WHO CONTROLS YOUR MEMORY?

Posted on March 20, 2013 by Robert A. Wells

Do you use online services to help communicate, store important information or photographs, and generally organize your life? I do.  And, most people I know do as well.

Have you ever thought about what happens to all that “stuff” when you die or become incapacitated?  Until recently, I had not given much thought to it.  But, over the last few weeks, I’ve read some articles that got me thinking about it.  These ought to be considerations in formulating our estate plans.

Yes, my estate planning clients are concerned about what happens to their money and the real estate when they die or if they are sapped by insidious cognitive event or disorder.  But, the things that elicit the most concern, particularly to those left behind, are often things of little financial value.  Historically, these have been tangible things.  Usually, they involve something handed down from a previous generation.  Often, however, the things that create concern (and conflict) are photographs and letters – things that are extraordinarily personal in nature.  In our modern world, those personal effects are as often as not stored in digital formats and often online through services such as Snapfish or even Facebook and email.

I think it important to try to ensure that your memories, and those of you, are left in the control of those you love.  A good estate plan can help you do that.

Robert A. Wells

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Questions People Ask – Counselor at Law

Posted on November 14, 2012 by Robert A. Wells

Over the past few weeks, the pastor at my church has been doing a series of sermons entitled “Questions People Ask.” One of those questions, big enough for several books, is “Why do bad things happen to good people?”

I’m a lawyer and am less struck with that question than this one: Why do good people do bad things? I see it so often. There’s the family business in which one person feels under-appreciated and under compensated and helps themselves out; the worn-out mother who takes her eye off the road and injures herself and other motorists; the person who wants mama taken care of and is certain the sibling who is doing so is getting more (money, property, love) because they have usurped that caretaker role. I represent people onboth sides of these predicaments. They are often messy because life and relationships are messy.

Lawyers sometimes forget that the title we take is Attorney and Counselor at law. I have no formal psychological training; but, it is important to remember that latter title-Counselor. Like you, lawyers are not perfect and none can (or at least should) promise perfect representation and certainly not perfect outcomes. But, good lawyers will listen and offer advice and the best options we can. The circumstances that bring our clients to us are often life-altering. Our representation will require us and you to make the best of those circumstances and put you on course for the best life possible afterward.

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Legally Speaking

Posted on August 20, 2012 by Robert A. Wells

A headline in the ABA Journal recently says “Bilingual Lawyers in Demand.” If you are a non-lawyer reader of this, you might be saying to yourself that all lawyers seem to be bilingual –  Legalese and what the rest of us speak.   Other than my particular dialect of from the sticks “hick,” I do consider myself confined to the singular langauge of English.  (Four years of high school French did not stick and my Spanish immersion CDs have yet to make me fluent enough to advertise my infant-level of proficiency.)

Nevertheless, Legalese is not a language.  If you have legal documents you don’t understand, you need and deserve explanations.  Last week, I had a conference with an estate planning client for whom I prepared a will and some other estate planning documents a few years ago. The client needed to make some changes because of changes in his life circumstances, but during the conference it became clear that the client needed further explanation of exactly what he had directed through the documents prepared just a few years ago.  I explained.  The client then said “Oh yeah, that’s what’s wanted, but did not understand what was actually written.” If you have documents prepared by a lawyer for you, it is incumbent on you to make sure you understand what you are signing.  Do not sign just because the lawyer has prepared the document and assume that it is correct.  Lawyers are human; even the best of us will make mistakes occasionally.  Working with a lawyer in preparing an estate plan (or prosecuting a divorce action, injury suit, or setting up a business or any of another 1,000 things) has to be a team effort.  Do not allow yourself to be frightened by language we as lawyers use without asking about why. Sometimes the words are simply necessary terms of art.  Sometimes, though, it is just a stilted manner of speaking that has been passed down in innumerable forms that we might be able to say better and more simply.  Be part of your legal team. Ask.

Robert A. Wells
Gabriel, Berry, Weston &  Wells L.L.P.
Attorneys at Law
214 Commerce Place
Greensboro, NC  27401
(877) 361-0529

 

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Power of Attorney in North Carolina

Posted on August 2, 2012 by Richard W. Gabriel

A question that comes up frequently is whether or not a Power of Attorney must be recorded to be valid.  N.C. G.S. 32A-9(b) requires a Power of Attorney to be registered if it is to survive the mental incapacity or incompetence of the person granting the power.  Other statutes control how the POA is indexed after recording (N.C.G.S. 47-115) and what records must be kept when a POA is used (N.C.G.S. 32A-11.)  And if a POA is used to transfer an interest in real estate it must be recorded in the county where the real estate is located(N.C.G.S. 47-28.)  There are quite a few statutes that deal with POA’s and it would be a lengthy discussion to list them all.  Most important for the average person is to record the POA to be sure it is valid once the person is no longer mentally competent.

