Iggy Arroyo gives all his estate’s income to Grace Ibuna – court records

All income of the estate of the late Negros Occidential Rep. Ignacio
"Iggy" Arroyo goes to his "partner" Mary Grace Ibuna, according to a
"Declaration of Trust" that he supposedly made hours before his last
will and testament on March 27, 2009.

The documents were obtained Friday by GMA News Online from a
London-based contributor.

In the will, Arroyo placed all his assets in a "living trust" and
appointed his eldest daughter Bernardina Arroyo Tantoco as trustee,
executor of his estate, and attorney-in-fact.

Then in the "Declaration of Trust" created hours before the last will,
Arroyo left instructions to Tantoco that she "distribute income only
to Mary Grace A. Ibuna to be paid in quarterly or more frequent
payments."

Children to get share after Ibuna dies

That same trust document provides that "the balance of the trust shall
be distributed" to each of his children in equal, one-third portions
only after Ibuna's death.

None of the documents GMA News Online obtained included an itemized
list or any other papers indicating the properties Iggy Arroyo placed
in trust.

Tantoco and her sister Bianca Marie are Iggy Arroyo's daughters by his
first wife, Marlene Jacinta. Arroyo has a third daughter, whose mother
is Alicia Rita Morales, his second wife.

Ibuna informed the chancery division of the High Court in London that
Arroyo's first marriage was annulled and that the second marriage with
Morales is going through annulment proceedings.

The last will and declaration of trust were made in California and was
among the documents Ibuna presented to the court in London, where she
fought for and got authority to bring the remains of Arroyo to the
Philippines.

Ibuna shares that authority with Tantoco.

Tantoco has control of the whole estate her father left, but her
powers are limited by the specifics of her designation as trustee,
executor and attorney-in-fact.

In the will, Arroyo "intentionally and with full knowledge omitted to
provide for (his) heirs and if the will is contested, he gives only
$1.00."

Morales contests the will through counsel

Atty. Lorna Kapunan, counsel of Morales, has disputed the will. She
said in an interview with GMA News' Kara David that the will must
comply with Philippine laws.

The Civil Code of the Philippines—and to some extent the Family Code
of the Philippines—governs matters on wills and instituions of heirs.
The Civil Code provides for compulsory heirs, who get to inherit even
if they are not mentioned in a will.

Among the significant provisions of the Civil Code are as follows:

"Article 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence, and by
his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one
another."

"Article 815. When a Filipino is in a foreign country, he is
authorized to make a will in any of the forms established by the law
of the country in which he may be. Such will may be probated in the
Philippines."

"Article 886. Legitime is that part of the testator's property which
he cannot dispose of because the law has reserved it for certain heirs
who are, therefore, called compulsory heirs."

"Article 887. The following are compulsory heirs:

(1) Legitimate children and descendants, with respect to their
legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and ascendants,
with respect to their legitimate children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal fiction;
(5) Other illegitimate children referred to in article 287.

Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by
those in Nos. 1 and 2; neither do they exclude one another."

"Article 888. The legitime of legitimate children and descendants
consists of one-half of the hereditary estate of the father and of the
mother. The latter may freely dispose of the remaining half, subject
to the rights of illegitimate children and of the surviving spouse as
hereinafter provided."

For more information on these matters, please call our office at 305
548 5020, option 1.

Twitter: www.twitter.com/yoelmolina_mo
Faceback page: www.facebook.com/lawofficeofyoelmolina
Linkedin profile: http://tinyurl.com/linkedinpagemo
Blog: http://tinyurl.com/molawblog

"Turn to us when you need help"

Family Court EVIDENCE Rules - What Is HEARSAY?

By, Thurman Arnold, III, CFLS

Family Court EVIDENCE Rules - What Is HEARSAY?
An Overview of the "Hearsay Rule" and Its Applications
to Divorce and Family Law Proceedings

The term "hearsay" has entered the realm of day to day speech for many
nonlawyers, and it describes something that most people believe they
have something of a limited intuitive sense about - it is generally
understood as referring to what "he said" or "she said," particularly
on the part of 'witnesses' who in family law cases tend to be the
parties themselves, their family members or children, friends,
neighbors, co-workers, teachers, therapists, doctors, or police. Often
those witnesses are never interviewed directly by the Court, or
cross-examined, and instead what they said or saw is offered in
written statements that get filed before a hearing. Hearsay rules
apply equally to what the parties themselves may have said or be
alleged to have said, whether in their declarations or in
live-testimony.

