Want to Make Changes to Your Will in South Carolina? Read This First
We’ve stressed before on this blog why it’s important to have a last will and testament and why you need to keep it up to date. Not doing so can mean that your wishes aren’t carried out, which can lead to drawn out litigation and cause strife between family members and heirs.
It’s also important to make any changes to your will in a way that is valid and legally recognized. Here’s the right way to amend your will – and what happens if you don’t.
How to Correctly Amend Your Will in South Carolina
When you make your last will and testament, South Carolina code states that it must be signed by you (or by someone else in your name, in your presence and at your direction) and two individuals who either witnessed you signing it or your acknowledgement of signing it.
If you want to revoke your will entirely, you can do that either by getting a new one that contradicts the old one or by physically destroying the old one with the intent of revoking it.
However, if you want to make changes to just a section or two, you have to amend it. This requires a codicil, which is a legal document that amends specific parts of the will but leaves the rest as is. A codicil has the same requirements as the will in order for it to be valid: your signature and the signature of two witnesses.
Handwritten Changes Don’t Count
You may wonder whether you can simply strike out a clause in your will and/or make handwritten notes in order to change it. For example, let’s say you want to give your niece $20,000 instead of $10,000, or you want to cut out your nephew entirely.
The answer is no.
A recent case, filed by the South Carolina Court of Appeals in April 2019, centered around this issue. William D. Paradeses died in January 2016, leaving a will dated October 2008. The will was submitted to the probate court and was found to contain handwritten changes. Item IV(2), which would have given Faye Greeson (Eleanor Glisson) $50,000, was struck out, with the handwritten note “Omit #2 W.D. Paradeses” next to it. This led to a disagreement between family members over whether or not the handwritten changes – which were not witnessed – were valid.
The probate court said no, and the Court of Appeals agreed. It stated that this was an attempt at a codicil but didn’t meet the standards of a properly executed codicil, and therefore was invalid. The $50,000 bequest stands.
The lesson here is simple: if you want to make changes to your will, do it by correctly executing a codicil with witnesses, ideally after consulting with an estate planning attorney.
Written Memoranda: An Exception
There is an exception worth noting here. In South Carolina, you can include language in your will that allows for written memoranda. This is a document that’s in addition to the will that doesn’t require the signature of witnesses to be valid. However, it must either be written in the testator’s handwriting or signed by the testator.
The key point is that written memoranda only allows for the dispersal of tangible personal property. For example, you may use it to leave a beloved rocking chair to your grandchild, or a cuckoo clock to your sister. You may not use written memoranda to dispose of assets like stocks, bonds, or real property (real estate).
Experienced Advice for Your Estate Plan
Whether you want to make (valid) changes to your will, update it, or you don’t yet have will at all, you can get the help you need from estate planning attorney Gem McDowell and his associates at the Gem McDowell Law Group in Mount Pleasant, SC. Call today at 843-284-1021 to schedule your free consultation.
Why You Need to Keep Separate Businesses Separate
In the business world, it’s not uncommon for people to own stakes in multiple enterprises and take on various roles in different companies. This doesn’t often cause problems, but it can. When the lines between companies, roles, and interests are blurred, it can lead to a determination of amalgamation, which can be used to pierce the corporate veil and end an individual’s liability protection.
Amalgamation as a Way to Pierce the Corporate Veil (PCV)
The “corporate veil” is a metaphorical term for the liability protection covering owners and managers of certain business entities like corporations and limited liability companies. Piercing the corporate veil, then, refers to when the court removes that liability protection, making managers and owners liable for the company’s debts and more. (Learn more about piercing the corporate veil here on this blog.)
One way South Carolina courts can PCV is through demonstrating amalgamation. A 1986 South Carolina Court of Appeals case, Kincaid v. Land Dev. Corp., first addressed the “amalgamation of interests” theory, but it was only last year, 2018, that the South Carolina Supreme Court recognized amalgamation as a way to PCV, in the case Pertuis v. Front Roe Restaurants, Inc. (Read more about Pertuis here on this blog.)
Amalgamation is also called the “single business enterprise theory” because it has to do with multiple businesses acting as one. Essentially, when multiple businesses operate as if a single business, they may be treated by the court as a single business, rather than distinct businesses.
