[WSBAPT] Wrongful death & estate

[Eric Nelsen]

Dalynne--I haven't encountered this situation from your end, but I have represented a PR where she was one of three statutory beneficiaries, and the other two were largely estranged from the decedent. With wrongful death damages being largely measured by strength and closeness of the relationship with the decedent, and the PR having fiduciary duties to unfriendly and suspicious siblings who aren't going to like the PR receiving the lion's share of the settlement, it's obviously a problem and one that I ended up thinking about quite a bit. Ultimately the PR settled the case for an undifferentiated lump sum and we then petitioned the court to approve a proposed allocation between the siblings. After notice and an opportunity to be heard the court approved the allocation, and that kept the PR out of trouble.

Obviously your problem is the opposite end--how to ensure that your 3 clients' interests are effectively advocated for by the PR, pre-settlement. The PR is in the driver's seat of the litigation so it's tough to get the court to diminish that control. I'd suggest petitioning for an order directing the PR to obtain court approval of any settlement or at least obtain all statutory beneficiaries' consent prior to entering any settlement. As a practical matter, that forces the PR to reach a reasonable settlement.

At some point the PR will be forced to explain her reasoning on why the case should be settled at a particular value. The value is either limited by litigation-risk and liability factors or is a slam-dunk liability and the main argument is on damages. If it's limited, settlement for a lump sum is reasonable and the dispute is on allocation between beneficiaries. If it's more a slam-dunk then the settlement has to be based more on determining each beneficiary's damages and summing that to find the settlement amount.

In the meantime, it can't hurt to send a letter to PR's litigation attorney, making clear that your clients are beneficiaries who must be considered, emphasizing what their damages are likely to be based on, and piously expressing confidence that the PR will be sure to keep their claims in mind when determining settlement.

My $0.02.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1320 University St
Seattle WA  98101-2837
phone 206-625-0092
fax 206-625-9040



From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Dalynne Singleton
Sent: Tuesday, December 30, 2014 2:20 PM
To: WSBA Probate Listserve
Subject: [WSBAPT] Wrongful death & estate

I would like to speak with someone who has represented heirs of an estate in a similar situation as follows:

Myself and co-counsel have been hired to represent 3 sons in a wrongful death of their father.  2 sons in CA, one severely disabled.  1 son in WA.
The father had 4 other children by wife #2 (some minors, some not biological children of deceased stepfather) and was married to her at time of death.  Wife #2 has been appointed administrative of estate and has filed litigation v. construction company for death of father.

Problem:  We have appeared in probate and filed request for special notice of proceedings.  Litigation v. construction company is proceeding BUT we don't know how wife #2 is presenting our client's cases in the wrongful death when she doesn't know these 3 children well enough to do so.

Here is what we have done:


1.       Filed a notice of appearance in the probate cause of action on behalf of 3 adult children.

2.       I have prepared a petition to appoint GAL for disabled adult son in CA and will note for hearing in probate court.

3.       Attempted contact with attorney for Estate and wife #2/other children but am getting cold shoulder.  Contacted D counsel in the construction company litigation to let them know there are 3 other sons...  Asked for meeting with Estate/Administrator's attorney but he is not making himself available.

How do I proceed to be included in the wrongful death litigation?
The Administrator on behalf of the Estate is the plaintiff but I don't trust she will make the valid claims on behalf of the 3 adult children we represent.

If someone has time to talk to me for a few minutes or can email me with suggested courses of action, I would appreciate it.
I don't want to wait until the Administrator settles short in the tort litigation to file a TEDRA action...

Dalynne Singleton

[cid:image001.jpg at 01CACA00.28153650]<http://www.singletonjorgensen.com/>

1541 Piperberry Way SE, Suite 105
Port Orchard, WA  98366
Phone: 360-329-4079
Fax:     360-443-1259
E-mail: dalynne at singletonjorgensen.com<mailto:lara at singletonjorgensen.com>
Web:    www.singletonjorgensen.com<http://www.singletonjorgensen.com/>

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