Posts tagged with "CT"

Am I Allowed Access to My Child’s School Records in Connecticut?

Although the Family Educational Rights and Privacy Act serves to protect the privacy of student educational records, it also requires school districts and schools to give parents and students access to the student’s records and an opportunity to seek to have records amended if they believe the records need correcting.  Further, schools must annually notify parents and eligible students of their rights under this act.

If you have any questions related to education law in Connecticut, please contact Joseph C. Maya, Esq. at (203) 221-3100 or e-mail him directly at JMaya@Mayalaw.com.

Defeating Governmental Immunity: Navigating the Uphill Climb

Lawsuits against the State of Connecticut or its local municipalities are notoriously difficult to pursue from a legal perspective, in large part due to various statutory protections and administrative hurdles put in place by the legislature.  For example, a plaintiff seeking to initiate a personal injury case against her own town must adhere to strict time limitations and procedural requirements in order to have her case successfully get into court and survive the scrutiny of a judge, well before she ever comes close to having a “day in court” before a jury of her peers.

Unless the site of a plaintiff’s injury falls within one of a few narrow exceptions (such as an injury on a “public highway,” which would invoke the protections and mechanisms of Connecticut’s “highway defect statute,” or Connecticut General Statutes Section 13a-149), a plaintiff is entitled only to proceed against a state or municipality under the Political Subdivision Liability Statute (Connecticut General Statutes Section 52-557n).

Section 52-557n, however, contains its own pitfalls for prospective plaintiffs.  The statute provides that a town or political subdivision may be liable for negligent acts of its employees, officers, or agents except if such actions or omissions constitute criminal conduct or willful misconduct, or, significantly, if such negligent acts or omissions require the exercise of judgment or discretion as an official function of the job responsibility.

The latter part of this test is key – and is a gold mine for municipalities (and their lawyers) seeking to invoke the governmental immunity doctrine and escape liability for the negligence of its employees, even if such negligence is established by an injured person.  What the provision states, in plain language, is that a town may well be free and clear from liability if the task that was performed negligently was a task that required an exercise of judgment on the part of the town employee.

Take the hypothetical example of a plaintiff who was injured when she slipped on ice on the front steps of City Hall.  The evidence suggests that the maintenance workers either knew or should have known that ice had built up on the steps, that they were expecting the public to be walking in and out of the building, and that someone clearly “dropped the ball” in making sure that the ice was scraped off and that salt or sand was applied generously to the area.  Instead, nothing was done, nothing was scraped, no sand or salt was used, no warning signs were posted, and the ice remained for several business days before this plaintiff came along and fell on her very first visit to City Hall.

Even with these simplified facts (which appear at first blush to be quite damaging to the City), the City will surely investigate the existence of any policy, procedure, and practice of those maintenance workers who were assigned to the front steps of the building.  In this case, the City will attempt to prove by a preponderance of the evidence that “judgment” and “discretion” of the City employees were required to be exercised to keep those steps free of snow and ice.  On the contrary, a plaintiff will seek to demonstrate that the actions (or omissions) of the City workers were “ministerial” – that is, the workers had a clear directive to do something (e.g. to clear the ice at certain times, in a certain manner, with no exercise of judgment) and yet they failed to carry out that task, resulting in the plaintiff’s injury.

When the proverbial dust settles, if no clear, articulated policy existed to clear the steps, to inspect the steps on a scheduled basis, or to take preventative measures against ice buildup, a municipal defendant in this instance would likely argue (perhaps successfully) that the maintenance workers were required not to follow any protocol, but only to “use their judgment and discretion” in determining what needed to be kept safe and clear for pedestrian traffic.

An unknowing plaintiff (or perhaps an inexperienced attorney) who advances her case against a town believing that a jury would be shocked if there is no snow removal policy might find herself equally shocked when or if it is determined that any negligence was of a “discretionary” nature and governmental immunity therefore applies, subject to other very narrow legal exceptions not discussed here.

