Law Office of Justin R. McCarthy

This month the Massachusetts Appeals Court heard the case of a Native American woman, Pamela Glavin, whose partner of 35 years died leaving only a hand-written, unwitnessed last will and testament.

The will left a life-estate interest in the decedent’s home on Martha’s Vineyard to Ms. Glavin. (A life estate interest gives ownership rights to a person for the duration of his or life.) She had lived at the home for four years. During that time she paid the real estate taxes and maintained the property. The decedent’s family (which consisted of only two siblings) knew that Ms. Glavin was residing at the home and paying all bills associated with it.

When she consulted an attorney about probating the estate, she was told that the will, which had been executed in Arizona, was invalid because it lacked witnesses. She therefore probated the estate without the will. Because no will was filed and because she had never married the decedent, the probate court decreed that the decedent’s rightful heirs were his two siblings.

Shortly after the probate proceedings, the siblings sought to evict Ms. Glavin from the house. She hired an attorney who filed a petition in probate court seeking to reopen the estate and to submit the decedent’s will for court consideration.

The petition claimed, among other things, that the will was valid under Arizona law where it was executed and that Ms. Glavin was married to the decedent according to the law of their tribe.

The probate court refused to reopen the estate because, according to the probate judge, Ms. Glavin failed to show any statutorily defined justification for doing so. Her attorney appealed the decision.

The Appeals Court agreed the with probate judge’s decision not to reopen the probate proceedings. However, it expressly made no ruling on the validity of the will or of Ms. Glavin claim that she and the decedent were married under tribal law.

Deciding this issue as we do, we need not address whether the holographic will might have been honored in Massachusetts under the circumstances, had it been timely submitted, or whether the petitioner could have qualified as a rightful heir by marriage.

The Court did, nevertheless, suggest that there was validity to Ms. Glavin’s claims to the property based on contract law and the relationship between her and the decedent’s siblings.

[Ms. Glavin’s] petition states a viable claim that the petitioner and [the decedent’s] heirs subsequently agreed to a tenancy for the petitioner’s lifetime, the partial performance of which could be sufficient to overcome the Statute of Frauds.

According to the Court,

The law will recognize a lease with a term defined by a person’s lifetime…Such a lease is subject to the Statute of Frauds…and ordinarily would have to be evidenced by a writing…There can be an exception to the Statue of Frauds, however, where the asserted agreement has been partially performed. See Nessralla v. Peck, 403 Mass. 757, 761 (1989) (“A plaintiff’s detrimental reliance
on, or part performance of, an oral agreement to convey property may estop the defendant from pleading the Statute of Frauds”). Moreover, partial performance by a tenant who occupies the premises can be sufficient to avoid the Statute, if the tenant also makes “improvements, repairs or expenditures in reliance on the contract.” Walsh, supra at 876.

Futhermore,

a tenant who materially changes position in reliance on a landlord’s
promises, cf. Hurtubise v. McPherson, 80 Mass. App. Ct. 186, 189-190 (2011) (defendant estopped from pleading Statute of Frauds where plaintiff, in reliance on oral land swap agreement, “occupied [the] land and undertook the expense of construction”), or who otherwise invests substantially in a property, thereby conferring a benefit on the landlord while (potentially) evidencing an agreement to remain in the premises, may well be able to claim an estoppel. See, e.g., Chamberland
v. Goldberg, 89 R.I. 223, 234 (1959).

The Court remanded the matter to probate court for further proceedings.

For the full opinion click here.

To transfer or sell real estate in Massachusetts a corporation must be in good standing with the Secretary of the Commonwealth and the deed must be signed by either the president or a vice president and the treasurer.

To determine whether a corporation is in good standing (i.e., whether the corporation has paid its annual filing fees with the state) go to the Secretary of Commonwealth’s website. Enter the corporation’s name. When the “Business Entity Summary” appears click on “View filings”. If the corporation is in good standing, there will be an “Annual Report” for each year that it has been in existence.

Sometimes a buyer’s attorney will ask the corporate seller to provide a certificate of good standing from the Secretary of the Commonwealth. Because a corporation’s status can be verified using the Secretary’s website, it is no longer necessary to provide such a document.

