David G. Schiller, Attorney at Law

Raleigh Employment Law and Litigation Attorney

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E-Z Legal Form Dispute Provides A Cautionary Tale

Online legal forms are an increasingly popular way to draft documents such as wills and separation agreements. However, relying on these forms have drawbacks. A recent Florida case gives some insight on the risk of using these online legal forms.

In Aldrich v. Basile, Ms. Aldrich relied on an online “E-Z Legal Form” to write her will. After Ms. Aldrich passed away, her nieces, who were not mentioned in the will, were able to claim a piece of Ms. Aldrich’s estate because the form did not include an essential. It is implied that Ms. Aldrich did not intend to leave part of her estate to relatives who were not mentioned in her will.

This highlights a cautionary tale of the potential dangers of utilizing pre-printed forms and drafting a will without legal assistance. As this case illustrates, that decision can ultimately result in the frustration of the testator’s intent, in addition to the payment of extensive attorney’s fees—the precise results the testator sought to avoid in the first place.

People use these forms to avoid paying an attorney to do draft legal documents. But, the initial cost savings can be dwarfed by the attorneys fees that are spent trying to cure the problems that the form created. Attorneys are spending an increasing amount of time — and in turn costing people more money — to fix the problems online forms are creating. The parties in the Aldrich case presumably had to pay attorneys to pursue the case all the way up to the Florida Supreme Court.

Without having an attorney in your state review the form, there is no way to be absolutely certain the form is valid in your state. More importantly, the form may not adequately address all of your issues. Everyone’s legal situation is unique in some way. Although online forms may cover the issue that most people need, a form cannot personally sit down with you thoroughly discuss your personal legal needs. Sitting down with an attorney and discussing your needs will bring to light additional issues that should be addressed in the document.

Online legal forms may be more convenient and cost less in the beginning. But in the end, the document may be invalid, have unintended consequences, and may ultimately cost more than having the document drafted by an attorney. When looking to have a will, separation agreement or any other legal document drafted, it is best to seek legal counsel and professional drafting tailored to your situation.

NC Man Cannot Use Voidable Marriage As A Defense To Alimony

In Duncan v. Duncan, the North Carolina Court of Appeals addressed the issue of a voidable marriage. The Duncans exchanged vows in two separate marriage ceremonies. The first occurred in 1989 and was presided over by a man who held himself out as a Cherokee medicine man and who was ordained as a minister by the Universal Life Church. In 2001, the couples participated in a second ceremony at a Presbyterian church.

Alimony awards are based, in part, on the length of the marriage. Apparently, Mr. Duncan was attempting to limit his potential alimony exposure by arguing that the marriage did not begin until 2001. The pleadings indicate that the couple separated in 2005, so the issue was whether the couple was married for approximately 4 years or 16.

The Court noted that common law marriages are not recognized in North Carolina:

Our Supreme Court has held that “[a] common law marriage or marriage by consent is not recognized by this State.” State v. Lynch, 301 N.C. 479, 487, 272 S.E.2d 349, 354 (1980). Rather, “[t]o constitute a valid marriage in this State, the requirements of G.S. 51-1 must be met.” Id. at 486, 272 S.E.2d at 353.

N.C. Gen. Stat. § 51-1, as it read in 1989, required that the parties “‘express their solemn intent to marry in the presence of (1) an ordained minister of any religious denomination; or (2) a minister authorized by his church; or (3) a magistrate.’” Pickard v. Pickard, 176 N.C. App. 193, 196, 625 S.E.2d 869, 872 (2006) (quoting State v. Lynch, 301 N.C. 479, 487, 272 S.E.2d 349, 354 (1980)).

Whether the 1989 marriage ceremony met these requirements is a bit of an open question. The majority opinion concluded that Mr. Duncan met his burden of showing that the 1989 marriage ceremony did not meet the requirements of G.S. § 51-1. The minority opinion concluded differently.

Ultimately, however, the case turned on the issue of whether Mr. Duncan would be permitted to claim that the marriage was invalid after he had participated in the 1989 ceremony, which he knew, or should have known, may not have complied with North Carolina law. The Court of Appeals concluded that the Duncans were equally negligent in relying on the supposed Cherokee medicine man’s credentials to conduct their wedding.

The Court then applied the doctrine of equitable estoppel. Under this doctrine, a party who is silent about or conceals important facts from the other party, may not later take advantage of that deception. The Court would not allow Mr. Duncan to participate in the 1989 wedding ceremony, go about his life for 12 more years as if he were married and then attempt to argue that the 1989 ceremony was bogus.

This case is unusual in that the Duncans may have had what was essentially a common law marriage. However, the Court of Appeals would not allow Mr. Duncan to use that fact to limit his alimony exposure because of his somewhat disingenuous legal position.