- Greetings From the Steering Committee Cochairs
- Updates in the Law
- Community Outreach and Pro Bono Opportunities
- Recent Developments: Judicial Decisions
- Section Member of the Year
- Save the Date for Annual Judicial Reception
- The ETP 2011–2012 Program Series Continues
- Other Announcements
We hope you enjoy and appreciate the newsletter. Our editor and contributors have put in a lot of time and effort in bringing this excellent document to you.
We are off to a great start of programming and community service and we credit you for all of your contributions, whether participating in our luncheon programs, taking part in the Guardianship and Conservatorship Support Group, getting involved as a pro bono volunteer or adding your two cents to the discussion on the ETP Listserv email list.
Thanks to you, the email list is very active, exciting and informative. As a reminder, the Sections Listserv Email List Project is still, formally, a pilot project. Our section was one of three charter participants. According to the Sections Office, we host the most robust dialogue of any of the six sections currently participating. Section Listserv email lists are still experimental, but ours appears to be here to stay. The best way to ensure this is to keep the engine running. We want to encourage all of our colleagues to get in on all the great information, dialogue and practical tips. If you are a section member who isn’t currently on the list, or if you know a member who’s not, signing up is easy.
Our volunteer programs are also flourishing. We want to thank Andrea Sloan and you for making our 2011 holiday gift drive a resounding success. The residents at Carroll Manor were overwhelmed by your generosity. Each year it seems to get bigger and better. In addition, thanks to generous volunteers, the Probate Resource Center has been widely expanded and is now providing valuable service to the community most every Wednesday. If you are interested in getting involved with this activity or any others, including our Planning Ahead Program and other pro bono events, please contact us.
Finally, we want to encourage you to continue attending our luncheon and Continuing Legal Education seminars. These programs provide important nuts-and-bolts information, allow you to connect with other practitioners and to get true value for your membership. The revenue generated helps us to keep section dues low compared to many of the other sections. It also helps us offer outstanding judicial receptions and this year will not disappoint. Again, thank you for your continued support.
Updates in the Law
New Business Organizations Act, Title 29.
Effective January 1, 2012, D.C. enacted the Business Organizations Code, D.C. Code Ann. §§ 29-101.01 through 29-1209.01 replacing the Business Corporation Act.
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Why Don’t We Use Declarations in the Probate Division?
By Paul Pearlstein
Effective March 17, 2011, the Superior Court promulgated a new rule allowing unsworn declarations to be used for affidavits, verifications and oaths on court pleadings. With a few exceptions (i.e., land records) the declaration is or can be a substitute for notaries if in writing and subscribed as true under penalty of perjury. The rule is based upon the use of declarations in all of our federal courts and many of our state courts. See 28 USC 1746 and Federal Civil Rule 9.
The Superior Court Civil Rule, 9-I, reads as follows:
Rule 9-I. Verifications and affidavits.
When verification of a pleading is required, it shall be sufficient for the person verifying to swear or affirm that the person verily believes the facts stated in the pleading to be true. Verification by an individual party may be in the form set out in CA Form 101.
(b) One party may verify.
If several parties are united in interest and plead together, the verification may be made by 1.
(c) By officer, agent, attorney.
A verification or affidavit may be made by an officer, agent or attorney only
(1) when a corporation is a party;
(2) when the facts are within the personal knowledge of the attorney or agent;
(3) when the party is an infant, or of unsound mind, or in prison; or,
(4) when the party is absent from the District of Columbia.
Where verification of a pleading or an affidavit is made on behalf of a party to an action, it shall set forth the representative capacity and, in the case of a cor-poration, the title of a person so verifying or making the affidavit, and shall contain a statement that the person has authority to verify the particular pleading or make the affidavit on behalf of the person's principal.
(d) Form of affidavits.
