William E. Phillips Attorney at Law

09/02/2024

Verlene (hereinafter referred to as "mama") goes to a lawyer and wants a will prepared. Mama wants everything left to her children, Teddy and Marlene, and wants both of them to be co-Personal Representatives. That sounds really good. However, S.C. Code Section 62-3-717 contains the following language: "If two or more persons are appointed corepresentatives and unless the will provides otherwise, the concurrence of all is required on all acts connected with the administration and distribution of the estate." Uh oh. Teddy lives in Belton and Marlene lives in Wyoming. Banks want original signatures on bank forms. The Probate Court wants original signatures on legal documents filed in that court. This could be quite burdensome and frustrating for Teddy and Marlene. Nevertheless, assume Teddy and Marlene are able to sign documents and cooperate with the administration of the estate. Four months later, the big bang hits.

Teddy tells Marlene, "Hey, we need to sell mama's house. The neighborhood is bad and I've been trying to keep the grass cut and somebody broke out a window last night." Marlene says, "We ain't selling mama's house. We got so many memories there and it needs to stay in the family."

What would happen in that situation? The most likely scenario is the following:

1. At some point, the Probate Court would notify Teddy and Marlene that the estate needs to be closed and the house either needs to be deeded to them or sold.

2. Teddy and Marlene still do not agree and the Probate Court schedules a hearing.

3. The Probate Judge, after hearing the Teddy and Marlene state their views on the house, would say something along these lines: "It appears as if the co-Personal Representatives have legitimate differing views regarding the deceased's house. Since they cannot reach an agreement on the disposition of the house, I am removing them as co-Personal Representatives and am appointing attorney ______________ to serve as the successor Personal Representative."

4. Attorney ______________ will be paid a fee for administering the estate and that attorney will also determine whether or not the house needs to be sold.

In this example, mama was trying to treat her children equally and probably had no idea that there would be any issues with appointing co-Personal Representatives. I have drafted wills in which two people serve as co-Personal Representatives. I try and discourage the person making the will from appointing two people because of the examples set forth in this post. Most people are receptive to my advice and only appoint one person.

Be careful with appointing co-Personal Representatives. It has a good likelihood of creating unnecessary issues and result in extra expenses for your estate.

03/18/2024

One of the most interesting cases ever decided by the U.S. Supreme Court was VILLAGE OF EUCLID, OHIO, et al. v. AMBLER REALTY CO., 272 U.S. 365 (1926). I often refer to it as "the parasitic apartment" case.

Euclid was a rural suburb of Cleveland. Euclid had engaged in a relatively new practice known as "zoning." Under Euclid's zoning laws, large parcels of the village's 16 square miles were zoned for low-density single-family homes. Minimal land was available for either industry or apartments. The zoning laws were silent about race or immigrants. The goal of the zoning laws were to maintain Euclid’s rural character from the encroaching nuisance of industry and multi-family housing in neighboring Cleveland.

Ambler Realty Company owned 78 acres in Euclid that were ideally situated to take advantage of the industrial growth that was spilling over from Cleveland. Based on Euclid's restrictive zoning laws, Ambler sued the Village of Euclid.

A federal trial judge struck down the law, suggesting that “the true object of the ordinance in question is to place all the property in an undeveloped area of 16 square miles in a strait-jacket … the result to be accomplished is to classify the population and segregate them according to their income or situation in life.” The trial court ruled the zoning laws were unconstitutional.

The Village of Euclid appealed and the U.S. Supreme Court ruled that the zoning ordinances were constitutional. The Court held that Euclid was well within its rights to enact a zoning laws because preventing incompatible uses was the same as avoiding any other kind of nuisance. Also, the Court held that courts had no business second-guessing a town’s decision: “A nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.” As the Court claimed, “very often the apartment house is a mere parasite, constructed to take advantage of the open spaces and attractive surroundings created by the residential character of the district ... interfering by their height and bulk with the free circulation of air and monopolizing the rays of the sun which otherwise would fall upon the smaller homes.”

This case, in effect, laid the groundwork for the modern, and common, practice of zoning laws.

03/11/2023

At a minimum, every adult should have a Last Will and Testament, A General Durable Power of Attorney and a Healthcare Power of Attorney. Also, every adult needs to consider having a Declaration of a Desire for a Natural Death (commonly referred to as a living will). Obviously, a will ensures that you control what happens to your property at your death. Otherwise, through the Probate Code, the State of South Carolina determines where your property goes at your death. Additionally, in a General Durable Power of Attorney, you can specify who can make decisions for you if you are incapacitated, thereby avoiding a costly conservatorship and/or guardianship proceeding in the Probate Court. A Healthcare Power of Attorney allows you to appoint another person to make health care decisions if you are not able to make those decisions. A living will is a written document that sets forth medical treatments you would and would not want to be used to keep you alive, as well as your preferences for other medical decisions, such as pain management or organ donation.