A savvy plaintiff, in discovery and at the very outset of the lawsuit, might request that the town admit, under oath and in writing, to the existence of a clear and articulated policy (even if it is unwritten) with regard to the safety issue which resulted in her injury.  While towns (and their attorneys) are often eager to show that preventative measures are and were in place, in this instance, they may well eliminate – as a matter of law – their own sacred protection of governmental immunity at trial.  With a valid legal admission of a clear and articulated policy, a municipal defendant is effectively hamstrung – it cannot simultaneously admit to the existence of a policy and directive while claiming that its employees were simply exercising their own judgment.  Dramatically and emphatically, the curtain of governmental immunity draws away, paving the way for a plaintiff to reach the eyes and ears of a jury.

An injured person seeking legal assistance as against the state or a municipality faces a virtual hornet’s nest of obstacles and legal entanglements.  A trusted, informed advocate is essential to place such a claim in the best possible legal position.  The invitation is open to consulting with attorneys at our firm who are experienced in this type of civil litigation.

If you have questions regarding any personal injury matter, contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.

Connecticut School Districts and Bullying: What Can Parents Do?

I was greeted this morning with a very unfortunate email.  The email concerned bullying in Westport Schools and included a heart wrenching video of an 8th grade girl claiming to be a victim of bullying in Westport schools. (http://patch.com/A-gcKG) It is just not enough to feel sorry for this victim of bullying, we need to question the effectiveness of the current law and policies in place to avoid the tragic consequences that other towns have dealt with because their students were victims of bullying.

I previously blogged about the revisions to Connecticut’s law against bullying in 2008.  Under Connecticut General Statute section 10-222d, the law requires “any overt acts by a student or group of students directed against another student with the intent to ridicule, harass, humiliate or intimidate the other student while on school grounds, at a school sponsored activity or on a school bus, which acts are committed more than once against any student during the school year.” In addition to definitional changes, the statute requires:

  1.  teachers and other staff members who witness acts of bullying to make written notification to school administrators;
  2. prohibits disciplinary actions based solely on the basis of an anonymous report of bullying;
  3. requires prevention strategies as well as interventions strategies;
  4. requires that parents of a student who commits verified acts of bullying or against whom such bullying occurred be notified by each school and be invited to attend at least one meeting;
  5. requires school to annually report the number of verified acts of bullying to the State Department of Education (DOE);
  6. no later than February 1, 2009, boards must submit the bullying policies to the DOE;
  7. no later than July 1, 2009, boards must include their bullying policy in their school district’s publications of rules, procedures and standards of conduct for school and in all of its student handbooks, and
  8.  effective July 1, 2009, boards must now provide in-service training for its teacher and administrators on prevention of bullying.

Westport responded to the requirements of this statute with a comprehensive bullying policy which can be found on the school district’s website under the tab for parents, and then selecting policies.  Here is the direct link to the policy: (http://www2.westport.k12.ct.us/media/policies/prohibition_against_bullying_5131.911_revised_8.25.2008.pdf)

Armed with Connecticut’s law and Westport’s policy, what should we do as parents, community members, and professionals?  I do not profess to have the answers but at a minimum, we should discuss this with our children, question the school administrators, guidance staff and teachers. Together we should challenge ourselves to make a difference using the channels available to us.  There are ways that we can help to effectuate change before it is too late.  If you know of a child affected by bullying, please act on their behalf.  Not every student will post a video to tell you this is happening. If the school is not addressing the bullying in a meaningful way to eradicate the conduct, legal redress is available and the courts will readily intervene.

If you have any questions please feel free to contact me by telephone in the Firm’s Westport office at (203) 221-3100 or by e-mail at SMaya@Mayalaw.com. Attorney Maya is a partner at Maya Murphy, P.C. Her practice is limited to Education Law and Trusts and Estates.

Should I File my Family Law Case in Connecticut or New York?

With the mass exodus of New Yorkers amidst the COVID-19 pandemic from New York City to the more suburban lifestyle of Connecticut, the question of where to file family law case actions has been emerging quite frequently.  The first and most critical question that you need to know is whether Connecticut or New York has jurisdiction to hear the case.  In short, the court with jurisdiction retains the official power to make legal decisions and judgments on a case.  But the answer may not be clear-cut.  Here is what you need to know about family law jurisdiction in Connecticut and New York:

Which State Has Jurisdiction for My Divorce Action?

