Lack of Coordination: The Potential for Best Laid Plans to Go Awry

By: Martin S. Shenkman and Sandra D. Glazier[1]

This article was originally published in Leimberg Information Services, Inc. (LISI).

In 1786 Robert Burns wrote his insightful poem commonly referred to as “Mousie”. In it he reflects that upon plowing his fields he undoes the foresight of mice who unfortunately built their nest in Burns’ field. He pens the oft used phrase that “the best laid plans of mice and men often go awry”.[2] In the realm of estate planning, a lack of coordination in the designation of agents, assets and/or beneficiaries frequently causes even the best laid plans to go awry. While subsequent changes to designations made by a client may be beyond our control, attention to the potential difficulties arising from conflicting directions and designations of agents may be a discussion worth having. At least the client who is “forewarned is forearmed”.[3]

Generally, clients come to us with some general, or perhaps even specific, ideas of how they wish to dispose of their property upon death. As part of a comprehensive approach to the client’s estate plan, it’s incumbent upon us to ask who they want to be responsible for administering those assets, not only upon death but also in the event of incapacity. Because the issue of asset management and control can fall under the auspices of different fiduciaries, consideration of who they will be and how they might interact and relate can be extremely important. Creating a comprehensive plan for clients often goes beyond simply drafting estate planning documents.

Planning for aging (and incapacity) requires more than just the traditional preparation of a Will, durable power of attorney (“DPOA”) (and perhaps a revocable trust). The multitude of fiduciary and quasi-fiduciary appointments clients make, almost entirely without professional input, can create conflicts and inconsistencies in the administration of the client’s affairs. Practitioners can provide great assistance to their clients when they expand the scope of their inquiry and client discussions to address issues relating to such appointments and the importance of coordination of fiduciaries named under primary legal documents. Doing so can forewarn the client of pitfalls that could undermine the safeguards the planning team is endeavoring to create. As estate planning remains extremely relevant in implementing client desires, it’s important for practitioners to evolve and consider a broader range of practical, non-technical, considerations that can make our services beneficial to all spheres of client echelons.

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Sandra D. Glazier Selected by Trusts & Estates Magazine to Co-Present “Confronting Undue Influence in Your Practice” in a Webinar for Wealth Management Professionals

Sandra GlazierSandra D. Glazier Sandra D. Glazier has been selected by Trusts & Estates Magazine, the WealthManagement.com Journal for estate-planning professionals, to co-present with Thomas M. Dixon, in a webinar titled, “Confronting Undue Influence in Your Practice.” This free webinar will be Wednesday, October 18, 2017, at 2:00pm EDT. Click here to register.

Individuals with estates both large and small can be susceptible to undue influence, which is becoming more prevalent as the basis for attacking estate-planning documents. As our population ages and becomes more vulnerable, the risk of undue influence being exerted increases. Accordingly, it’s increasingly important for attorneys to understand and identify vulnerabilities and the indicia of undue influence. This task becomes critical:

  • During the initial representation phase, in understanding the issue of competency versus undue influence.
  • In the drafting phase, in recommending options and practices to protect the integrity of an estate plan.
  • After death, in being conversant with the ins and outs of litigating undue influence cases.

This webinar will help planning professionals understand undue influence, identify important factors that might give rise to a claim of undue influence, suggest strategies to enhance enforceability of estate-planning documents and recommend tips for litigating undue influence cases.

An attorney for more than 35 years, Ms. Glazier is known for her expertise and successful track record in probate litigation, estate planning, trust and estate administration, and family law matters. The cases she works on tend to be very complex and require technical as well as legal expertise. Ms. Glazier has represented contestants and proponents of estate planning documents, as well as fiduciaries, in significant trust litigation proceedings. An AV Preeminent® rated attorney, she has also been recognized by “Super Lawyers” in probate litigation and a “Top Lawyer” by DBusiness, in the areas of probate, estate and family law.

Ms. Glazier has had numerous articles published by some of the legal industry’s leading publications. In addition, she has presented on estate planning and probate litigation related topics for the American Bar Association, Notre Dame Tax and Estate Planning Institute, Kansas City Estate Planning Symposium, Michigan’s Institute of Continuing Education, Oakland County Bar Association, Wilmington Trust’s New York Trust Symposium and the Bloomberg BNA Estate and Gift Tax Advisory Board. She has taught “Valuation for Federal, Estate and Gift Tax Purposes” in a Masters level course. Ms. Glazier is a principal of Lipson, Neilson, Cole, Seltzer, Garin, P.C. and practices out of their Bloomfield Hills, Michigan office.