Affidavits other than verifications shall be separate and distinct from a pleading, verification, motion or other paper filed in the action. All facts contained in any affidavit submitted to this Court shall be expressly stated in detail in separately numbered paragraphs and shall not be incorporated therein by reference.
Rule 9 identical to Federal Rule of Civil Procedure 9 except for deletion of section (h) thereof dealing with claims for relief "within the admiralty and maritime jurisdiction" which are within the exclusive jurisdiction of federal District Courts. See 28 U.S.C. § 1333(1).
Probate Rule 1(f) provides that “[e]xcept where inconsistent with the provision of the Probate Division Rules or the traditional uncontested and administrative proceedings therein the Superior Court Rules of Civil Procedure are applicable to proceedings in the Probate Division.” There is no Probate Division Rule that mandates the use of a notary for oaths nor one that prohibits the use of declarations. There is no statute that requires a notary. In fact, D.C. Code §20-102, Verification, provides for the use of verifications in general probate matters without the need for a notary if the following language is used:
“I do solemnly declare and affirm under penalty of law that the contents of the foregoing document are true and correct to the best of my knowledge, information and belief.”
D.C. Code §20-324, Action on petition, states that “proof of due execution shall be made by affidavit of the witness…” and goes on to provide a form without requiring a notary for the signature. The form merely requires a statement that the person signing appeared and, under oath, answered the questions provided therein....” Only an oath is required and such can be satisfied by the new Civil Rule 9-I declaration, the Rule 20-102 verification language or a notary. A notary is not mandated.
Despite the new Civil Rule and the older statutory verification language, the probate division continues to require notarized signatures. Such is even true for attorneys who are subject to the law of perjury as well as disbarment. This unwillingness to respect the existing code section, the new rule and provide more flexibility may be a reluctance to retrain personnel and change some forms. Such conduct seems to be an affront to the judges of this court that changed the rule after considerable review and input from the bench, bar and community.
The notary requirement is an anachronism from the days of wide spread illiteracy and an attempt to prevent fraud. As the cases make clear, a notarized signature is not a very effective method of preventing fraud. The language of the notarial oath is weak and much less likely to encourage truthfulness than the required “under penalty of perjury” statement of Rule 9-I and the “under penalty of law” language contained in §20-102. Our federal courts agree and have found the declaration to work well over many years.
Finding a notary is often a burden, an inconvenience and an added expense to most practitioners and their clients. Both large firms and solos often have to chase down the absent or elusive notary or go to UPS to execute an oath for our division. It is time to recognize that Rule 9-I exists and that either a declaration or a notary may be used where an oath is required.
28 U.S.Code Section 1746
Unsworn declarations under penalty of perjury
Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:
(1) If executed without the United States: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature)”.
(2) If executed within the United States, its territories, possessions, or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)”.
Note that the language differs for declarations signed outside of the United States.
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The Estates, Trusts and Probate Law Section participates in several pro bono projects, all of which provide legal advice and one–time assistance to persons who truly need help. In conjunction with the D.C. Bar’s Pro Bono program, volunteers staff the Advice and Referral Clinic, the Probate Resource Center and the Interventions Self–Help Center.
Volunteer attorneys provide one-time evaluations of a person’s case, and provide suggestions and guidance. Frequently, the volunteer attorney will assist the customer to complete a court form or a simple pleading. Many people can be helped in a single meeting, but if on–going legal representation is needed, the person is given suggestions on how to obtain their own attorney. No volunteer is expected to take on a case or provide continuing representation.
Virtually all of the people who seek assistance at one of the clinics are truly needy and are often in vulnerable situations or have no idea of their rights or what they can do to protect their interests. Volunteers unanimously report that the people they see are always very grateful for the services provided and appreciate the information and guidance which they receive. Most importantly, volunteers provide a very important public service to a critically under-served population in the District of Columbia.