What Amalgamation Is and What It Requires
In Pertuis, the South Carolina Supreme Court stated “where multiple corporations have unified their business operations and resources to achieve a common business purpose and where adherence to the fiction of separate corporate identities would defeat justice, courts have refused to recognize the corporations’ separateness […]”
So there are two parts to determining amalgamation:
- Multiple corporations must have unified their operations and resources to achieve a common purpose, and
- Justice would be defeated if the corporations continued to be treated as if separate
To this second point, the Supreme Court said that intertwined operations aren’t enough to show amalgamation, requiring “further evidence of bad faith, abuse, wrongdoing, or injustice resulting from the blurring of the entities’ legal distinctions.”
The Supreme Court, importantly, also stated “we acknowledge that corporations are often formed for the purpose of shielding shareholders from individual liability; there is nothing remotely nefarious in doing that.”
Case in Point
A recent Court of Appeals case also looked at this issue of amalgamation, in Stoneledge at Lake Keowee v. IMK Development. (You can find the full PDF of the Court’s opinion here.)
Briefly, the HOA of a development in Oconee County sued Marick, Integrys Keowee, IMK, and other parties over defects causing leaks in the development’s townhomes. Marick, a construction company, and Richard Thoennes, one of its principals, appealed.
Among many other issues, Marick and Thoennes appealed the trial court’s finding that Marick, Integrys Keowee, and IMK were amalgamated, arguing they were distinct and separate entities.
The Court of Appeals affirmed the trial court’s decision. Here is just some of the testimony the Court cites as evidence of amalgamation between the three:
- They were “corporately affiliated” under the umbrella of IMK
- They passed corporate funds directly between one another
- They allowed individual members to operate as dual agents without distinction as to which business they represented at any given time
- IMK was created to hold title to Stoneledge project, Marick was to do construction, and Integrys Keowee was to provide the investment, and then split the profits
- Thoennes knew about the defects that (in the Court’s words) “plagued the project,” but was still involved with IMK and Marick’s marketing and sales, demonstrating “their operations were clearly in pursuit of a common business purpose, albeit to the detriment of the HOA members.”
The Court found “evidence of a unified operation” between the parties “as well as evidence of self-dealing,” satisfying both parts required to show amalgamation.
How You Can Avoid PCV Through Amalgamation
Refer to the post on this blog about PCV for what you can do to help maintain the liability protection your company offers you.
If you have other questions about liability protection, amalgamation, PCV, or business law, contact the Gem McDowell Law Group in Mt. Pleasant, SC. Gem and his associatess can help you navigate business law, which can be complex. Call today to schedule an initial consultation at 843-284-1021.
What Is A No-Contest Clause and Why Have One in Your Will?
A no-contest clause, also known as an in terrorem clause, is a clause in a will or revocable trust that is intended to prevent parties from contesting the will or trust by penalizing them for doing so. For example, a no-contest clause in a will may state that any party that contests the will is barred from inheriting anything under the will. A no-contest clause is a deterrent to nuisance lawsuits and cash grabs by parties who may want to get more from the estate than the will or trust allows.
A no-contest clause can:
- Discourage years of expensive and time-consuming litigation over an estate
- Prevent bickering and strain between family members and heirs of the estate
- Keep the testator’s private details private (since private details may become public in litigation)
This is not a standard clause in most estate planning documents. It’s typically only included if the testator expects there may be some disagreement over the estate plan after their death. You may want to include one in your will or revocable trust if, for example, you have given some children a larger portion of your estate than your other children, or have disinherited a child altogether, and therefore might expect a challenge to your estate plan.
When a No-Contest Clause is Unenforceable
In general, these clauses are valid and enforceable.
But many jurisdictions have recognized certain circumstances where no-contest clauses are not valid and enforceable: If the party challenging the will or trust has probable cause. If they believe forgery is involved, or they believe the document is the result of undue influence or duress, then the no-contest clause can be held invalid and unenforceable.
A South Carolina Supreme Court case filed in 2006, Russell v Wachovia, looked at this very issue. The opinion cited a North Carolina case in which 6 of 10 children contested their deceased father’s will, citing undue influence and duress. In this case, the deceased was 90 years old when he died, had been in declining health for years, was “worn out and feeble,” and at times failed to recognize his own children. The children challenging the will also noted that two other daughters who stood to inherit a substantial amount were always present at their father’s home when they visited. The court ruled that in this case, the no-contest clause was not enforceable, as the children who contested the will had probable cause to do so. The evidence demonstrated that it was reasonable to believe their father’s estate plan may have been the product of undue influence or duress.