Generally, Connecticut has jurisdiction over a divorce action if one of the following conditions apply:

  1. You or your spouse has lived in Connecticut for at least one (1) year prior to filing for divorce, OR
  2. You or your spouse lived in Connecticut at the time of the marriage, moved away, and then returned to Connecticut, AND plan to live here permanently.

Similarly, New York has jurisdiction over a divorce action if one of the following conditions apply:

  1.  You or your spouse have lived in New York State uninterrupted for at least two (2) years immediately before the date you start your divorce action; OR
  2. You or your spouse have lived in New York State on the date the divorce action was commended for a period of at least one (1) year, AND one of the following conditions applies:
    1. Your marriage ceremony was in New York; OR
    2. You lived in New York State with your spouse as married persons; OR
  3. You or your spouse have lived in New York State uninterrupted for at least one (1) year immediately before the date you start your divorce action, AND your grounds for divorce occurred in New York State; OR
  4. You and your spouse are residents of New York State on the date you start your divorce action, AND your grounds for divorce occurred in New York State.

Which State Has Jurisdiction for My Child Custody/Visitation Action?

Generally, Connecticut has custody and visitation jurisdiction if one of the following conditions apply:

  1. Connecticut is the home state of the child at the time the custody/visitation application is submitted, and the child has lived in Connecticut for the last six (6) months, or from birth if the child is less than six (6) months old; OR
  2.  The child lived in Connecticut for the last six (6) months, but has been removed from Connecticut less than six (6) months ago by a person claiming to have custody of the child and a parent or guardian continues to live in Connecticut; OR
  3. The child and at least one parent has significant ties to Connecticut and substantial evidence exists in Connecticut concerning the child’s present or future care, protection, training, and personal relationships; OR
  4. The child is in Connecticut now and has been abandoned, or there is an emergency affecting the child’s well-being; OR
  5. No other states have an interest in hearing the case, and it is in the child’s best interest for Connecticut to hear the case.

Generally, New York has custody and visitation jurisdiction if one of the following conditions apply:

  1. New York is the home state of the child at the time the custody/visitation application is submitted, and the child has resided in New York State for the last six (6) months before the start of a custody/visitation action, or
  2. No other state has jurisdiction, or any interested states has declined jurisdiction; and
    1. The child and child’s parents, or the child and at least one parent, have a significant connection with New York State other than a physical presence; OR
    2. Substantial evidence exists in New York concerning the child’s care, protection, training, and personal relationships; OR
    3. All courts having jurisdiction have declined jurisdiction on the ground that New York State is the more appropriate forum to determine custody; OR
    4. No court of any other state would have jurisdiction under the provisions of the statute.

You can now see that when determining where to file your family law matter, often jurisdiction is not a matter of choice, but a matter of law.  While it is possible that your case may be filed in either court, understanding the jurisdictional requirements is crucial in eliminating unnecessary expenses and attorneys’ fees expended by moving a case to the appropriate jurisdiction.  

If you have any further questions concerning the appropriate jurisdiction to file your family law action or would like the representation of an experienced attorney to assist you, contact our Managing Partner Joseph Maya directly via email at JMaya@Mayalaw.com or by telephone at (203) 221-3100 for a free consultation.

Pretrial Diversionary Programs in Connecticut

If you are a first-time offender in Connecticut, you may be eligible for pretrial diversionary programs, which consists of several programs designed to rehabilitate the offender, rather than punish them.  The objective, of course, is also to reduce recidivism and, effectively, state costs.  The public interest in minimizing repeat offenders is significant, which is why Connecticut continues to offer many offenders the benefit of these programs.    

Each diversionary program, while serving similar objectives, has different eligibility criteria, program objectives, time limitations, and requirements for successful completion.  Here is what you need to know about Connecticut’s most common diversionary programs:  

Accelerated Rehabilitation

To be eligible for Accelerated Rehabilitation (“AR”) in Connecticut, the defendant must be charged with a crime or, in some instances, a motor vehicle violation, not of serious nature.  The law expressly prohibits the use of AR for certain crimes including any class A or class B felony, operating under the influence, 2nd degree manslaughter, 2nd degree assault with a motor vehicle, 2nd degree sexual assault, 3rd degree sexual assault, 3rd degree sexual assault with a firearm, enticing a minor, 2nd or 3rd degree possession of child pornography, a crime or motor vehicle violation resulting in the death of another, family violence crimes, and others.  Prior convictions may also result in ineligibility for this program.  

