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Trial Law in the Age of COVID the 59Th Seminar

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Trial Law in the Age of COVID the 59Th Seminar Trial Law in the Age of COVID The 59th Seminar February 25 and 26, 2021 The 2021 Advocacy Institute Committee Michael J. Moreland, President John C. Gray, Vice President David L. Brown, Secretary-Treasurer Continuing Legal Education Activity #357991 12 credit hours 3.25 ethics hours Trial Law in the Age of COVID Table of Contents Section 1: Thursday Morning A. Trust and Estate Litigation | 3 Joseph G. Gamble, Des Moines Tara J. Higgins, Des Moines B. Intellectual Property-Trade Secrets | 23 Glenn Johnson, Des Moines Jonathan L. Kennedy, Des Moines C. Thoughts on Effective Trial Lawyers | 42 Judge Mark Bennett, Drake University D. Issues with Wind Energy in Iowa | 130 Thomas S. Reavely, Des Moines E. Panel on Jury Trials in the Age of COVID | 163 Jennifer E. Rinden, Cedar Rapids Holly M. Logan, Des Moines Karla J. Shea, Waterloo F. State of the Iowa Supreme Court | 168 Chief Justice Susan Christensen, Iowa Supreme Court Section 2: Thursday Afternoon A. Ethical Tips for Practitioners | 169 Justice Matthew McDermott, Iowa Supreme Court B. Issues with Conflicting Civil Litigation and Criminal Charges | 179 Christine Branstad, Des Moines C. Litigation Before the Grievance Commission | 203 David L. Brown, Des Moines D. Medical Malpractice Update | 217 Jeff W. Wright, Sioux City 1 E. Admissibility of Medical Expenses | 230 Henry J. Bevel, III, Waterloo F. Legislative Update | 238 James W. Carney, Des Moines Section 3: Friday Morning A. Ethical Challenges in Mediation | 288 Jeff Boehlert, Des Moines Mark S. Brownlee, Des Moines B. Appellate Panel | 300 Judge Sharon Soorholtz Greer, Iowa Court of Appeals Judge David May, Iowa Court of Appeals Judge Julie Schumacher, Iowa Court of Appeals Judge Paul B. Ahlers, Iowa Court of Appeals C. Case Law Update | 302 Judge Paul B. Ahlers, Iowa Court of Appeals D. COVID-19 and Challenges to the Attorney-Client Relationship | 360 Leon F. Spies, Iowa City E. ETHICS Update | 366 Nicholas (Tré) Critelli, III Director, Office of Professional Regulation Tara M. van Brederode Assistant Director for Attorney Discipline, Office of Professional Regulation 2 Section 1 A. Trust and Estate Litigation Joseph G. Gamble, Des Moines Tara J. Higgins, Des Moines 3 TRUST AND ESTATE LITIGATION – CAUSES OF ACTION Joseph G. Gamble Tara J. Higgins Duncan Green, P.C. Des Moines, Iowa CHAPTER 633 - WILL CONTEST BASICS • Grounds to Contest o Lack of General Mental Capacity. Low standard. o Testator must know: . The natural objects of his or her bounty. The nature and extent of his or her property. The distribution he or she desires to make of his or her property. The nature of the instrument he or she is executing. In re Estate of Adams, 234 N.W.2d 125 (Iowa 1975). • All of the above four facts must exist coextensively at the time the will is executed. In re Estate of Gruis, 207 N.W.2d 571 (Iowa 1973). Failure to meet any one factor invalidates the will. In re Estate of Springer, 110 N.W.2d 380 (1961). • Evidence of the condition of the mind of the testator times subsequent to execution “may be received if there is a reasonable basis for the conclusion that it throws some light on his mental competence at the time the will was made.” Estate of Gruis, 207 N.W.2d at 573. o Insane Delusion. General rule – in order to invalidate a will, an insane delusion must be shown to be a wholly unfounded belief to which testator clings in spite of all disproving evidence and which controls the making of his will. 4 . “Even though testator meets the test to establish testamentary capacity in the execution of the testamentary instrument, a contestant may succeed in having the testamentary instrument invalidated if he or she can establish that the testator suffered from an insane delusion.” 28 Causes of Action 2d 99 (Originally published in 2005); see also Hardenburgh v. Hardenburgh, 109 N.W. 1014, 1015 (Iowa 1906) o Undue Influence. A will executed at a time decedent was under the undue influence of another is invalid. Walters v. Heaton, 271 N.W. 310 (1937). “Undue influence means a person substitutes his or her intentions for those of the person making the will. The will then expresses the purpose and intent of the person exercising the influence, not those of the maker of the will. Undue influence must be present at the very time the will is signed and must be the controlling factor. The person charged with exercising undue influence need not be personally present when the will was being made or signed but the person's influence must have