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The Good Wife, Probate and Sticky Notes

Post-it

Spoiler Alert: If you have the Oct. 4 season premiere of The Good Wife on your DVR, you may want to look away.

Alicia has a new estate case

Alicia has her first new client, apparently from her website (although we later learn that the client was referred by Louis Canning). Ms. Smulders explains that her mother died and she needs a lawyer now. She tells Alicia that her mother didn’t leave a will, but it shouldn’t be contentious because it’s just her and her brother.

It’s a sticky matter

Smulders further explains that her mother didn’t have a lot of money, but she did have quite a bit of stuff around the house — including a signed Chagall painting worth $8 million. But not to worry says Ms. Smulders, to avoid any dispute over who who gets what, her mother left “tack-on notes” on items throughout the house.

Facepalm.

When Alicia and her brother’s counsel (Alicia’s former colleague, David Lee) arrive at the home, they are met by Mr. Handy, who identifies himself as the executor.

Sidebar: Mr. Handy cannot be an “executor” because an executor can only be designated in a will. He could be the “administrator,” but how did he (so quickly) get appointed, and by whom? Under Illinois law, Ms. Smulders and her brother would have had first preference to serve or appoint an administrator.

Circling back to the tour of the house by the “executor” and the attorneys, sure enough when they walk inside they see sticky notes littered about. Except they’re no longer tagged on items. Apparently a recent heat wave had caused the notes to lose their stickiness and now they’re strewn about the floor (go figure). Alicia assumes they’ll agree to a 50/50 split of everything and move on.

Probate court and the parade of expert witnesses

Not so fast. When they meet in probate court, Lee suddenly starts calling expert witnesses in an attempt to prove which sticky notes fell off which items.

Sidebar: As you might have guessed, we have to suspend reality (and ignore probate law) just to continue with this story. Sticky notes cannot take the place of a will and do not provide a valid testamentary disposition. Do not try this at home. Literally. To create a valid will, there must be a writing signed by the testator and attested by two witnesses. But, well, let’s play along to get to the good stuff.

Back to our expert witnesses to determine how the items were tagged (especially that Chagall). First we hear from an adhesives expert (trace residue), then an aerodynamics expert (fall patterns) and finally an industrial suction expert to testify about how the Roomba vacuum might have altered the scene. The probate judge (played by the hilarious Jane Curtin) was clearly amused by the expert testimony. When they inspect the Roomba in open court, they notice there is something stuck inside. You guessed it: another sticky note. It says ‘Selena.’ Selena? Who’s Selena? Oh, that’s the “housekeeper.” Court is adjourned until 4:30 p.m. so that they can get the adhesives expert back on the stand to opine on which item was designated for Selena.

Meanwhile, Alicia gets stuck in bond court and can’t make the 4:30 hearing. Lucca, a fellow bond court attorney, appears in her stead to ask for a continuance. But the judge will have none of it. The adhesives expert is back on the stand and Ms. Smulders figures her brother has struck a deal with Selena. Sure enough, the expert testifies that Selena’s sticky note has the same dutch gold leaf residue as found on the Chagall painting.

Lucca invokes a new Illinois law

As the judge is readying to rule for the housekeeper Selena on the Chagall, Lucca has an aha moment. Selena was the housekeeper? Yes. Was the decedent an invalid (more on that term in a moment)? Yes. And that Chagall, was it worth more than $20,000? Yes, of course. “She can’t inherit the painting,” Lucca exclaims. The judge and opposing counsel are stumped. Lucca continues: “according to Illinois law, a caretaker to an invalid cannot inherit more than $20,000.” Case dismissed.

Presumptively Void Transfer analysis

Alright, let’s break this one down. Lucca was referencing the new “Presumptively Void Transfers” statute that went into effect 1-1-15 (introduced last year on the blog here).

Did they get it right? Attorney Adam Bonin (@adambonin) gives a “90% hug.” A few points:

  1. The term “invalid” is both pejorative and does not appear anywhere in the statute. Rather, the statute applies to a non-family “caregiver.” A caregiver is defined as a person who has assumed responsibility for the care of another person who needs assistance with activities of daily living. Perhaps Selena did provide such needed assistance, but these facts were not drawn out.
  2. The statute applies to “transfer instruments” such as will or trust or beneficiary designation. Again, in this case, we’ll just have to pretend that a sticky note is a valid “transfer instrument.”
  3. Establishing that Selena was a caregiver to the decedent and that she received more than $20,000 in a transfer instrument does not end the inquiry. Rather, it creates a rebuttable presumption that the transfer instrument is void. The presumption may be overcome by the caregiver through the introduction of clear and convincing evidence that the transfer was not the product of fraud, duress or undue influence. Selena should have been given an opportunity to present evidence to rebut the presumption.

How did Lucca do it?

Still, this was some impressive lawyering on the fly by a criminal law attorney. But how did she know about this brand-new law outside of her practice area?

My guess: she’s a member of the Illinois State Bar Association and she regularly reads the monthly Illinois Bar Journal. In that case, she would have come across my article in the January 2015 Illinois Bar Journal entitled “A New Weapon Against Elder Abuse: Presumptively Void Transfers to Caregivers.”