If you are deemed eligible for this program, you will be supervised by the Court Support Services Division (“CSSD”).  While under CSSD supervision, the prosecution may be stayed for up to two (2) years enabling you time to successfully complete the program.    

Pretrial Alcohol Education Program

To be eligible for the Alcohol Education Program (“AEP”) in Connecticut, the defendant must be charged with operating under the influence, violating safe boating rules, or 2nd degree reckless vessel operation while under the influence, with some exceptions.  Like AR, prior convictions may also result in ineligibility for this program.  

If you are deemed eligible, you will be allocated one (1) year to complete this program consisting of between ten (10) to fifteen (15) sessions of an alcohol intervention or substance abuse program.  

Pretrial Drug Education and Community Service

To be eligible for the Drug Education and Community Service program, the defendant must be charged with a drug paraphernalia or possession crime or possession of less than .5 ounce of marijuana punishable by fine.  

Under this program, the defendant must submit to a Department of Mental Health and Addiction Services (“DMHAS”) for evaluation.  The defendant is allocated one (1) year to complete this program consisting of a fifteen (15) session drug education or substance abuse treatment program.  

Pretrial Family Violence Education Program

To be eligible for the Family Violence Education Program (“FVEP”) in Connecticut, the defendant must be charged with a family violence crime, with some exceptions.  A family violence crime, in Connecticut, is defined as a crime that includes an element of family violence to a family or household member.  The law expressly prohibits the use of FVEP for class A, B, C, or unclassified felonies with possible prison sentences greater than ten (10) years, and class D or unclassified felonies with possible prison sentences greater than five (5) years.  Any offenders that were involved in a family violence crime that involved inflicting serious physical injury are also ineligible without good cause.  Prior family violence convictions may also result in ineligibility for this program. 

If you are deemed eligible for this program, the Court Support Services Division (“CSSD”) will supervise you to ensure successful completion.  While under CSSD supervision, the prosecution may be stayed for up to two (2) years.

Pretrial Supervised Diversionary Program

To be eligible for the Pretrial Supervised Diversionary Program in Connecticut, the defendant must be charged with a crime or motor vehicle violation that is not of serious nature and must have a mental or emotional condition that has substantial adverse effects on the defendant’s ability to function.  This condition must require care and treatment.  Alternatively, the defendant may be eligible if they are a veteran with a mental health condition that is amenable to treatment if not dishonorably discharged from the military.  

If deemed eligible for this program, CSSD will develop a tailored treatment plan, even collaborating with state and federal agencies including DMHAS and the state and federal veteran’s departments.  Unlike the other diversionary programs, specially trained probation officers will supervise the defendant ensuring successful completion.  

With all of these programs, eligibility and admission into the program will not always result in your charges being dismissed.  It is imperative that you are wholly compliant with the court’s directives to ensure successful completion.  

If you have any further questions about criminal diversionary programs in Connecticut or would like the representation of an experienced attorney to assist you, contact our Managing Partner Joseph Maya directly via email at JMaya@Mayalaw.com or by telephone at (203) 221-3100 for a free consultation.

Operating Under the Influence in Connecticut

If you are facing allegations of Operating Under the Influence (“OUI”) under Connecticut Law, you must understand the charges you are facing.  These offenses are taken seriously and can result in significant penalties including community service, probation, fines, license restrictions, and even jail time – depending on the facts and circumstances of your case.  The actions you take, or fail to take, before, during, and after you are charged can alter the outcome of the case significantly.

In the event that this is not your first-time facing allegations of Operating Under the Influence in Connecticut, the consequences become significantly more serious.  Here is what you need to know about OUI penalties in Connecticut:

1st Offense

Under Connecticut law, any person who violates the operating under the influence statute for the first time will be charged with a class B misdemeanor.  While this may sound relatively insignificant to you, the statute imposes additional penalties including a mandatory minimum of forty-eight (48) hours in jail and a fine of between five hundred and one thousand ($500-$1000) dollars.  If you are facing charges in addition to the OUI charge, expect even more consequences.  

