Notarized Document a legal document?

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Latest post 01-18-2008 3:13 PM by Fxston. 9 replies.
  • 01-17-2008 11:31 PM

    Sad [:(] Notarized Document a legal document?

    My friend passed away yesterday, and she wanted me to have her horse when she died. She handwrote a document stating that upon her death the horse would become mine. She went to our local bank and had it notarized. The Lawyer who is the executer of the estate is telling me that it is not a legal document and that he will be selling the horse. I am in IL, is he telling me the truth, or is he just trying to get me to drop it? I want to go pick her up, she is not worth much, but I love her and cared for her when my friend was ill.
  • 01-18-2008 12:57 AM In reply to

    • copley
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    re: Notarized Document a legal document?

    Sorry to hear about your friend.

    I don't think that your friend needed a formal legal document to convey the horse to you upon her death. That said, I don't think that having it notarized makes it legal (though it doesn't hurt).

    Where was the document when she died? Whose possession was it in? Was anyone else aware of the document or your friend's intent to transfer the horse to you?

    My thoughts are that if your act of caring for the horse during your friend's illness is what prompted her desire to give this horse to you when she died, then it is a contract. You have performed your duty by caring for the horse and therefore you are owed the consideration you bargained for - ownership of that horse.

    However, if your friend just meant to gift it to you, property law principles will apply and you need to figure out if it was inter vivos or causa mortis. If inter vivos, you may not have a good argument because you need to have the horse actually delivered to you - but the horse was still in your friend's possession until she died. You may be able to argue constructive or symbolic delivery if you had possession of the document - because grantors are allowed to make a gift through a written instrument. If your friend wrote the document because she was aware that she was going to die and did in fact die of that cause, and you were in possession, the gift is likely completed and the horse is yours. However, if your friend had possession of the document when she died, it could be considered a revoked gift.

    This is all going on what I learned last year when I was an L1. I hope it helps, even a little. I am unsure which state you are in but your jurisdiction might have different rules for gifts. Good luck.
  • 01-18-2008 1:26 AM In reply to

    re: Notarized Document a legal document?

    I was in the posession of the document, I cared for the horse all last winter, and once the weather got better, she took her back home. I still have the document, it states that upon her death, the horse is to be mine. She was not speaking to her family, in fact in the document she calls them her estranged family. The lady who notarized it heard her wishes, she was an outside party. I still have the document, I am just not sure how to stop the attorney from selling her, and wasn't sure if I did indeed have legal rights to her
  • 01-18-2008 8:36 AM In reply to

    • Drew
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    re: Notarized Document a legal document?

    Laymans suggestion

    My personal opinion is that the executor is being a complete jerk---but the jerk is probably right as to technical issues.

    For a handwritten will to be valid in IL it must be signed by TWO witnesses--unless it has two witnesses its quite problematic if not a dead duck.
    (If decedant was in another state a different rule could apply as to witnesses!!! Where she died is critical.)

    I doubt there is any moral question as to her intentions.

    But a promise of a future gift is unenforceable.
    HOWEVER I don't think thats the only view--and it sort of depends on just what the note said. Heres an alternate view that may be an enforceable Here is the difference contract--you care for my horse now, I will give you horse when I pass, you perform your duties, the essence of the contract is contained in hte writtend docuement--as to when you get ownership. The oral elements are enforceable and with a little bit of help you can probably make a timely claim against the estate to the executor but its essential that you calim be in context of you had a contract for care with the quid pro quo of ultimete ownership and NOT a gift issue. And in my claim I'd ask for prompt deliveryof said horse in health condition, or fullpayment of reasonable boarding ,feed,ferrier cots in sum of $XX or the value of a replacement horse $CCC. Make it into a formal written claim and deliver it to the executor. Keep copies.

    My view is the executor would be on the high moral plain to deliver the horse to you in exchange for $1 and settle your claim for services . True, if the estate is in the red and there are other creditors it would be improper to satisify one creditor ahead of others--but the costs to executor to maintain a horse quickly become negative as to value of horse to estate or other creditors !