That was very different from the case at hand in Russell v Wachovia, in which two children filed actions to set aside their father’s will and trusts. The South Carolina Supreme Court ultimately found that the no-contest clauses were enforceable. The only evidence to support probable cause here was “strife and discord” in the family, and the fact that the two children who contested the estate plan weren’t treated as well as they believed their father intended. The Supreme Court did not find this to be probable cause to contest the estate in the first place, thus the no-contest clauses were upheld. The two children who contested the will were therefore not allowed to inherit anything under the will and trust they contested.
Creating a Strong No-Contest Clause
If you do want to add a no-contest clause to your will or revocable trust, there are a few things you can do that may strengthen its validity if your estate plan is ever contested. In Russell v Wachovia, the Supreme Court noted that the testator:
- Was in good physical and mental health when he created his estate plan, still working and taking care of himself
- Told one of his sons and his attorney that he anticipated a potential challenge to his will and trust after his death
- Asked a former law clerk of his (he was a judge) to represent his grandchildren, whom he made beneficiaries, in case of a challenge
- Visited a psychiatrist to create a record of his testamentary capacity, i.e., to certify that he was legally and mentally able to make a valid estate plan
- “And most importantly,” according to the Court, he amended his will and revocable trust to include language that explicitly barred any party contesting the documents from benefiting under them
Taken altogether, these points only helped strengthen the validity of the no-contest clauses, as they demonstrated that his estate plan was not made under duress or undue influence. The Court concluded that “If a no-contest clause cannot be upheld under these facts, such a clause would not ever be enforceable.”
Get Help Creating a Strong and Enforceable Estate Plan
Estate planning can be complex, especially if you have a substantial estate, a large or blended family, or own a business. Having a solid estate plan is the best way to ensure your wishes will be carried out and can help keep peace in the family. For help with your estate planning documents, contact the Gem McDowell Law Group in Mt. Pleasant. Gem McDowell and his associatess are problem solvers who can develop the estate plan you need to protect your assets and your family. Call 843-284-1021 today to schedule your free consultation.
How to Word an Enforceable Provision: Invention Assignment Agreements and Confidentiality Agreements
Some of the most valuable assets a company can own are its trade secrets, patents, and inventions. Losing control of these assets can be very costly, so protection is a must.
To protect their intellectual property, companies often include clauses and provisions regarding trade secrets and inventions. Confidentiality agreements and nondisclosure agreements stop employees from sharing trade secrets and sensitive information. Assignment of Inventions clauses ensure that relevant inventions made by employees during their time at the company are assigned to the company. Trailer Clauses do the same thing but cover a period after the employee leaves the company’s employment.
For businesses in South Carolina with sensitive information, trade secrets, and other intellectual property to protect, it’s important to understand that having such clauses and agreements with your employees isn’t enough. They must be worded precisely in order to be enforceable by a South Carolina court.
A case in point, decided by the South Carolina Supreme Court in 2012, gives a real-life example of what happens when these types of agreements come under the scrutiny of the state’s highest court.
Background to the Milliken & Company v. Morin case
Brian Morin is a research physicist who started working for Milliken, an industrial chemical and textile producer, in April 1995. While employed, he began working on a new multifilament fiber, but Milliken did not agree to support its research and development. Morin resigned from Milliken in May 2004 and filed for a patent for the new fiber which he assigned to Innegrity, a company he founded the same week he quit Milliken.
Milliken found out about what Morin was doing and demanded he stop working with the fiber and furthermore said that under an employment agreement Morin had signed, the invention rightfully belonged to Milliken.
Eventually, Milliken and Morin’s case ended up in the South Carolina Supreme Court. The issue of interest to us here is Morin’s argument that the agreement he signed was overbroad and therefore unenforceable. He argued that the inventions assignment provision and confidentiality clause in his agreement should be scrutinized and enforced to the same standard of covenants not to compete.
The Supreme Court disagreed.
Why are Covenants Not to Compete Disfavored in South Carolina?
