Lawletter Vol. 51, No. 4

Nadine Roddy—Senior Attorney

    In a matter of first impression, the Colorado Supreme Court has recognized a self-defense public policy exception to the at-will employment doctrine. Moreno v. Circle K Stores, Inc., 591 P.3d 46 (Colo. 2026).

   The plaintiff in Moreno was a 72-year-old woman who had been working at her employer’s convenience store. A customer approached the register holding several items, including two hunting knives. He placed the knives on the counter and told her to get him a pack of cigarettes. The employee retrieved a pack from the display case behind her and began to ring up the sale. The customer said something to the effect of, “[J]ust give them to me for free.” When the employee refused, the customer picked up the knives and walked around the counter toward the employee, cornering her. She twice told the customer, “[D]on't come back here.” Undeterred, and with knives in hand, he continued to approach; Moreno then extended her arms to protect herself. The customer then grabbed the pack of cigarettes and ran out of the store. He was subsequently arrested, and ultimately pleaded guilty to menacing with a deadly weapon.

Lawletter Vol. 51., No. 4

Matthew McDavitt—Senior Attorney

     When money allocated to a pet care trust is found to be excessive because the value of the trust exceeds the amount reasonably required for its intended use, courts in many states possess statutory authority to reduce or redirect the excess.

    Except as otherwise provided by the express terms of the trust instrument, any excess trust property determined by a court to exceed the amount needed for the animal's care must be distributed according to specific statutory hierarchies. For example, if the settlor is living, the laws of Connecticut, Texas, Virginia, Florida, Pennsylvania, Arizona, Maryland, and Missouri all dictate that the excess must be distributed to the settlor. See Conn. Gen. Stat. § 45a-489a; Tex. Prop. Code § 112.037; Va. Code Ann. § 64.2-726; Fla. Stat. § 736.0408; 20 Pa. C.S. § 7738; A.R.S. § 14-10408; Md. Est. & Trusts Code Ann. § 14.5-407; and § 456.4-408, R.S.Mo.

The Lawletter Vol. 50 No. 4

CIVIL PROCEDURE: UFOs, Aliens, and Helicopters: A Study in Improper Parties

Matthew T. McDavitt—Senior Attorney

       By federal complaint filed January 9, 2013, plaintiff Shirley Durante—clearly suffering from some unstated mental health issue—sued defendants: (1) Massachusetts real estate broker Todd Sandler, (2) UFOs, (3) Aliens, and (4) Helicopters, alleging that aliens from Jupiter and Mars were harassing her:

Shirley Durante . . . complains that helicopters, UFOs, and aliens have been harassing her with laxatives and bright lights which burn her face and eyes. This harassment is destructive to her property as well, damaging three car mirrors. It appears that in some unspecified way Todd Sandler and family of Randolph, Massachusetts, have something to do with this harassment. Durante has written to the Department of Homeland Security and Senator Susan Collins about this harassment, but apparently has received no assistance. She has also gone to the Maine state courts seeking relief from the harassment. She has now determined that her recourse is to file a federal lawsuit.

The Lawletter Vol. 50 No. 1

Matthew T. McDavitt—Senior Attorney

       Under U.S. law, a testator drafting a Last Will and Testament must possess testamentary capacity for the document to be legally valid. Testamentary capacity generally requires that the testator understands the nature of their act, knows the extent of their property, and recognizes the natural objects of their bounty (typically family members or loved ones). However, even when these basic requirements are met, a will may still be invalidated if the testator suffered from an "insane delusion" that materially affected the disposition of their estate.

The Lawletter Vol. 49 No. 3

 Matthew McDavitt, Senior Attorney

ESTATES:  Enactments of the Uniform Electronic Wills Act

        Traditionally, to be valid, a last will and testament had to be executed on paper with the requisite will execution formalities, with the testator and the dual attesting will witnesses physically signing the instrument together at the will execution ceremony. In recent years, however, an increasing proportion of contracts and instruments nationally are executed wholly electronically, wherein the requisite signatures and witness attestations are now often made via digital means. Similarly, in states exacting the Uniform Electronic Wills Act, the testator, attesting witnesses, and notary may now appear via video conference in the “electronic presence” of each other, rather than in person. The Uniform Electronic Wills Act thus empowers testators in jurisdictions that have enacted this model statutory text to execute wills electronically, with the attesting witnesses able to appear and witness the will execution via video conference. Additionally, a valid electronic will under the Act must be a “tamper-evident electronic record” to guard against fraudulent tampering with such digital testamentary instrument post execution. Also, under the model Act, an electronic will, once validly executed, may be revoked via (1) a subsequent inconsistent will, or (2) by “physical act,” which, though not defined, may mean deletion of the authenticated, executed digital will file.