For the volunteer, donating just two or three hours of pro bono service both helps meet an important need and is a very satisfying way to fulfill the pro bono obligation that every attorney shares. One volunteer writes, “Thank you for introducing me to the Pro Bono Clinic. It was so fulfilling to be able to help!” After volunteering one time, many attorneys offer to volunteer again and again, reporting that they find the experience rewarding and often even fun.
There are three clinics which need help:
(1) The D.C. Bar Pro Bono Program's Advice and Referral Clinic is held on the second Saturday of every month, at the Bread for the City office on 7th Street, N.W. and the Max Robinson Center on Good Hope Road, S.E. Volunteers meet at 9:00 a.m. and leave by 1:00 p.m., at the latest.
(2) The Probate Resource Center operates once a week, on Wednesdays, for three hours in the afternoon at the Register of Wills office.
(3) The Intervention Self-Help Center operates once a week, on Wednesdays, in the afternoon at the Register of Wills office. All three offer opportunities for brief, but very important and rewarding, “painless pro bono.”
Contact Ed Varrone if you are interested in participating in any of these programs.
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Recent Developments: Judicial Decisions
The steering committee thanks Katherine Wiedmann, Esquire, of Crowley, Hoge & Fein PC; Gina Lynn, Esquire, the Law Office of Giannina Lynn; and L. Laurel Lea, Esquire, of Furey, Doolan & Abell, LLP for providing the following case summaries of recent D.C. Court of Appeals decisions for publication in this edition of our newsletter:
In re: Brenda J. Wilson, 2010 INT 357
In re: Irene Mason, 2010 INT 358 (December 16, 2011)
This decision standardizes how attorneys who serve in intervention cases and are compensated from the guardianship fund may be paid for travel time and expenses.
Judge Wertheim began his opinion discussing Judge Lopez’s 2004 opinion, In re: Michael Demitro, 2003 INT 68 (July 9, 2004) which had held that travel time was justified in intervention cases seeking payment from the guardianship fund. The court then noted that travel time was routinely compensated in CJA and CCAN cases, however, those cases did not allow travel to and from the courthouse, under the theory that such travel constituted commuting to a regular place of business which is disallowed as a travel expense under IRS regulations. The court noted that the guardianship statute was amended in 2008 to require guardians to visit once a month. The court ruled that reasonable travel time would be allowed as long as it was not from the attorney’s home or office to the courthouse. Further, “[f]or travel time to be reasonably compensable, there appears to be no rational basis not to compensate for both time and expense on the same basis as working time. It is essential, however, that travel be separately stated as to precisely where to/from, when, time, distance, and if not otherwise apparent, purpose. Petitions and/or travel time and/or expense may be rejected for failure to do so.”
The court then denied an attorney’s request for compensation for both himself and a paralegal to visit a ward and “second chair” a hearing, when there was no justification given for why the paralegal was needed in addition to the attorney. Lastly, the court questioned the request to compensate the paralegal at the rate of $75.00 per hour and stated that “based on common experience and custom” the court would allow a maximum rate of $45.00 for paralegals.
In re: Matilda A. Maiden, 2009 INT 243 (January 5, 2012)
Judge Wolf denied a petition for compensation from the guardianship fund for guardianship services in the approximate amount of $10,000.00 for three reasons. First, the petition sought to compensate a paralegal and law clerk at the rate of $80.00 per hour. Judge Wolf stated that “$45 per hour seems to this judge to be the maximum payable to such employees” from the guardianship fund. Second, there were mathematical errors in the calculations for the amount sought. Third, the petition represented that the subject had approximately $14,000 in her savings account but that this money was being reserved for pre-need funeral expenses and for repairs that may be needed to her house. The court cited two earlier cases In re: Evans, 2007 INT 387 (February 22, 2008) and In re: Lizzie Mitchell, 1990 INT 56 (January 22, 1993) for the proposition that the guardianship fund cannot be used when the ward has funds available, even if paying guardianship fees would deplete the ward’s funds.