Together with the assumption that testimony involving hearsay
statements is problematic and may be ignored or excluded by judges,
however, that is usually about as deep as the public understanding
goes. If you are a self-represented party in a contested dissolution
or child custody proceeding (or any other family law matter), it may
be useful for you to become a familiar with the concept because it can
be a critical sword for getting evidence you consider favorable to
your cause in front of a judge or court commissioner, or as a shield
to block claims from the other side that you don't want the court to
hear or consider. Indeed, the hearsay rules have particular
application in family law because much of such litigation involves
accusations and counter-accusations that go on endlessly, many of
which are quite "over the top" in terms of their tone and substance.
Since live witness testimony must be taken upon request in domestic
violence cases, this is often an area where it is critical for people
without lawyers to have a basic understanding of the rules of
evidence.

Some divorce litigants feel that they can say whatever they want, or
use hearsay in a hope of inflaming bias in a judge to obtain what the
litigant hopes for, and that even if a court sustains an objection to
the hearsay (and "strikes" the statement(s) from the record) a bell
has been struck that will continue to ring into the future in terms of
a court's impressions of you. And, unfortunately, there is some truth
to this - which is a good reason for knowing what to do with it at the
outset.

Hearsay in family court proceedings is quite commonly found in
declarations filed by the parties in connection with motion or OSC
requests, whether these consist of the parties' own statements or the
statements of third parties. Affidavits or statements "under penalty
of perjury" are themselves hearsay. Documents that are attached as
exhibits to a declaration, like bank statements, school grade reports,
police reports, and a myriad of other possibilities almost always
contain or are 100% hearsay. Hearsay often occurs in live testimony
during contested evidentiary hearings or trials. If it is not properly
objected to, the court may well consider such "evidence" even though
by its nature it may be of questionable veracity and reliability. And
hearsay is quite often communicated to judges under the guise of
"argument" in oral presentations to the court. Even when a judge
recognizes some statement as hearsay (whether or not an objection is
made), one never knows if the court will ignore it: generally the
statement gets uttered and then a ruling is made. Responsible, ethical
lawyers tend not to attempt to circumvent the hearsay rules - but I
see attorneys use it improperly all the time.

So what is it? Essentially hearsay is "an out of court statement,
offered for the truth of the matter asserted." Evidence Code § 1200.
Such evidence is supposed to be inadmissible, "except as provided by
law." The exceptions to the hearsay rule are vast and complex. Many
lawyers and some judges have difficulty understanding the rule and
applying the exceptions - no surprise if you do! Indeed, if you intend
to object to hearsay evidence, or to introduce testimony that may fall
into an exception and so be admissible, you may be unsuccessful unless
you can quote rhyme and verse concerning the elements of these
exceptions to a judge - especially with the more uncommon ones.
Remember, just because something fits the definition of "hearsay" does
not mean that it is going to be excluded from admissibility. Instead,
their is a multi-tiered analysis that must be undertaken and if each
element of, for instance, is met then the statement is coming into
evidence.

Hearsay is not limited to oral statements. It includes conduct that
can be viewed as assertive, most obviously with gestures like nodding
or shaking of the head. Even silence in the face of an accusation can
be viewed as a hearsay "statement" that constitutes an "admission"
under certain circumstances.

"Out of court" means in a setting other than by a witness who is
testifying at, or in connection with, the current hearing or trial. If
the statement was made or heard outside the courtroom, or is a
document created outside the presence of the court (which is almost
always the case), it is hearsay. But, again, just because it is
doesn't mean the statement will be excluded if other conditions can be
met. It is entirely possible to have multiple hearsay - levels of
statements overheard and repeated. A proper analysis must be applied
to each segment.

Some things look like hearsay but aren't. This is because in order to
constitute hearsay, a statement must be "offered to prove the truth of
the matter asserted." If the speech or conduct that is being testified
to is (supposedly) being offered for a different purpose than proving
that its content was true, then the court may conclude it is not
hearsay at all. Most commonly this is the case with testimony that is
offered to prove "state of mind" or the effect of the statement of the
listener. For instance, maternal grandmother is asked to describe a
conversation with granddaughter to explain why she left with the child
that night to take her to grandma's own home. The essence of the
conversation between grandmother and granddaughter is that "daddy just
hit me." While (ignoring any hearsay exceptions for this example) it
is clearly hearsay for Mom or her attorney to have grandmother testify
to what granddaughter said to prove that daddy indeed hit her, it is
not hearsay to offer that statement to explain why grandmother left
with the child that night, or the fact of the statement itself.
Granddaughter's statement may be offered to prove grandmom's (and
possibly granddaughter's) state of mind - not that the hitting in fact
occurred (i.e., the truth of the matter asserted). However, as you
will immediately notice, a major pitfall arises for father in that
proceeding because the court has now heard the accusation even as it
proclaims that it is not considering that evidence as proof that the
child was struck. It takes an exemplary judge to be able to separate
out in their own minds the implication that would not be admissible
from the purpose for which the testimony was allowed. Most lawyers
faced with this sort of "evidence" will quickly respond to an
objection to this material with "your Honor, this testimony is not
being offered for the truth of the matter asserted. It is being
offered as to this witness' state of mind, and to explain why she left
with granddaughter." As you can imagine, clever lawyers (or pro pers)
may be able to taint the process by getting questionable evidence in
that would otherwise be excluded.

