Posted by Jessica Ward on 8/4/12 4:04pm
Msg #429361
Wills in the news
Have you seen the latest news about Michael Jackson's family? Typically, this wouldn't cross my mind, but I did several house calls for estate documents this week, so I noticed the story.
Apparently the will they are executing was signed in California on a date that MJ was irrefutably in New York.
Venue matters folks! Is it a fraudulent will, or a notary who didn't know any better than to ensure the venue reflects "where your feet are"?
What a mess this makes for the whole family!
http://www.komonews.com/news/entertainment/Jacksons-say-estate-executors-harming-the-family-165002776.html
| Reply by JanetK_CA on 8/4/12 6:05pm
Msg #429364
I posted a reference to this a few days back (probably in a thread going stale), trying to make the same point that venue matters. (My comments there were from sketchy memory, because I'd heard about it on the radio about a week before.) I stand by that, and agree with you that this is a good illustration of that issue.
However, there's one detail specifically related to the Michael Jackson story that makes me wonder. Typically, Wills in California are not notarized, just witnessed, and I can't recall any venue info being included on the ones I've seen, although I suppose his Will could have been done differently. On the other hand, it makes me wonder why we DON'T notarize wills... I can't think of another document where it would be more important to have it proven that the person named in the document is, in fact, the one who signed it.
Just something that I've thought about since hearing about this.
| Reply by Jessica Ward on 8/4/12 6:20pm
Msg #429365
Good points
I don't recall anything in the story about the will being notarized, I just assumed this because WA prefers notarized wills (w/two witnesses, which is one of the very few things we require witnesses here for).
| Reply by Sylvia_FL on 8/4/12 7:37pm
Msg #429369
It wasn't notarized but the last page says it was executed on July 7th 2002 at 5pm Los Angeles, CA
http://www.aolcdn.com/tmz_documents/0701_mj_will_wm.pdf
| Reply by CopperheadVA on 8/4/12 8:01pm
Msg #429370
Wow, he named all three of his children after himself!
| Reply by Marian_in_CA on 8/4/12 9:13pm
Msg #429375
Janet.. I know, right? I've never understood that, either. I mean, it seems like a notarization would be more than enough to have settled the argument his siblings are making in this case.
From what I've read, there is a suggestion that wills in California can be invalidated if they are notarized. I've never understood that nor have I found a reasonable explanation. I'm wondering if it's some kind of urban legend or tradition. Legal Zoom has the closest thing I can find:
http://info.legalzoom.com/last-testament-need-notarized-california-3753.html
SO it seems that because notarization is not noted as being part of the required format as set out by state law, it seems many lawyers (maybe there is legal precedence?) won't have them notarized because the addition of a notary certificate to a will deviates from the mandated formats? I don't know. Nor do I understand how a notarization could invalidate a will. If anything it would be an additional witness and solid proof.
However, there is no actual prohibition of notarizing signatures on wills in California. The confusion with this lies from a statement on page 13 in the 2005 handbook that read:
"The California State Bar advises that when a notary public is asked to notarize a document which purports to be a will, the notary public should decline and advise the person requesting the notarization to consult a member of the California State Bar. If an attorney recommends that the document be notarized, a notary public may do so."
Note that this was NOT a rule or directive from the SoS, but an advisement from the State Bar. Also, note that since 2006, this notice does NOT appear in our handbooks. Also, you cannot find it anywhere on the State Bar's website either. Believe me, I've tried and tried to find it. I can't.
Back when I was really confused over this I called the SOS office and was told, as notaries, we are supposed to honor every legal request to have a signature notarized. They also pointed out that we are not responsible for the content of the document as noted in our handbook. They did, however, state that it cannot hurt for us to ask if they've consulted an attorney... but we cannot refuse to to notarize simply because they have not done so.
They also said that, unless we are also attorneys, we should not be telling them anything about how a notarization could impact the will because that constitutes giving legal advice.
While we cannot suggest it, the format I see most often is a separate document/statement wherein the person (and witnesses) acknowledges creating and or witnessing the will, and THOSE signatures are notarized, but not on the will itself. For them, it seems as if they are notarizing the will, when in fact, they're not, it's a totally different document.
The point being... even though notarizing a signature on a will *may* invalidate it, we're not allowed to advise people of that, nor are we allowed to refuse their legal request.
| Reply by JanetK_CA on 8/4/12 9:48pm
Msg #429377
Yeah, I agree. Especially if a thumbprint was taken and a venue was properly filled in on the notary certificate. 'Course that could be a big "IF"! 
