances to "eat up" the available assets, and thereby relieve the widow of the need to pay claims having an inferior status. If timely objection is not made to the family allowance requested, the effect may be the loss of the creditor's rights. The fiduciary is an officer of the probate court and is subject to the court's direction and control and to removal by the court if he fails properly to carry out his duties.[75] It may become necessary for a claimant's attorney to take action to force the fiduciary to liquidate property in order to pay debts or to prevent its depreciation in value, or, where the remedy is available to the fiduciary, to compel him to institute an action to avoid decedent's fraudulent transfers. While it is not suggested that the claimant engage in such tactics purely to torment the opposition where there is no real basis for intervention, it is also believed that the fiduciary should be recalled to his trust duties when he strays from them. If, in the process, he decides that it would be more expedient to be reasonable than to be defiant, both sides may be better served. It should be noted that the fact that a creditor's claim has been disallowed and he has filed a plenary action in another court probably does not deprive him of his status as an interested party in the probate proceeding, with standing to object to acts or inaction of the fiduciary. The same may be said of a claimant seeking to establish a partnership relationship with the decedent in an equity suit. B. Time Limitations for Prosecuting Claim 19. In general; effect of statute of limitations and nonclaim statute There are substantial variances in the terminology of the general limitations and nonclaim statutes, which largely account for the differences in the case law in this area, where case law exists. Nevertheless, some of the principal matters of practical concern to the lawyer in connection with the statutory limitations on presenting or prosecuting a client's claim against a decedent's estate can be pointed out.[76] If a prospective defendant dies, there is no longer anyone to sue. In recognition of this disconcerting fact, some states have enacted statutes that suspend the general statute of limitations during the period between debtor's death and the appointment of his personal representative.[77] These statutes assume, of course, that the limitation period has not expired prior to death. If there is no such statute in a particular jurisdiction, and no fiduciary has been appointed, counsel may be forced to petition for appointment of a fiduciary in order to commence an action within the period of the general statute. Other states seek to solve this problem by providing a specific period after death within which actions not barred by the general statute prior to death may be instituted.[78] Such statutes merely postpone the evil day, and the lawyer may still be required eventually to force an administration in order to come within the additional period. The court decisions in some states hold that the nonclaim statute creates a new period of limitation for suit on claims as to which the general statute did not expire before death, even in the absence of any express statutory provision to that effect. [79] Courts in other jurisdictions hold, to the contrary, that the general limitations statute is not tolled for the period for presentation of claims set forth in the nonclaim statute.[80]


To afford fiduciaries an opportunity to examine claims, and to protect them from the annoyance of unnecessary litigation against the estate, many jurisdictions grant fiduciaries immunity from suit for a certain period after their appointment, or after the decedent's death, or after probate of the will,[81] and the effect of such a statutory provision is to toll the statute of limitations in favor of the surviving party for the same period.[82] Where the statutory immunity period commences with the date of appointment of the fiduciary, some courts infer a statutory intent as well to toll the statute of limitations after the decedent's death until the fiduciary is appointed.[83] However, if no such inference is apparent in the judicial decisions of a particular jurisdiction, or if the immunity period begins with an event other than the appointment of the fiduciary, the general limitations period may, in the first situation, expire, and, in the second situation, be reactivated and then expire, before the fiduciary is appointed. In such case, the claimant's lawyer may again be faced with the necessity of forcing an appointment before the general limitations statute runs against him. If, in the applicable jurisdiction, there is no immunity period and no case law extending the general limitation period to the expiration of the nonclaim period, the wary lawyer must assume that he is covered at all times by the general statute of limitations. There may also be a trap for the unwary if the law of the state does not provide for automatic rejection of a claim that is not allowed by the fiduciary within a certain period after presentation. If a fiduciary is permitted to sit on a claim indefinitely, the general statute may expire before that claim is rejected and thus put in such posture that suit might be filed. In such case, the claimant should demand allowance or rejection within a stated period if the statutes so allow, and, if they do not, he should consider the possibility of filing suit without presentation or rejection.[84] In addition to providing that the claim must be presented within a certain time, the nonclaim statutes often will require that suit be instituted within a specified period. Again, the statute may designate any one of a variety of events as starting the running of the statutory period, including the decedent's death, admission of his will to probate, appointment of the fiduciary, presentation of the claim, and presentation or rejection of the claim.[85] It is possible that even though suit is instituted prior to the time limit contained in the nonclaim statute, the claim will be barred by the running of the general statute of limitation unless the general statute is tolled in the interval. If the nonclaim period for filing suit commences with the presentation or rejection of the claim, it seems probable that the general statute would be tolled. Were it otherwise, the claimant might be defeated by the fiduciary's failure to act on the claim until the general limitations period had expired. The best rule for the lawyer to follow is to file suit before either the general or nonclaim limitation has run, and to rely upon remedies that may be available in probate court to put the claim in such status that suit may be brought on it. One final caveat: the statute of limitations applying to the action may be interpreted as extinguishing the right itself, rather than the remedy to enforce the right.[86] This interpretation typically results when the limitation is included in the same statute that creates the right. Such a limitation may not be tolled in situations in which, by the law of the same jurisdiction, a statute that merely extinguishes the remedy would be tolled.[87] 20. Waiver of statute of limitations by the fiduciary An executor or administrator may be authorized by the law of the jurisdiction or by the decedent's will to waive the statute of limitations, either before or after the bar has become effective.[88] While it is difficult to conceive of a situation in which either strategy or tactics would justify waiver after the statute has run incontrovertibly, it may be desirable to do so in situations in which the law is unsettled as to whether the statute has been tolled. A waiver in such a case might permit an early compromise solution, whereas, if litigation were necessary to solve the legal question, a great deal of time would be consumed. It is also suggested that, if the statute has not run but is about to expire, the lawyer for the fiduciary should consider at


