THE PRACTICAL SIGNIFICANCE

OF

REGISTERING A DOCUMENT

WITH ATTORNEY'S WILL REGISTRY

PART TWO - PREVENT OR REOPEN COMPETING ACTIONS; EVEN AFTER THE LIMITATIONS PERIOD

www.attorneyswillregistry.com

Other articles regarding registration include PART ONE – GIVE VALID LEGAL EFFECT TO DOCUMENTS; REGISTRATION–THE STANDARD OF THE INDUSTRY; REGISTRATION–A TOOL FOR ATTORNEY MANAGEMENT; and, PROMOTING CLIENT RELATIONSHIPS THROUGH REGISTRATION.


PROTECT THE LEGAL EFFECT OF A DOCUMENT.

INFERIOR ACTIONS.  By its failure to be recognized in its appropriate jurisdiction or forum, an otherwise valid, effective document can be rendered ineffective or useless against a competing, but inferior document or action.  Rules normally designed to enhance its validity and protect its designed effect may, instead, render a document totally invalid or impose apparently insurmountable barriers to providing any remedy at all.  This article tells how registration, by imposing its "knew or should have known" factor, can overcome such barriers not only in ongoing actions or supporting an appeal, but also may aid in reopening actions apparently beyond statutes of limitations.  At the same time, registration strengthens those same barriers in protecting a registered document against just such an attack. 

NOTICE TO THE WORLD WHILE MAINTAINING PRIVACY.  Simple registration with Attorney's Will Registry places the world on notice of the existence of a document without making the document itself or its contents a matter of public record.  Response to a search request is limited to giving the name and contact information of the submitting attorney or his successor.  A client's privacy is protected, since no client information is provided in response to a request. Rather, a person searching for a document is required to provide identifying client information to elicit a positive response.  Yet proponents of a competing action would be deemed to "know or should know" of such document.  Unlike a newspaper publication of limited duration, or a court filing of a limited scope and jurisdiction, registration imparts permanent, ongoing, notice worldwide of a document's existence.  A search more completely fulfills required due diligence.  Document inquiries are directed to the attorney so that he might properly protect his client's private interest.

 

ATTACKING ONGOING OR PROPOSED ACTIONS.

DUE DILIGENCE REQUIREMENTS.  Actions of formal testacy(1), informal probate(2), or appointment proceedings(3), property related thereto(4), appointment of a guardian for a minor(5) or incapacitated person(6) all require a due diligent search for certain documents or persons identified in such documents. Registration of a document with Attorney's Will Registry not only facilitates becoming aware of such document, but also provides a basis for challenging competing actions.

IN A WILL, FOR EXAMPLE.  Perhaps the value of registration is most evident in probate of a will.  Interested parties of a will registered with Attorney's Will Registry may more easily challenge conflicting ongoing or proposed probate actions.  In the absence of a statute providing the contrary, a later will may be probated at anytime while an estate is still open.(7)  But, such authority alone may be insufficient to overcome the presumptions regarding a conflicting will admitted, or proposed to be admitted, to probate.  In ongoing or proposed actions, contestants of a will have the burden or establishing . . . fraud, duress, mistake, or revocations.(8)

AWARENESS BY REGISTRATION.  In formal testacy proceedings, the court shall entertain a petition for modification or vacation of its [formal testacy] order and probate of another will of the decedent if it is shown that the proponents of the latter-offered will were unaware of its existence at the time of the earlier proceedings or were unaware of the earlier proceeding and were given no notice of it, except by publication.(9)  Registration eliminates the question of whether a person was aware of "knew or should have know" of its existence.  the efficacy of such document is thereby enhanced.  Proponents of competing actions who fail to address the existence of a document registered with Attorney's Will Registry, could be determined to have also failed in their requirement to exercise their due diligence search.  Registration of a document prevents the proponent of a competing action to claim it did not know nor did it have reason to believe that such document existed.