    Here is the logic difference and why it may make sense to give the executor a logical out: The executor is on very solid legal ground to settle a claim for services as best he or she can for the estate VS The executor is required to defend the will as written and in a sense has a duty to reject docuements reporting to be wills or codiciles which do not meet the legal standards of such and/or reject promises of a gift .

    While you don't need a lawyer to draft a claim for performance of the contract-- you'd be wise to use any available talent in that regard to help get it "right" and a friend legally licensed to practive in that state who puts claim on his or her letterhead is certain to get more promt attention



  • 01-18-2008 8:46 AM In reply to

    Feedback [*=*] The question is whether the document is a valid will

    My condolences on the loss of your friend.

    The term “legal document” really doesn't have much meaning here. What matters is whether the document your friend left is a valid will (or part of a will). In IL, among other requirements, a valid will must be signed by the person making the will (called the testator) and the signature must be witnessed by two people over age 18 who also sign the will attesting that they witnessed the testator sign the will. It is apparently not necessary, however, to have the will notarized. These requirements are similar to those used in a number of other states as well.

    A will that the testator writes entirely by hand and signed by the testator is called a holographic will. Some states provide a special rule for holographic wills that recognizes them as valid wills even though the will was not witnessed as described above. However, it appears that IL is not one of these states. Instead, it appears that IL requires that a holographic will be executed in the same manner as any other will (i.e. that it be signed by two witnesses).

    The signature of the notary may count as one witness. But if that is the only witness to the will, it would appear that the document you have may fail to qualify as a will under IL probate law. If that is the case, you likely have no claim to the horse, unfortunately.

    I suggest that you take the document to an IL probate attorney to find out for sure whether you might be able to make a claim for the horse. There may be other details here that could change the outcome, and an IL attorney can tell you with better certainty where you stand. Since I've not seen the document and do not practice in IL, I cannot tell you for sure that you don't have a claim to the horse.


  • 01-18-2008 8:54 AM In reply to

    Feedback [*=*] re: Notarized Document a legal document?

    If the document expresses testamentary intent and there is no stated exchange (i.e. it simply says "I give my horse when I die to my friend Joe" ) then the document purports to be will and will likely be analyzed by a court using the requirements for a will. If it states some kind of exchange, ( i.e. "In exchange for caring for my horse, Joe will receive my horse when I die") then it appears to more like a contract, which will have a very different set of requirements for the poster to assert a valid claim to the horse. Because we can't see the document, it is impossible to know for sure what claims he might make. That is why I suggested he see an IL probate attorney.
  • 01-18-2008 9:00 AM In reply to

    • Drew
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    re: On Target as always! eom.

    .



  • 01-18-2008 12:57 PM In reply to

    re: Notarized Document a legal document?

    Gotta point out that I kinda think you're not doing yourself any favors with the person you know to be the estate lawyer by bringing this up the day after your friend died. Perception is everything.

    It doesn't appear this counts as a will, so you may want to find out what the horse is worth and make an offer in that to the estate attorney (esp. if the horse isn't worth much).

    If as taxagent points out there was anything more to this statement she signed and had notarized that might make it a contractual obligation, then you'd want to make a claim against the estate.
  • 01-18-2008 1:12 PM In reply to

    • Drew
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    re: Notarized Document a legal document?

    I agree to rush to raise it may lack taste ---but in the meantime the horse could get very hungry or wind up as glue--no perfect balance.



  • 01-18-2008 3:13 PM In reply to

    re: Notarized Document a legal document?

    One needn't establish ownership of the horse to feed the horse (can't imagine lawyer/executor would object to that -- saves him-her the hassle of addressing it).

    Even if document qualified as a will (and it does not based on info from poster) or a contract (the "in exchange for having taken care of the horse" scenario), I'm afraid the most the poster could expect were the horse sold today would be to make a claim against the estate for its value.

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