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    The Lawletter Blog

    Matthew T. McDavitt

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    WILLS: Scope of Description "Personal Effects"

    Posted by Matthew T. McDavitt on Wed, Jun 19, 2019 @ 09:06 AM

    The Lawletter Vol 44 No 4

    Matthew McDavitt—Senior Attorney, National Legal Research Group

                The phrase "personal effects" is a descriptor that commonly leads to litigation regarding its usual or intended scope. Unqualified, the word "effects" in a testamentary context generally denotes personal property of any description. Adler v. First-Citizens Bank & Trust Co., 4 N.C. App. 600, 603, 167 S.E.2d 441, 443 (1969). However, pairing the adjective "personal" with the noun "effects" expressly modifies and limits its scope:

    The adjective "personal" would be unnecessary and useless if it did not restrict the meaning of "effects," which standing alone would have covered all personalty. . . . [T]he words "personal effects" . . . [usually] cover only those articles of tangible personal property that in their use or intended use had some intimate connection with the person of the testatrix.

    Gaston v. Gaston, 320 Mass. 627, 628, 70 N.E.2d 527, 528 (1947).  Thus, "[t]he term 'personal effects' ordinarily does not include cash and property held for investment." Beasley v. Wells, 55 So. 3d 1179, 1185 (Ala. 2010); In re Estate of Stengel, 557 S.W.2d 255 (Mo. Ct. App. 1977) (the term "personal effects" meant tangible property worn or carried about the person or tangible property having some intimate relation to the person of the testatrix; the term did not include the bonds, stocks, savings and loan accounts, cash, coins, or currency).

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    Topics: wills, Matthew T. McDavitt, intended scope, personal property not bequeathed, "personal effects"

    PERSONAL INJURY: Liability for Employer's Failure to Obtain Workers’ Compensation Insurance

    Posted by Matthew T. McDavitt on Fri, Jan 18, 2019 @ 09:01 AM

    The Lawletter Vol 44 No 1

     

    Matthew McDavitt—Senior Attorney, National Legal Research Group

     

                Sometimes, through ignorance or neglect, employers subject to the state statutory workers' compensation mandates fail to obtain or maintain the requisite insurance. Where employers subject to the system's mandates are found on the date of an employee's workplace accident (or other compensable event) to lack such insurance (either as a self-insurer or through a third-party insurer), such noncompliance with the workers' compensation insurance mandate has serious consequences for the employer.

     

    First, a noncompliant employer loses a primary benefit of the workers' compensation system's exclusive remedy provision.  This provision bars injured workers from suing their employers in tort in exchange for statutorily defined wage replacement and medical benefits, thereby significantly limiting the potential legal exposure of the employer regarding such accidents.

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    Topics: Matthew T. McDavitt, workers' compensation, noncompliance consequences, insurance requisite, state's employer mandates

    WORKERS' COMPENSATION: Exclusivity—Employer’s Failure to Obtain Insurance

    Posted by Matthew T. McDavitt on Fri, Sep 28, 2018 @ 10:09 AM

    The Lawletter Vol 43 No 4

    Matthew McDavitt, Senior Attorney, National Legal Research Group

                In circumstances where an employer subject to the workers' compensation mandate fails to obtain the requisite insurance coverage, such noncompliance can have serious legal consequences. By statute in many states, such noncompliance deprives the employer of the standard employer tort defenses barring a defendant employer from asserting (1) an assumption of risk, (2) the fellow servant rule, and (3) contributory negligence in a tort suit brought by an injured worker.

                From a policy perspective, this statutory defensive penalty was intentionally enacted so as to materially disadvantage noncompliant employers at trial (by removing an employer’s preferred tort defenses), thereby encouraging employers to participate in the system. Bath Mills v. Odom, 168 F.2d 38, 39-40 (4th Cir. 1948); Blinkinsop v. Weber, 85 Cal. App. 2d 276, 279, 193 P.2d 96, 97 (1948).

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    Topics: workers' compensation, insurance coverage, noncompliance consequences

    TRUSTS: Creation/Timing of Self-Proving Affidavits

    Posted by Matthew T. McDavitt on Mon, Sep 18, 2017 @ 11:09 AM

    The Lawletter Vol 42 No 7

    Matthew McDavitt, Senior Attorney, National Legal Research Group

                In the execution of wills, many testators utilize the optional execution of self-proving affidavits, where statutorily authorized, wherein the will execution witnesses sign a statement before an officer authorized to administer oaths affirming their observation of the testator's mental capacity and testamentary intent, as well as the signing of the will. A properly executed self-proving affidavit raises a legal presumption of due execution and eliminates the normal requirement mandating that witnesses to a will testify in court as to the authenticity of the will.