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least a partial waiver conditioned on suit being instituted within a certain length of time. One of the main propositions of this article is that the lawyer for the fiduciary should make all reasonable attempts to forestall litigation. Therefore, if it appears that an amicable adjustment of the controversy may be possible, it is wise not to insist on the letter of the limitation, thereby forcing the institution of a lawsuit. However, in order to protect the fiduciary, prior authorization for a waiver should be obtained from the probate court. IV. Locating, Interviewing, and Selecting Witnesses A. Locating and Interviewing Witnesses, Generally 21. In general [Cumulative Supplement] For the reasons previously alluded to,[89] both parties must rely heavily upon third-party witnesses and documentary evidence to establish their cases. In the case of an action for personal services, the persons most likely to be of help are neighbors, friends, and relatives of the decedent who may have observed the survivor performing services or heard the decedent make statements concerning his intention to compensate the claimant for the services performed. When the case is for partnership accounting, the most fertile field is employees or persons who have done business with the partnership or alleged partnership and, in particular, banks (assuming, of course, that the bank is willing or able to divulge any information without authorization or court process). Credit-reporting agencies can give considerable help, both in pointing the way toward sources of information about the survivor and the decedent, and also in locating witnesses. Public records of all kinds are important sources in these days of complicated and exhaustive government record-keeping. CUMULATIVE SUPPLEMENT Cases: Testamentary exception to attorney-client privilege applied to statements made by devisees of testatrix's later will to attorney who drafted that will, even though devisees of later will argued that case involved "inter-dispute" between devisees and non-devisees; exception was to help establish intent of testatrix, and testamentary exception should be applied to such disputes concerning all potential beneficiaries, including devisees of earlier will. Estate of Hamilton v. Morris, 67 S.W.3d 786 (Tenn. Ct. App. 2001), appeal denied, (Sept. 24, 2001); West's Key Number Digest, Witnesses 202.

[Top of Section] [END OF SUPPLEMENT] 22. Locating witnessesfor claimant Some of the methods employed in locating witnesses in civil litigation generally[90] may be useful in an action involving a decedent's estate. However, such actions also present unique problems that call for procedures tailored to the particular situation. At first glance, it might seem a relatively easy matter to canvass the decedent's neighborhood to find persons who have observed the claimant performing services or heard the decedent express an intention to pay for such services. The claimant himself can probably furnish names of several prospective witnesses. The most crucial point of time in these cases is when