Gabriel Berry Weston & Wells, L.L.P.
Richard W. Gabriel

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Husband’s Failure To Disclose Assets Is Basis For Constructive Fraud

Posted on May 10, 2012 by M. Douglas Berry

In the case of Searcy v. Searcy, the Court of Appeals in a decision filed September 20, 2011, reversed the trial court and found that there was an issue of fact with regard to constructive fraud when the husband failed to disclose the existence of promissory notes for two particular beach lots that were sold during the marriage.  The Court of Appeals found that a fiduciary relationship existed between husband and wife.   A duty to disclose arises where a fiduciary relationship exists between the parties through a transaction.  The relationship of husband and wife creates such a fiduciary duty.  During a marriage, a husband and wife are in a confidential relationship and have a duty to disclose all material facts to one another and a failure to do so constitutes fraud.  However, this fiduciary duty ends when the parties separate and become adversaries negotiating the terms of their separation.  Furthermore, the termination of the fiduciary relationship is firmly established when one or both of the parties is represented by counsel.  However, the mere involvement of an attorney does not automatically end the confidential relationship.  The mere fact of the parties being separated in and of itself is not determinative of the existence of a fiduciary relationship.  When the parties originally divided their assets, the husband failed to disclose the existence of two promissory notes for Lots 17 and 18 and wife never knew that they existed.  The subsequent separation agreement made no mention of notes for Lots 17 and 18. The Court of Appeals found that the fiduciary relationship between husband and wife still existed at the time the Defendant husband first failed to disclose the purchase money notes.  Therefore, wife had a claim for constructive fraud.

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Only Marriage, And Not Same-Sex Domestic Unions, Would Be Recognized In North Carolina Under Proposed North Carolina Constitutional Amendment 1

Posted on April 19, 2012 by M. Douglas Berry

On the May 2012 North Carolina statewide ballot, a proposed constitutional amendment will appear which would establish marriage as the only domestic legal union between a man and a woman.  This amendment would amend Article 14 of the North Carolina Constitution by adding the following subsection:

“Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State.  This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.”

This amendment makes the relationship between a man and a woman the only valid domestic union that will be recognized by the State of North Carolina.  It exempts private parties and presumptively private businesses from its reach.

North Carolina law already defines marriage as “created by consent of a male and female person to be lawfully married”.  N.C.G.S. § 51-1.1 states that marriages whether created by common law, contract or performed outside of North Carolina between individuals of the same gender are not valid in North Carolina.

The United States Code in 1 USC Section 7 defines marriage in the context of any act of congress or any ruling, regulation or interpretation of the various administrative bureaus and agencies in the United States to be a legal union between one man and one woman as husband and wife and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

The constitutional Amendment 1 goes beyond the non-recognition of marriage between persons of the same sex and impacts the extent of the status of a domestic partnership in terms of a wide range of entitlements and benefits.  This amendment could affect custody claims, insurance coverage and retirement benefits, as well as entitlement to other job benefits.  The implications of such an amendment are potentially far-reaching in how it might impact that wide range of benefits  provided by state government, municipal government and the courts.

Doug Berry
Gabriel, Berry, Weston & Wells LLP

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Court Of Appeals Denies Jury Trial On Motion To Void Collaborative Law Agreement

Posted on April 2, 2012 by M. Douglas Berry

In the case of Kiell v. Kiell (September 5, 2006), the North Carolina Court of Appeals held that a party claiming fraud in the inducement of a collaborative law agreement was not entitled to a jury trial.  Rather, the Court found that the trial court’s obligation was to summarily determine whether there was the existence of a valid agreement.

In the Kiell decision, the parties entered into a collaborative agreement wherein they agreed to settle the issues arising from the dissolution of their marriage and would commit to do so without court intervention.  The collaborative law agreement contained a special provision that if any issues arise about which agreement cannot be reached, that the parties would submit the matter to mediation or binding arbitration under the North Carolina Family Law Arbitration Act.  In spite of this, the Plaintiff filed a complaint in the district court seeking a divorce from bed and board, post-separation support, alimony, attorney’s fees and equitable distribution, and included a claim to rescind and invalidate any purported collaborative law agreement between the parties.

