Which Facts Have to be Established to Prove a Lack of Testamentary Capacity?

Will contests often focus on questions about whether the person who executed the will had the mental capacity required to execute the will. These post-death legal disputes can be particularly contentious. They delve into the life circumstances and affairs of the deceased. Facts matter in these cases. This raises questions as to what facts matter?...Continue...Continue readingWhich Facts Have to be Established to Prove a Lack of Testamentary Capacity?

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Houston Man Among Dead in Florida Apartment Collapse

No matter how much you think you know what the future will hold, life can still surprise you. It is of utmost importance to be prepared with a will and an estate plan in the event of an unlikely death. Hiring a trustworthy attorney to help you prepare these matters is the best way to...Continue...Continue readingHouston Man Among Dead in Florida Apartment Collapse

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OSHA’s COVID-19 Emergency Temporary Standard

In this episode, I discuss OSHA’s emergency temporary standard for businesses that engage in healthcare and healthcare support services. Specifically, I address which business must follow this standard, what are the requirements, and how businesses can follow the requirements that are outlined within the standards. 

I also briefly discuss some of the other guidance that OSHA has issued for other businesses and what businesses can do to keep their employees safe.

You can view more about OSHA’s emergency temporary standard on their website: https://www.osha.gov/coronavirus/ets

You can view learn more about what employers should do regarding COVID on the following posts on my website:

• https://texaslaborlawblog.com/top-10-post-covid-19-coronavirus-employment-law-issues/
• https://texaslaborlawblog.com/how-to-reopen-a-business-and-recall-employees/
• https://texaslaborlawblog.com/crisis-management-employees-and-covid-19-coronavirus/
• https://texaslaborlawblog.com/remote-work-and-covid-19/
• https://texaslaborlawblog.com/covid-19-coronavirus-texas-employers/

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

The post OSHA’s COVID-19 Emergency Temporary Standard appeared first on Texas Labor Law Blog.

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Summer Road Trip Safety Tips 2021

Summer Road Trip Safety Tips Whether it’s to visit family, check out a national landmark, or just get out and do something different, millions of other Americans are planning to take to the roads this summer. After all, with the country opening back up after a year of lockdowns and isolation, plenty of people are [...]

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Preliminary Comments on the Trump Organization and CFO Indictment (7/2/21)

The much-anticipated indictment of the Trump Corporation and components and its Chief Financial Officer (“CFO”), Allen Weisselberg, has been released.  The caption is The People of New York v. The Trump Corporation, et. al. (N.Y. Supreme Court – no number available).  The indictment is here.  (The pdf copies on the web were not adequately OCR’d; I had this copy OCR’d using Adobe Acrobat text recognition; the OCRing came out much better than the copies I found in my quick searches.)

Here are my first general comments (which I may supplement or revise later):

1. The general thrust of the indictment had been reported before the indictment came out.  Basically, through various schemes, certain individuals (including, for purposes of this indictment, the CFO) caused the corporation to underreport and underpay tax liabilities.  Essentially, these individuals caused the corporation to pay compensation that did not appear on the books and filings as corporation subject to various tax obligations – including reporting income of the individuals benefiting from the payments, avoiding payroll tax to the payors and payees, etc.  

2.  This is a fairly common pattern in a closely held corporation except that the payments often go to the owner and the owner’s family rather than to an employee (here the CFO).  In this case, the owner is Trump and the owner’s family are the Trump children and spouses.  Nothing is said about Trump’s off-the-books use of corporate assets, but with the egregious conduct for Weisselberg, one has to wonder whether charges against Trump are waiting in the wings, with the prosecutor hoping Weisselberg will flip.  Given Trump’s alleged use of oral instructions (or signals) to avoid putting his conduct in writing to the extent possible, somebody like the CFO would be an important (perhaps not a necessary) witness against Trump if he were indicted.

3.  In this regard, paragraph 5 of the indictment alleges “One of the largest individual beneficiaries of the defendants’ scheme was Allen Weisselberg.”  The inference is that Weisselberg was not the largest beneficiary.  Based on what I have inferred about the organization, the biggest fish ahead of Weisselberg in the organization were Trump and perhaps Trump’s family members.  Could Trump or family members be the larger beneficiary (ies) inferred in the quoted wording?

4.  And, in the conspiracy count, an “Unindicted Co-Conspirator #1 is named.  (See p. 14.)  Further, the conspirators including “Unindicted Co-Conspirator #1 agreed to and implemented a compensation scheme with the object of enabling Weisselberg to underreport his income to federal authorities, and thereby evade taxes and falsely claim federal tax refunds to which he was not entitled.”  (See p. 15.)   The question is whether acts that would constitute federal tax crimes also state tax crimes committed in the state if the federal fisc is the object of the crime.  I suppose federal tax evasion that could be charged as such is larceny in the state as well.

