LETTER OF THE LAW
============== 1996 - 2000 ==============
The information contained in this Newsletter is a general
summary of the law in effect in Massachusetts at the time it was
written. It is not a substitute for competent legal advice from a
lawyer who has had the opportunity to review your own personal
situation. Under the rules of the Massachusetts Supreme Judicial Court
governing the conduct of lawyers, this may constitute advertising
matter. Nothing in this Newsletter is intended to imply specialization
in topic areas discussed here.
(October 1996)
A will is a written document created with certain
specific
legal formalities which generally directs where you would like your
property to go after you die. It isn't failsafe by any means, but it
holds great sway.
In Massachusetts, almost everyone ought to have a will.
If you
were to die a resident of Massachusetts without a will, the
Massachusetts General Laws dictate where your estate assets should go,
and if it isn't very much, it will become the property of your natural
heirs: your wife and children if you have any, or else your parents or
siblings or others further removed. The proportion to each are
specified in the General Laws and for most cases and for small estates,
the choices are reasonable; if you die in Massachusetts with less than
$15,000 to your name, you may be satisfied with what the law specifies.
An estate plan usually includes a will and is useful for
many
purposes.
(See description of estate contents in the questionaire
below.)
Besides those that don't have much of an estate, there
is
another class of people who may not have need or use for a will: some
people just don't care! ("What do I care, when I'm dead?") However,
most people, and especially those with children, usually do care very
much, even if only to keep the family peace after they die.
There are many situations in which having a will is
virtually
a necessity. The questionnaire below seeks out factors which trigger
the need for a will or other estate planning vehicle(s). If you answer
YES to any of these questions, it will behoove you to contact a lawyer,
and if you live in Massachusetts or near St. Louis, Missouri, then you
may contact me! If you live elsewhere in the United States, you may
contact me for help with finding a lawyer that you can use.
Do you have a family home that is mortgaged but without
PMI
(Principle Mortgage Insurance)?
By the time you die, will you have an estate worth over
$15,000? (Include in your 'estate' the death benefit of any life
insurance you have, all stock, bonds, bank accounts, real estate, and
retirement funds. Don't forget any expected inheritances you may
receive between now and when you die.)
If you are married, will you and your spouse together,
by the
time one of you dies, have an estate worth over $500,000? (This
requires special estate planning of a different sort, assuming you wish
to prevent the government from collecting large portions of your estate
as death taxes.)
Is you spouse independently financially solvent?
Do you have property owned in joint name?
Do you own any farm land?
Do you own a portion of a small business, i.e., a
partnership
interest or a share of a small closely held business?
Are you the beneficiary of any trusts set up by someone
other
than yourself?
Do you have any property (land!) situated out of state?
Do you
have a part-time residence out of state? Have you lived out of state at
all in the last 3 years? Do you plan to move to another state before
you die?
Do you own any patent or trademark rights?
Is either you or your spouse a foreigner -- not a U.S.
citizen
-- living in these United States?
Do you have any unusual exposure to liability, e.g.,
medical
or legal malpractice or a forthcoming lawsuit which you stand to lose?
Do you own any significant low-basis property (bought or
received at a value much lower than the current value) ?
Have you or has your spouse ever been married before?
Are you currently divorced or separated anticipating
divorce?
Do you have any minor children, under 21 years old or
under 25
and still in school?
Are any of your children adopted? Are any grandchildren
adopted?
Do you have any step-children from such prior marriages?
Do you have any children who have or will have died
before you
do but who have left you grandchildren?
Would you like to provide something for your
grandchildren
directly?
Are any of your children divorced?
Do you have any children with special financial needs,
e.g.,
with a disability of some sort?
Is there anyone who you'd like to leave money for but
who
lacks the ability to save money or to invest it wisely?
Are you involved in a same-sex relationship instead of a
heterosexual marriage?
Do you have a lover, employee, or anyone else outside
your
immediate family that you wish to provide for?
Are any of your children ones that you might wish to
disown
entirely, disinherit, or simply give less to than their siblings? (For
example, sometimes an older child may have already received a lot of
support, e.g., a medical school education!)
Do you have charitable inclinations? (Is there a
charitable
organization you would like to leave a gift to when you die?)
(Note: Stuart J. Williams passed away in January 2001.
He was
a good lawyer and a good friend. AJR)
(April 1996)
"Jerusalem was destroyed because justice was
perverted...people insisted upon the fulfillment of the exact law and
never sought compromise."
-- Talmud (Baba Batra 30b)
Very few of the lawsuits brought ever go to trial. Most
settle. We recently saw the following posted in the Stoughton District
Court:
- A settlement is certain. It will not be taken away by
a
judge.
- A settlement is now. There is no long wait for
uncertain
results.
- A settlement saves money. The cost of trial and
possible
appeals are eliminated.
- A settlement avoids pain. No one looks forward to
having
their personal and professional life dissected in front of strangers.
- . A settlement preserves dignity. The settling
parties have
decided their own fate. No outside force has dictated to them.