2nd Offense

Any person who violates the operating under the influence statute for the second time in Connecticut will face even more serious consequences.  Under the statute, an OUI conviction as a second offender will result in a felony, rather than the misdemeanor charge given to first-time offenders.  The statute additionally imposes a much more severe mandatory minimum of one hundred twenty (120) days in jail and a fine somewhere between one and four ($1,000-$4,000) dollars.  Again, additional charges may result in even more penalties.

3rd Offense 

By the time you are charged with your third OUI in Connecticut, the law is not on your side and you can expect serious consequences.  If your choices have led to yet another OUI arrest, under Connecticut law you will be charged with an even more serious class E felony.  A conviction of a Class E felonies can mean up to three (3) years in prison.  The statute additionally requires a mandatory minimum of one (1) year in jail and a fine somewhere between two and five thousand ($2,000-$5,000) dollars.

On top of the already serious consequences, additional penalties may include community service, the requirement to complete a criminal diversionary program including the Alcohol Education Program, probation, conditional discharge outlining the terms of your release from custody, points on your license, the installation of an ignition interlock device on your vehicle requiring you to submit to a breath test every time you operate your vehicle, other license restrictions, and license suspension.   With so much at stake, it is imperative that you seek the assistance of competent counsel. An experienced OUI attorney can assist you in negotiating the best possible outcome for your case.

 

If you have any further questions about Operating Under the Influence in Connecticut or would like the representation of an experienced attorney to assist you, contact our Managing Partner Joseph Maya directly via email at JMaya@Mayalaw.com or by telephone at (203) 221-3100 for a free consultation.

 

What You Need to Know About Expungement in Connecticut

Is Your Criminal Record Haunting You Years Later?  What You Need to Know About Expungement in Connecticut…

If you live in Connecticut, the Connecticut Board of Pardons and Paroles (“BOPP”) Pardon Division has the power to grant a criminal expungement, also known as an Absolute Pardon.  Alternatively, for those not yet eligible for an absolute pardon, the BOPP has the power to issue a Certificate of Employability (“COE”) which can help you to secure employment while you get back on your feet.  

Absolute Pardon

An Absolute Pardon is an absolute erasure of your Connecticut criminal record.  To be eligible, certain requirements must be met:

  1. You must be a resident of the state of Connecticut.
  2. You must have one (1) or more criminal conviction(s) in any state of jurisdiction.
  3. Three (3) years must have passed since your most recent misdemeanor conviction.
  4. Five (5) years must have passed since your most recent felony conviction.
  5. Thirteen (13) months must have passed since the court nolled any charges against you.  
  6. You must have no pending charges, open cases, or be on any form of supervision in any jurisdiction, state of federal.

Assuming you have met all of these eligibility requirements, you may apply for an absolute pardon.  Once the application is started, you or your attorney will have six (6) months to complete the process, and it can be quite involved.  An Absolute Pardon in Connecticut requires a comprehensive background check that includes gathering imperative documents including your driver’s license, a criminal history report; fingerprints; incident reports; and court, probation, and police records.  In addition to these documents, you are required to submit at least three (3) character reference questionnaires.   Once your file has been complete, a pre-screen telephone interview will be scheduled and finally, you will be required to attend a hearing on the issue.

We get it – it sounds involved.  There is good news if your offenses are considered “non-violent” and do not involved a listed victim.  Non-violent offenders may be considered for expedited review, and it is possible for your expungement to be processed without the need for a pre-screen telephone interview or hearing.  However, this process is discretionary with the Pardons Board so do not hang your hat on it.

Like just about every other area of law, every case is different.  It is impossible to determine whether or not you will or will not succeed in the process, though some factors may help (or hurt) you.  The BOPP will look at a variety of factors, including but not limited to, the severity of the offense, the extent of your criminal record, how long it has been since your last conviction, whether the crime had any impact on the community, whether there were any listed victims and what input they might have had, and what you have been doing since the conviction are just some considerations that will go into assessing the application.  Have you been very active in your community?  Have you completely turned your life around?  Have you been able to hold steady employment?  The list can go on.

