As a criminal defense attorney, the constitutionality of police activity is an issue that comes up repeatedly in my practice. It is also an issue that is just as important for my clients to understand it is for me to understand. I recently stumbled upon a blog that addressed a type of situation where it is especially important to know your rights vis a vis the police: the crowded public event. “The Festival Lawyer” is a contributor on the blog Showbans, a blog dealing with concerts and music festivals. The post I’ve linked to does a great job of detailing what to do if you’re stopped or approached by police while at a concert, music festival, or pretty much any event that draws a large crowd. This advice is important for a few reasons. First, while a police encounter can be a frightening and intimidating experience in general, it can be even more so when it takes place in the context of a crowded event. Police are inclined to be more agressive and close-minded when they are involved in crowd control. As a result, someone attending an event where there is, say, widespread alcohol consumption and/or illegal drug use needs to be aware that the police might be highly assertive and combative. Second, it is important to know that a person’s right to be free from unreasonable police conduct is not diminished simply because the police have an interest in crowd control. For example, a police officer cannot stop a person unless they have a reasonable suspicion that that person has engaged in a criminal act. This is true whether the person is walking down the street on a Wednesday afternoon, whether they are tailgating at a Packers game, or whether they are checking out the main stage at Summerfest. To learn more about what to do if approached by the police at a crowded event, check out “The Festival Layer”: http://showbams.com/2013/09/25/what-to-do-if-the-police-stop-you-at-a-music-festival/
Wills 101: Witnesses
Building off of what I wrote in the last installment of Wills 101 about the invalidity of handwritten, unattested wills, i.e. holographic wills, I want to elaborate on what is known as the attestation requirement. What is attestation? Attestation is the act whereby a person witnesses the creation of a will and signs the physical document, attesting to its authenticity. What this means is that a will needs to be witnessed and signed by the witnesses in order to be valid. While all states require that wills be witnessed, they differ in regards to what attestation requires. Any attorney will tell you that Wisconsin’s attestation requirement is found in section 853.03(2)(am) which states that a will “must be signed by at least 2 witnesses.” The witnesses need to sign the will in the testator’s presence, and each must observe the testator sign the will; however witnesses do not need to sign in each other’s presence. What does it mean to be in the testator’s presence? A witness and a testator are said to be in each other’s “presence” as long they are nearby and as long as each has a general awareness and cognizance of the where other is and what they are doing. Who is qualified to serve as a witness? Anyone deemed mature enough and of requisite mental capacity to appreciate and understand what they are witnessing is competent to be a witness.
~Rod
Wills 101: Holographic Wills
When considering writing a will, some people might wonder whether they can create a valid will by, say, tearing out a piece of notebook paper and writing thereupon something to the effect of “My name is X and this is my final will and testament. Upon my death, I will all of my property to Y”, signing it, and stashing it away in a desk drawer. Such a document is called a “holographic will”; it is a document that is written entirely in the testator’s own handwriting with no attesting witnesses.
The answer to this question is that, while over half of the states will give effect to such documents, Wisconsin does not. In the Badger State, a will must be witnessed in order to be valid. However, Wisconsin law does make an exception for holographic wills that were drafted in another jurisdiction and that were valid under the laws of that jurisdiction. Therefore, Wisconsin courts will recognize and probate a holographic will that was written in another state, as long as it was created in accordance with the laws of that state.
Take it from an estate planning attorney, this stuff is important!
Packers/Bengals: Reasons for Optimism
This season, like last season, the Green Bay Packers have started out 1-2. If nothing else, the way they have gone about doing so this year hasn’t been quite as painful. Of course, last season saw the Packers fall to 1-2 by virtue of the infamous “Fail Mary” play in Seattle. This year, however, there are numerous indications that the 2013 Packers are quite a formidable squad, regardless of what their record might indicate.
1. The Packers have a legitimate running game. After going 44 straight games without having a 100-yard rusher, the Packers have now had two different running backs break the century mark in back-to-back games. Sunday, the Packers ran the ball 30 times for 182 yards – 6.1 yards per carry – against a very solid Bengals defense.
2. The team is going to get healthier in many key places. Jermichael Finley, Eddie Lacey, Clay Matthews, Casey Hayward, James Starks, and Morgan Burnett. These are the names of six impact players who missed all or part of Sunday’s game, and all six ought to be back on the field after the bye week to face the Detroit Lions. The absence of Hayward and Burnett was keenly felt in weeks 1 and 2 where the Green Bay secondary surrendered vast amounts of yardage to receivers Anquan Boldin and Pierre Garcon respectively. Quality players both, but one would have to expect that they would not have done such damage had the Packers’ had their two best defensive backs on the field.