ALL PROBATE ACTIONS.  Knowledge, or reason to have knowledge, of a document's existence, requires its consideration in an appropriate guardianship, property, formal testacy, informal probate, or appointment action.  In formal testacy,(10) informal probate,(11) or appointment proceedings,(12) the applicant is required to verify that after the exercise of reasonable diligence, the applicant is unaware of any instrument revoking the will, and that the applicant believes that the instrument which is the subject of the application is the decedent's last will.  Regarding property in the estate, the applicant is required to verify that, after the exercise of reasonable diligence, the applicant is unaware of any unrevoked testamentary instrument relating to property.(13)  Any guardian appointed by the will or written instrument of the parent of the minor who died last,(14) or appointed by the will of the parent who died later or spouse of the incapacitated person(15) is entitled to notice of guardianship proceedings.  Registration of a document with Attorney's Will Registry imposes knowledge, either direct of indirect, of its existence, triggering duties of the participants in such other actions.

RECOGNIZE EXISTENCE.  The failure to recognize the existence of a registered document and identify the same in a competing action appears inexcusable.  Its identification is required in petitions of formal testacy,(16) informal probate,(17) or appointment proceedings,(18) property related thereto,(19) appointment of a guardian for a minor(20) or incapacitated person.(21)  Such failure appears to be a false statement of sufficient materiality for a court to revoke previous orders or grants.(22)

A BASIS TO REOPEN.  Registration of a document may evidence a justifiable basis to reopen a probate action.  Knowledge or implied knowledge of a document through registration may justify a claim of fraud, mistake, inadvertence, or negligence, sufficient to question and reopen a probate action.  Registration imparts or implies knowledge of a document such that the requirements to reopen a probate action on the basis of fraud, mistake, neglect, or inadvertence may be fulfilled.

MODIFICATION OR REVERSAL.  The failure to include a registered document or give notice to individuals identified in such a registered document can be the basis for modification or reversal of a probate order. Passive or constructive fraud can be the basis for modification or reversal or a prior order of a probate court.(23)  The standard for passive fraud is that there must have been an omission of fact which, if known, would have required different determination by the court.(24)  Omitting the inclusion of a competing registered document or failure to give notice to persons that may reasonably be identified by such document, which the proponent knew or should have known existed, certainly would rise to such materiality. To go further, such failure may result in all orders and judgments entered in such proceedings to be void for lack of jurisdiction.  Such failure could result in a defect in jurisdiction rendering the proceeding ineffective.(25)

FAILURE TO REGISTER.  Without registering a document, efforts to affect, set aside, or vacate other competing probate actions have inherent problems.  One cannot then as easily claim the proponent of the competing action "knew of should have known" of the existence of such document.  Failure to allege mistake, inadvertence, surprise or excusable neglect may result in a court being without jurisdiction to set aside or vacate its earlier orders, even on appeal.(26)


ROLE OF NOTICE AND THE REGISTRY.

Notice is an important element in almost every court action.  Notice is essential in probate actions.  Historically and by statute, probate is designed to protect the interests of those unable to protect themselves due to incapacities of youth, age, mental capacity, or death.  Formal Testacy Proceedings require notice be given to the devisees and executors named in any will that is being, or has been, probated, or offered for informal or formal probate in the country, or that is known by the petitioner to have been probated, or offered for informal or formal probate elsewhere.(38)  Any guardian appointed by the will or written instrument of the minor who died last is entitled to notice of appointment proceedings.(39)  Any guardian appointed by the will of the parent who died later or spouse of the incapacitated person is entitled to notice of guardianship proceedings.(40)

REGISTRATION FACILITATES NOTICE.  Registration of a document facilitates the due diligence in giving notice and enhances the requirement to receive notice, simply by increasing awareness.  The U.S. Supreme Court does approve resort to publication of notice as a customary substitute.  But such "approval" is only where it "is not reasonably possible or practicable to give more adequate notice to persons whose interest or whereabouts could not with due diligence be ascertained."(41)  Registration of a document facilitates its awareness making the giving of adequate notice not only possible, but more practical, in accordance with the requirements of due diligence.

ADEQUATE NOTICE.  Actions have been dismissed and judgments reversed for failure to give adequate notice. Notice was found to be inadequate, even when done by a required posing in a county courthouse annex;(42) or by imposition of a higher standard due to a fiduciary or confidential relationship;(43) or, where the proponent knew of the existence of a competing document.(44)  Notice by publication is acceptable only as to persons whose address or identity cannot be ascertained with reasonable diligence.(45)  Even when notice is not required by statute, lack of notice may render the court action ineffective.  The results of such action would not be res judicata as to individuals failing to receive notice.(46)  The danger of relying on notice absent registration can be devastating, for even after the assets of an estate have been distributed, an un-discharged claim may be prosecuted in a proceeding against one or more distributees.(47)

 

STATUTES OF LIMITATIONS

ITS ROLE AND EFFECT OF REGISTRATION.  The statute of limitations found in the probate code imposes a time period beyond which a judgment or order cannot be appealed or modified.  Such is designed to give certainty and integrity to a probate action by protecting it and those involved with it from attack after such time period.  Such protections, however, may become constraining impediments to one wishing to attack such action in order to promote a valid, but competing document.  registration of a document may aid in an attempt to overcome the statute of limitations in a competing action.  Additionally, registration may bolster such protections in an action involving a registered document.