Hartford Financial Services Group, Inc. v. Patrick T. Hand, 30 A.3d 180 (D.C. 2011)
D.C. adopts majority rule that a surety bond company is liable for misappropriations of fiduciary prior to the issuance of the bond, unless surety disclaims liability for prior “loss.” “Loss” does not occur at the time the fiduciary misappropriates funds, but when the fiduciary cannot return the funds upon demand.
This case arises out of a guardianship case in which the mother of the minor ward was appointed to serve as guardian for her son. The mother was removed when the Court found that mother had improperly obtained a personal bank loan secured against the minor’s real property. The mother was first bonded in the amount of $30,000 and a few months later increased her undertaking in the amount of $204,000.
When mother defaulted on the bank loan, the Successor Guardian defended against the lender on the grounds that the mother did not have legal capacity to sign the note or borrow money against property in the guardianship estate. Successor Guardian brought a subrogation action against the surety bond company arguing that the surety was liable for the breaches of the mother. The trial court entered summary judgment in favor of Successor Guardian requiring surety to pay approximately $130,000 to the Estate.
The Court adopted the majority rule that a surety bond company is liable for misappropriations of the fiduciary prior to the issuance of the bond where the surety does not disclaim liability for damages related to defaults prior to the issuance of the bond.
However, in this case, summary judgment was reversed in part and the surety bond company was subject to limited liability because after issuing an initial bond for $30,000 with no disclaimer, the surety issued an increase rider in the amount of $204,000, which disclaimed liability for losses occurring prior to the date of increase. The Court reversed summary judgment against the surety, upheld the surety’s disclaimer as stated in the increase rider and limited liability to $30,000 because the original bond did not disclaim liability for prior loss.
A critical issue was the question of “time of loss” because the surety’s liability turned on whether the “loss” occurred on the date the mother executed the loan documents or whether the “loss” occurred when the mother defaulted on the loan and was unable to pay her debts. The Court rejected the notion that the date of loss was the date the funds were misappropriated and adopted the principal that the loss to the estate occurred when the fiduciary became insolvent. The Court remanded for a determination of when the loss occurred, finding that the lender is liable to pay damages up to $204,000 if the mother defaulted on the loan and became insolvent after the date the increase rider was executed.
In re Al-Baseer, 19 A.3d 341 (D.C. 2011)
A guardian-spouse is not ineligible for compensation under D.C. Code § 21-2060 just because there is a spousal relationship between the guardian and the ward.
A spouse, like any guardian, is entitled to compensation for reasonable services and the Court will consider what services were provided, the hours of service, and factors in setting rates of reasonable compensation.
The Court remanded the case for determination on a motion for enlargement to file a petition for compensation and if granted, the merits of the petition for compensation. The Court found that it is within the trial court’s discretion to grant a motion for enlargement of time to file a petition for compensation, upon a showing of excusable neglect. The relevant factors are (1) danger of prejudice to other parties; (2) length of the delay and its potential impact on judicial proceedings; (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the fiduciary acted in good faith. In this case, the Court noted that the guardian faced obstacles including limited English language skills, limited understanding of her duties as guardian, difficulty finding an attorney to assist her, and the necessity of spending all of her time caring for her husband and ward.
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Estate Administration Proceedings
In re Estate of Carthur L. M. Drake, 4 A.3d 450 (D.C. 2010)
Court of Appeals upheld trial court’s order granting a quitclaim deed to appellee on the ground that a showing of bad faith on the part of appellants had been made.
In this case, the Court of Appeals held that the appellant Estate and trust were in breach of a settlement agreement entered into ten years earlier with the decedent’s surviving estranged wife. The parties had agreed that the trust would execute a quitclaim deed to real property held by the trust to the surviving spouse within 20 days of settlement with the IRS and release of IRS liens on the property.
