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About Lee Horner
Expertise
Our practice focuses on final event planning and impaired risk life insurance for those age 50 to 84; our companies can underwrite anyone so long as they're not in a medical facility. I do not answer questions about stock markets, mutual funds nor variable life contracts. I will advise you of your options and make recommendations as appropriate. Questions regarding USA residents only. Let me know as much as you can about your situation for best results. If in doubt, ask anyway. If I don't have the answer, chances are I can point you in the right direction and am happy to do so.

Experience
Estate Planning Attorney since 1985; practicing in California and Arizona, and independent life insurance agent specializing in the senior market and also tax free retirement planning.

Organizations
AHEPA and Freedom Equity Group

Publications
Stop Sitting on your Assets, paperback version (co-author).

Education/Credentials
BBA in Business Management from Univ of New Mexico; Juris Doctorate in Law, Lincoln Law School of Sacramento, CA; admitted to practice before the Ninth Circuit court of appeals, and all courts in Arizona and California.

Awards and Honors
Graduated in the top 5 of my law school class.

You are here: Experts > Money > Personal Insurance > Life & Health Insurance > change in beneficiary form

Life & Health Insurance - change in beneficiary form

Expert: Lee Horner - 11/1/2009

Question
QUESTION: I have a court case in process. I was divorced from my husband of 20 years less than a year, when he died of alcoholism. A few weeks later our insurance agent called to tell me that my x-husband was drunk when he signed a change in beneficiary form. He was brought into the office by my x-sister in-law, she filled out the form and told him to sign it. The agent was not present but the secretary was and she told the agent who then called me.
My lawyer then call the secretary to get the story directly from her. We are claiming that the change in beneficiary form is null and void. We had a deposition of the secretary under oath she was backing off of her story saying he "possibly" was drunk. The handwriting on the actual form is my ex-siter-inlaw's and my x-husband's signature does look very impaired.

Our trial is set for January and the sister wants a jury trial, the insurance company file an interpleader. What do you think my chances are in winning this? I can not find any other cases like this in my internet searches. Should I consider getting a handwriting expert? I have little resources and I am a single mom with three children.

Thank you for your consideration.

ANSWER: The issue here is going to be whether your x was in his right mind or delusional when he signed the thing and that's the main focus. Does your sister in law deny writing the thing up and being present when he signed it? It's a tough case without the secretary or other witness saying he was dead drunk & barely able to write.

Depending on the state you live in, you may have an automatic right to 50% of the death benefits regardless of what the policy says (this would be a community property state & not all are); did your divorce case mention the policy?

What you need is a questioned document expert if you are up against a denial that your sister in law wrote the thing out. You should have some exemplars of your x's handwriting for comparison and perhaps hers as well for best results.

There is a national association of questioned document experts that lists people all over the country; let me know where you are and perhaps I can recommend someone.

The beef as you no doubt recognize is now between you and the sister in law; the ins co has dumped the $ into court and is out of the loop now, which is what they always do in cases like this.

Good luck.

Lee Horner
Tucson

steinway@rocketmail.com

---------- FOLLOW-UP ----------

QUESTION: Thank you for your reply, this is very helpful.
The sister in law does not deny filling out the form, she is claiming power of attorney. The secretary did say in the deposition that she did see her fill out the form.

The divorce decree says that the equity in the policy should be split 50/50. I do live in a community property state.
My name is listed on the original beneficiary form.
Does this change things?

Can a handwriting expert tell by the signature if the person was impaired?

Thanks!

ANSWER: You may be closer to a win. The divorce decree would trump a 100% sign-over of the beneficial interest; it sounds like he COULD dispose of his 50% but the next question is did he do so effectively?

Just because someone has a power of attorney doesn't allow them to go around writing up documents for the principal to sign so I don't see how that gets her anywhere. That would kick in if she signed as his atty-in-fact which it sounds like she didn't do.

In Calif for example a POA cannot be used to create or change survivorship interests in the principal's property (i.e. life ins should fall into that category I would think) UNLESS THAT AUTHORITY is specifically set forth in the POA itself. Also holders of POA's can not use the POA to acquire ownership of their principal's assets which is what it sounds like she did.

They also have a statutory fiduciary obligation in most states to act solely in the principal's interests and if they fail to do so, the transaction may be void or voidable.

Since the ins policy was already dealt with in the divorce, get a certified copy of your divorce court decree so stating; that is binding on the new court. Then your atty can explore the issue of self dealing by this woman as to the other 1/2 interest.

Good luck!

Lee

---------- FOLLOW-UP ----------

QUESTION: Thank you Lee,

I ran these ideas by my lawyer. He advised me that anyone can technically fill out a beneficiary form. He wants to focus on convincing the court that my x-husband was drunk when he signed. This all hinges on the testimony of the insurance agent and his secretary. If these witnesses decide to back down from there original statements I may be on the losing end.

Do you think I should consider filing additional complaints with the court if I lose to get the 50% per the divorce order?

Can you recommend a hand writing expert to look at the signature?
Can the expert tell if the signer was impaired?

Thank you so much for your advise!

Answer
Hi Sharon. Look at asqde.org which is one of the two respected associations of questioned document experts. The chap I recommend for Sacramento area cases is in Fair Oaks and also belongs to the other assn.

The best way to not get surprised at trial is to depose the witnesses and I would suggest you do that with these fence sitters; they're not as intimidated in an atty or court reporter's conference room which is a more informal setting than court and if they testify one way in depo and another at trial, you can use that against them in front of the judge.

So the issues are as to the 50% that belonged to your husband per the court order (and I would get a certified copy of your divorce decree that says that and ask the court to take judicial notice of the document and its contents);

the issue is was your x impaired or not when he signed it? Being egged on by the proposed new beneficiary and being drunk (who got him drunk??) doesn't really help their side.

If he intended to have done that, why didn't he do it on his own and why did he need her to fill the thing out?

This is a public forum so whatever I'm telling you can be seen by anyone.

If you'd like to send me an email I can give you some more tips that won't show up in public.

My email is steinway@rocketmail.com

Feel free to drop me a note.

Regards,

Lee Horner
Tucson

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