02/01/2023

Clients will sometimes say, "I know ______." For example, let's say the ______ is "my sister went in and tore up mama's will. Upon inquiry, the client may give reasons on how she knows that particular fact. These reasons may include how mama hated the sister or how the sister just sole mama's money all her life or how the sister is a snake in the grass. So, what is something the client knows is actually what the client thinks.

Now, under the same example, the client says that the sister confessed that she tore up the will or that a nephew saw her with the will and then 10 minutes later, saw it in pieces in a trash can. This moves from what a client "thinks" into what a client "knows." At this point, the client is in a much better position from a legal standpoint.

Things seem to be good for the client and her desire to prove that her sister destroyed mama's will. But, what if the sister has died. Bringing in the deceased sister's statement about the will may be difficult to introduce into evidence. The client still has the nephew as a possible, and probable, witness. But, the nephew now says that maybe it was not a will that was in pieces in the trash can. It might have been an old insurance policy. Uh oh.

The point is that a client may "know" a fact, but, in reality, he or she may only "think" it is a fact. Whether it is thought by a client or known by a client may make little difference to the lawyer since the lawyer has to be able to prove a fact and insure that such a fact has actual relevance to the ultimate issue, or issues, to be decided in the case.

Send a message to learn more

06/18/2022

One of the issues that arises from time to time is when a person dies and that person's original Last Will and Testament cannot be located. Only a copy can be found. How can this issue be resolved? There are basically two different options:

1. A petition for formal testacy is filed with the Probate Court in which the copy of the will is requested to be admitted. All parties have to be served with a copy of the pleadings. The "parties" refer to those persons who would inherit through the will and also those persons who would inherit if there was no will. If everybody is in agreement, Answers could be filed in which the parties consent to the admission of the copy of the will and it would not be necessary for the Probate Court to conduct a hearing. However, if all parties are not in agreement, testimony would have to be presented showing that the will was properly executed, showing the last known whereabouts of the will and that there is no reason to believe that the maker of the will destroyed it. The Probate Judge would then have to rule as to whether the copy of the will should be probated or whether the decedent should be deemed not to have had a will.

2. The second option is to open the decedent's estate as if there was no will. This would be appropriate in situations where the distributions in the will are identical to the distributions that would be made without a will. For example, if a widower had two children and had a will leaving all of his property to those children, in equal shares, the fact that the original will could not be found is not a major issue. Why not? In this example, under the laws of intestacy, the two children would inherit equally. Therefore, the distributions would the same under either scenario.

05/06/2022

Let's consider the possible revival of a revoked will Wait. Say that again. Let's consider the possible revival of a revoked will.
So, Mr. Pugsley has a will prepared on January 1, 2022. In that will, he writes, "My son has always disappointed me, so I leave him 10% of my estate and the remaining 90% to my precious daughter." Easy, peasy.
On May 1, 2022, Mr. Pugsley executes a new will and writes, "My son has been a big help to me recently and my daughter married this heathen. Therefore, I leave all of my estate to my son." Again, easy, peasy.
On May 3, 2022, Mr. Pugsley takes the will he made 2 days earlier and rips it into 25 little pieces. What is the effect of Mr. Pugsley's revocatory act? According to S.C Code §62-2-508(a), if a "subsequent will that wholly revoked a previous will is thereafter revoked by a revocatory act ... the previous will remains revoked unless it is revived. The previous will is revived if it appears by clear and convincing evidence that the testator intended to revive or make effective the previous will."
In the foregoing scenario, Mr. Pugsley would die intestate (without a will). He clearly revoked the May 1, 2022 will, but made no indication that the January 1, 2022 will was to be revived. However, what if Mr. Pugsley provided clear and convincing evidence that the prior will was to be revived. Then, by statute, the January 1, 2022 will would be revived. So, how do you provide clear and convincing evidence that a prior will is to be revived? That is a complex question and it would have to be decided on a case by case basis. Would, for example, a note written by Mr. Pugsley and left with his business effects indicating he wanted to revive the prior will be sufficient? Would Mr. Pugsley telling a friend who was not a devisee (heir) under his will of his intentions regarding the January 1, 2022 will actually revive that prior will?
These issues are murky, at best. Therefore, you may not want to run the risk that ripping up your current will into 64 little pieces would automatically revive your prior will, absent some strong proof that revival was your intent.

02/20/2022

Have you ever heard of the "Deadman's statute?" I tell clients about it on a regular basis since it frequently becomes an issue in contested cases involving a deceased person. Currently, 20 states have some form of a deadman’s statute. The number used to be higher, but there is a growing trend among the states to eliminate this type of statute.