been actively working at the time the will was being made and signed.” Iowa Civil Jury Instruction 2700.5; see also Olsen v. Corp. of New Melleray, 60 N.W.2d 832, 836 (Iowa 1953). Elements: • Susceptibility to undue influence, • Opportunity to exercise such influence and effect the wrongful purpose, • Disposition to influence unduly for the purpose of procuring an improper favor, and • Result clearly the effect of undue influence. Iowa Civil Jury Instruction 2700.4; In re Estate of Davenport, 346 N.W.2d 530, 532 (Iowa 1984). More than a scintilla of evidence is required. Id. In a will contest, the issue of undue influence and lack of testamentary capacity are so intertwined they are impossible to separate. Matter of Estate of Olson, 451 N.W.2d 33, 36 5 (Iowa Ct. App. 1989). “Conduct which might be insufficient to influence unduly a person of normal mental strength might be sufficient to operate upon a failing mind. One who is infirm is more susceptible to undue influence than one who is not.” Frazier v. State Central Savings Bank, 217 N.W.2d 238, 243 (Iowa 1974). “A suspicion, but not a presumption, of undue influence arises where the dominant party in a confidential relationship participates in either the preparation or execution of the contested will.” Matter of Estate of Baessler, 561 N.W.2d 88, 93 (Iowa Ct. App. 1997), abrogated by Jackson v. Schrader, 676 N.W.2d 599 (Iowa 2003). o Fraud. Fraud as a basis of a will contest is usually attempted to be shown in connection with undue influence, but fraud and undue influence are two separate grounds for setting aside a will. Fraud consists of willfully false statements of fact by a beneficiary to a testator, which are made in bad faith or with intent to deceive testator, which do deceive him and induce him to make a will he would not otherwise have made. In re Hollis' Estate, 12 N.W.2d 576 (Iowa 1944). o Mistake. “The general rule is that the validity of a will or any part of it is not affected by a mistake of either law or fact inducing the execution of the will, unless fraud or undue influence was perpetrated upon the testator.” In re Estate of Henrich, 389 N.W.2d 78, 83 (Iowa Ct. App. 1986). • An action to contest or set aside will must be commenced within four months of the date of the second publication of notice of admission or one month following the mailing of notice to all heirs of the decedent and devisees whose identities are reasonably ascertained, whichever last occurs, or be forever barred. Iowa Code § 633.309 (2021). o This statute of limitations will not be tolled by the defendant fraudulently concealing information which would have put the plaintiff on notice of grounds for a will contest. In In re Estate of Thompson, 346 N.W.2d 5 (Iowa 1984). 6 • An action objecting to the probate of a proffered will, or to set aside a will, is triable in the probate court as an action at law, and the rules of civil procedure governing law actions, including demand for jury trial, shall be applicable thereto. Iowa Code § 633.311 (2021). • Burden of Proof. • The proponent of the will has burden of proof with respect to due execution. In re Estate of Matt, 205 N.W. 770 (Iowa 1925). • On other grounds of contest, the contestant has the burden of proof. Bishop v. Scharf, 241 N.W. 3 (Iowa 1932). • Who is entitled to contest? o Any interested person may petition to (i) set aside the probate of decedent's will by filing a written petition therefor which shall state the grounds for such relief or (ii) object to the probate of a will prior to its admission by filing written objections thereto with the court, in which case the will may not be admitted until such objections have been adjudicated. (Iowa Code §§ 633.308; 633.310). o No statute defines who is an interested person. Generally, an interested person is any person who gains a pecuniary benefit in a decedent's estate in the absence of a will. In re Estate of Stewart, 77 N.W. 574 (1898). The Iowa Supreme Court has held that the following persons have a sufficient interest to object to a will: . Judgment creditor of an heir whose judgment would attach to decedent’s real property passing to the heir in intestacy. In re Estate of Duffy, 191 N.W. 165 (1940). Any heir of the decedent. In re Estate of Kenny, 10 N.W.2d 73 (1943). Devisee under a prior will who petitions to set aside probated will on basis th.at will under which devisee claims is the last will. Kostelecky v. Scherhart, 68 N.W. 591 (1896). • Who is not entitled to contest? o General creditor of an heir. Burk v. Morain, 272 N.W. 441 (1937). A person whose interest will not be diminished by the probate of the will.
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