The Court found that the Estate’s failure to resolve the IRS liens, and indeed, demonstrated failure to take any action with respect to the IRS liens for at least the past four years, demonstrated bad faith. Further, the Court found that under the doctrine of prevention, the Estate’s failure to attempt to satisfy the condition precedent (of release of the liens) to performance under the settlement agreement constituted a breach of the settlement agreement. The Court thus upheld the trial court’s order enforcing the settlement agreement by granting a quitclaim deed to appellee.
OneWest Bank, FSB v. Marshall, 18 A.3d 715 (D.C. 2011)
A loan is not voidable and the lender may have equitable claims against the Estate, even though Decedent never signed the loan, had died, and no personal representative was appointed, where the loan was executed by 2 of 3 tenants in common and secured against real property.
In this case, real property was titled in the name of three individuals as tenants in common, each with a one-third interest. After one of the owners died, the remaining cotenants executed a deed of trust secured against the real property. At the time the loan was executed no estate was opened for the Decedent. The Court of Appeals reversed the trial court’s dismissal of the lender’s claims and rejected the finding that the Decedent’s estate had no liability to the bank. The trial court’s ruling was based on D.C. Code § 20-105 which vests legal title to decedent’s property in the personal representative.
The Court found that deed of trust was not void based on D.C. Code § 20-105. The Court reasoned that the surviving cotenants were free to sell or encumber their interest in the property. While the two surviving cotenants could not bind the Decedent’s one third interest in the property, the lender was entitled to an equitable lien for the improvements made with the loan proceeds which benefited the entire co-tenancy. The Court found that the trial court erred in dismissing the Lender’s claims for equitable subrogation, equitable lien or equitable title, vacated the trial court orders and remanded the case.
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Section Member of the Year
The Estates, Trusts and Probate Law Section created the Section Member of the Year Award to honor one of its members who exemplifies professional, academic or public service excellence, integrity, compassion, and commitment in the areas of practicing, teaching, or developing estates, trusts, and probate law. The deadline for nominations is Thursday, March 29, 2012.
Member of the Year Nomination Form
A 2–page, 118 KB document
Download and save
Save the Date for Annual Judicial Reception
The Estates, Trusts and Probate Law Section’s 22nd Annual Judicial Reception to be held on Tuesday, April 24, 2012. Details will be forthcoming.
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Litigating and Evidentiary Issues in Contested Cases
Ed Varrone, Esquire, Law Office of Edward G. Varrone;
James Larry Frazier, Esquire, James Larry Frazier Law Offices Kimberly K. Edley, Moderator
Thursday, March 15, 2012
12:00 Noon–2:00 PM
Administering Estates with Assets in Other States and Foreign Countries
Barbara Miller, Esquire, Law Offices of Barbara Miller
Thursday, April 19, 2012
12:00 Noon–2:00 PM
Estate Planning for Persons with Disabilities
Evan Krame, Esquire, Law Offices of Evan J. Krame
Thursday, May 17, 2012
12:00 PM–2:00 PM
Charles Abell, Esquire, Furey, Doolan & Abell, LLP;
William Davis, Esquire, Jackson and Campbell;
Kimberly Martin Turner, Esquire, Law Office of Kimberly Martin Turner PLLC
Thursday, June 21, 2012
12:00 Noon–2:00 PM
Fees for Individual Programs:
$28.00 Section Members and Subscribers
$35.00 Non-Section Members
$15.00 Law Students
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Join the Estates, Trusts, and Probate Law Section of the D.C. Bar
Joining the section can provide you with opportunities to advance your skills and interests and network with colleagues. Section members receive mailings, newsletters, e–mail announcements, and special discounts on events and publications, including our popular lunch programs and CLE courses.
Upcoming Guardianship Conference at Catholic University
March 9, 2012
Sponsored by the D.C. Superior Court Probate Division
Register in advance
Estates, Trusts, and Probate Law Section Steering Committee 2011–2012
The steering committee welcomes your comments and suggestions on the operation of the section, its programs, and its newsletter.
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