5.  Given the fact that serious federal crimes were involved under the alleged scheme, will the federal government now get into the act?  And, if the federal government wants a pound of flesh from the CFO, wouldn’t it also want it for the guy in charge if indeed he orchestrated or participated in the scheme.

6.  One of the interesting and damning aspects of the charges is that Weisselberg had set compensation and when he employed “off the books” compensation, he reduced his compensation accordingly.  More importantly, he kept records to show the reduction.  Who were those records for?

7.  Another possible reference to Trump is a lease which was part of the scheme that was signed by “the Trump Corporation, acting through the president, * * * “with a rider designating Allen Weisselberg and his spouse as the sole occupants who would use the [*14] apartment as a primary residence.”  (See Second Count pp. 13-14.)  Who was that “president” of the Trump Corporation?  And, in this regard, the Unindicted Co-Conspirator shows up in the acts constituting Overt Acts of the conspiracy.  (See Second Count, p. 14, Overt Act 2.)  It is interesting that the indictment infers that the president (whoever that was) is not Co-Conspirator #1 (otherwise the pseudonym would have been used).

8.  The defendants’ lawyers have alleged that this pattern of conduct is really relatively small and would not be indicted in the Federal universe.  I don’t think that is true.  Had this not involved the President of the U.S., this pattern of conduct, including the sheer scope, brazenness and amounts involved, might well have attracted criminal investigation and prosecution resources.  Should it be different just because a President is involved at some level?

9.  Keep in mind that the Wartime Suspension of Limitations Act, 18 U.S.C. § 3287, here, (see also blogs here) probably keeps the federal tax evasion statute of limitations from the late 1990s “until 5 years after the termination of hostilities as proclaimed by a Presidential proclamation, with notice to Congress, or by a concurrent resolution of Congress.”  Beyond that, on the civil side, the statute is open forever for seeking the tax, the fraud penalty and interest on both.  See § 6501(c)(1) & (c)(2), here.

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Latest & Greatest – Estate Planning for the Muslim Client

By Yaser Ali and Ahmed Shaikh

Published by American Bar Association. Section of Real Property, Trust and Estate Law

KF 750 .A76 2019

Photo Credit: Helen Hartman

Estate plans are drafted to facilitate the transfer of one’s wealth upon death to designated beneficiaries. What happens when your client is a devout Muslim who wants to plan and distribute his estate in accordance with his religious beliefs and convictions as well as Islamic inheritance law? In that case, it is important to understand not only the basic tenets and beliefs of the Muslim faith but also how Islamic inheritance laws relate to and harmonize with existing federal and state law. Yaser Ali and Ahmed Shaikh have written Estate Planning for the Muslim Client, an excellent guide to assist attorneys with preparing estate plans that are consistent with a client’s religious beliefs and to help them understand the reasoning behind a client’s wishes.

The book begins with an introduction to the Islamic faith and to Islamic law and its sources. It explains the different schools of Islamic, such as Sunni Islam and the Shia tradition, before delving into a discussion of the unique ethical, legal, and public policy issues that might present some challenges for the attorney. In addition, the estate planning lawyer should be familiar with how Islamic law deals with marriage and divorce, property ownership, investments and gifts, and retirement planning. The last sections of the book are devoted to later life planning and issues relating to the disposition of property at death and ensuring that such assets are distributed in accordance with Islamic law. Appendix A provides a detailed order of heirs under Sunni inheritance law. Also in the appendices, the authors have provided sample forms, such as an advance health care directive, a last will and testament, and several others as well as a glossary defining some key Arabic terms.

Estate Planning for the Muslim Client provides a unique perspective to estate planning and can help attorneys better handle the unique legal issues and concerns for our ever-growing diverse population.

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Steps You Need to Take in a Texas Divorce

No two divorce cases are exactly alike. With that said, there are similar paths that many divorces go down that make it possible for us to be able to provide advice for folks like you who are contemplating a divorce either now or in the future. To be sure, being able to provide honest and clear information about a divorce case is exactly what an attorney does for a living. Somewhere in between providing basic advice and getting that person to the end of a case is the sweet spot of a divorce: being able to provide facts specific advice on how to proceed and what to avoid.

For a blog post here on the website for the Law Office of Bryan Fagan, I am not able to provide you with specific advice regarding your divorce. Reason being that I don’t know anything specific about you, your spouse, your children, or your circumstances. The best I can do is provide you with information that I think will pertain relatively well to the issues that you are facing in your life. From there, I invite you to seek out a free-of-charge consultation with one of our attorneys. The attorneys with the Law Office of Bryan Fagan offer free of charge consultations six days a week in person, over the phone, and via video.