Contact: Sandra D. Glazier
Phone: 248-593-5000
Email: sglazier@lipsonneilson.com

Summary Dismissal Victory by C. Thomas Ludden and Samantha Heraud

Samantha Kaplan Heraud

Samantha Heraud

C. Thomas Ludden

C. Thomas Ludden

As their initial response to the Complaint, Lipson Neilson challenged whether a defendant had been served with the summons and complaint before the summons expired. After reviewing the parties’ briefs, the Wayne Circuit Court held an evidentiary hearing regarding whether the process server had delivered the summons and complaint to the defendant. Upon completion of the evidentiary hearing, the Wayne Circuit Court granted the motion and dismissed all claims against the defendant.

Las Vegas Office Adds Attorney Karen Kao

karen-kao-006-web-res-resizedLipson, Neilson, Cole, Seltzer, Garin, P.C. announced today that attorney Karen Kao has joined the firm’s Las Vegas office as an associate attorney. Ms. Kao’s practice focuses primarily in the areas of General Liability Insurance Defense, and Homeowner and Community Association law.

Ms. Kao received a B.A. in Criminology, Law, and Society from the University of California, Irvine, and a Juris Doctor degree from the Valparaiso University School of Law. While in law school, Ms. Kao externed with the Honorable Judge David Barker, and the Honorable Gloria Sturman in the Eigth Judicial District Court for Clark County, Nevada.

Prior to joining the firm, Ms. Kao clerked at the Los Angeles county District Attorney’s office, and a private general litigation firm in the San Gabriel Valley. She is fluent in conversational Mandarin.

About Lipson Neilson
Founded in 1985, Lipson, Neilson, Cole, Seltzer, Garin, P.C. has offices in Las Vegas, Phoenix, and Bloomfield Hills. The firm is widely known for its excellence in the professional liability lines, offering invaluable insight and experience to its clients across all industries. The firm represents clients in Nevada, across the USA and around the world.

Contact: Joe Garin – Managing Partner of Lipson Neilson’s Las Vegas office.
Phone: 702-382-1500
Email: JGarin@lipsonneilson.com

Attorney Brent Demmitt Joins Lipson Neilson’s Phoenix Office

Brent Demmitt linkedin photo resizedBrent Demmitt has joined the firm’s Phoenix office as an associate attorney. Brent’s practice focuses primarily in the areas of real estate litigation, insurance defense, and commercial litigation. He also has experience in the areas of bankruptcy, environmental law, and sports law.

Brent received a B. A. in Economics from Kansas State University, a Masters in Sports Administration from Florida State University, and a Juris Doctor degree from the Sandra Day O’Connor College of Law at Arizona State University where he achieved the CALI Excellence for the Future Award, an honor given to the highest grade in Legal Writing. He was also honored as a Willard H. Pedrick Scholar.

While in law school, Brent externed for the Honorable Madeleine C. Wanslee with the United States Bankruptcy Court, Arizona Division. Additionally, he was an extern at the Department of the Interior, Office of the Solicitor, in the Phoenix, Arizona field office.

Brent is a board member for Playworks Arizona, a non-profit that teaches conflict resolution in elementary schools. He is a coach of a high school mountain biking team, and formerly held the position of vice-president of the Phoenix Women’s Sports Association.

About Lipson Neilson
Founded in 1985, Lipson, Neilson, Cole, Seltzer, Garin, P.C. has offices in Phoenix, Las Vegas and Bloomfield Hills. The firm is widely known for its excellence in the professional liability lines, offering invaluable insight and experience to its clients across all industries. The firm represents clients across the USA and around the world.

Sandra D. Glazier Featured Speaker at Wilmington Trust’s 2017 Summer Symposium for Trusts & Estates Professionals

SG001_SQ_eSandra D. Glazier, author of Testimony from Beyond the Grave – The Gravamen of the Attorney-Client Privilege in Will and Trust Contests, will be a featured speaker on this topic during Wilmington Trust’s 2017 Summer Symposium for Trusts & Estates Professionals. This symposium will be held on July 19, 2017 at Christie’s in New York City. Ms. Glazier’s presentation has qualified for one Ethics CLE credit in New York and New Jersey.