The South Carolina version of the “Deadman’s Statute” is contained in S.C. Code §19-11-20 and reads as follows (do not read if you are tired or sleepy): "Notwithstanding the provisions of Section 19-11-10, no party to an action or proceeding, no person who has a legal or equitable interest which may be affected by the event of the action or proceeding, no person who, previous to such examination, has had such an interest, however the same may have been transferred or come to the party to the action or proceeding, and no assignor of anything in controversy in the action shall be examined in regard to any transaction or communication between such witness and a person at the time of such examination deceased, insane or lunatic as a witness against a party then prosecuting or defending the action as executor, administrator, heir-at-law, next of kin, assignee, legatee, devisee or survivor of such deceased person or as assignee or committee of such insane person or lunatic, when such examination or any judgment or determination in such action or proceeding can in any manner affect the interest of such witness or the interest previously owned or represented by him. But when such executor, administrator, heir-at-law, next of kin, assignee, legatee, devisee, survivor or committee shall be examined on his own behalf in regard to such transaction or communication or when testimony of such deceased or insane person or lunatic in regard to such transaction or communication, however the same may have been perpetuated or made competent, shall be given in evidence on the trial or hearing in behalf of such executor, administrator, heir-at-law, next of kin, assignee, legatee, devisee, survivor or committee, then all other persons not otherwise rendered incompetent shall be made competent witnesses in relation to such transaction or communication on said trial or hearing."

That was a mouthful, but what does it actually mean? It prevents any interested person from testifying concerning conversations or transactions with the decedent if the testimony could affect his or her interest ("Myrtle, you know Aunt Granny said she wanted me to have that souvenir spoon she got in Gatlinburg").

The rule is founded on the principle that it is against public policy to allow a witness to testify as to such matters when such testimony, if untrue, cannot be contradicted.

As of today, this rule exists in this state. Perhaps, at some point in the future, the rule may be abolished. However, until that time, the deadman's statute is a living rule of law and can, from time to time, create havoc for parties in a case.

12/04/2021

I was reading an interesting case, Universal City Studios v. Film Ventures Intern., 543 F. Supp. 1134 (C.D. Cal. 1982). In that case, Universal sought an injunction against Film Ventures requiring it to cease showing a 1981 movie ("Great White"). Universal owned the rights to "Jaws" and "Jaws 2." The Court granted the injunction for copyright infringement, trademark infringement, trademark dilution and unfair competition. The Court analyzed the 3 movies and said that "Great White" was too similar to "Jaws" and "Jaws 2" based on the following:

1. The general idea of the motion picture "Jaws" and "Great White" is the same, i.e., the motion picture depiction of a shark attacking a coastal town on the Atlantic seaboard.

2. The basic story points, the major characters, the sequence of incidents and the development and interplay of the major characters and story points of "Great White" are substantially similar to these elements in "Jaws."

3. The local politician, a gubernatorial candidate in "Great White" and the mayor in "Jaws," downplay the news of the shark in the interest of local tourism.

4. In "Great White," the action revolves primarily around a salty, English-accented skipper and a local shark expert who go out in a boat to hunt the shark. In "Jaws," the action similarly revolves around a salty English-accented skipper, a shark expert, and the local police chief who go out in a boat to hunt the shark.

5. In the finale of "Great White," the skipper is eaten by the shark and the shark expert kills the shark by detonating dynamite which the shark has swallowed. In the finale of "Jaws," the skipper is eaten by the shark and the police chief kills the shark by exploding a canister of compressed air which the shark has swallowed.

6. All the major characters in "Great White" have substantially similar counterparts in "Jaws:"

a. In both films, the shark becomes a principal character. The two sharks are maniacal and demonic, attacking people and boats for reasons beyond satisfying hunger. In addition, when hunted, both sharks attack the hunters rather than flee. The presence of the sharks in the waters of the coastal resorts in each film is unusual.

b. The salty skippers, both of whom have heavy English-type accents and are experienced shark hunters, are substantially similar. In both films, the skipper in the two works accompanies the expedition in search of the shark and is killed in the finale.

c. The politicians in both films are also substantially similar; they are concerned about the effect that the news would have on tourism. Specifically, in "Great White," the gubernatorial candidate is concerned about the windsurfing regatta and his political campaign. In "Jaws," the mayor is concerned about the Fourth of July weekend. Moreover, in "Great White," after the shark expert's child is injured by the shark, the politician apologizes to the father in the hospital and as an act of contrition personally hunts for the shark. In "Jaws," after the police chief's child has gone into a state of shock because of the shark, the politician apologizes to the father in the hospital and as an act of contrition signs a contract hiring the salty skipper to hunt the shark.

d. Finally, the local shark expert in "Great White," Peter Benton (James Franciscus) is a combination of two characters in "Jaws:" the shark expert (Richard Dreyfuss) and the local police chief (Roy Scheider). As the shark expert in "Jaws," Richard Dreyfuss tries to warn the town of the dangers of the shark. In "Great White," the shark expert does the same thing. In "Jaws," the local police chief has a blond wife and a child injured by the shark. In "Great White," James Franciscus has a blond wife and a child injured by the shark.