(April 1996)
Do you own a small business in Massachusetts? Does it
have six
or more employees? Chapter 278 of the Acts of 1996, recently signed by
Governor William F. Weld, requires you to have a specific policy on
sexual harassment. If you have 15 or more employees, you must have a
sexual harassment policy in place by 6 November. If you have between 6
and 14 employees, you have until 1 January 1997.
By law, your company's sexual harassment policy must
include
the following:
Under the new law, you must provide employees with a
written
copy of the policy -- new employees when they begin their employment
and all employees annually. The law encourages, but does not require,
you to provide your employees training about sexual harassment.
Needless to say, if you don't provide this training, you can be sure
that this will be used against you in the trial of a harassment
complaint.
If you already have a sexual harassment policy in place,
you
should have your attorney review the policy to see that it complies
with the specific requirements of the new law. The new law requires the
Massachusetts Commission Against Discrimination to prepare and provide
a model policy and a poster which
employers may use.
(April 1996)
As people try to find affordable housing, one option is
to try
to purchase property that has been foreclosed upon. It is true that
properties can be bought for less in foreclosure sales. It is also true
that there are many pitfalls waiting the unaware buyer.
In the ordinary real estate transaction, you can make an
offer
which is subject to an inspection of the property, a search for
financing, and a title examination. The usual purchase and sales
agreement allows you to back out of the deal and get your deposit back
if an inspection discloses problems, if you can't get a mortgage, or if
the title examination shows problems with the title. But in a
foreclosure sale, you usually have to research the property before you
become the winning bidder at the foreclosure auction. This means
spending money that may turn out to be wasted if you don't win the
property at the auction.
In a foreclosure sale, you must check the title in
advance of
the auction and determine what you are buying. The foreclosure sale is
designed to reimburse the lender for a bad loan, and it discharges the
lender's lien. But an owner who loses property through a foreclosure
may also owe taxes and have other liens against the property. The
property is worth that much less to you if you have to pay these things
off in order to obtain clear title. A realtor may be willing, for a
fee, to help you determine the value of the property in which you are
interested, so that you can determine how much you want to bid at the
sale.
Buying a foreclosed property may result in saving money.
It
also is a lot of work and must be approached carefully.
(April 1996)
The Iowa Court of Appeals, by a 3-3 split, let stand a
lower
court decision that a woman who was paralyzed when she dove into a
four-foot above ground swimming pool cannot recover damages against the
manufacturer or the owner because the danger was "open and obvious."
The lower court held that the danger was "obvious" as a matter of law
despite expert testimony that most swimmers don't know they can be
paralyzed from diving into shallow water.
The New Hampshire Supreme Court has ruled that an
underage
college student who got drunk and injured himself can sue a friend who
bought the liquor for him the day before.
The Ohio Supreme Court has held that a company which
doesn't
have enough employees to be subject to suit for sexual harassment under
federal or state law can still be sued for "wrongful discharge in
violation of public policy." A veterinarian's assistant complained that
the doctor grabbed and pinched her, constantly talked about sex, and
repeatedly asked about her sex life with her husband. Because the
veterinarian had fewer than four employees, she could not sue under
federal or state anti-discrimination laws. The Court said that it
"cannot find it to be Ohio's public policy that an employer with three
employees may condition their employment upon the performance of sexual
favors while an employer with four employees may not."
Much has been made of the famous case in which a jury
awarded
$2.9 million to a woman who spilled hot McDonald's coffee on her lap
while in her car. Many of the people who scoffed at the case had not
heard that McDonald's coffee is served at 190 degrees Fahrenheit, too
hot to drink and that the plaintiff suffered second and third degree
burns over her entire genital area.
But even fewer people have heard that the judgment,
which
included about $2.4 million in punitive damages, was later reduced by
the judge to a total of about $800,000.
Another case that has achieved some notoriety is one
about a
Philadelphia woman who sued a local hospital claiming that a CAT-scan
had robbed her of her psychic powers. Again, few people have heard that
the $800,000 verdict in her favor was reversed on appeal.
(January 2000)
If you and your "significant other" are living together
and
are not married, have you considered what will happen if one of you
should die? Are there children whose care should be provided for? Do
you jointly own property? How will the property be distributed if you
ever decide to separate?
These are just some of the questions which are answered
automatically by a marriage contract. If you are not married and are
living with that special person, whether of the same or opposite sex,
you need to consider how to provide for a number of legal issues.
If you are married, your spouse and children
automatically get
your property if you haven't made a will. You can provide for your
significant other in your will, but if you are not married, and you
don't have a will, your property will go to your legal heirs --
parents, siblings, children, or other relatives -- and your Significant
Other will get nothing.
If you have children, you and the children's other
parent are
their natural guardians. If you die, the other parent will most likely
get custody of the children. If you want your significant other to care
for your children should you die or become incapacitated, you need to
take legal steps to make that happen. One possibility is to provide for
guardianship in your will. Another is for your significant other to
adopt the children with you.
You need to consider how to deal with the home in which
you
live. Do you own it jointly? Does one of you own it? Do you rent? If
you and your significant other own a home as "joint tenants" and one of
you dies, the home will automatically pass to the other. If one of you
owns the home, the other may not have the right to stay there after the
death of the homeowner. The same may be true if the name of just one of
you is on the lease.