The Lawletter Vol. 48 No. 2

Matt McDavitt, Senior Attorney

           A common issue to be resolved in any administration of a decedent estate is the determination of the rightful value of the compensation due to the serving personal representative. While the will of the decedent may validly dictate the amount of compensation due to the serving personal representative (though, subject to judicial scrutiny), more commonly, the value of such fiduciary compensation follows statutory strictures. Lacking an appropriate testamentary personal representative compensation provision, states employ an array of calculation methods to determine the proper value of such remuneration based on one of several methods.

            A common methodology employed in personal representative compensation statutes is to examine a suite of elements characterizing the relative complexity of the estate administration, the objectively reasonable effort required to perform the necessary tasks, the diligence of the personal representative, and results attained therefrom:

The Lawletter Vol 47 No 4

Matthew McDavitt—Senior Attorney, National Legal Research Group

     It is not uncommon for the estates of individuals at death to possess one or more souvenirs, pieces of jewelry, trophies, collectibles, or artworks made from animal parts, such as carved ivory, fur rugs, tortoise-shell ornaments, crocodile skin leather, and the like. What legal issues might an estate or beneficiary face if he were bequeathed animal parts listed in Endangered Species Act?

     The U.S. Congress enacted the Endangered Species Act (“ESA” or the “Act”) (currently codified at 16 U.S.C. §§ 1531-1544) on December 28, 1973, with the aim of barring commerce in the endangered and threatened species listed in the Act, as such financial value contributes to the continuing depletion of such species and the contraction of their populations and range.

     Importantly, among the acts prohibited under the ESA, it is forbidden for an individual to “possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any such species taken in violation [of the Act].” Id. § 1538(a)(1)(D) (emphasis added). However, this statutory language barring possession of an ESA-regulated species part applies solely to animals “taken in violation” of the Act, i.e., the animal was captured and/or killed and transformed into a commercial product after such species had been listed to the ESA.

The Lawletter Vol 46 No 6

Matthew McDavitt—Senior Attorney, National Legal Research Group

     In some wills, testators expressly condition the beneficiaries’ receipt of legacies upon their survival to the date of actual distribution of the gift during the estate administration. In such circumstances, the question occasionally arises regarding the propriety of such survival mandate where (1) the administration is delayed beyond the average length due to dilatory conduct by the executor or due to litigation, and (2) one or more legatees survived the testator’s death but died prior to the distribution of the legacy. A handful of courts nationally have addressed this fact pattern, arriving at a logical rule applicable when unusual delay in distribution results in the one or more legatees predeceasing distribution.

     It is well-settled that the “personal representative is under a duty to settle and distribute the estate of the decedent . . . as expeditiously and efficiently as is consistent with the best interests of the estate.” 31 Am. Jur. 2d Executors and Administrators § 686 (2021). As such, a handful of American courts examining the issue have concluded that the equitable rule in this circumstance is that legacies conditioned upon beneficiary survival to the date of distribution vest at the time such legacies could first have been distributed (often a year from when the estate was opened), to protect such gifts when the administration is unduly delayed.

The Lawletter Vol 46 No 3

Matt McDavitt—Senior Attorney, National Legal Research Group

            It is well-settled that in most states, completed inter vivos gifts are deemed irrevocable, even in circumstances where the donor’s relationship with the donee later deteriorates or the purpose of the gift dissipates. “Many gifts are made for reasons that sour with the passage of time. Unfortunately, gift law does not allow a donor to recover/revoke an inter vivos gift simply because his or her reasons for giving it have soured.” Dayal v. Lakshmipathy, 2020-Ohio-5441, ¶ 37, 163 N.E.3d 683 (quotation formatting and citations omitted). However, Louisiana has a unique statute that allows completed lifetime gifts to be revoked upon proper facts showing “ingratitude” to the donor, either through attempted murder or through cruel treatment, where an action is brought within a year of the injurious act or imputed knowledge of such.

Revocation on account of ingratitude may take place only in the following cases:

• If the donee has attempted to take the life of the donor; or
• If he has been guilty towards him of cruel treatment, crimes, or grievous injuries.

The Lawletter Vol 45 No 5

Matt McDavitt, Senior Attorney, National Legal Research Group

     When a person dies without a will, the decedent’s estate is passed via the statutory regime of intestate succession, representing the presumed intention of most people to gift their estate at death to their close heirs.

     A decedent’s intestate heirs encompass one’s closest blood relatives (plus more remote relatives via representation through deceased family members who have died leaving surviving issue), plus any children that were legally adopted by the decedent, or their issue. However, while it is common nowadays for out-of-wedlock children to petition estate administrations in order to prove their relation to a claimed deceased father, the related circumstance also arises where the paternity of a presumptive child of marriage is challenged.