The hearsay definition includes the statements (or acts) of the
parties themselves. A statement by wife that "my husband, Mark, told
me he had removed $20,000 in cash from our safe deposit box two days
before I filed for dissolution," if offered to prove that there was
$20,000 in that box, and/or that Mark in fact misappropriated it, is
hearsay. However, one of the important areas where hearsay exception
renders otherwise inadmissible evidence as admissible involves
statements by the litigants themselves. Such statements are labeled
"party admissions."

Any statement that satisfies the admission's exception is any out of
court statement by a party to the action that is inconsistent with a
position that they are now taking. Here, if Mark denies having taken
the money, or that it ever existed, wife's statement comes in as an
exception to the hearsay rule. You can imagine the liar's contests
these rules serve to create, and the difficulty it creates for
cautious judicial officers. As a practical day to day reality in
family courts, many judges allow just about any statement that is
directly attributed to the other party to come into evidence. Strictly
speaking, this may well result in a misapplication of the rules.
Whether evidence that should not have come in but that does get
(erroneously) admitted forms the basis of a set aside or an appeal of
a judge's ruling is way beyond the scope of this Blog. Suffice it to
say that some evidence rulings that are wrong may be viewed as
prejudicial and as warranting a reversal, while most are considered by
the appellate courts as "harmless error."

Here is a short list and description of some the most useful hearsay
exceptions:
Party admissions
Admissions are described above.

Declarations against interest
A nonparty's out of court statement may be admissible as proof of the
matter asserted if certain threshold criteria can be established. The
declarant must be unavailable to testify as a witness; they must be
shown to have had personal knowledge of the subject matter; the
statement must have been against the declarant's interest when it was
made (i.e., something that was damaging to them or their interests);
and the statement must have other indicia of reliability that the
court finds warrants admission.

Former testimony
Where the declarant has previously testified under oath in another
action or proceeding, that testimony may be admitted if certain
conditions are met.

Prior consistent and inconsistent statements
A witness' out of court statement may be admitted as proof of the
matter asserted if it is inconsistent with the witness' testimony at
the current proceeding. For instance, assume that "Fred" accompanied
Mark, in the example above, to the bank to remove $20,000 from the
safe deposit box. Fred confirmed this to wife's best friend Marge a
few days after Mark made his admission to wife that he took the money.
Wife now wishes to corroborate her story of what Mark said to her and
did, because - after all - Mark will deny ever having said or doing
any such thing, and this leaves the question open for the trial court
to the extent it is a "he said, she said" situation between the two
parties. Wife has the burden of proof on the issue, so reliable
corroboration may be critical to swinging the judge into finding the
money existed and was taken by Mark. Fred is not a party to the
action, so his statement does not qualify as an "admission." Fred is
called to the stand and is asked "did you accompany Mark to the bank
and witness him open the box and remove $20,000?" [Note - this is
objectionable as a compound question, and would be asked the same
thing in a series declarative questions to overcome that objection].
Fred answers "no way, I don't know what you are talking about." Wife
next calls Marge as a witness, and she recounts what Fred said to her
- i.e., that he accompanied Mark, and what Mark did. Fred's earlier,
out of court statement to Marge, directly contradicts his trial
testimony, and so comes into evidence as a prior inconsistent
statement.

Spontaneous declarations
This exception permits out of court statements to prove the truth of
the matter asserted to come into evidence, when certain factors exist
that courts assume indicate reliability can be established.
Spontaneous declarations purport to narrate or describe or explain an
act, condition or event that was witnessed by the declarant. The
statement sought to be admitted must have been made "spontaneously"
while the declarant was under the stress or excitement caused by such
a perception.

Wife and Mark are having an argument at home. Paternal grandmother
rents a room. She observes wife slap Mark. That grandmother
immediately calls her best friend, Ruth, to ask what she should do -
and she is crying and clearly distraught and describes what she saw.
Now weeks later, grandmother has returned to her home in Florida and
is not available to be called as a witness for Mark at Mark's DV
hearing. However, Ruth is. Ruth takes the stand and Mark's attorney
attempts to get into evidence what Mark's mother said. It is hearsay.
However, Ruth's testimony about what Grandma said may come into
evidence as a spontaneous declaration.