OVERCOMING LIMITATIONS.  Where time for appeal has expired, an action may still be attacked directly or collaterally.  A direct attack generally claims a defect in the order or judgment that is not bound by statute, permitting a remedy by reopening or partially negating the action. A collateral attack generally claims a jurisdictional defect, making the action a nullity, or of no effect, at least as to the disgruntled claimant.  A probate court has no authority to vacate or set aside any of its orders or judgments beyond the time limits established by statute,(48) allegations of lack of testamentary capacity and undue influence are insufficient absent a showing of fraud or lack of jurisdiction.(49)  A party wronged by fraud may bring an action outside of usual procedure an limitations.(50)  The burden of proof rests upon the party who alleges that the probate of the will was obtained through fraud or mistake.(51)  Both attacks are impacted by registration of a document.

DIRECT ATTACK.  In a direct attack, the claim may be that the order or judgment was procured fraudulently.  even in absence of a timely contest, a court may exercise its equitable jurisdiction to set aside order and decrees of probate proceedings upon proof of extrinsic and collateral fraud.(52)  Statutory time limits will not prevent a court from vacating its order admitting a will to probate if the petition is made on the ground that the order was induced by or constituted fraud upon the court. (53)

REGISTRATION SUBSTANTIATES CLAIM.  A mere belief that the will being probated is not the last will and testament of the Decedent is insufficient to constitute fraud.(54)  To a proponent of a competing document, the logical factual basis for attack of a contrary order or judgment is that the original petitioner knew or should have known of the existence of such document, yet failed to include it in the action producing the contrary order or judgment.  Where such claim generally runs afoul is in proving a petitioner's awareness (knew or should have known, or scienter) of the existence of a competing document.  If a party is unaware of a competing document, there is no fraud perpetrated on the court and, thus, a judgment admitting the will could not be declared void after the statute of limitations.(55)

ROLE OF FRAUD CLAIM.  Clearly, a proponent of an action acting in bad faith in a fraudulent attempt to foist an improper document on the probate court can be remedied by exposing the fraud.  Since the statute of limitations in cases of fraud doesn't begin to run until the time of the fraud was discovered or could reasonably have been discovered, a probate action may be exposed to such attack even after the normal probate code limitations period.  But can a "passive" fraud be used to the same effect?

PASSIVE FRAUD.  Passive or constructive fraud can be the basis for modification or reversal of a prior order of the probate court admitting will.(56)  Passive fraud is an omission of fact requiring a different determination by the court, but without some kind of prima facie showing of fraud,  mere allegation of fraud is not sufficient to require a court to reopen after time for appeal has expires.(57)  Registration aids in that prima facie showing that the earlier proponent "knew or should have known" of the existence of a competing document or party.  Proof of fraud revokes the order of probate, leaving the application for probate in the condition in which it was before such order of probate was issued.(58)

KNOWLEDGE.  Breach of duty arising from a fiduciary or confidential relationship may also warrant setting aside orders and decree of probate proceedings even thought identical conduct would not be considered extrinsic fraud in absence of a fiduciary or confidential relationship.(59)  However where the parties to a hearing to probate a will did not know that the will had been revoked by republication of an earlier will, there was no fraud perpetrated on the court and thus, the judgment of admitting the will to probate was not void.(60)

COLLATERAL ATTACK.  Registration of a document gives notice to the world not only of the existence of a document, but also of possible conflicting parties entitled to notice.  a collateral attack generally claims a jurisdictional defect, making the action a nullity, or of no effect, at least as to the disgruntled claimant. If notice, even though not required by statute, is not given to known devisees under the decedent' last prior will, the probate order may not be res judicata as to such devisees.(61)  Where respondent failed to give legal notice to proper parties in interest, all orders and judgments entered in previous probate proceedings would be void as a failure to give legal notice would result in a defect in jurisdiction rendering the proceeding ineffective as to those parties in interest to whom no notice was given.(62)  Registration, by identifying the existence of a document and the existence of potential parties, both exposes the action of an unregistered document to collateral attack and protects the actions of registered documents.