Do you, or does your significant other, have a pension
plan?
Do you expect that one of you will get benefits from the pension plan
on the death of the other? What about health insurance?
What happens if you decide to end the relationship? How
will
you divide up property? Who will have custody of children?
These are only some of the issues that you need to
discuss
with competent counsel if you are living together without marriage.
An agreement between unmarried cohabitants needs to be
carefully drafted. The Supreme Judicial Court of Massachusetts has held
that a contract founded "explicitly and inseparably" on sexual
relationships is void. The agreement should not spell out such personal
matters. Instead, it should contain language indicating that it is for
the common welfare of both parties, to define their economic
partnership.
For such a contract to be valid, it is important that it
reflect full disclosure of each party's property and assets. Each of
you should be represented by separate counsel. One lawyer cannot
represent both of you in this transaction. It is a conflict of
interests.
It is important that each party prepare an estate plan,
and
that the estate plan documents refer to the agreement. All documents
must be reviewed carefully, to make sure that the documents do not
contain conflicting provisions.
Some practitioners believe that the execution of the
contract
should be videotaped. Otherwise, one party could try to void the
agreement later by claiming that they were mentally incompetent or
under some compulsion by the other.
In Massachusetts, there is no such thing as "common-law"
marriage, and the courts have also rejected the concept of "palimony."
If you want to have the legal protections which married couples have,
and you cannot or choose not to get married, you need to prepare a
contract and other legal documents to define your relationship.
(January 2000)
These are two sides of a growing concern: How far can an
employee go in using the company's Internet connections?
A growing number of companies are adopting an explicit
policy
on use of the company's Internet connections. A good Internet policy
generally informs employees clearly the extent to which use of the
company's facilities is permissible and makes clear the extent to which
employees can be disciplined or discharged for violations.
A company is generally considered to be entitled to
define the
terms of use of its own facilities and to reserve to itself the right
to read employees' e-mail. But what if an employee is using her own
e-mail on the company's time? In that case, the company probably does
not have a right to read the employee's e-mail, but it may have the
right to discipline the worker for loafing on company time.
Companies facing issues of sexual harassment in the
workplace
often want to restrict workers' access to sexually-explicit Web sites
and newsgroups, and even restrict sexual content in e-mail. Some
companies have even begun to install filtering software to prevent such
uses. Sexual harassment complaints based on sexually-explicit e-mail is
growing.
When an Internet policy is adopted, a company should
take care
to enforce the policy uniformly. That doesn't necessarily mean
disciplining every employee for every casual use of the company's
e-mail. But selective enforcement of an Internet policy can give rise
to discrimination claims.
Whatever the policy a company chooses to adopt, the most
important thing is that there be a clear, written policy. The policy
must be reasonable and must be enforced uniformly.
(January 2000)
The phone calls are annoying enough, but some
telemarketer
perpetrate an outright fraud. In the most common type of telemarketing
fraud, the telemarketer will say that you've won a prize, but you must
sent money first. They will insist that you must act right away, and
even urge you to wire the money. Or, they may try to come by your home
to pick up a payment. Or, they may claim to be a law enforcement
officer and offer to help you for a fee. These are all indications of
fraud.
To protect yourself, check all unsolicited offers with
the
local Better Business Bureau or with the Consumer Protection Division
of the state Attorney General's Office. Never give out your credit
card, checking account, or social security number to an unknown caller.
And remember, if it sounds too good to be true, it probably is.
(January 2000)
We caught this scam over ten years ago in our office,
but it's
still out there. Someone will call your office, claiming to represent
an office supply company, and ask to verify the serial number of your
printer or copier. Using that information, they will offer to sell you
supplies for that equipment. In some versions of the scam, they will
try to ship something you didn't order and claim that you must have
ordered it, since they have the serial number of your machine.
If you actually got useable office supplies at a
reasonable
price, it wouldn't be so bad. But the products often don't work with
your equipment. And worse, they bill you two or three times the normal
price and add inflated shipping and handling charges. Small businesses
are the major victims of this scam. To protect yourself, make sure that
everyone in your company who may answer the phone is aware of the
office's supply-purchasing policies and warned to recognize this scam.
And, while you're warning people of this scam, you may
wish to
warn them of another. Sometimes, someone may try to charge a long-
distance call to your office phone. We've had this happen on occasion.
The phone company calls and asks for authorization for the call. If
someone answering the phone actually thinks it's you, they may
authorize a call to some distant country. Make sure that every one who
answers your phone knows how to spot this scam.
(January 2000)
Legal advice is a very individualized thing. You may
think you
have a simple question, but the answer often depends on additional
information that we don't have. In order to give a proper answer to
your question, we may have to ask a few questions ourselves. Sometimes,
when a regular client asks us a question by e-mail about an on-going
matter, we may feel comfortable responding by e-mail. But under all
other circumstances, we really have to talk with you by phone before we
can answer your questions.
Sometimes, we can't even give telephone advice. The
answer to
your question may depend on a careful reading of a lease, a will, or
some other document. In that case, we have to make an appointment for
you to come in. so that we can read the documents.
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