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A slightly silly, perhaps, hypothetical:
People know the maxim that you cannot libel a dead person, but I'm wondering
if you can be libeled *by* a person after their death. My first thought was
whether a trial for libel or slander could go forward if the defendant
died -- whether his estate could be sued, or whether it's necessary to have
the person who made the statement alive to have the opportunity to rebut
speculation about their intent in making the statement.
But then I got to pondering a slight twist on that. Suppose John Doe writes
in his last will and testament something to the effect of:
'To my good-for-nothing brother-in-law, Bill Smith, I leave a box of
condoms, in the hope that at least he won't get anymore of those floozies he
runs around with pregnant, now that I'm not around to pay the abortion bills
as he begged me to do so many times during my life, and which I did to spare
the feelings of my poor addled sister, Blanche.'
Once a will is probated, it becomes a public record, does it not? This
might be an effective way of taking a shot at someone, if, say, the despised
brother-in-law worked at the county courthouse where the will would be
filed, so his co-workers could drop 'round for a look at it and a laugh at
his tarnished reputation.
I'm assuming an attorney might have some risk if he let a client say
something like that in a will drawn up by the lawyer, so let's assume the
will was holographic, written privately by Doe and unseen by anyone else
before Doe's death. Also, I don't know if Smith (or other family) could
challenge his brother-in-law's will and stop it being probated on the
grounds that Doe was not mentally competent, but for the sake of discussion
let's assume Doe wasn't crazy, just mean.
If the hypothetical Bill Smith learned of the slanderous statement in John
Doe's will after Doe's death and before it was filed with probate court, is
there anything he could do to prevent it being made a public record?
--
Robert
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"Robert E. Lewis" wrote:
A slightly silly, perhaps, hypothetical:
[OP ponders libel by a dead person, e.g. saying something nasty about
somebody in your will]
If the hypothetical Bill Smith learned of the slanderous statement in John
Doe's will after Doe's death and before it was filed with probate court, is
there anything he could do to prevent it being made a public record?
I doubt it. We have this thing called "freedom of speech", and it means
you can say what you want where you want, including in a will where it
becomes part of the public record.
Of course, Bill Smith would have a claim against the estate for the
libel against him. Depending on how bad the libel is and the skill of
Bill's lawyer, the resulting lawsuit could wipe out the estate and leave
nothing for Doe's nominal heirs. Which is part of why lawyers tell you
never to say anything bad about somebody in your will. Also, of course,
because whatever you say could become the basis of a challenge to the
will.
Frex, if you hate your sister and want to cut her out of your will, your
lawyer will probably tell you to put something like, "To my sister, Mary
Doe, I leave my best wishes and the sum of $1.00." Not "I leave nothing
to my no-good sister Mary Doe who sponged off our parents until they
died and then expected me to support her." If you write the latter,
Mary might go into court and claim that you wrote that under some sort
of emotional pressure or when you were temporarily angry at her, and
perhaps get the will set aside and receive whatever she would get if you
died intestate. Better not to offer anything that can be used to
challenge the will, or to establish any sort of claim against the
estate.
Moral: if it's wrong to do while you're alive, it's wrong to do via your
will, trust, or other documents that will surface after you die.
I am not a laywer. This is for discussion purposes only and is not legal
advice. If you want legal advice, get a lawyer and pay for it.
--
I pledge allegiance to the Constitution of the United States of America,
and to the republic which it established, one nation from many peoples,
promising liberty and justice for all.
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"Robert E. Lewis" wrote:
[OP ponders libel by a dead person, e.g. saying something nasty about
somebody in your will]
I doubt it. We have this thing called "freedom of speech", and it means
you can say what you want where you want, including in a will where it
becomes part of the public record.
I have heard of this 'freedom of speech' thing; and while courts may be
reluctant because of the First Amendment to engage in prior restraint, I'm
not certain it utterly precludes a person who knows that a libelous
statement is about to be entered into public record from seeking legal
recourse to prevent it being done, which is the essence of what I was
asking.
Of course, Bill Smith would have a claim against the estate for the
libel against him.
But would he? This goes back to the question I initially wondered about:
can a libel suit proceed if the person accused of making the libel is dead
(or otherwise incapacitated)? Isn't the state of mind --a deliberate,
malicious disregard for the truth -- an essential question in a libel suit?
How do you establish the state of mind, the malicious intent, if the accused
cannot be questioned about why he said what he said?
And if probating the will would create a libel that would likely sap the
estate of funds and result in the terms of the will not being carried out,
wouldn't that put the executor in a Catch-22 situation? Might that have the
effect, in itself, of preemptively stopping making the will public?
... Which is part of why lawyers tell you
never to say anything bad about somebody in your will. Also, of course,
because whatever you say could become the basis of a challenge to the
will.
Frex, if you hate your sister and want to cut her out of your will, your
lawyer will probably tell you to put something like, "To my sister, Mary
Doe, I leave my best wishes and the sum of $1.00."...
... If you write >something nasty>,
Mary might go into court and claim that you wrote that under some sort
of emotional pressure or when you were temporarily angry at her...
Do lawyers really tell people not to include any negative statements in
one's will? I always undertood the purpose of the old 'I leave so-and-so
one dollar' was not to show that you didn't harbor a dislike for a specific
person -- indeed, if you left every other sibling thousands and Mary just
one dollar, it's a very clear expression of dislike (and surely being
temporarily angry at a person is a legal grounds for writing them out of
your will -- as long as you're not insanely enraged). I thought the
one-dollar bequest was to establish that you had considered this beneficiary
and allocated your estate funds deliberately -- that you had not left the
person out of your will unintentionally, that not leaving them a large sum
was not an oversight.
--
Robert
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