The Grove Report

Social Media Warning: Consider the consequences before you type something mean about another person

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We received a call from a client who was on the wrong end of a social media barbecuing. The client wanted to know if we have laws to stop this kind of thing in Wisconsin.

Wisconsin has a few laws on the books to deal with those sweethearts who are dispensing aggressive and foolish social media comments to the detriment of others. Here are some examples:

Privacy Action:

A person harmed may seek equitable relief, recover compensatory damages and a reasonable amount for attorney’s fees. The threshold for filing a suit requires one of the following to occur:

• Intrusion upon the privacy of another of a nature highly offensive to a reasonable person, in a place that a reasonable person would consider private or in a manner which is actionable for trespass.
• The use, for advertising purposes or for purposes of trade, of the name, portrait or picture of any living person, without having first obtained the written consent of the person or, if the person is a minor, of his or her parent or guardian.
• Publicity given to a matter concerning the private life of another, of a kind highly offensive to a reasonable person, if the defendant has acted either unreasonably or recklessly as to whether there was a legitimate public interest in the matter involved, or with actual knowledge that none existed.

It is not a privacy violation to communicate any information that is already readily available to the public.

Criminal Law Statute Gives Rise to a Civil Claim:

Criminal defamation charges that can be made by the government against these people too. Conduct defaming someone else is prohibited under Wisconsin Statute section 942.01 et seq. This is not typically pursued by the authorities unless it reaches a level well beyond what most folks could tolerate. Knowing this, a civil claim can also be filed based on this same statute. It is available to a person harmed even if the District Attorney does not press charges, or if charges are pressed, unrelated to the outcome of the criminal case.

Common Law:

Wisconsin common law claims could also be applied to a person’s reckless use of the social media. Legal claims for defamation, libel or slander have been used. Generally, suits can be had if the person who:
• Makes a false statement communicated by speech, or conducted in writing to a person other than the one defamed, and
• the communication is unprivileged and tends to harm one’s reputation, lowering him or her in the estimation of the community or deterring third persons from associating with or dealing with him or her.

Case examples … See: Ladd v. Uecker, et. al, 2010 WI App 28 and Laughland v. Beckett, Appeal No. 2014AP2393

Recent Example:

As recent as 2015, the Wisconsin Appeals Court upheld a Facebook defamation judgment, and punitive damages award based on the defamation statute and under common law principles. See Laughland v. Beckett, Appeal No. 2014AP2393 in the Court of Appeals of Wisconsin, District I. In the case, John Beckett created a Facebook page in someone else’s name and posted disparaging and negative comments about Laughland. Laughland sued and won. Also see an excellent article in the Wisconsin Bar Site (WISBAR News) on this case authored by Joe Forward in August of 2015.

Conclusion:

A good friend said it is better to sleep on a social media response than to just let it fly based on the emotion of the moment. Point well taken. Consider the consequences before you type something mean. Cyber-bullying is not funny. It might feel good now to throw another person under the social media bus, but be careful. Your social media victim could have the last say in the matter.


Choosing an Attorney for Your Estate Planning

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A recent Caring.com article by Susan Kostal, Senior Editor of the Legal channel, tells us who to look for when searching for a Trust, Wills, and Estates Attorney.

The article is a great read for people wondering how to find a qualified Trust and Estates Attorney. Most of the advice in the article is good quality common sense stuff.

Ask Your Friends

According to the article: “If you’re unsure how to find the right lawyer, start by asking friends for recommendations. Who have they used — and liked? You can also ask other lawyers who they would use.”

Look the Attorney in the Eye

Attorney Philip Feldman, head of the trusts and estates practice at Coblentz Patch Duffy & Bass in San Francisco is quoted in the article.  Feldman states that “Clients need to get a sense of who their lawyer is going to be. It’s important to look someone in the eye. This should be one of the most personal professional relationships you’ll have.”

Cost Expectations

Even more excellent advice from Ms. Kostal regarding fees:  “An average flat fee for a basic revocable trust plan may run from $2,500 to $10,000, depending on the complexity of the trust and the size of the estate. Flat fees, however, aren’t necessarily a better deal than hourly rates. And the most expensive lawyer isn’t always the best.

Ask at the outset for the lawyer’s rate. It’s better to know upfront, so that neither of you wastes the other’s time if there’s a huge discrepancy between what an attorney charges and what you’re willing to pay. Generally, the more assets a person has, the more complicated his estate is likely to be, and the more it will cost to put together a thoughtful estate plan.”

We think the advice provided by the article is right on point and recommend that you take a few minutes to read it.

For more information on Trusts: Articles on Trusts and Estate Planning.