the decedent first expressed a need for help and the survivor changed his position in some material way in order to provide that help. However, it is possible that a good witness may have moved in the interval of several years that may have transpired before the claimant finds it necessary to establish his rights by litigation. If the claimant knows the former neighbor's name, occupation, and proposed destination it may be possible to locate him through out-of-town telephone books or city directories, which are available in most cities of any size. Alternately, the former neighbor's employer may furnish a lead, and, of course, other neighbors may supply valuable information as to the absentee's whereabouts. The client may only remember, for example, that a woman who lived in a certain house was in and about the decedent's residence on frequent occasions during a certain period, but not be able to recall her name. Again, other neighbors may be of help, but, if that fails, the public records or city directories can be consulted to find the owners or occupants of the particular property at the time in question. Even if the property was not owner-occupied, the owner may be able to give the name and occupation of his former tenant and to furnish a more recent address, particularly if he had any problems collecting rent. Central state record departments, such as automobile licensing and drivers licensing agencies, and, in states that have adopted central recording under the Uniform Commercial Code, central financing statement record offices, may be of help in locating persons who have moved. Finally, and certainly not as a last resort, a location report should be requested from the local credit reporting bureau, since it may have received a request for information from another agency in the location where the prospective witness has made his new home. Many, if not all, of the investigative procedures suggested above may and should be pursued by the client; the cost to him in doing so would be nominal in comparison to what he would have to pay counsel to carry out the investigation personally. 23. Locating witnessesFor fiduciary The investigation conducted by the lawyer for the fiduciary will be at once similar to and different from that of the claimant's representative. He will, of course, want to interview those living or working in the vicinity of the site where the services were performed. He will also have whatever advantage his client's possession of the decedent's records and correspondence will afford him in locating such prospective witnesses. Defense counsel's contacts with present and former neighbors should be as extensive as those of the survivor's attorney. His purpose in such investigation is to assess the credibility and knowledge of the probable witnesses for the opposition and to develop a basis for cross-examination, since he will rarely find a defense witness by this means who can do more than cast doubt on the validity of the claim. For example, the observations of a neighbor may contradict the plaintiff's claim as to the frequency and character of the work, but they will probably not be sufficient to prove that no services whatever were performed. Of considerable importance to the fiduciary are the motives of the survivor in providing the services. As was mentioned earlier,[91] if the services were performed in a spirit of altruism, they are not compensable, and even if the services were performed in the hope of gain, they will not support a recovery if the decedent did not form freely an intention to pay for them in some way. Moreover, the law does not aid a volunteer who imposes his attentions on another in the hope of realizing a gain that is out of proportion to the value given.[92] There are, without doubt, those who make a career of helping older people with the purpose of being reimbursed by will. A credit report might reveal whether the quantum meruit claimant had previously received bequests or devises from unrelated decedents. The public records would reveal any prior transfers of real estate from decedents, and prior suits, if any, against decedents' estates to recover for services rendered.


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At the earliest possible time in the preparation of his case, the lawyer for the fiduciary will want to assemble as much information as he can about the character, personality, and attitudes of the claimant. This he can obtain, again, from credit reports, interviews with neighbors and friends, and personal observations during preliminary conferences between the parties and their counsel. It is always possible that the claimant, as a witness, will turn out to be his own worst enemy, and, if the fiduciary's counsel senses this possibility, he may decide to waive the "dead man" statute and allow the survivor to testify. He may at least decide to take the survivor's deposition as a preliminary test of his theory, even though, as has been pointed out previously,[93] this may of itself effect a waiver of the statute. The importance to the defense of full knowledge of the claimant's motives and character is illustrated by an actual case in which the survivor sought to recover for maintenance and repair work performed over a period of years at a summer resort owned by a decedent. The jury granted a recovery, which was reversed on appeal. The fact that several of the claimant's witnesses were women who had accompanied him on overnight trips to the resort, usually during the summer months, suggested that his expected compensation may have been of a more immediate and personal nature than mere money. While it is possible that this may have influenced the appellate court in making its decision, the lawyer for the estate might have been able to obtain the same result in the trial court by driving the point home through cross-examination of the plaintiff. The risks inherent in permitting the plaintiff to testify could have been more than offset by the advantages of cross-examining him. The plaintiff's character and motives may be important in other ways, and might be shown by third-party testimony. The fact that a person comes to live with another and performs services may be susceptible of various interpretations. The act may be for the benefit of the passive party but it may also have been for the mutual advantage of both parties, or even primarily for that of the actor, the benefits to the other party being merely incidental. For example, the survivor may have needed a place to live and therefore came to the decedent with the understanding that, in return for companionship and a minimum amount of services, the deceased would furnish food and a place for the claimant to live. Therefore, counsel for the estate should inquire about claimant's former circumstances. He might, for example, elicit from the claimant's previous landlord that claimant was asked to leave because he had been a bad tenant or had had trouble paying his rent. Obviously, if he had previously had difficulty making ends meet, an arrangement whereby he received free room and board would be of significant benefit to him. 24. Interviewing witnesses Since everyone has his own style and manner of dealing with peo

19 amjur trials on suing a decedants estate[1]

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