To learn the most you can about divorce it is critical for you 2 receive specifically tailored advice and perspective about your divorce case. Please do not take the information provided in this blog or in any similar resource as the only pieces of information you will need before beginning your divorce. You need to be able to receive perspective and information on your divorce case so you know exactly how to think about your circumstances and how to best prepare for your case. Well, I hope that much of the information in today’s blog post will be helpful for you and your family I cannot promise you that every bit will be relevant to your life. 

As a result, discussing the steps you need to take in a Texas divorce by going through the first consideration that I think he needs to make once you have determined that a divorce is in your future. The first step would be seeking out a consultation with an experienced family law attorney and ask him or her questions.

Step #1: seek out the advice of an experienced family law attorney

Without a doubt, a divorce is not a circumstance that you want to go into blindly. You may have spoken with relatives, friends, coworkers, or other people who have told you that the divorce isn’t a big deal these days and that you can get your divorce without a problem. While the rates of divorce have been climbing in recent years the reality is that a divorce is still a serious matter that will have impacts on your financial, emotional, relational, and mental states of mind. You should not consider divorce to be another administrative matter or something mundane and run of the mill. 

Rather, a divorce is a legal matter that requires your respect and attention. Even if you do not end up hiring an attorney to proceed with your divorce is well worth your effort to seek a consultation with an attorney before making that decision. It can be a big mistake 2 make a decision but you do not need a family law attorney without actually having spoken to an attorney first period you may find that after having spoken with the attorney your mind has been changed regarding whether or not you need to hire a lawyer. It is better to come to this realization before your divorce is even filed rather than in the middle of a case once you realize that you need help.

The rule of thumb on how I try to guide people in this state is to sync out consultations with at least three attorneys before making up your mind. One good thing about living in the Houston area is that you will not struggle to find a family law attorney too there are many options available to you on and you should try to schedule consultations where an attorney as soon as you believe that a divorce is on the horizon. Our office, for example, offers free of charge complications that can be done over the computer or even over the phone. However, I’m the type of person who likes to be able to get a feel for the person that you were meeting with so now is a great time to begin the process of meeting with attorneys in first thing as we ease ourselves into post-pandemic life.

When it comes to the actual meeting with the attorney your instinct may be to spend most of the consultation telling the attorney about the facts of your life and your views on them. Many times I feel like potential clients will use consultation as a sort of therapy session and unload on the attorney all their concerns and thoughts regarding the upcoming divorce. Well, I cannot blame you for feeling this way I think there is a better use of your time and the attorneys.

I would recommend using the consultation as an opportunity to briefly recite the facts of your case to be an attorney but then to use a majority of the meeting as a time for you to ask questions about the divorce that you want to pay. The fact is that many people I meet within these complications have a basic understanding of divorce. However, their reviews may be skewed by the adviser perspective given to them by non-attorneys in their lives. While I would never tell you to not consider the opinions of friends and family the reality is that their experience in divorce me nothing much different than your own. As a result, you should seek out unbiased inexperienced advice whenever possible.

Since you don’t have the opportunity every day to meet with an attorney to talk about your divorce you should take advantage of the opportunities you have when they present themselves. Once you have to ask your questions of the lawyer you should give him her opportunity to weigh in on your circumstances. From there you can develop a sense of how the attorney answers questions and whether or not you feel comfortable perspective inexperience. An attorney may be the right person to represent your neighbor but may not be the right person to represent you. The only way you’ll learn who you’re comfortable with representing you is by asking questions and by listening to the attorney’s responses.

Once you have met with at least three family law attorneys I would recommend deciding whether or not to hire a lawyer and then moving forward with the decision as quickly as possible. Again, I am assuming that you have considered whether or not a divorce is in your future and made the decision to get divorced. Once you have done this and you’re comfortable no sense in waiting. You should contact the attorney’s office, work to sign the contract, and pay the initial fees. That way, you will have your attorney ready to go and can begin filing paperwork. 

Step #2: negotiate, negotiate, negotiate

One of the most significant misnomers that most people have regarding divorces is that the ultimate decisions in a case are typically made by a family court judge. It is completely understandable why people feel this way in my opinion. Television, movies, and the media in general form super rounded worse that they are always contentious almost always wind up in a courthouse. While this may be a good starting point for a TV drama the reality is that most divorces conclude before going to court.

Settlement negotiations are incredibly important in a divorce. Whether you end up settling your case out of course or not, the divorce process in Texas lends itself to a great deal of negotiation during downtime in your case. Again, you may be operating under the assumption that going to court is the norm in a divorce. While there are opportunities to attend court dates in your divorce or reality is that most of the days of your divorce which is spent outside the courtroom. Those days can be spent effectively if you seek to maximize the opportunities to settle on outstanding issues in your case. 