Authority to sell real estate is held by the president or a vice president and treasurer acting together. Most deeds are signed by the corporation’s president and treasurer. This may be, and often is, one and the same person. A less common method of signing is to have the corporation hold a meeting and cast a vote authorizing someone other than a corporate office to sign real estate documents.

For more information on corporate transfers see REBA Title Standard No. 11. See also REBA Title Standard No. 17 regarding Massachusetts’ corporate tax liens.

Need legal help? Email justin@jrmccarthy.com

The Trump campaign’s lawsuit in Michigan challenges the actions of the state’s election officials in Wayne County where Detroit is located.

According to the complaint,

Wayne County did not conduct (and is not conducting) this election as required by Michigan law, and Secretary of State Benson did not require Wayne County to follow Michigan’s election code. Among other things, election officials in Wayne County refused to permit statutorily designated challengers to observe the conduct of the election and the processing of ballots. Some election officials pre-dated ballots that were not eligible to be counted by altering the date the ballot was received.

Campaign attorneys are asking the court to

enjoin the Michigan board of state canvassers and the Wayne County canvassing boards from certifying any tally of ballots containing fraudulent or unlawfully cast ballots. Likewise, we ask the Court to enjoin the Wayne County canvassing board and the state canvassing board from certifying any tally that includes ballots received after election day and ballots that were processed when statutorily designated challengers were excluded from a meaningful opportunity to observe the processing of ballots. And finally, ballots that were tabulated with defective or malfunctioning tabulating machines or software must be excluded from the tally or hand-counted to confirm they are accurately
counted and may be included in any certified canvass.

The allegations made in the complaint are supported by over a hundred sworn witness affidavits.

The Trump campaign has filed a lawsuit in Arizona Superior Court seeking an order that requires the state’s election officials to reexamine and recount thousands of ballots that were disqualified by Arizona’s new vote-tabulating machines.

According to the complaint, Arizonians who voted in-person on election day were required to deposit their completed ballots into an electronic tabulation machine. These machines had never been used before in the state. Frequently, stray marks or smudges on the ballots caused the machines to reject the document. At that point, per Arizona state law, poll workers were supposed to either discard the defective ballot and provide the voter with a new one or set aside the uncounted ballot for manual review. Instead, poll workers often simply pressed an override button on the machine which then took in the ballot without counting the vote.

The complaint alleges that poll workers likely used the override option thousands of times throughout election day. Their actions, according to the complaint, violate Arizona election laws as well as state and federal constitutional law.

The plaintiffs seek an order from the court requiring election officials to manually count the votes that were originally disqualified by the tabulation machines.

According to the complaint

if these ballots are reviewed and adjudicated by the Ballot Duplication Board, they will yield up to thousands of additional votes for President Trump and for other Republican candidates in the November 3, 2020 general election.

For the full text of the complaint click here.

In recent years the U.S. Supreme Court has shown zero tolerance for voter fraud or for government policies and actions that dilute the value of a citizen’s vote.

Below are just a few quotes from the Court on the subject of fraudulent voting and illegal election practices.

Effect of Forged Ballots

The deposit of forged ballots in the ballot boxes, no matter how small or great their number, dilutes the influence of honest votes in an election, and whether in greater or less degree is immaterial. The right to an honest [count] is a right possessed by each voting elector, and to the extent that the importance of his vote is nullified, wholly or in part, he has been injured in the free exercise of a right or privilege secured to him by the laws and Constitution of the United States. Anderson v. United States, 417 U.S. 211, 226

[T]he right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise. Reynolds v. Sims, 377 U.S. 533, 555.

Constitutional Right to Have Only Legal Votes Counted

Obviously included within the right to [vote], secured by the Constitution, is the right of qualified voters within a state to cast their ballots and have them counted if they are validly cast. United States v. Classic, 313 U.S. 299, 315 (1941).

[T]he right to have the vote counted [means counted] at full value without dilution or discount. Reynolds v. Sims, 377 U.S. 533, 555.

Every voter in a federal . . . election, whether he votes for a candidate with little
chance of winning or for one with little chance of losing, has a right under the Constitution to have his vote fairly counted, without its being distorted by fraudulently cast votes. Anderson v. United States, 417 tJ.S. 211, 227.

Equal Protection under the 14th Amendment

The right to vote is protected in more than the initial allocation of the franchise.
Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another. Bush v. Gore, 531 U.S. 98, 104-5.