END NOTES

1. § 3-402(1)(b), Uniform Probate Code
2. § 3-301(3)(c), Uniform Probate Code
3. § 3-301(3)(c), Uniform Probate Code
4. § 3-301(5)(a) , Uniform Probate Code
5. § 5-207(1)(d), Uniform Probate Code
6. § 5-309, Uniform Probate Code
7. BbIn re Estate of Stein, 78 Wash. App. 251, 896 P.2d 740 (Div. 2 1995). 80 Am Jur 2d, Wills, §931, Page 163 A statutory proceeding to set aside a probate court’s order admitting a will and two codicils to probate, on the ground of a subsequent codicil, is not barred by the petitioner’s failure to appeal from the probate decree or an order dismissing the petitioner’s challenge to the probate court’s jurisdiction. Owens v. Doyle, 152 Conn. 199, 205 A. 2d 495, 11 A.L.R.3d 1006 (1964).
8. § 3-407(1),Uniform Probate Code
9. § 3-412(1)(a), Uniform Probate Code
10. § 3-402(1)(b), Uniform Probate Code
11. § 3-301(3)(c), Uniform Probate Code
12. § 3-301(3)(c), Uniform Probate Code
13. § 3-301(5)(a) , Uniform Probate Code
14. § 5-207(1)(d), Uniform Probate Code
15. § 5-309, Uniform Probate Code
16. § 3-402(1)(b), Uniform Probate Code
17. § 3-301(3)(c), Uniform Probate Code
18. § 3-301(3)(c), Uniform Probate Code
19. § 3-301(5)(a) , Uniform Probate Code
20. § 5-207(1)(d), Uniform Probate Code
21. § 5-309, Uniform Probate Code
22. In re Quinlan’s Estate, 158 NYS 319 (1916).
23. Matter of Estate of Kennedy, 247 N.W. 2d 75, 74 Wis.2d, 413 (1976), Estate of Bailey, 205 Wis. 648, 656; 238 N.W. 845, 848 (1931). See also: Estate of Staab, 166 Wis. 587, 591-92, 166 N.W. 326, 327 (1918).
24. Matter of Estate of Kennedy, 247 N.W. 2d 75, 74 Wis.2d, 413 (1976)
25. In Re Estate of Phillips, 284 N.W.2d 908, 92 Wis. 2d 354 (1979).
26. In Re Estate of Phillips, 284 N.W.2d 908, 92 Wis. 2d 354 (1979).
27. In re Estate of Stein, 78 Wash. App. 251, 896 P.2d 740 (Div. 2 1995).80 Am Jur 2d, Wills, §931, Page 163, A statutory proceeding to set aside a probate court’s order admitting a will and two codicils to probate, on the ground of a subsequent codicil, is not barred by the petitioner’s failure to appeal from the probate decree or an order dismissing the petitioner’s challenge to the probate court’s jurisdiction. Owens v. Doyle, 152 Conn. 199, 205 A. 2d 495, 11 A.L.R.3d 1006 (1964).
28. §3-412(1)(a), Uniform Probate Code
29. § 3-402(1)(b), Uniform Probate Code
30. § 3-301(3)(c), Uniform Probate Code
31. § 3-301(3)(c), Uniform Probate Code
32. § 3-301(5)(a) , Uniform Probate Code
33. § 5-207(1)(d), Uniform Probate Code
34. § 5-309, Uniform Probate Code
35. Matter of Estate of Kennedy, 247 N.W. 2d 75. 74 Wis. 2d. 413 (1976). Estate of Bailey. 205 Wis. 648. 656: 238 N.W. 845. 848 (1931). See also: Estate of Staab. 166.Wis. 587. 591-92, 166 N.W. 326, 327 (1918).
36. Matter of Estate of Kennedy, 247 N.W. 2d 75, 74 Wis.2d, 413 (1976)
37. In Re Estate of Phillips, 284 N.W.2d 908, 92 Wis. 2d 354 (1979)
38. §3-403(1), Uniform Probate Code
39. §5-207(1)(d), Uniform Probate Code
40. §5-309, Uniform Probate Code