An attorney for more than 35 years, Ms. Glazier is known for her expertise and successful track record in probate litigation, estate planning, trust and estate administration, and family law matters. The cases she works on tend to be very complex and require technical as well as legal expertise. Ms. Glazier has represented contestants and proponents of estate planning documents, as well as fiduciaries, in significant trust litigation proceedings. An AV Preeminent® rated attorney, she has also been recognized as a “Top Lawyer” by DBusiness, in the areas of probate, estate and family law.

Ms. Glazier has had numerous articles published by some of the legal industry’s leading publications. In addition, she has presented on estate planning and probate litigation related topics for the American Bar Association, Notre Dame Tax and Estate Planning Institute, Kansas City Estate Planning Symposium, Michigan’s Institute of Continuing Education, Oakland County Bar Association, Wilmington Trust’s New York Trust Symposium and the Bloomberg BNA Estate and Gift Tax Advisory Board. She has taught “Valuation for Federal, Estate and Gift Tax Purposes” in a Masters level course. Ms. Glazier is a principal of Lipson, Neilson, Cole, Seltzer, Garin, P.C. and practices out of their Bloomfield Hills, Michigan office.

Contact: Sandra D. Glazier
Phone: 248-593-5000
Email: sglazier@lipsonneilson.com

David G. Michael Selected to Moderate Panel Discussion On the Opportunities and Challenges Facing Urban Farmers

David MichaelDavid G. Michael, an attorney specializing in Real Estate law at Lipson, Neilson, Cole, Seltzer, Garin, P.C., has been selected by the Oakland County Bar Association’s Real Estate Committee to moderate a panel of industry experts during a seminar titled “Planting City Roots: Advising the Urban Agriculture Enterprise.”

Held on June 22, 2017, this seminar provided attendees with an interactive discussion of the challenges faced by urban agriculture enterprises, as well as the legal and business issues that need to be addressed by these enterprises.

Topics of discussion included:

  • The case for welcoming agriculture to urban neighborhoods and communities.
  • The legal and public policy issues facing urban agriculture enterprises large and small.
  • Agrihoods: The latest trends in urban revitalization, from farm-to-table.
  • Regulating medical marijuana growers under the revised Medical Marijuana Act.

David G. Michael practices law in many different areas including commercial litigation, real estate transactions, and commercial leasing. He also works with landlord-tenant and condominium law and litigation. David is a member of the Oakland County Bar Association, where he is a contributor to LACHES Magazine and he stands as the Real Estate Committee Vice-Chair. He is also a member of the State Bar of Michigan in the Information Technology Law and Real Property Law sections.

Founded in 1985, Lipson, Neilson, Cole, Seltzer, Garin, P.C. is an AV rated law firm with offices in Michigan, Nevada and Arizona. To learn more about the firm and its attorneys please visit www.lipsonneilson.com.

Contact: David G. Michael
Phone: 248-593-5000
Email: dmichael@lipsonneilson.com

Steven Malach Administers Multi-Million Dollar Charitable Estate Plan and Trust for Prominent Judge

Steven MalachSteven Malach, Founder and Director of the Center for Estate Planning (CEP), a subsidiary of the Lipson Neilson law firm, has completed the administration of the multi-million dollar estate plan and trust of the Honorable Judge Michael Stacey. This estate plan and trust provided for numerous charitable endeavors including:

  • Increasing care for those suffering the ravages of Alzheimer’a in the metro-Detroit area through the Dorothy and Peter Brown Adult Care program in West Bloomfield Hills, Michigan.
  • Establishing Palliative care as a go between medical and hospice care for individuals via the Jewish Hospice & Chaplaincy Network in West Bloomfield, Michigan.
  • Supporting child cancer research at the St. Jude’s Hospital.
  • Variety: The Children’s Charity
  • Yad Ezra food pantry for impoverished people who rely heavily on government assistance programs, including food stamps.
  • ENSURE: A non-profit charity that specifically supports pediatric surgical research at Children’s Hospital of Michigan.