Finley’s absence was immediately apparent against Cincinnati, as he left Aaron Rodgers with few options to work with in the middle of the field. This, coupled with the solid coverage displayed by the Bengals’ secondary early on resulted in Rodgers holding the ball for far too long and taking four sacks.
While the emergence of Johnathan Franklin was encouraging and exciting, at 5’10 and 205 pounds he is not an every-down back. However, if you combine his speed and elusiveness with the power running of Lacey and Starks, along with the threat of a dynamic passing attack, you have the recipe for an indomitable offense.
Of all the Packers multitudinous injuries, perhaps none doomed their efforts Sunday more than the injury to Matthews. It is no coincidence that the Bengals’ 4th quarter surge began once Matthews headed to the sideline. Clay does not get enough recognition for being the complete defensive player that he is, and the Green Bay defense was at a pronounced disadvantage without him on the field.
3. It’s early, very early. Yes, the Packers are staring at a two-game deficit in the NFC North standings; and yes, the Packers are trailing the undefeated Chicago Bears by two games, but they started out with same record last year and went on to win the division. Until they prove otherwise, the Bears are no more than September and October champions, unable to win the crucial games in the winter. Also, Green Bay’s most recent out of division rivals, the Giants and 49ers, are a combined 1-5.
Wills 101
Welcome to Wills 101, an estate planning lawyer’s fireside chat about the law of wills and trusts. This is the first in what, hopefully, will be a weekly series. The goal of this series is to anticipate what might be some frequently asked questions regarding two important yet somewhat mysterious legal instruments: wills and trusts. One of the chief complicating factors about wills and trusts is the legal jargon that has often been sewn into the law by lawyers, judges, and legislators.
While many of these terms rightly seem dated and arbitrary, they are nevertheless here to stay. Since it is necessary to use this vocabulary in any discussion of probate law, I’m devoting the first installment of Wills 101 to some common probate law terminology.
Probate: Probate is the judicial process by which a will is given legal effect. A will, on its own, is no more than a sheet of paper; in order for any property to be distributed according to the will, the will must be probated. This means that the will must first be physically delivered to the probate court. More on the topic of probate proceedings later.
Testator: The testator is the person for whom the will is written.
Intestacy: Intestacy is a legal status that applies to a decedent who’s assets are not entirely disposed of by a will. This includes persons who never made a will, who made a will that covered only some of their assets, who made a will that was later held invalid, and who made a will, revoked it and never wrote another one. Someone who dies without a valid will is said to have died “intestate” and their property will be distributed according to the state’s intestate succession laws. That, however, is a topic for another post….
Bequest: A bequest is an intended transfer of assets, by will, from the testator to a beneficiary.
Beneficiary: A beneficiary is the intended recipient of a bequest. A beneficiary need not be a human being; legal entities such as corporations, charities, schools, and churches can also named as be beneficiaries.
Attestation: Attestation is the act by which a witness to a will’s signing signs the will herself and thus “attests” to its authenticity.
Devise: A devise is a bequest of an interest in land.
Escheat: A person almost always has heirs; but when they don’t, their assets will pass to the state at death. Even if they never create a will, even if they have no surviving family members of any kind, a person always has an heir: the State. Escheat is the legal event in which a decedent’s assets pass to the State at death. It occurs when a decedent dies without any other heirs.
Trust: A trust is a relationship whereby a trustee holds legal title to specific property with a duty to manage, protect, administer and invest that property for the benefit of designated beneficiaries.
Settlor: The settlor is the person who creates the trust, and who is the original owner of the trust property.
Trustee: The trustee is the entity chosen by the settlor to take legal ownership of the trust assets and manage and despose of them as the settlor so chooses.
I hope that this post has been helpful!
~Rod
Hello all,
My name is Rod Streicher and I am excited to be an attorney at the Brown Legal Group in Appleton. First of all, a few things about myself. I am a native of the Fox Valley currently living in Menasha. I received my BA in Political Science from UW-Madison in 2008 and my J.D. from Cornell University in 2012.
A former prosecutor, I specialize in criminal matters . As a criminal defense attorney, I am passionate about fighting for good people that may have made unfortunate decisions. While the bulk of my experience is in criminal law, I also do work in estate planning (wills, trusts, etc.) and mental health law.
I see this blog as an excellent opportunity to interact with the community on a wide variety of legal and non-legal topics. My contributions will foreseeably center around matters of criminal and constitutional law issues, however, I may occasionally weigh in on matters dealing with estate planning and family law. Finally, as a dedicated fan of both the Badgers and Packers, I plan on dedicating weekly posts, hopefully the day after each game, to discussing and commenting each game. If you are interested in learning more about our practice or simply keeping updated on what’s going on with the firm, be sure to ‘like’ us on Facebook and follow us on Twitter.
~Rod
Brown Legal Group 