One of the things I would ask the attorney you are interviewing is what their perspective is on settlements and negotiations during a divorce. In my opinion, the attorneys with the Law Office of Bryan Fagan perform a delicate balancing act of being aggressive in negotiation, preparing for going to trial or hearing quite cognizant that oftentimes the best arrangement is 1 in which the parties themselves determine the outcome of the case rather than a judge. With that said, you need to be confident that your attorney is experienced enough to handle a courtroom environment but also wise enough to negotiate through the issues of your case when possible.

Depending on your relationship with your spouse a lot of the negotiations with him or her can be conducted directly between the two of you. After all, nobody knows the circumstances of your case or your life better than you and your spouse. You may have differing views on certain aspects of the case but overall, you should find that you agree on perhaps more than you think. With that said, you can utilize the opportunities presented to you to work out solutions to problems that can be rather complex.

Another positive aspect of negotiating directly with your spouse is that you can save time and money. From experience, I know that it is easier for two spouses to get ahold of one another as opposed to an attorney getting ahold of an opposing lawyer. Well, sometimes it may be necessary for the attorneys to hammer out fine details you and you’re in a spouse are more than capable of reaching a consensus on broad topics, and then you can allow the attorneys to work out details and allow you in your spouse to refine your arguments and positions that way.

Either way, it is much more advantageous for you in your spouse to use at the time of your divorce to accomplish things in mediation and negotiation rather than to use the time 2 get upset with the other and lose track of time overall. There will be plenty of time to litigate your divorce and attend contested hearings if necessary. When I take all the time you can in an attempt to settle outstanding issues between you and your spouse without having to resort to a courtroom?

Step #3: prepare for mediation

Without a doubt, attending mediation, either for final orders or temporary orders, will be the most important part of your divorce case. Ultimately, you are preparing in a divorce to negotiate for either 1/2 day or full day in mediation. Many family court judges will not even allow you to have a trial held in their courtroom before you have attempted to mediate at least one time. The reason for that is that mediation is incredibly effective in terms of helping couples conclude their divorce. I would estimate that upwards of 90% of divorce is settled before going to a trial.

That estimate I provided you with should provide you with some hope and optimism but I should also tell you just how critical to your case mediation is. The difference between an OK outcome in your divorce and a fantastic outcome in your divorce can oftentimes be seen in the results of mediation. I cannot emphasize just how much hi I have hurt you in your lawyer need to put into preparing for mediation. Sometimes all of the other events of your divorce in combination do not add up to the overall significance in the importance of mediation.

Like I did in the section of today’s blog post before this one, I would recommend that you talk to an attorney that you are interviewing to obtain their input regarding mediation. Ask the attorney what their perspective on mediation is and how he or she typically prepares with their client. If the attorney seems nonchalant about mediation or does not appear interested in answering your question that would cause me to raise an eyebrow. Every experienced attorney understands the importance of mediation and should not scoff at a question related to it in my opinion. 

For instance, you and your attorney should be working well in advance of mediation for final orders on compiling a final inventory and appraisement of your marital and separate property Estates. This way you and your spouse will have an opportunity to view the information in real-time and can better make decisions regarding how to divide any Community property. In addition, you should be able to determine what items belong in each of your separate Estates so that this isn’t a subject that causes you to have to go to trial.

Sometimes the most contentious issue in a divorce is regarding custody and e conservatorship rights of your children. You and your attorney should have multiple plans in place on how to negotiate on conservatorships issues if this is still an outstanding issue in your case. Your lawyer can work with their opposing counsel before mediation to determine what you all anticipate the main issues are in mediation and therefore you and your lawyer can better prepare for them before attending the big day. 

Additionally, temporary orders mediation offers an opportunity to establish a tone for the rest of your divorce in terms of how negotiations will work and what kind of expectations each party can have as you head into final orders mediation. The reality of a divorce is that final orders tend to look very similar to temporary orders. You and your lawyer should take a great deal of time to walk through potential scenarios involved in your case during the temporary order stage. If temporary orders work out well then you can largely mimic them in final orders mediation.

Closing thoughts on the steps of a divorce

Planning a divorce and being intentional is critical to achieving success in a case. As I am fond of telling people, it is possible to wander into a divorce but it is not possible to wander out of a divorce and still experience success. Rather, you have to have a game plan and be intentional in how you execute that plan. Sure, changes will arise in the divorce that will likely require you to re-calibrate your approach. However, having a plan in being intentional about achieving goals is extremely critical and important. In my opinion, that discussion begins and ends with the attorney you choose to represent you. 

If you have any questions about the material that we have discussed in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family circumstances may be impacted by the filing of a divorce or child custody case. Thank you for your interest in our law office and we hope you will join us tomorrow as we continue to share relevant and helpful information about Texas family law.

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