Statements of physical or mental condition
These are distinct from the issue that arises when out of court
statements are offered as circumstantial evidence of the declarant's
state of mind, discussed above. Instead this exception relates to
present or past physical and/or mental conditions or states.

Business records
This can be a very important exception to know. Business records are
admissible for the proof of what is contained in them (a) to prove the
occurrence or existence of an act, condition or event recorded in the
business record and (b) to prove the nonoccurrence or nonexistence of
an act, condition or event not recorded in the record. There are
requirements that must be met, which are contained in Evidence Code
sections 1271 and 1272.

For instance, wife in our safe deposit box example subpoenas the
bank's records to show that Mark accessed the safe deposit box days
before separation. The bank produces the sign in sheets containing
Mark's signature. This sign in sheet is hearsay - it is being offered
to prove the truth of the matter asserted, that Mark accessed the box
- which is circumstantial evidence that something was in it that might
have been removed. Assuming a proper foundation is laid, the records
come into evidence over the hearsay objection as "business records."

Official records
This hearsay exception deals with records maintained by public
entities. Such records are assumed to be more or less inherently
reliable.These typically relate to vital statistics (i.e., birth
records)

There are a number of other exceptions that may be important for you
in any given situation.
__________________________

The problem with hearsay evidence is that it is frequently unreliable
and hence untrustworthy. Court's can't watch the demeanor of the
declarant at the time they made the statement, and people
unfortunately have all kinds of incentives to lie, minimize or
exaggerate. While you need to fit your objections or the hearsay
evidence you hope to introduce into a recognized exception to get it
admitted, remember that the key is do everything in your power to show
why the testimony can, on balance, be trusted. Knowing these rules can
be an effective weapon for getting evidence excluded that you disagree
with or find unfavorable. Often the other party has no idea how to
respond, which is one good justification for the money that lawyers
charge.

Also, remember that hearsay objections, if not timely made, are
waived, especially for purposes of appeals. Many judges will disregard
them on their own, but there is no certainty that they will and except
when a statement of decision is requested or given one rarely knows
what evidence the court ultimately relied on in reaching its findings.
Hearsay has a subtle way of spinning the proceedings, and should be
avoided IMHO.

Finally, keep in mind that all hearsay issues require you to consider
the following analysis:
Is the evidence you want to admit relevant to some issue in the
proceedings? If not, it will not be admitted and no further analysis
is required.
Has proper foundation been laid to otherwise get it admitted?
Is it hearsay?
If it is hearsay, what exceptions apply?
Even if it is other admissible, should it be excluded on some other
ground set forth in Evidence Code section 352?
Good luck out there!

For more information on these matters, please call our office at 305
548 5020, option 1.

Twitter: www.twitter.com/yoelmolina_mo
Faceback page: www.facebook.com/lawofficeofyoelmolina
Linkedin profile: http://tinyurl.com/linkedinpagemo
Blog: http://tinyurl.com/molawblog

"Turn to us when you need help"

Straight or gay, responsible parenting is needed

Over the weekend there were articles in both the Guardian and Sunday
Times about the Court of Appeal case I highlighted last week regarding
the lesbian couple who are in dispute with their 'donor' over access
to a child created between them (No Legislating for Feelings 7th
February ).  Charlie Condou in the Family section of The Guardian uses
his column to pour scorn on the apparent lack of thought that went
into the agreement that was made between the women concerned and their
donor, who according to the Sunday Times, was the gay ex-husband of
one of the women.   Condou himself has two children with his gay
partner Cameron and Catherine, a single, straight friend whom the men
had about two years of discussion with before going ahead with trying
to conceive.  As Condou says, "The mothers did not choose an anonymous
sperm donor – presumably because they wanted their child to know who
his father was – they chose a friend.  A friend who was present at his
son's birth and who has been active in his life.  He is a father, and
they, as mothers, don't have a right to put a limit on how he
expresses that, whatever they think they agreed over a bottle of wine.
 The child has a father who loves him and wants to be in his life, and
the child has every right to that relationship."  In fact it's all to
do with relationships and really nothing to do with sexuality.