The Plaintiff’s claim for a jury trial, although upheld by the trial court, was denied by the Court of Appeals on the grounds that the determination of the existence of a valid arbitration agreement was a matter for the court and did not require a jury trial under the North Carolina Constitution.  The case was remanded to the trial court for the trial court to summarily determine whether the collaborative law agreement contained a valid arbitration clause in light of the Plaintiff’s claims.

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Court Of Appeals Denies Jury Trial On Motion To Void Collaborative Law Agreement

Posted on March 16, 2012 by M. Douglas Berry

In the case of Kiell v. Kiell (September 5, 2006), the North Carolina Court of Appeals held that a party claiming fraud in the inducement of a collaborative law agreement was not entitled to a jury trial.  Rather, the Court found that the trial court’s obligation was to summarily determine whether there was the existence of a valid agreement.

In the Kiell decision, the parties entered into a collaborative agreement wherein they agreed to settle the issues arising from the dissolution of their marriage and would commit to do so without court intervention.  The collaborative law agreement contained a special provision that if any issues arise about which agreement cannot be reached, that the parties would submit the matter to mediation or binding arbitration under the North Carolina Family Law Arbitration Act.  In spite of this, the Plaintiff filed a complaint in the district court seeking a divorce from bed and board, post-separation support, alimony, attorney’s fees and equitable distribution, and included a claim to rescind and invalidate any purported collaborative law agreement between the parties.

The Plaintiff’s claim for a jury trial, although upheld by the trial court, was denied by the Court of Appeals on the grounds that the determination of the existence of a valid arbitration agreement was a matter for the court and did not require a jury trial under the North Carolina Constitution.  The case was remanded to the trial court for the trial court to summarily determine whether the collaborative law agreement contained a valid arbitration clause in light of the Plaintiff’s claims.

By: M. Douglas Berry, Family Law and Divorce Lawyer
Greensboro, North Carolina

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A Person Signing A Separation Agreement Is Responsible For Reading And Understanding The Terms

Posted on March 5, 2012 by M. Douglas Berry

In the case of Nix v. Nix (January 17, 2012), the North Carolina Court of Appeals held that an unrepresented individual who signed a separation agreement should be held to the terms of the agreement even though he may not have understood the wording or the legal implications.  The Court of Appeals held that a person signing a separation agreement is under a duty to read it for his or her own protection and is ordinarily charged with knowledge of its contents and the legal effect of its terms.  When the agreement is clearly expressed, then both parties are bound by the language contained therein.  The failure to read it or the failure to obtain legal advice prior to signing it or a party’s ignorance of the relevant law is irrelevant.  Absent special conditions of coercion, duress or procedural and substantive unconscionability, a party is stuck to the terms of the agreement he or she signs.  In the Nix case, the pro se party complaining about the agreement had possession of the agreement for some time and had more than ample opportunity to seek advice and to get help with understanding its terms.  The lesson of Nix is that one who signs a legal document, in particular a separation agreement and property settlement, does so at his or her own risk.

By: M. Douglas Berry, Family Law and Divorce Lawyer
Greensboro, North Carolina

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Father’s Name on Birth Certificate Creates Presumption of Paternity

Posted on February 16, 2012 by M. Douglas Berry

In a recent decision filed January 17, 2012, the North Carolina Court of Appeals in the matter of J.K.C and J.D.K held that when a child’s birth certificate identifies the father, he is presumed to be the biological father of the child.  The North Carolina courts have long held that a child born to a married couple while they are still legally married and before the entry of an absolute divorce is presumed to be a child born of the marriage.  The J.K.C. and J.D.K. decision added the birth certificate father to this presumption.  Both presumptions, however, are rebuttable.

In re J.K.C. and J.D.K. held that the placement of the father’s name on the birth certificate creates a rebuttable presumption that the father has taken the legal steps necessary to establish paternity, otherwise his name logically could not appear on the birth certificate.  The Court of Appeals dealt with a specific statute, 7B-1111(a)(5), which provided that the trial court may terminate parental rights of the father of a juvenile born out of wedlock when the purported father has not established paternity judicially or by affidavit.  Since the placement of the name on the birth certificate does, in fact, require such determination of paternity by affidavit or judicially, the birth certificate designation of the father was elevated to the status of creating a presumption of paternity.  The practical impact of this is that although a presumption by itself will establish paternity, it can be rebutted by contrary evidence specifically including DNA testing.  Where there is a legitimate question of paternity, the Court must consider all the facts and circumstances.  The presumption created by the name on the birth certificate in many cases is just a starting point.

By:  M. Douglas Berry, Family Law and Divorce Lawyer
Greensboro, North Carolina

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