Author Archives: Andrew Micheletti

Litigation in Will/Estate Matters

June 20th, 2014 | Posted by Andrew Micheletti in Estate Planning | Law Blog | LItigation - (Comments Off on Litigation in Will/Estate Matters)

The passing of a loved one is a traumatic experience in and of itself.  Often times this pain is exacerbated when it comes time to distribute the assets of the decedent’s estate.  Disputes may arise regarding the language of the Will or even possibly the distribution of benefits that are meant to be payable-on-death.  In some instances, the beneficiaries can work together to reach some sort of compromise.  Other times, however, it is only through litigation that these disputes reach a resolution.

Wills can be challenged for a variety of different reasons.  They can be challenged on the grounds that they were not properly executed, that the testator was incompetent at the time they executed their Will, and they can be challenged on the grounds that the testator was unduly influenced into changing their estate plan amongst other things.  Likewise, the naming of a beneficiary by the decedent to receive benefits that are considered payable-on-death, and therefore not subject to a Will/probate, can be challenged for various reasons including actual or constructive fraud, duress, abuse of a confidential relationship, mistake, commission of a wrong or some form of unconscionable conduct.

Whether or not to proceed through litigation in these types of matters is a decision that must be made with careful consideration.  Not only is the value of the estate and or benefits at issue, but so too are the potential costs of litigation and, as these instances often involve family, the potential impact the litigation may have on your family.

An attorney can explain the process of these types of litigation to you and evaluate your claims to help you determine the validity of your case and the likelihood of success.  It is important to have an attorney who is experienced in these types of litigation represent you as the claims can often involve several different areas of law.

If you have questions regarding these matters, please call Sitzmann Law Firm Ltd.

andrew@sitzmannlaw.com

A Judges Relatives Are Not Your Peers

October 24th, 2012 | Posted by Andrew Micheletti in Criminal Law | Law Blog - (0 Comments)

Defendants in criminal matters are entitled to be tried before a jury of their peers, however, according to a recent Court of Appeals decision; Judges must remove immediate family members from any jury panel in cases in which they are presiding.  The District II Wisconsin appeals court recently held in State v. Sellhausen, 2010AP445-CR (Nov. 24, 2010) that a trial court judge must sua sponte remove immediate family members from the panel of potential jurors in cases in which the judge is presiding.  The rational for this decision is that, holding otherwise, “would require judges to rule on a party’s motion to strike the juror for cause, instead of using a peremptory challenge.”

Defendant Sellhausen successfully appealed a jury conviction on the grounds that the presiding judge did not remove the judge’s daughter-in-law from the panel of potential jurors.  Instead, the Defendant’s attorney used a peremptory challenge to remove her during voir dire.

I am in full agreement with this decision.  However much the potential juror states that they will be able to remain impartial, there is no telling how a judge’s actions on the bench may influence that juror.  This is especially true where a judge is “familiar” with the defendant or does not have the most cordial relationship with the defense attorney.  The potential for improper influence is clearly present, and that should have been enough for the judge in Sellhausen to strike the juror.

What are your thoughts?

Andrew.Micheletti@sitzmannlaw.com

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