Giles Hattersley in the Sunday Times talks to Alison Burt a solicitor
with a family law firm that is seeing an increasing number of
difficult and upsetting situations occurring with complicated and
un-thought out parenting arrangements.  Sam Dick, head of policy at
Stonewall advocates that gay and lesbian parents when seeking someone
of the opposite sex to help them have a child, have a long 'dating'
period where they get to know each other very well before deciding to
go ahead.  Condou is adamant that everyone must understand to the
letter what the term 'involvement' means.   All interviewees agree
that  "Until you have a child you have no idea of the intensity of
emotions that rise" and that everyone has to be as prepared as they
possibly can be to reconsider arrangements and compromise in the
interests of the child.  This being something the women in the current
case seem very reluctant to do.

In the meantime the lovely Elizabeth Marquardt asks Do Mothers Matter?
in this weekend's edition of The Atlantic.  I hesitate to mention her
as each time I criticise this woman armies of her supporters come out
of the woodwork to post their strongly held views about what I have to
say.  But I can't let this pass.

In the article Marquardt starts by proposing that not having a mother
was, until recently, widely regarded to be a tragedy.  She then goes
on to list ways in which children have historically been separated
from their mother and how painful this is for mother and child.  And
of course no-one would disagree that any forced separation between
parent and child where there has been a bond of love and attachment is
something to be avoided at all possible cost.  The argument then moves
from one where mother and child are separated to that of egg donation
and surrogacy where the parents are gay men and two women, neither of
them intending to be mothers, helped them to have a child.  This is a
new form of family not in the conventional heterosexual mould – yet
another way in which what we mean by family is evolving in the modern
world – but lesbian couples have been having children together for a
long time now and research shows that their children do very well.  No
father present there, unless they have chosen to co-parent.

Is there something special about a woman that makes her more likely to
be missed than a man in the family?  I don't think so.  Men cannot
breast feed but they can be equally nurturing and supportive of their
children, providing warmth and comfort as well as boundaries and
boisterous play.  I'm not dismissing the positive roles that both a
father and a mother can play in children's lives but same sex couples
are likely to bring a range of qualities to their parenting that
fulfil the needs their children have.  Heterosexual parents who are
left on their own with children find that they develop the qualities
that the other parent used to bring.  Not having a man or a woman in
the house does not necessarily mean that children are missing
anything.

Marquardt's underlying position is always that anything other than a
heterosexual couple family with children conceived with their own
gametes, is inevitably damaging for children.  Donors are viewed as
'parents' who have given up their children to be raised by others and
non-genetically connected parents are raising 'other people's
children'.  In her methodologically flawed study My Daddy's Name is
Donor and quoted in the Atlantic article, she shockingly claims that
"Compared to their peers raised by biological parents, sperm-donor
conceived persons are more likely to struggle with delinquency,
addiction and depression."  Whilst she has every right to her views on
the way in which families are changing, Marquardt has no right to make
such statements about donor conceived people in general.

To return to the questions raised at the beginning of this post, it is
vital that men and women, straight and gay, understand what they are
doing when they bring children into the world.  Adult relationships
may be evolving but children's needs for love, nurture and security do
not change.  I believe these needs can be met by same sex as well as
heterosexual couples, those who are not genetically connected to a
child as well as those who are.  Mums and dads (in same or different
sex couples) are those people who are there for their children day in
and day out.  Donors are important too but in a different way.  They
are not parents who have abandoned their children but contributors of
a vital ingredient of life.  They deserve thanks, recognition for
their gift and (hopefully) their willingness to make a connection with
a young person who needs to know more about them.  Mature responsible
parents; mature, responsible donors.  Happy children.

For more information on these matters, please call our office at 305 548 5020.

Twitter: www.twitter.com/yoelmolina_mo
Faceback page: www.facebook.com/lawofficeofyoelmolina
Linkedin profile: http://tinyurl.com/linkedinpagemo
Blog: http://tinyurl.com/molawblog

"Turn to us when you need help"

Where there’s a will there’s a way to con

Death, like politics and religion, is not widely mentioned in polite society.

It's on a par with blocked drains and smelly toilets – a known fact of
life, but a subject to avoid at all costs.

Research shows that a staggering 60 per cent of people die without
making a will, leaving it open season for the government to cash in on
the value of their worldly possessions.

Many people avoid making a will because they think it's complicated
and expensive.

But as others find out to their cost, unscrupulous predatory firms
specialising in will writing can arrange to plunder their estate even
before they pass away.

It's a little known fact that anyone can set up in business to provide
will writing, probate, and estate administration services.

Ever since they passed out of the hands of solicitors in the late
1980s, successive governments have made a virtue of applying 'light
touch' legal services regulation, leaving the door open to a
significant number of crooks and con artists poised to rip the public
off.

No sooner than the ink was dry ending the monopoly of solicitors in
this area of law, the rogue element started to move in.