[W]henever a state or local government decides to select persons by popular election to perform governmental functions, [equal protection] requires that each qualified voter must be given an equal opportunity to participate in that election. Hadley, v. Junior College District, 397 U.S. 50, 56.

The idea that every voter is equal to every other voter in his State, when he casts his ballot in favor of one of several competing candidates, underlies many of [the Supreme Court’s] decisions. Gray v. Sanders, 372 U.S. 368, 380.

Court’s Authority to Decide Voter Fraud Cases

A significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question. Bush, 531 U.S. at 113

This week President Trump’s campaign, the Republican National Committee, and a handful of voters filed a lawsuit against Pennsylvania’s election officials in US District Court.

The 57-page complaint asks the court to either declare election officials’ actions unconstitutional or order the state’s officials to conduct ballot counting according to Pennsylvania statutory law.

The complaint alleges that election officials violated both statutory and constitutional law by collecting mail-in ballots at locations that were not designated polling stations.

In contradiction of Pennsylvania election law,

the Commonwealth allowed absentee and mail-in ballots to be returned to other locations, such as shopping centers, parking lots, fairgrounds, parks, retirement homes, college campuses, fire halls, municipal government buildings, and elected officials’ offices.

These “unmonitored and ad hoc drop boxes” bypassed the scrutiny of Pennsylvania poll watchers who have the legal right to observe votes being casts and who may challenge the validity of a vote if any irregularity is noticed.

The complaint also claims that votes were counted even though they were not submitted inside the state-required “Official Election Ballot” envelope and that some of these envelopes were marked in a way that made them non-compliant with state election laws.

Based on the foregoing allegations, there are a total of seven counts (i.e., legal claims) contained in the complaint.

Count I

First and Fourteenth Amendments U.S. Const. Art. I § 4, cl. 1; Art. II, § 1, cl. 2; Amend. I and XIV, 42 U.S.C. § 1983 Infringement of the Right to Vote Through Invalid Enactment of Regulations Affecting the Time, Place and Manner of Election by Pennsylvania’s Executive Branch

Count II

Fourteenth Amendment U.S. Const. Amend. XIV, 42 U.S.C. § 1983
Denial of Equal Protection Disparate Treatment of Nondisabled Absentee/Mail-In Voters Among Different Counties

Count III

Pennsylvania Equal Protection and Free and Equal Elections Pa. Const. art. VII, § 1, art. I, § 28, &art. I, § 5 Infringement of the Right to Vote Through Invalid Enactment of Regulations Affecting the Time, Place and Manner of Election by Pennsylvania’s Executive Branch and Denial of Equal Protection via Disparate Treatment of Absentee/Mail-In Voters Amongst Different Counties

Count IV

First and Fourteenth Amendments U.S. Const. Amend. I and XIV, 42 U.S.C. § 1983 Infringement of the Right to Vote Through Failure to Sufficiently Safeguard Against Dilution of Vote by Fraud or Tampering: Poll Watcher Residency Restriction & Polling Place Restriction

Count V

Pennsylvania Equal Protection and Free and Equal Elections Pa. Const. art. VII, § 1, art. I, § 28, &art. I, § 5 Infringement of the Right to Vote Through Failure to Sufficiently Safeguard Against Dilution of Vote by Fraud or Tampering: Poll Watcher Residency Restriction & Polling Place Restriction

Count VI

First and Fourteenth Amendments U.S. Const. Amend. I and XIV, 42 U.S.C. § 1983 Infringement of the Right to Vote Through Failure to Sufficiently Safeguard Against Dilution of Vote by Fraud or Tampering: Failure to Notice Drop Box Location

Count VII

Pennsylvania Equal Protection and Free and Equal Elections Pa. Const. art. VII, § 1, art. I, § 28, &art. I, § 5 Infringement of the Right to Vote Through Failure to Sufficiently Safeguard Against Dilution of Vote by Fraud or Tampering: Failure to Notice Drop Box Location

Regardless of the district court’s decision, the matter will likely be appealed to the U.S. Supreme Court within the coming weeks.

On November 2, Governor Baker signed COVID-19 Order No. 54 which, among other things, requires citizens to assist the state in corona virus contact tracing.