As we’ve discussed in previous blogs (here, here and here), South Carolina courts tend to side with the employee rather than the employer when it comes to covenants not to compete. The South Carolina Supreme Court has stated that “restrictive covenants not to compete are generally disfavored and will be strictly construed against the employer” and that they must also be reasonably limited in time and geographical scope. (See Rental Uniform Service of Florence, Inc. v. Dudley, 1983)
This is a high standard to hold all provisions to. However, it’s important to understand why these agreements are often found unenforceable by South Carolina courts. It’s because when they are overly broad and badly worded, they violate public policy by hampering an individual’s ability to make a living in their profession.
The same is not true about the provisions at hand, which do not hamper Morin’s ability to make a living within his profession. The Supreme Court found the inventions assignment agreement and the confidentiality agreement to be clear, reasonable, and enforceable. That’s why it upheld the Court of Appeals’ decision and decided against Morin.
What Employers Need to Know About Drafting These Provisions
While this South Carolina Supreme Court decision is good news for employers in this state, it’s important to understand that the Court upheld the enforceability of reasonable provisions. A reasonable provision is one that protects legitimate business interests yet does not violate public policy by hampering an individual from making a living in their profession.
In this particular case, the exact wording of the relevant parts of the employment agreement signed by Morin was important to the Court. Let’s look at the specific language used and upheld by the Court to understand what businesses can do when wording their own provisions in the future.
- Clear Definitions
For both the confidentiality clause and the invention assignment agreement, the Court’s opinion stressed that the definitions were extremely clear. Here they are, as presented in the opinion.
Milliken’s definition of confidential information contains five elements, all of which must be met for information to be considered confidential. The Court wrote “It does not take much elaboration to see that rather than covering general skills and knowledge, it encompasses only important information […]” As defined by Milliken in the agreement, confidential information is:
- Competitively sensitive information
- Of importance to and
- Kept in confidence by Milliken,
- Which becomes known to the employee through his employment with Milliken, and
- Which is not a trade secret.
Regarding the invention assignment agreement, the Court notes that at first Milliken defines inventions broadly, then provides the following broad exception to that definition:
“for which no equipment, supplies, facility or proprietary information of Milliken was used and
Which was developed entirely on your own time, and
- Which does not relate
- Directly to the business of Milliken or
- To Milliken’s actual or demonstrably anticipated research or development, or
- Which does not result from any work performed by you for Milliken.”
Both of these provisions had clear definitions that protected Milliken’s interests without limiting Morin’s ability to find employment.
- Reasonable Time Limitations
The Court stated that the confidentiality agreement was “reasonably limited” to “only” three years and it called the one-year restriction attached to this provision “eminently reasonable.”
Businesses should be conservative, not greedy, when attaching time limitations to any and all provisions.
- Reasonable Geography Limitations
Although not discussed in this decision, geographical limitations on such provisions are also important. The Court of Appeals decision in this case cited a previous South Carolina Supreme Court decision which found “geographic restriction is generally reasonable if the area covered by the restraint is limited to the territory in which the employee was able, during the term of his employment, to establish contact with his employer’s customers.”
For companies that do business with customers across the country and across the globe, this means that a provision unlimited in territory may not be considered unreasonable if the company actually does do business all over. For companies that do business solely in South Carolina, it would be unreasonable to have a provision unlimited in territory.
Employers should err on the side of being conservative when it comes to limitations in geography.
Get Help with Business Contracts, Employment Agreements, and More
As you can see, the wording in an employment agreement or provision can make the difference between being enforceable and unenforceable here in South Carolina’s courts. If you have business interests to protect, you should be working with an experienced attorney.
Gem McDowell is a business attorney with over 25 years of experience solving legal problems and helping businesses protect their interests. For advice and help with your business legal matter, contact Gem McDowell Law Group in Mt. Pleasant, SC today at 843-284-1021.
Protect Your Business Interests with Anti-Raid and Anti-Disparagement Provisions
We’ve talked before about how South Carolina courts tend to favor employees over employers in regards to covenants not to compete. This means that employers must be very careful in wording covenants not to compete to ensure they’re not overly broad or too restrictive.
But this bias against employers doesn’t extend to all covenants employers use. South Carolina courts are more likely to enforce covenants that don’t have clauses and provisions limiting an employee or former employee from earning a living in their profession.
Two other provisions that can help protect an employer’s business interests and should be considered when drafting a covenant not to compete are anti-raid provisions and non-disparagement provisions. As with covenants not to compete, the purpose of these provisions is to protect the employer’s interests after an employee leaves the company. Let’s look at them in turn.