According to the Trading Standards Institute's Bryan Lewin, first out
the starting blocks was serial fraudster Simon Harris, who on his
release from prison saw the gap in the market and founded the Quill
Group will writing franchise.

All the companies in the Quill Group were finally put out of business
in the early 1990's when the Department of Trade and Industry
compulsory wound them up in the High Court.

But where Mr Harris moved in, others were sure to follow.

Enter Gerald Barton – a disqualified director – and his string of
franchises going under the names of Willmakers Ltd and National Legal
Services.

By the time Harris and Barton had been unmasked as will and probate
rogues, thousands of clients were left out of pocket, and without
access to their wills.

Undeterred another plausible will writing outfit, Stephen Share's
Solicitors Probate Services Ltd, ended up in the High Court in 2008
after a rigorous investigation by the Solicitors Regulatory Authority.
They discovered that the ex-solicitor – who was finally banned from
practising law for life in 2009 – had named himself or his company as
executor in more than 4,500 wills.

Another dodgy trio behind will writing services formed Willmakers of
Distinction UK. They were subsequently found to have stolen thousands
of pounds from dead people.

Two of the men involved, David Nash and Nicolas Butcher, were
sentenced in 2010 at Lincoln Crown Court to three and a half years
behind bars, while the third, Raymond Prince, was handed down a one
year suspended sentence.

While recourse to a friendly will writer does by no means guarantee
you'll automatically be fleeced of all your worldly wealth, the
situation is serious enough for the Law Society to campaign for the
regulation of will writers.

In July 2011 the Legal Services Board (LSB), having given due
consideration to the advice they received from their consumer panel,
started a statutory investigation into how best to protect consumers
from will writing and probate services spivs.

After sifting through the evidence, the LSB is recommending to the
government that regulation is re-imposed in the form of licensed
activity by legal professionals under the 2007 Legal Services Act.

But that may be easier said than done.

The Institute of Professional Will Writers (IPW), a self-regulating
trade body, claims now that the genie has been let out of the bottle
it is very difficult to get an accurate picture of the scale of the
problem and size of the will writing sector.

Many writers operate as 'one man bands' from home, and firms have
hundreds of practitioners working for them on self-employed contracts.

The IPW has identified about 750 will-writing firms, and their
research has uncovered another 158 companies with 'Will' in the name
that had been dissolved in the last ten years.

The response to the LSB's concerns from the government has not been
encouraging, despite unearthing considerable evidence of poor quality
wills and dubious advertising practices.

Christopher Matthews, an associate solicitor with Churchers
solicitors, Fareham, is concerned that consumers deterred by false
claims about solicitor's charges, are being put at risk in the will
writing free-for-all .

He said: 'I strongly recommend your will is prepared by a solicitor or
legal professional who is a member of Solicitors for the Elderly so
you have the peace of mind knowing you are dealing with an expert who
can advise on all the circumstances affecting your estate.

'Never pay for your will upfront or let a sales person pressurise you
into additional cost, any genuine professional will be happy to
receive payment once the work is complete.

'If the cost of the will sounds too good to be true it probably is.'

For more information on these matters, please call our office at 305 548 5020.

Twitter: www.twitter.com/yoelmolina_mo
Faceback page: www.facebook.com/lawofficeofyoelmolina
Linkedin profile: http://tinyurl.com/linkedinpagemo
Blog: http://tinyurl.com/molawblog

"Turn to us when you need help"

How to avoid a dispute when using a known sperm or egg donor

Submitted by prideangel.com

The courts are all talking about same sex parenting disputes. The
Court of Appeal has this week been hearing from a donor applying for
contact with his biological son against a lesbian couple who say they
feel "bitterness and betrayal" (the case has not yet been decided but
you can read the coverage in the Telegraph here). This follows the
decision just a few weeks ago by High Court judge Mr Justice Hedley
(in P&L (minors) 2011, available here in full) which dealt with a very
long and bitter dispute about the role of gay donor dads to two
children (aged 10 and 6) being raised by their lesbian mothers. The
courts are feeling their way with what they call new models of
alternative parenting, and trying to develop an approach for these
types of cases, which are far from traditional family law disputes.
Having advised many same sex parents (both at the planning stages and
those who end up in dispute) we see some wonderfully successful
co-parenting arrangements. But where they go wrong, they go horribly
wrong. What is interesting, though, is that parents always seem to
fall into one camp or the other. I can honestly say that none of the
clients we have advised at the planning stage has ever come back for
legal representation later. Equally, not one of the clients we have
represented in disputes took legal advice at the outset.