And you may have a good point about people misinterpreting the former statement from the CA bar about notarizing wills. I remember seeing that for years prior to when it disappeared from the Handbook. However, I always interpreted that paragraph to mean that it was recommended that people consult an attorney when preparing a will - NOT that there was anything about notarizing it that was improper.
I guess we could say that's just one more example of how different people can read the same words and understand something completely different from them.
As for a required format, from a quick scan of your link, it seems to me that that applies only to statutory wills, but attorney-prepared wills can be in any format the attorney chooses.
| Reply by LKT/CA on 8/5/12 1:53pm
Msg #429417
I think we have to be careful about dismissing conventional wisdom. In other words, because something is not a concrete law or prohibition, we should not regard it as "urban legend or myth". There may be no law saying wills should not be notarized but if the CA state bar suggests against it, they have reasons why they make that suggestion.
There's no law saying you cannot walk down the street waiving a wad of cash, but it would be foolish to do so. Not everything advised against has to be a law, nor do we have to understand it or agree with it do follow it. JMHO
| Reply by JanetK_CA on 8/5/12 6:32pm
Msg #429430
I agree with your comments about conventional wisdom, but I suspect that the reasons the state bar recommended that statement could just as easily have had something to do with promoting business for attorneys as anything else. I don't know, I'm just sayin"...
While it's probably a good idea to get legal counsel when dealing with something as important as a Will, for some reason the SOS's office saw fit to remove that paragraph from our handbook several years ago. I'm sure they had a reason for that, too. If there was strong enough conventional wisdom behind the Bar Association's recommendation, I'd think it would have been left in there.
So the bottom line, as I see it, is that it's probably a good idea to ask people if their Will is attorney-prepared and even mention that most Wills in California don't get notarized. But if someone still wants their Will notarized, I don't think we should refuse to do so.
| Reply by LKT/CA on 8/5/12 8:59pm
Msg #429441
<<<but I suspect that the reasons the state bar recommended that statement could just as easily have had something to do with promoting business for attorneys as anything else. I don't know, I'm just sayin"... Wink>>>
I suspect the reason has to do with fact that notaries are officers OF the state and probate, which has to do with the disposition of assets of the deceased BY the state - could be a conflict of interest. That's my guess/opinion.
If a notary refuses a request to notarize a Will, and they're reported to the SOS, in THIS case, I doubt the notary will be penalized, even though the handbook no longer addresses the issue. Each CA notary must decide for himself/herself whether they'll cross that bridge.
| Reply by Marian_in_CA on 8/6/12 11:20am
Msg #429485
My problem with all of this is that the advice about sending them to an attorney (which I don't necessarily disagree with, BTW) is a hold over from a handbook that is 7+ years old and from notaries who were taught that. That guidance cannot be found in any of the current handbooks or training materials, nor have I even been able to find it on the state bar website. It just....disappeared. To me, that says something. What, exactly? I don't know... but it's weird, and it seems all parties have been pretty silent on the issue.
Not that I would... but if I took a will to a Notary and they refused citing this outdated advice, I'd make them prove to me where current information tells them this is true that prevents them from doing it. If you look at it from the perspective... what grounds do we have to deny the request? That we've heard it could invalidate the will? Talk about crossing a bridge right over in to the land of legal advice and opinion. Without a written, concrete (and current) reason to decline a notarization, if I'm asked... I'll do it.
I do wish the Sec of State's office would issue a clarification on this, though, because it sure creates a lot of drama.
| Reply by MikeC/TX on 8/6/12 4:27pm
Msg #429546
I know that notarizing the signatures on the will itself may invalidate the will in NY. This is based on NY case law, and it's why NY and other states that do not allow notarization of wills use a Self Proving Affidavit (what you described towards the end of you post) instead. I don;t know about elsewhere, but wills drawn up by attorneys in NY almost always include a Self Proving Affidavit.
I don't completely recall the judge's reasoning in the NY case, but I'm pretty sure it was something along the lines of the notary's signature on the will could could be construed to mean that the notary supervised the execution of the will - that would be UPL, and call into question the validity of the document itself.
It could be that the CA Bar is concerned about the same thing happening, and is suggesting that the notary direct the signer to an attorney for advice to avoid that.
I don't agree with the statement made by whoever you spoke to that you can't say anything about what effect a notarization might have on the will. That's not UPL - you're directing them to speak with an attorney before proceeding, because you're not sure whether you should perform the notarization.
| Reply by MW/VA on 8/4/12 8:11pm
Msg #429371
It's a shame for the children, but I guess that goes with
living in a high-profile family. There's a lot of money involved, and I'm sure there's going to be a lot of legal dispute about it.