Section 6 of the order reads as follows: If a host or event venue is notified that an event attendee or event worker has tested positive for COVID-19, the event host or event venue must immediately notify the Local Board of Health in the city or town where the event took place. Hosts and event venues must assist the Department of Public Health and Local Boards of Health with contact tracing and case investigations, including, upon request, providing lists of attendees at social gatherings and their contact information. Event hosts and venues who fail to timely report positive cases or cooperate with contact tracing and case investigations may be subject to the penalties listed in Section 8.

According to Section 8,

Violation of the terms of this Order may result in a civil fine up to $500 per violation…to be assessed on any person, organization, or business responsible for organizing, hosting, or allowing a gathering conducted in violation of the Order.

The Governor’s office cites to the Civil Defense Act (St. 1950, c. 639, section 8) as authority for the contact-tracing order.

An argument could be made that the order violates the U.S. Constitution’s Fifth Amendment protection against self incrimination. The Fifth Amendment (applicable to the states through the 14th Amendment) prohibits the government from compelling a citizen to make statements that could leading to his or her prosecution.

The governor’s order seeks to side step the Fifth Amendment by expressly stating that the penalty for violating the order is a “civil fine up to $500″. Emphasis added. In other words, a person will not be criminally prosecuted for violating the order. Therefore, a citizen cannot invoke his or her constitutional protection against self incrimination.

However, the authority that the governor cites in making the order (i.e., St. 1950, c. 639, section 8) clearly states that violations are punishable by up to a year in jail. Thus, it is arguable that a person should be permitted to remain silent when asked for contact tracing information.

Hopefully the order will be successfully challenged in the near future.

Do you intend to sell or transfer real estate in Massachusetts using a power of attorney? If so, you must first record the original power of attorney at the registry of deeds in which the real estate is located. Next the attorney-in-fact must sign a sworn affidavit stating that, to the best of his or her knowledge, the power of attorney has not been revoked. The affidavit must also be record at the registry of deeds.

For more details see REBA Title Standard No. 34.

If you have questions regarding how to format a deed signed under power of attorney, see my article here and review Massachusetts Land Court Guideline No. 15.

Need legal help? Email justin@jrmccarthy.com

Lawyers, like all other professionals, sometimes exaggerate the severity of the problems they deal with.  What might be a small legal issue can be blown out of proportion when an attorney explains the matter to a lay person using hyperbolic terms.

Why do some lawyers do this? It seems lawyers engage in this behavior for a few reasons.

1. It encourages people to hire the lawyer.  Here’s a common example.  For most people the probate process in Massachusetts is about the same whether you die with or without a will.  A will does save some money and time during the probate process and there are circumstances in which a will greatly reduces the cost of administering an estate.  But in most cases a will makes little difference.  Nevertheless, almost every estate planning attorney will describe the probate process as a total nightmare that can only be avoided only by employing him or her to draft your will or living trust.

2.  By exaggerating the nature of a client’s problem, the lawyer’s advice seems much more valuable.  For example, a few years ago I advised an elderly couple to take their house out of their name.  The circumstances were such that it was the best way for the couple to qualify for state aid with their nursing home bills and to avoid liens which could result from the aid.  The family knew a tax attorney who told the couple that my advice was “tax suicide” because, in her opinion, it would result in a higher tax rate when they sold the property.  Although the threat of losing the house due to nursing home aid was more substantial than the possibility of paying higher taxes in the future, the couple went with the tax attorney’s advice because it was proposed in more ominous terms.

3.  Finally, lawyers exaggerate the severity of problems to win arguments with other attorneys.  As with the prior example, lawyers often disagree with each other regarding what’s best for a person legally.  Often it’s the lawyer who can create the most fear in the client that wins the argument. 

Hiring a moving company for the day of your closing can be a gamble. These companies often charge hundreds of dollars per hour. Overly optimistic buyers schedule the movers for the morning of the closing, often at 8 or 9 am. Unfortunately, buyers can’t move in to the new house until the deed is recorded at the registry of deeds. And that usually does not happen until late in the afternoon, often at 3 or 4 pm. This causes a tremendous amount of added stress for the buyers on closing day and leaves them with yet another big bill to pay at part of the closing process.

Need legal help? Email justin@jrmccarthy.com