So here are our tips on how to make your co-parenting or known
donation arrangement a successful one, and how to avoid ending up in
court:

Talk, talk, talk (and more importantly listen, listen, listen)

Don't rush into trying to conceive. Get to know each other, have
honest conversations about the roles you will have and how much
involvement you all want. Be as clear as you can about your
expectations and be honest with each other and yourselves. If things
don't feel right, have the courage to walk away. There are always
other options. You could find another donor or co-parent, or choose
unknown donation (as mums) or surrogacy (as dads) if what you really
want is parental autonomy.

Understand what roles you will all have

Justice Hedley was keen to "stress the importance of agreeing the
future roles of the parties before the first child is born". And this
fits with our experience. Almost all the cases we have seen which have
ended up in dispute are ultimately about status. Is the biological dad
a father or a donor? Are you equal co-parents, or primary and
secondary parents, or parents with another adult role model? Make sure
you talk about how you see yourselves and each other, as well as the
day to day practicalities of managing your child's care.

Understand how the law works

The law on parentage is complicated, and who will be the legal parents
(and what goes on the birth certificate) depends on the facts,
including how you conceive and the birth mother's marital status.
There may be all sorts of different options, both for choosing who the
legal parents are and for giving some parental status to the other
co-parents if you want to, and problems can often arise where parents
have expectations (for example about what goes on the birth
certificate) which can't be met. Take legal advice, or check out the
free information on our website about this.

Put in place a written agreement

Donor agreements may not (strictly) be legally binding, but they are
incredibly useful. I have always advised parents that putting
something in writing helps with the planning, facilitates honest
conversations and sets a framework which everyone will feel morally
bound by, giving clarity and transparency and setting a really strong
foundation.

However, it now seems they may be more legally binding than we
previously thought. Although the issue is still untested (the parents
in P&L did not have a written agreement, which I suppose comes back to
my point that it is not the parents with properly prepared legal
agreements who end up in court) the case suggests that the court will
pay attention if there is one. Mr Justice Hedley said, in the
strongest indication yet, that "the court will be bound to give
careful consideration and weight to any such agreement".

There is no standard format for a donor or co-parenting agreement, but
having something which is accurate and personal to you (and prepared
with a solid understanding of how the law applies in your particular
circumstances) will be much more helpful than any standard pro forma.

For more information on these matters, please call our office at 305
548 5020, option 1.

Twitter: www.twitter.com/yoelmolina_mo
Faceback page: www.facebook.com/lawofficeofyoelmolina
Linkedin profile: http://tinyurl.com/linkedinpagemo
Blog: http://tinyurl.com/molawblog

"Turn to us when you need help"

Back to Basics: Family and Medical Leaves

BY STEVE PELTIN

In the first of a four-part series on the Family and Medical Leave Act
(FMLA) and related Washington law requirements, we addressed the
fundamentals of the FMLA, including coverage, permitted reasons for
leave, and significant definitions. In this installment, we will
cover the process for requesting leave, granting or denying leave,
employee rights during the leave, and reinstatement rights after the
leave. More detailed information is available on our website.

How does an employee request FMLA leave?

If leave is foreseeable, the employee must provide at least thirty
days notice before the leave is scheduled to begin, unless it is
impracticable. If impracticable, the employee must give notice as
soon as practicable.

The notice must make the employer aware that the employee needs
FMLA-qualifying leave, and the anticipated timing and duration of the
leave. The employee ordinarily need not use any magic words or even
mention "FMLA." The employer is required to determine whether the
employee qualifies.

The employer may require an employee to comply with its usual and
customary notice and procedural requirements for requesting leave,
absent unusual circumstances. For example, the employer may require
notice in a certain format or directed to a specific individual.

Before taking foreseeable leave for medical treatment, the employee
must make a reasonable effort to schedule the treatment so as not to
unduly disrupt the employer's operations.

When the need for leave is unforeseeable, the employee must notify the
employer as soon as practicable. If the employee is unable to give
notice in person, notice may be given by the employee's
"spokesperson."

How does the employee show medical need for leave?

Generally, if an employee requests FMLA leave for medical reasons, the
employer may require a certification from the health care provider of
the employee or relevant family member. Deadlines for notifying the
employee of certification requirements and for the employee response
are found here.

Certification should be "complete and sufficient." If an employee
omits information or provides "vague, ambiguous, or non-responsive"
answers, the employer should notify the employee in writing and
explain what additional information is necessary. If the employee
does not rectify the deficiencies, leave may be denied. The content
of the medical certification is described here.

If the employer has reason to doubt the certification, it may, at its
own expense, require a second opinion from an independent health care
provider. Disagreements between opinions may be resolved by a third
independent opinion.