41. Mullane v. Central Hanover Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1949). Cited in In Re Estate of Phillips, 284 N.W.2d 908, 92 Wis. 2d 354 (1979).
42. George v. George, 813 S.W.2d 236 (Tex. App.–Tyler 1991).
43. Estate of Sanders, 40 Cal.3d 607, 221 Cal. Rptr. 432, 710 P2d 232 (Cal. 1985)
44. Weaver v. Mitchell 265 Mass 567, 164 NE 482 ; McClure v. Wade, 34 Tenn App 154, 235 SW(2d) 835, 28 ALR (2d) 104.
45. See Tulsa Professional Collection Services v. Pope, 108 S. Ct. 1340 (1988); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950).
46. Commission on National Probate Court Standards and Advisory Committee on Interstate Guardianships, National Probate Court Standards, P. 44.
47. § 75-3-1004, Uniform Probate Code
48. In re Phillips Estate, 92 Wis. 2d 354, 284 N.W. 2d 908 (1979)
49. In re Phillips’ Estate, 92 Wis. 2d 354, 284 N.W. 2d 908 (1979). Statutory time limits will not prevent a court from vacating an order admitting a will to probate if the petition is made on the ground that order was induced by or constituted fraud upon the court. Matter of Kennedy’s Estate, 74 Wis. 2d 413, 247 N.W. 2d 75 (1976).
50. Matter of Estate of Ketterling, 515 N.W.2d 158 (N.D. 1994)
51. In re King, 310 Ill 90, 141 NE 416 (party seeking to have will set aside had received payments on theory of validity of will; Gray v. Cholodenko, 37 NJSuper 364, 117 A(2d)318; Brown v. McKinney (Okla), 279 P(2d) 343; In re Kissling, 270 Wis 242, 70 NW (2d) 685.
52. Estate of Sanders, 40 Cal. 3d 607, 221 Cal. Rptr. 432, 710 P.2d 232 (1985).Estate of Sanders, 40 Cal.3d 607, 221 Cal. Rptr. 432, 710 P2d 232 (Cal. 1985). Estate of Charters (1956) 46 Cal. 2d 227, 234, 293 P.2d 778; Caldwell v. Taylor (1933) 218 Cal.471, 475, 23 P.23d 758; Bacon v. Bacon, (1907) 150 Cal. 477, 481, 89 P. 317; Baker v. O’Riordan (1884) 65 Cal. 368, 370, 4 P. 232). Even after the statutory time limits have passed, a fraud upon a court can be the basis for a modification or reversal of a prior order of a probate court admitting a will. Matter of Kennedy’s Estate, 74 Wis. 2d 413, 247 N.W. 2d 75 (1976).
53. Matter of Estate of Kennedy, 247 N.W. 2d 75, 74 Wis.2d, 413 (1976), Estate of Penney, 225 Wis. 455, 470; 274 N.W. 247, 254 (1937).
54. Matter of Estate of Ketterling, 515 N.W.2d 158 (N.D. 1994)
55. Larkin v. Ruffin, 398 So. 2d 676, (Alabama) 1981.
56. Matter of Estate of Kennedy, 247 N.W. 2d 75, 74 Wis.2d, 413 (1976), Estate of Bailey, 205 Wis. 648, 656; 238 N.W. 845, 848 (1931). See also: Estate of Staab, 166 Wis. 587, 591-92, 166 N.W. 326, 327 (1918).
57. Matter of Estate of Kennedy, 247 N.W. 2d 75, 74 Wis.2d, 413 (1976).
58. Herring v. Ricketts, 101 ALA 340, 13 So 502; Holt v. Ziglar, 163 NC 390, 79 SE 805.
59. Estate of Sanders, 40 Cal.3d 607, 221 Cal. Rptr. 432, 710 P2d 232 (Cal. 1985).
60. Larkin v. Ruffin, 398 So. 2d 676 (Ala. 1981).80 Am Jr 2d Wills §932, pp163-164.
61. Commission on National Probate Court Standards and Advisory Committee on Interstate Guardianships, National Probate Court Standards, P. 44.
62. In Re Estate of Phillips, 284 N.W.2d 908, 92 Wis. 2d 354 (1979).