Judge Michael Stacey graduated from Wayne State University Law School and was admitted into the State Bar of Michigan in 1951. Before becoming a judge, he was in private practice and ran one of the first mediation panels in Michigan. Judge Stacey was appointed by Michigan Governor William Milliken to the Wayne County Circuit Court in January, 1974. He retired from the bench in 1994 and continued in private practice as a pre-eminent Mediator and Arbitrator.

An attorney for more than 30 years, who has handled cases in every county in Michigan, Mr. Malach heads Lipson, Neilson, Cole, Seltzer, & Garin, P.C.’s estate planning practice group and is the founder of the Center For Estate Planning (CEP). With offices in Michigan and Arizona, the CEP specializes in all aspects of estate planning, from estate administration to lifetime counsel and probate administration work. CEP attorneys work with individuals, closely-held businesses and charitable organizations. Mr. Malach’s practice specializes in elder law, estate planning, probate, wills, trusts and trusts administration.

Contact: Steven Malach
Phone: 248-593-5000
Email: SMalach@lipsonneilson.com

Steven Malach Participates in 2017 NAELA Annual Conference

Steven MalachSteven Malach, who heads up the Probate, Trust and Estate Planning section of Lipson Neilson, recently attended the 2017 Annual NAELA (National Association of Elder Law Attorneys) Conference in Boston, Mass. Mr. Malach participated with attendees from across the country in various sessions led by experts in their respective fields including the following topics:

  • The future of aging.
  • Fiduciary access to digital assets.
  • 50 Shades of Gray Hair; Romance in the Nursing Home.
  • Updates on Litigation to ensure a client’s wishes are upheld.

The above meetings were held against the backdrop of the historical local background in pursuing life, liberty and the pursuit of happiness.

Mr. Malach is a twenty year active member of NAELA which is active legislatively at the local, State and Federal levels.

Summary Dismissal Victory Achieved by Phillip E. Seltzer and Shawn Grinnen In Defense of Lawyer on Claim of Legal Malpractice

Phil and Shawn PhotoA first responsive motion for summary dismissal of a legal malpractice claim was recently granted in favor of a Defendant-Lawyer represented by Lipson Neilson attorneys Phillip E. Seltzer and Shawn Grinnen. The Defendant-Lawyer represented Plaintiff in a prior criminal proceeding involving his alleged failure to register as a sex offender for a prior offense and engaging in sexually abusive conduct with a minor over Facebook. After waiving the preliminary hearing and obtaining discovery, the Plaintiff decided to terminate Defendant-Lawyer and new counsel was appointed. Defendant-Lawyer formally withdrew via court order.

Over a month later, while represented by successor counsel, Plaintiff entered into a voluntary plea agreement, admitted his guilt of the criminal charges on the record, admitted to the location of the crimes, affirmed that his decision to plead guilty was voluntary and without threats or other inducements, and that he was knowingly waiving his right to trial and defend. While serving a four-year sentence, Plaintiff sued Defendant-Lawyer for malpractice, claiming that the waiver of the preliminary exam was critical since the alleged crimes occurred in a different county and no jurisdictional basis existed for his prosecution or guilty plea in the County Court where he was charged.

As an initial response to the Complaint, the Lipson Neilson team filed a motion for summary dismissal arguing that the claim of legal malpractice was barred because: (i) Plaintiff’s voluntary plea of guilty cut off all causation for Plaintiff’s injuries (wrongful incarceration and loss of business and loss of income) as a matter of law, and (ii) Plaintiffs’ statements on the record, concerning his guilt and the location of the underlying crimes, judicially estopped Plaintiff from asserting the crimes occurred elsewhere or that Defendant-Lawyer failed to raise a jurisdictional argument at the preliminary exam. Additionally, during the dismissal motion hearing, Plaintiff’s asserted for the first time that his plea agreement was not voluntary and he lied under oath because his lawyer supposedly told him to so in order to get a more lenient sentence.

As a result, the Lipson Neilson defense counsel spontaneously argued that the legal malpractice claim was also barred under the the doctrine of in pari delicto – the wrongful conduct rule – because Plaintiff’s criminal conduct in committing perjury at his plea hearing was the central cause of his incarceration and consequential damages. Accordingly, such wrongful conduct prohibited Plaintiff from pursuing any civil remedy. The Trial Court granted the motion, adopting the legal grounds presented, and summarily dismissed the case.