 


Moving our Office to 104 West Main Street, Evansville Wisconsin on March 15, 2018

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The Future Home of Shannon Law Office. 
104 West Main Street, Evansville Wisconsin, USA


Conservation Easement: A Beautiful Thing

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A conservation easement is an interest in real property. It is established by agreement between a landowner and a qualified private land conservation organization (often called a “land trust”) or a government organization (often the DNR). It is put in place to restrict the exercise of rights otherwise held by a landowner in order to achieve stated conservation purposes.

The most recent Conservation Easement project underway here at our office presents a great story. Our Clients are both nature buffs. They truly love the outdoors and they want to make a difference in society.

After thinking it through, they decided that the best way to accomplish that goal was by donating 75 acres to a local nonprofit Audubon society. They also made the land subject to a conservation easement to be held by a Madison area land trust.

The Property contains areas of prairie grassland and oak woods/oak savanna. The public will have access to the property for bird-watching, hiking and other educational and recreational activities.

The preservation of this slice of heaven for the scenic enjoyment by and the outdoor education of the public is very important to the Landowner. What a terrific thing for the people of Wisconsin and beyond.


News Flash: Few People Actually Plan for Death or Incapacity

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Estate Planning Note:

AARP shared an article that reminds us how few of our neighbors have done Estate Planning.

See: http://www.aarp.org/…/info-2017/half-of-adults-do-not-have-…

The failure to plan for your death or incapacity can be painful for the family members left behind. This really rings true if you have underage kids or an asset like a family farm or other type of business that needs to be thoughtfully passed on to the next generation. The family assets can sometimes be tied up for years with fees and cost racking up.

With this in mind, this just might be the year to finally get this particular project done.

Have a great day.


Why did you put Latin in my Will and Trust?

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The legal phrases: “by representation”, “per stirpes”, “per capita”, “per capita at each generation” and “survivorship” are found in both wills and trusts. While they may appear to be gibberish, the phrases have meaning in the probate and trust world.  They each provide for a distinct rule used to distribute assets after a person dies.

It is very easy to become confused when one comes across this kind of mumbo jumbo. The phrases are a far cry from plain English. They are definitely “old-school”.  The reason for using this old-school terminology is history. The phrases are based on old English law which was developed centuries ago and then handed down through the ages.

As one would suspect, each legal phrase produces a different result when used to determine the people receiving your assets when you die. “By representation”, “per stirpes” and “per capita” are there to help determine how assets flow to your descendants. “Survivorship” is a short stop/ everything to the one in a named group who survives the decedent. I like to call that the “king of the raft” approach. This was game I played in my youth where we tried to be the last one standing on a raft in the lake.

This  photo  shows three simplified examples that compare three commonly seen approaches (Per stirpes, Per Capita, and Survivorship):

The “per stirpes” model is by far the most popular choice for the clients in our practice. The families we deal with seem to like the branch approach to distribution, where a child’s share works its way down to survivors that are the heirs of that child if he or she dies before they do. “Per capita” is less popular, but can be used if the grandchildren are thought to be on par with the surviving children. The “survivorship” model is used most often with older clients who have already spent down a great deal of their assets and want to leave smaller amounts to the surviving children immediately below them rather than spread the minimal assets among an extensive family tree of heirs.

The State of Wisconsin has a statute that covers this topic too. Wisconsin Statue Section 854.04: “Representation; per stirpes; modified per stirpes; per capita at each generation; per capita”, does a nice job of explaining the differences as well. It goes as far as to delineate between a per stirpes and a modified per stirpes approach. It also equates the phrase “by representation” to “per stirpes”. Finally, it also lays out “Per capita at each generation” and “Per capita”. Section 854.04, in its final paragraph, says: If the transfer is made under a governing instrument (Will or trust, normally) and the person who executed the governing instrument had an intent contrary to any provision in this section, then that provision is not applicable to the transfer. In short, your will or trust can override the statute. This is often the way to go. A will or trust can be drafted to modify the general rule so that the distribution plan can be modified to fit your family’s unique circumstances.

Use care to consider what happens when the beneficiary dies before the person whose estate is being divided. Most folks want the children of the predeceased beneficiary to take the share which their parent would have taken had he or she survived the decedent. If the plan for distribution isn’t spelled out that way, the assets could be divided equally among the surviving heirs and the children of a deceased heir might not receive the deceased heir’s share.

Be sure to get solid advice on this and other important planning topics from a qualified expert. Do not hesitate to ask about the options available to you when you do sit down to plan your estate.  That way you can be sure that your hard-earned assets will go to your loved ones in the way that you intend.


Why Did My Neighbor Send Me a Bill for His Fence?