An employer may request recertification when reasonable, but generally
no more often than every thirty days. An employer may request
certification if the employee seeks an extension of leave,
circumstances have changed significantly, or new information casts
doubt on the stated reason for leave or on the certification.

How does the employer respond to the request for leave?

The employer ordinarily must notify the employee within five business
days of whether he or she is eligible for FMLA leave. The employer
also should provide a notice to the employee that explains rights and
responsibilities under FMLA. The contents of the notice are found
here.

Assuming that the employee is eligible for leave, the employer next
must determine whether he or she qualifies for leave. Here the
employer examines whether the employee has a serious health condition
or fits under any of the other reasons for FMLA leave.

If the leave request is denied, the employer must notify the employee.
If the request is granted, the employer must designate leave as
FMLA-qualifying and notify the employee, specifying the information
found here.

The employer must designate leave as FMLA-qualifying based solely upon
information provided by the employee (or his or her spokesperson). If
there is insufficient information to make a designation, the employer
should inquire further.

If an employer fails to timely or properly designate leave as
FMLA-qualifying, it may do so retroactively with appropriate notice,
provided the failure does not harm or injure the employee. The
employer and employee also can agree to retroactively designate leave.

What happens during the leave?

An employee generally is entitled to receive health insurance benefits
while on leave. An employee who chooses to maintain health coverage
is still responsible for any employee-paid premiums. If the employee
fails to return to work after the leave, the employer may collect from
the employee the premiums paid on his or her behalf during the leave.

An employer may require an employee on FMLA leave to periodically
report his or her status and intent to return to work. If the
employee needs to take additional leave, he or she should give the
employer at least two days notice when practicable.

What happens after the leave?

The employer may require certification from a health care provider
stating that the employee is healthy enough to return to work or
perform specific tasks, so long as the requirement policy is uniformly
applied. An employee who remains unable to work after exhausting FMLA
leave has no right to restoration, and failure to provide a
fitness-for-duty certification disqualifies an employee from
reinstatement. If leave is intermittent, the employer may only
request a certification of fitness to return to duty once every thirty
days and only if there are "reasonable safety concerns" regarding the
employee's ability to perform job duties.

If the employee is medically able to work, he or she is entitled to
return to the position held before the leave or to one with similar
requirements, pay, and benefits. However, an employee has no greater
right to reinstatement than if he or she had been continuously
employed. If the employee would have been terminated if still at
work, the employer has no duty to reinstate. In fact, the employer
may terminate an employee during FMLA leave so long as the reason for
termination is unrelated. An employer also may deny reinstatement to
certain highly-compensated "key" employees to prevent "substantial and
grievous economic injury" to employer operations.

For more information on these matters, please call our office at 305 548 5020.

Twitter: www.twitter.com/yoelmolina_mo
Faceback page: www.facebook.com/lawofficeofyoelmolina
Linkedin profile: http://tinyurl.com/linkedinpagemo
Blog: http://tinyurl.com/molawblog

"Turn to us when you need help"

Common Estate Planning Myths and Superstitions

We wanted to share some common myths and superstitions about estate
planning. Most Americans know the story of Groundhog Day: if a
groundhog comes out of its burrow this morning and sees its shadow, it
will retreat back into the burrow and six more weeks of winter weather
will follow. On the other hand, if the groundhog does not see its
shadow and remains aboveground, winter will soon end.

Most of us recognize that the ability of a groundhog to accurately
forecast the weather is just a myth. (The reality is that groundhogs
get it right only 39% of the time.) However, many people still believe
in the following estate planning myths and superstitions (or at least
use them as an excuse not to plan):

#1: You are more likely to die once you complete your estate planning.
This is simply absurd; generally, the only people who die shortly
after executing an estate plan are people who waited ALMOST too late
to plan in the first place.
#2: Estate planning is only for the wealthy. When you hear the word
"estate," do you think of a palatial mansion or fine jewels? The truth
is that if you own a home, a car, a bank account, life insurance,
etc., then you have an "estate".
#3: Estate planning only matters after death. A big part of the estate
planning we do at our firm is planning for possible future disability.
Wouldn't you like to leave directions for how you want to be treated
if you become incapacitated as well as for who gets your stuff when
you're gone? What about requests for who will care for you and/or your
children?

Please feel free to post comments on our Facebook or Twitter or make
an appointment if you have individual questions or concerns. Call our
office at 305 548 5020.

Twitter: www.twitter.com/yoelmolina_mo
Faceback page: www.facebook.com/lawofficeofyoelmolina
Linkedin profile: http://tinyurl.com/linkedinpagemo
Blog: http://tinyurl.com/molawblog

"Turn to us when you need help"