In class today, we’ll be drafting your will assignment. Use the following fact pattern and form to draft a will for the client. Be sure to add a self-proved affidavit to the will so that the witnesses will not have to testify as to the authenticity of the will when it is admitted to probate. You can find the Alabama form for a self-proved affidavit in the Alabama Code (Alabama Code > Wills and Decedents’ Estates > Probate Code)
Use Fastcase to find the answers to the questions in the research assignment. Because part of what you need to learn in this class is efficient workflow, do not print out the document and write the answers by hand. Instead, download the document, rename it with a filename that includes your own last name, and type the answers into the document itself. Do not print until you have completed the assignment and are ready to turn it in. We will work on this assignment in class on October 3, and it is due at the beginning of class on October 8.
You can download a guide to Fastcase Legal Research for Paralegals (again, in the interest of efficient workflow, do not print the guide; refer to it on screen using the Table of Contents and search function to find what you need), and tutorials to explaining how to use Fastcase are available at http://www.fastcase.com/video/ In particular, you will need the following tutorials:
As you know, a complaint is the document that starts a civil lawsuit. The pleading standard for a complaint is that it must be a “short, plain statement” of the case that is sufficient to give the defendant notice of what is at stake in the lawsuit. Read the assignment below for a summary of the facts and allegations in the case, and then use the complaint form to create a complaint to be filed in the Circuit Court for Tuscaloosa County. You can also refer to the sample complaint for a general idea of what a complaint should look like. The complaint should make general allegations necessary to satisfy the elements of the claim, but it should not include every fact that will be proved at trial.
Whether the executor of an estate who is not licensed to practice law may file a lawsuit on behalf of the estate without hiring a lawyer.
May the executor of an estate who is not licensed to practice law file a lawsuit on behalf of the estate without hiring a lawyer?
Is the executor who files a lawsuit on behalf of the estate without hiring an attorney engaged in UPL?
For your first brief assignment, read and brief the following case:
For a more detailed explanation of what a case brief is, consult this excerpt from “How to Brief a Case” by Dana L. Blatt, Esq. (You don’t have to read the sample case, but the sample brief will give you an idea of what a brief should generally look like. You can find the original document here):
If you have questions about the assignment before class Tuesday, email or give me a call in my office.
After reviewing your drafts of the will assignment, here are some comments about will drafting in general and the drafts in particular:
- Remember that a will is a document that we prepare now, but which won’t have any legal effect until some time in the future, perhaps many years from now. We need to take into account the likelihood that circumstances may change between now and then, and provide contingencies to ensure that our client’s testamentary intent is carried out.
- When describing legatees or beneficiaries, consider what happens if class members change. For example, if the client wants to create a trust fund for her cats, what happens if the cats she has now don’t survive her and she adopts other cats before her death? If we list her current pets by name, then some may be cared for, and others will not. Is that likely what the client wants? Probably not. What if we instead say “my cats”? Perhaps we could even add a preface to the effect of “It is my intent that any and all cats I may have at the time of my death, whether [names of current cats] or other cats later acquired, be cared for in comfort for the rest of their lives. Accordingly, . . . “
- We also need to get contingencies correct. What if she doesn’t have any cats when she dies? Is there any reason to set up a trust at all? Make sure to get the survival clause correct: In the event that my cats do not survive me, then the trustee shall distribute the estate to Edgar.
- Be sure to keep the trustee (Synovus), executor (Georges), and residuary legatee (Edgar) separate and to assign them their correct roles.
- You don’t know who the witnesses will be, so leave spaces to write in their names at the ceremony (be sure to leave enough room to write their full names longhand).
- We’ll be going over a will execution ceremony in class when you turn in your will, so do not staple (VERY IMPORTANT! I’ll explain why in class) or put your name on your will (you can hand write it before you turn it in).