In addition to the similarities of expressions discussed above, the Court noted that "Great White" was originally titled "The Last Jaws" and was to be released in the United States under that name. It also observed that a major character in "Great White," the writer, is named Peter Benton, and that Peter Benchley is the author of "Jaws." While the Court did not rely on the use of such names to conclude that the expression of the ideas of the two motion pictures is substantially similar, it was indicative of the attitude of the creators of "Great White," who wished to be as closely connected with Plaintiffs' motion picture, "Jaws," as possible.

Moral of the story: Don't mess with "Jaws." :)

09/02/2021

Very interesting!

09/02/2021

One of the most interesting cases in the U.S. Supreme Court in the past 20 years was PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001). Casey Martin had been a golfer at Stanford University. In college, he was allowed to ride in a cart due to a circulatory issue that made it difficult for him to walk. He participated in the PGA Tour qualifying school. However, the PGA Tour required all golfers to walk the course, arguing that it was integral part of the game. Martin sued the PGA Tour under the Americans with Disabilities Act, alleging that it must accommodate his disability by allowing him to use a golf cart. The Supreme Court ruled for Martin in a 7–2 decision. The court found that the PGA Tour was a commercial enterprise operating in the entertainment industry for the economic benefit of its members rather than as a private club and that a golf course was a "public accommodation." Therefore, the PGA Tour was subject to the requirements of the ADA. Ultimately, Martin failed to qualify and is now the men's head golf coach at the University of Oregon.

04/24/2021

One of the questions people often ask during a divorce or custody case is the following: "Hey, who gets to claim the kids on taxes?" It is rare for a Family Court judge to actually rule on that issue, largely because divorce and custody cases are state court issues and income taxes are federal issues. Even a person's state income tax form is based on that person's federal income tax form.

It is common for the custodial parent – the one with whom the child spends more than half the year – to claim the child as a dependent. The noncustodial parent may also claim the dependent if allowed by a court order. Since judges rarely rule on the dependent issue, this type of ruling would usually be based on an agreement between the parties.

If no divorce or separation decree orders that the noncustodial parent may claim the child as a dependent, or there is no written declaration from the custodial parent allowing the noncustodial parent to claim the child as a dependent, then the custodial parent can claim the dependency. However, if the child spends an equal amount of time with each parent, then the parent with the highest adjusted gross income is allowed to claim the child as a dependent.

What happens if divorced parents both claim the child as a dependent and there is no equal amount of time spent with each parent? When both parents claim the child, only the first filed tax return will be accepted. So, what if the "wrong" parent filed and claimed the child as a dependent. The innocent parent will probably not have a remedy through the Family Court? Why not? As set forth earlier, more than likely, a Family Court has not ruled on any tax issues. Therefore, the offending party cannot be held in contempt of court. The IRS has very detailed rules about filing taxes with dependents. The "innocent" party should contact the IRS to see what remedies may be available through that agency.
Here is the website address:

We’re the divorced or legally separated parents of one child. May each parent claim the child as a dependent for a different part of the tax year?

03/31/2021

People frequently use illegal drugs. That is a fact. There is a wide range of illegal drugs that people use on a regular basis. There is also widespread abuse of prescription medications. However, this post will focus on the use of ma*****na and its impact on child custody and visitation cases.

Most Family Court clients are relatively young (20s to 30s), although I did represent a 99 year old man in a divorce case many years ago. The younger the person, the more general acceptance that person has regarding using ma*****na, but Family Court judges do not view it with acceptance and tolerance. In general terms, when a Family Court judge sees evidence of ma*****na use, that can create a presumption of parental unfitness. Several years ago, I was involved in a custody case involving two young parents. Both of them admitted ma*****na use to the judge during the initial hearing. The judge recessed the hearing for 15 minutes and when he reconvened the case, he informed the parties that DSS had been notified and that agency was taking emergency protective custody of their child.

Parents who use ma*****na will frequently say that it is no more dangerous than alcohol. That has been an argument for 50 years or more. In South Carolina, the use of ma*****na by a parent involved in custody or visitation case may not actually be a death sentence, but it can often create a hole from which that parent may not emerge. Potential clients have come into my office wanting to file for custody of his or her child and admit to using ma*****na on a regular basis. I will always tell that potential client that he or she will need a negative drug test before a custody should be filed.

I frequently tell clients that the legal world and the real world are often not compatible. Ma*****na use may be accepted in their particular circle of friends, but it is not accepted by the judicial system.

So, do not use ma*****na.