                In practice, self-proving affidavits are normally created contemporaneously with the execution of the will, and some states' statutes mandate such simultaneous affidavit execution. However, some state statutes expressly allow self-proving affidavits to be executed at any time after the observed will execution. Thus, for example, we see both simultaneous and postexecution self-proving affidavit execution mentioned in Michigan's statutory provision on the subject:

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    Topics: trusts, proper execution, timing, self-proving affidavits

    MARITIME LAW: Is Consumption of Fuel Stores During a Hijacking Event Covered by General Average?

    Posted by Matthew T. McDavitt on Fri, Jul 14, 2017 @ 17:07 PM

    The Lawletter Vol 42 No 5

    Matthew McDavitt, Senior Attorney,National Legal Research Group

            By an appeal published July 13, 2016, a British appellate court affirmed an intermediate appellate decision dated October 24, 2014, that had held that vessel fuel stores (colloquially known as "bunkers") expended while a hijacked ship is under the control of pirates during ransom negotiations constitute an allowable general average "additional expense" under Rule F of the York-Antwerp Rules, the industry codification of traditional general average law. Mitsui & Co. v. Beteiligungsgesellschaft LPG (The Longchamp) [2016] EWCA Civ 708, aff'g EWHC 3445 (Comm). This opinion surprised many industry analysts, as it fundamentally expands the scope of the traditional general average law, broadening its scope so as to modernize this legal regime made less applicable as technology has rendered Aclassical@ general average events a rarity.

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    Topics: maritime law, consumption of fuel stores, highjacking event, general average

    TRUSTS: Charitable Trusts and Bankruptcy Proceedings

    Posted by Matthew T. McDavitt on Tue, Mar 7, 2017 @ 10:03 AM

    The Lawletter Vol 42 No 2

    Matt McDavitt, Senior Attorney, National Legal Research Group

         Where testators or settlors create charitable gifts in trust for named institutional beneficiaries, when the contemplated distribution is ready to be made, sometimes it is found that the intended charity is involved in bankruptcy proceedings. Therefore, the question arises as to the proper disposition of such charitable gifts in trust to the bankrupt institutional beneficiaries.

          There is little law, even nationally, discussing the proper course of action in the event that a named charitable beneficiary is found to be in bankruptcy at the time of distribution. It is logical that a testator who makes a charitable gift would not want his or her gift to be subject to collection by the intended recipient institution's bankruptcy trustee, as such action would solely benefit the charity's creditors, rather than advancing the intended charitable purpose. There is at least one federal opinion interpreting and predicting state law on this point, holding that: (a) Under Massachusetts law as predicted by the First Circuit Court of Appeals, a charitable organization that has ceased to perform charitable work, and that is incapable of redirecting funds for charitable purposes, is ineligible to receive a charitable bequest or gift, absent a contrary provision in will or trust instrument; and (b) It is "difficult to imagine" that, absent special circumstances, a testator seeking to advance general charitable interests would ever intend her gift to be used for the benefit of creditors rather than to promote charitable purposes actually intended. In re Boston Reg’l Med. Ctr., Inc., 410 F.3d 100 (1st Cir. 2005).

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    Topics: trusts, charitable trust, bankruptcy proceeding, proper disposition

    ESTATES: The Inheritability of Digital Music Files

    Posted by Matthew T. McDavitt on Fri, Nov 11, 2016 @ 16:11 PM

    The Lawletter Vol 41 No 10

    Matthew McDavitt, Senior Attorney, National Legal Research Group

         The average layperson might assume that digital music files (i.e., songs purchased from services such as iTunes and Amazon) can be passed by will or intestate succession. This is certainly true for music recorded onto physical media, such as CDs. However, the law currently treats digital files differently, given (a) the manner in which digital music is purchased, (b) the use of multiple digital files when accessing digital music files, and (c) the perishable nature of nondigital media.

         Because most consumers never read the "Terms & Conditions" agreements when purchasing digital music, they may be surprised to learn that when buying a song from iTunes or Amazon, the purchaser is not granted ownership of the downloaded song file, but merely acquires a nontransferable license to use the file on the purchaser’s device for the contract duration. Thus, by contract, such files cannot pass at the death of the purchaser, as the usage license is nontransferable to other persons.