Certificate of Employability

Even if you are not eligible for an Absolute Pardon at this time, the BOPP offers an alternative; a Certificate of Employability.  A COE is also known as a Provisional Pardon or Certificate of Rehabilitation.  Unlike an Absolute Parson, the process of obtaining this certificate does not erase your criminal record.  A COE is intended for employment and licensure purposes only.  

To be eligible for a COE, certain requirements must be met:

  1. You must be a resident of the state of Connecticut.
  2. You must have one (1) or more criminal conviction(s) in any state of jurisdiction.
  3. If you have recently completed a sentence or are on parole or special parole:
    1. You must have been in the community for ninety (90) days and have no new arrest(s) if you have recently completed your sentence and are not currently under supervision.
    2. You must have completed ninety (90) days of supervision if you are under the supervision of the Department of Corrections Parole and Community Services Division.
  4. Thirteen (13) months must have passed since the court nolled any charges against you.  

If you are currently on probation and have more than ninety (90) days of supervision left, you must apply through the Court Support Services Division (“CSSD”).  Contact your probation officer for further information.

Assuming you have met all of these eligibility requirements, you may apply for a COE.  The BOPP requires you to submit a Background Investigation Authorization Form, a copy of your valid Driver’s License or State ID, and a Supervising Officer Questionnaire for those currently under any form of supervision.  

Like Absolute Pardon applications, once submitted, your application for a COE will be reviewed and investigated.  Once the investigation and administrative review are complete, the Board will either deny or grant the issuance of the Certificate.  Unlike an Absolute Pardon, a hearing is not necessary for your application for a COE.    

If you have any further questions about expungement in Connecticut, contact our Managing Partner Joseph Maya directly via email at JMaya@Mayalaw.com or by telephone at (203) 221-3100 for a free consultation.

Connecticut Courts Allow Limited Scope Representation for Family Law Matters

Connecticut’s court system is beginning a pilot program that will allow people involved in family law cases to hire attorneys on a limited basis. The program begins Jan. 6 and is designed to help people who can’t afford a lawyer to hire one for certain proceedings in their cases. This program is intended to combat the number of pro se litigants in family matters in Connecticut.

Judicial Branch officials say more people are having problems affording lawyers, and many are representing themselves in civil and family cases. New legal forms will allow attorneys to file for limited appearances only in cases and to fully withdraw from cases once their work is done.

Limited scope representation allows for an individual to hire an attorney to represent them with part, but not all, of their legal matter. The typical retainer agreement will be limited to one specific portion of a case, for instance, a custody hearing, and then the representation will conclude.

There is a limited appearance form, JD-CL-121, that is filed by an attorney to specify the event they are providing the client representation for. Once that event is complete, the attorney must file another appearance form signaling completion of their representation and notifying all parties that the attorney is withdrawing from further representation of the individual.

This flexibility allows pro se litigants to hire attorneys for complex points of their case and to go it alone on others. This added flexibility is mainly a cost-saving tool, but the Connecticut Judicial Branch also hopes it will aid efficiency in the family law courts.

If you currently represent yourself in a divorce action and are interested in securing legal services for a particular aspect of your case you can take advantage of this new opportunity rather than hiring an attorney for all court appearances and all negotiations.

More information is available on the Judicial Branch website at http://www.jud.ct.gov and at courthouses.

Informational PDF files can be found here:

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MAYA MURPHY ADDS THREE VETERAN LITIGATORS TO ITS RANKS

MAYA MURPHY ADDS THREE VETERAN LITIGATORS TO ITS RANKS
E.J. Fink, Thomas Moyher and Samuel Leaf Bring a Wide Range of
Litigation Expertise to the Firm

Westport, CT and New York, NY – January 21, 2014. Maya Murphy, P.C. announced today the addition of three senior litigation attorneys to its Westport and Manhattan offices – Ephraim Jacob (E.J.) Fink, Thomas Moyher, and Samuel Leaf.

“We are thrilled to welcome E.J., Sam and Tom to the firm,” said Managing Partner Joseph Maya. “Each of them has a keen understanding of the needs of their clients and consistently strives to meet those needs with unique, cost effective solutions and, of course, unmatched understanding of the legal issues in their respective areas. We have every confidence they will have an immediate and positive impact.”