IMO I don't think the notary error will be enough to invalidate the Will, which is what they're trying to do.
| Reply by Sylvia_FL on 8/4/12 8:35pm
Msg #429372
Re: It's a shame for the children, but I guess that goes with
The will wasn't notarized so there is no notary error. The dispute is that the will was signed in Los Angeles at 5pm on the 7th July 2002, and they say he was not in Los Angeles on that date, he was in New York so couldn't have signed a will in Los Angeles.
| Reply by Marian_in_CA on 8/4/12 8:50pm
Msg #429373
Re: It's a shame for the children, but I guess that goes with
The thing about this is that the will was already deemed valid years ago...and was upheld in appeal, too. I remember watching a legal show about it. The estate and the witness both told the court that the fact that the witness stated it was done in Los Angeles was a mistake. It was signed in New York. I think the witness proved that he/she was in New York at the time, too. I think they wrote Los Angeles because that's where he lived. I mean, if you think about it... how many people do we meet who are signing papers similar to this who say, "What am I supposed to put here?"
If I recall correctly, another point that refutes the siblings' claim is that even if *that* will had been invalidated, than the previous one would have been used, and the same executors were noted in that will, too. So, even if the last one was invalidated, the estate would still be exactly where it is now.
His siblings are just upset because their brother left his money to his mother and his kids and not to them.
My guess is that the siblings know darn well the will can't be overturned and they're making all this ruckus in the hopes that the estate will just pay them all a settlement to go away and shut-up already.
| Reply by Sylvia_FL on 8/4/12 9:40pm
Msg #429376
Re: It's a shame for the children, but I guess that goes with
There was a Trust set up in 1995 and ameded in 2002. The will leaves the estate to the Trust.
http://wills.about.com/library/JacksonTrust.pdf
I believe the problem the family has is the way the Trustees are handling things. Reading the Trust, and I am not a lawyer and don't play one on TV, looks like the kids won't get the full amount until they are 35! The trustees have complete control. 20% of the estate was to go to a childrens charity, 50% of the remaining balance to go to the children (the Michael Jackson Childrens Trust) and the other 50% to his mother (the Katharine Jackson Trust). The Trustees which are the same for each of the trust have control of the money! Trustees are John Branca (an entertainment lawyer and chairman of The Michael Jackson Company) and John McClain (music executive)
| Reply by Marian_in_CA on 8/4/12 9:52pm
Msg #429378
Re: It's a shame for the children, but I guess that goes with
Isn't it pretty common for wealthy parents establishing trusts to put those kinds of age restrictions on when they can have access to money? Isn't the point of that so that the kids doesn't blow all the money in a short period of time?
Prince William, for example, didn't get full access to his mother's estate until just this year when he turned 30:
http://www.dailymail.co.uk/news/article-2162474/Prince-William-expected-inherit-10million-Dianas-estate-turns-30-today.html
Harry will get his control of his half when he turns 30, as well.
It makes sense for a lot of reasons. First, it gives the children a chance to grow up and mature, maybe even earn some of their own money. But it also allows the estate to grow, too, increasing their inheritance.
Haven't the executors of the Jackson estate earned a boatload of money since he died? I think I remember reading they've taken the estate from being in debt to over $20 million+ --- which is why it sure seems like the siblings are looking for a payday.
| Reply by Marian_in_CA on 8/4/12 9:55pm
Msg #429379
Re: It's a shame for the children, but I guess that goes with
My mistake, Diana's estate is over 20 million British pounds -- the Jackson estate is worth over $1 billion since he died:
http://www.mtv.com/news/articles/1641946/michael-jacksons-estate-has-generated-1-billion-since-his-death.jhtml
| Reply by Sylvia_FL on 8/4/12 10:22pm
Msg #429381
Re: It's a shame for the children, but I guess that goes with
Hmm the link no longer works, but here is ann article
http://wills.about.com/od/michaeljackson/qt/What-Does-the-Michael-Jackson-Family-Trust-Say.htm
| Reply by jnew on 8/5/12 8:13pm
Msg #429438
Re: It's a shame for the children, but I guess that goes with
It seems if everything were invalidated, the siblings of Michael have no way they could beneifit. They could be heirs to Katherine's estate but her trust may not have provided for them. It looks to me that Mr. Jackson wanted to provide for his children and mother only and that is what will happen.
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