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    Topics: Matthew T. McDavitt, estates, digital music files, usage license is nontransferable

    WILLS: Execution Evidence—Testator Incapacity Due to Permanent Mental Impairment

    Posted by Matthew T. McDavitt on Thu, Jun 30, 2016 @ 16:06 PM

    The Lawletter Vol 41 No 6

    Matthew McDavitt, Senior Attorney, National Legal Research Group

         While the issue is apparently one of first impression in many jurisdictions, a handful of courts nationally have addressed the relevancy and admissibility of evidence of pre- or post-will-execution mental capacity—normally deemed irrelevant to will-execution mental capacity—where it has been shown that the testator suffered from a permanent mental deficiency. Importantly, as observed by the U.S. Supreme Court, where evidence is developed of permanent or continuing mental incapacity, the burden properly shifts to the will proponent to prove a lucid interval, rather than the normal burden upon the contestant to prove incapacity, as continued mental incapacity is legally presumed:

         In addition to the proof . . . of his undoubted insanity prior [to] and for some time subsequent []to [the will execution], there was slight evidence of insane acts during the month of February, though there was no opinion expressed by anyone that he was incapable of making a valid deed or contract. The whole testimony regarding his insanity was duly submitted to the jury, who were instructed that if they found his insanity to be permanent in its nature and character, the presumptions were that it would continue, and the burden was upon the defendant to satisfy the jury by a preponderance of testimony that he was, at the time of executing the will, of sound mind. There was no error in this instruction.

    Keely v. Moore, 196 U.S. 38, 46-47 (1904) (emphasis added).

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    Topics: wills, Matthew T. McDavitt, evidence, permanent mental impairment, Lawletter Vol 41 No 6, testator incapacity

    CORPORATIONS: Nonresident Trust Company Fiduciary Power Reciprocity Statutes

    Posted by Matthew T. McDavitt on Fri, Mar 11, 2016 @ 10:03 AM

    The Lawletter Vol 41, No 3

    Matthew McDavitt, Senior Attorney, National Legal Research Group

         Most states now allow nonresident corporations, such as trust companies, to serve in fiduciary roles such as the personal representative of a decedent estate, trustee, or trust or as the conservator of a guardianship estate. However, various state statutes place varying requirements on such fiduciary roles, such as whether state certification is required by such out-of-state corporate fiduciaries, which fiduciary roles are available to trust companies, and whether an in-state agent must be designated for service.

         One frequent requirement placed upon nonresident companies seeking to serve in a fiduciary role is that of reciprocity: The out-of-state corporation is allowed only the powers and authority granted to nonresident fiduciaries in its state of incorporation. Thus, where a trust company seeks to serve in a fiduciary role in another state, it is imperative to know whether both the state of incorporation and the foreign jurisdiction are "reciprocity" states. The following is a chart compiling the citations of the statutory nonresident corporate fiduciary reciprocity provisions currently in force in the 25 states that possess them: 

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    Topics: corporations, Matt McDavitt, nonresident trust company, reciprocity statutes, fiduciary power

    WORKERS' COMPENSATION: Compensability—Employment-Related Travel in Employer-Provided Vehicle

    Posted by Matthew T. McDavitt on Tue, Nov 10, 2015 @ 12:11 PM

    The Lawletter Vol 40 No 10

    Matt McDavitt, Senior Attorney, National Legal Research Group

         It is well settled under workers' compensation law nationally that, generally, worker injuries occurring coming to, or going from, work are not compensable in nature. However, an important exception to this rule exists regarding accidents in which workers are traveling in employer-supplied vehicles, where the worker is off duty but remains on call. For example, given that city police departments receive a benefit by having their police officers on call for duty at a moment's notice while driving their police cruisers, so long as the travel has some relation to employment, injuries received during such travel are compensable.

    [W]e are satisfied that the City enjoyed sufficient benefits from Ms. Ross's participation in the take-a-car-home program to affirm the Commission's determination of eligibility. The City does not dispute the Commission's conclusion that the City benefitted from the program by having more officers available for immediate response, from better care of patrol cars, and from increased police visibility. Officers with take-home cars were prepared to respond to emergency calls at any time. These officers always had at hand those items required to be kept in the take-home patrol cars, including their service gun, police radio, identification, flashlight, ticket book, report forms, and flares.

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    Topics: Matthew T. McDavitt, workers' compensation, compensability, employment-related travel, The Lawletter Vol 40 No 10

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