E.J. Fink has litigated in Connecticut and New York courts for more than a decade. In that time, he has represented hundreds of insurance companies, corporations, product manufacturers, and healthcare providers in various negligence disputes and contract claims. After graduating from New England Law in Boston, Mr. Fink joined the litigation department of Wilson Elser Moskowitz Edelman & Dicker LLP. He now resides in Stamford, Connecticut, and looks forward to bringing his large firm experience to the small firm philosophy of Maya Murphy.

Samuel Leaf has been a practicing litigator for fifteen years, the past eight of which he spent in the New York office of Willkie Farr & Gallagher LLP. He has represented clients ranging from Fortune 500 corporations to individuals in commercial disputes, including breach of contract and negligence actions, insurance matters, and alter ego, fraud and breach of fiduciary duty cases, among others. Mr. Leaf’s practice also focuses on First Amendment and media law issues. He has defended numerous media outlets in defamation, privacy, and intellectual property actions, and advises news publishers on reporter’s privilege and access issues. Mr. Leaf began his career at O’Melveny & Myers LLP, and later worked as a media lawyer with Davis Wright Tremaine LLP in New York. He resides in Westport and is a graduate of Brooklyn Law School, where he served as Editor-in-Chief of the Brooklyn Law Review.

Thomas Moyher started his legal career in insurance defense and has since worked extensively in commercial litigation. He has represented multi-million dollar corporations in a variety of litigation matters while working in New York for the past three years. Mr. Moyher, a Stratford, Connecticut resident, graduated Hofstra University School of Law cum laude, where he was an Editor of the prestigious Labor and Employment Law Journal. Mr. Moyher’s practice will focus primarily on civil litigation, including breach of contract, torts, and employment discrimination matters.

Established in 1993, Maya Murphy, P.C. is a full service law firm with a particular focus on employment law, divorce and family matters, criminal defense, estate planning, commercial litigation and business law. For more information about the firm please visit www.mayalaw.com.

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Is a No-Contest Clause Right for Your Will?

In order to discourage disappointed heirs from disputing your estate plan, you can include a “no-contest” provision that automatically cancels an heir’s inheritance if he or she challenges the distribution of your assets in any way. You are not obligated to leave property to anyone. The original reasoning for the no-contest provision was to intimidate any heir who may consider contesting a will or trust, thereby securing his or her cooperation.

“No-contest” clauses can be broad or narrow, and may even disinherit people who challenge transfers made outside your will (through a trust or beneficiary designation).

Of course, you cannot make a bequest of property you don’t own, but you can often provide in a will that a beneficiary will only receive your bequest if they abandon their rights in some other property. In a recent case, a court was asked to decide whether a refusal to abandon such rights would constitute a “will contest” that would void other gifts. When a testator died, he left a complex estate plan that included a will, a trust, and beneficiary designations for his retirement account. The testator’s wife legally owned part of his retirement account and other “community property.” The testator’s will and trust required his wife to abandon her “community property” rights in order to receive benefits worth $2.65 million from her husband’s trust.

The wife filed a special petition with the court, asking whether she would be viewed as “contesting” the estate plan if she sought to enforce her community property rights. The wife claimed that her husband had mistakenly transferred some community assets to his own trust, and she was merely trying to correct the mistake. On appeal, the Court ruled that the wife’s challenges would constitute a “contest.” Therefore, she had to decide whether to assert her “community property” rights (and thus receive only her share of community property, and nothing from her husband’s trust) or simply accept the provisions of the trust and will (thus sacrificing her “community property” rights).

This case illustrates an important issue. If you make a mistake in your estate plan, a “no-contest” clause in a will or trust may prevent your heirs from correcting the mistake. On the other hand, if you don’t include a “no-contest” clause, an heir might contest your estate plan, thus delaying the distribution of your assets, and frustrating your goals. There are many such issues with Estate Planning that require careful planning and expertise to avoid.

In most cases, a “no-contest” clause does make sense. However, as the example in this article illustrates, you want to be careful when doing your estate plan in order to avoid unnecessary problems for your heirs. Seeking competent advice is more often than not well worth the price paid

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