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By popular request–OK, by one person’s request–I’m going to write about how Wisconsin’s fence law can create unfriendly neighbors. As attorneys in a rural town, it’s an issue that rolls into our office every so often.

The fence law, currently found in Chapter 90 of our state statutes, says that a fence is required if the property on either side is used for farming or grazing unless the neighbors agree that one isn’t needed. So the person doing the farming or grazing pays for it, right? Not so fast my friend!

The law, which dates back to when Wisconsin was part of the Michigan Territory, states that the neighbors must split the cost to build and maintain any fence. As you might imagine, this can create quite a conflict between a farmer and his new subdivision neighbors when the farmer throws up a fence and sends half the bill to these suburbanites.

Those suburbanites often call our office to complain because surely this isn’t fair. But, despite some clamoring that the law should be repealed because it’s no longer practical, it’s still on the books and we have to give them the bad news (but at least get to congratulate them on their new half a fence!).


We Broke Off the Engagement–Who Keeps the Ring?

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During happier times, the future husband saved up, hopefully went somewhere other than Jared, and gave a big ole rock to his soon-to-be-bride. Then, disaster strikes: “I thought we were in an open relationship!” “Where were you hiding all these credit cards?!” “You voted for WHO?!” The next thing you know, the engagement’s off and our heartbroken lovers are wondering who gets to keep the engagement ring.

In Wisconsin, the courts have already decided that issue. According to the judges in Brown v. Thomas, engagement rings are “conditional” gifts. This means that an engagement ring is a gift conditioned on the marriage actually happening. If the marriage doesn’t happen, the ring must be returned.

But, she cries, that dirtbag broke up with me (or caused me to break up with him)! In Wisconsin, it doesn’t matter. Just like divorces are “no-fault” in the court’s eyes, so are engagement break-ups. In other words, Wisconsin’s judges have decided that they aren’t going to touch the whose-fault-was-it issue with a ten-foot pole.

It might be good news for you or bad news for you, but in Wisconsin, the engagement ring goes back to the buyer if the engagement falls through.


What is a Guardian ad Litem?

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Many parents handle their family law matters without an attorney and often the first time they’re surprised is when a guardian ad litem gets involved. I can’t find the statistic, but I recall hearing that over 80% of the family law cases in Rock County do not have either party represented by an attorney.

Even without an attorney, the beginning stages of a custody case usually make sense. You show up to the initial hearing, the judge asks whether the parents agree on a plan, and, if the answer is no, the judge sends the parents to mediation. The case ends if a deal is reached at mediation. If not, the parents are notified that a guardian ad litem has been appointed. At this point, most parents typically ask, “who the hell is that?”

The guardian ad litem (“ad litem” means “for the suit”), or GAL, is a court-appointed attorney whose job is to advocate for the best interest of the child. And yes, this person is always an attorney per Wisconsin law. (As a side note, I’ve always thought that social workers, child therapists, and teachers would all be better suited for the role than lawyers, but so far the Wisconsin legislature hasn’t asked for my opinion.) To figure out what is in the child’s best interest, GALs will usually interview the parents, the child (if they’re mature enough), and other people with information like teachers or medical providers. At the end of their investigation, the GAL will make a recommendation to the judge about how they think the case should be decided.

The judge can ignore the GAL’s recommendation, but in practice, the judge will almost always adopt the recommendation or something close to it. That means that the GAL is often times the most important decision-maker in the case.  I’ll write more about guardians ad litem and how to work with them in future posts, but the important thing to remember for now is that they will be incredibly important to your case and you should treat them accordingly.


The Importance of Prenups for Older Couples

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We’ve all seen the story. Mom and dad are retired, sitting on the pile of money they earned throughout their working lives. Mom passes away, dad starts to get lonely, and the next thing you know dad is spending a lot of time with a woman you’re pretty sure you used to babysit. We have the makings of one of the greatest conflicts in humanity: the children versus the “gold digger.”

While few of us experience the stereotypical “gold digger,” it isn’t uncommon for adult children–who are often set to inherit from their surviving parent–to become nervous when that parent starts a new relationship, regardless of the new partner’s age or motivations. The kids have been in the mix for decades and it’s scary to think that a new fling might walk away with your parents’ house and retirement accounts. Even if this isn’t the new partner’s goal, the threat alone can go a long way towards poisoning the relationship between the kids and mom or dad’s new partner.

In these situations, I always recommend a prenuptial agreement. These are flexible documents that can be tailored to any given situation. And often times, it allows the parties themselves to discuss what their expectations are regarding the financial part of the relationship for the first time. These types of discussions can be difficult, but I can promise you it’s much easier than the fight that can erupt between the children and the new spouse after the parent is gone.