Anti-Raid Provisions
The anti-raid provision typically states that for a period of time after the employee is no longer with the company (and possibly during employment as well), they may not approach or attempt to solicit anyone working for the company to leave in order to compete with the company. This is intended to prevent an employee from leaving the company and taking along other employees, which is clearly detrimental to the company’s interests.
Like covenants not to compete, these provisions must be reasonable. In practice, that means limiting the provision to a restricted period of time, often a year after leaving employment. South Carolina courts are likely to interpret these more favorably for the employer rather than the employee, as they don’t harm the employee’s ability to make a living in their profession after leaving their employer.
Non-Disparagement Clauses
This clause prohibits an employee from disparaging, or making negative comments, about the company, its officers, and its employees, whether orally or in writing. This provision can be found in both employment agreements (often as a clause within the covenant not to compete) and in severance or settlement agreements at the end of the employee’s tenure. The purpose is to protect the company’s reputation. Again, South Carolina courts may be favorable towards these clauses because they don’t have anything to do with restricting the employee’s right to work. Employers should consider using this clause as a matter of course upon either hiring or dismissing employees.
Still, employers need to use caution with this clause. The agreement must be clear to both parties, as a lack of clarity can lead to unintended consequences. Great care is warranted with these clauses, in part because they are greatly disfavored by state and federal agencies.
Work with an Experienced Business Attorney in Mt. Pleasant, SC
As always, remember that issues like this depend very much on the state where business is being done and arbitrated.
If you need legal advice on business contracts, employment or severance agreements, business real estate transactions, corporate taxes, or other business matters in South Carolina, contact Gem McDowell Law Group in Mt. Pleasant, SC. Gem and his associatess help businesses of all sizes protect their interests so they can continue to grow. Call today to schedule an initial consultation at 843-284-1021.
6 Common LLC Creation Mistakes
Starting a new business is exciting but also a little intimidating. There’s a lot you probably don’t know, and mistakes can end up costing you.
If you’ve decided to start a limited liability company (LLC), then you’ve already avoided the biggest mistake, which is not having a business entity at all. But you’ll also want to avoid these 6 other common mistakes people make when starting an LLC.
Mistake 1: Choosing to Become an LLC When It’s Not the Right Entity for Your Business
The first mistake people make when creating an LLC is choosing an LLC to begin with. The limited liability company is a great business structure for many business ventures, but it’s not suitable for all.
The main consideration is money. Do you plan on growing with capital from outside investors? If so, a corporation is likely a better choice for you. Investors are typically more comfortable investing in corporations than in LLCs. Corporations are also the only entities that can issue stock, so if you dream of a big IPO in the future, then the corporation is the entity for you.
Mistake 2: Incorporating Your Business in the Wrong State
Once you’ve determined that the LLC is the right entity for your business, your next step is to decide on where to incorporate it, i.e., where to register it.
Most of the time, incorporating in the state where you live and do business is the best solution. Some entrepreneurs want to incorporate in other states like Delaware, Wyoming, or Nevada for the supposed tax and legal benefits. This can make sense for larger companies, but it rarely makes sense for smaller LLCs.
Incorporating your business in a state your business isn’t based in means taking on hassles like maintaining a registered agent in both the state you live in and incorporate in, filing paperwork in both states, and paying fees to both states. After considering the time and money involved, it’s typically not a savvy move for most LLCs. It’s usually smarter to incorporate in your home state.
Mistake 3: Choosing the Wrong Type of LLC
There are actually four types of LLCs you can create in South Carolina, as we’ve covered before in a previous blog. Check out that blog for more information, but in short, know that an LLC can be either “term” or “at will” and “member managed” or “manager managed.” If you select the wrong type when setting up your LLC, it can be bad for the LLC and the members down the line.
Mistake 4: Choosing a Bad Name
What makes a “bad” name? One that’s already being used.
Before choosing a business name, do some research. You can search for existing business names in South Carolina here under “Existing Business,” which is a good start. (South Carolina does not allow a new business to register a name that’s not “grammatically distinguishable” from existing names.) You might also want to search the trademark database at the US Patent and Trademark Office here to see if the name you have in mind is being used somewhere else. Finally, a thorough Google search for your proposed name can turn up other uses of the name.
Your name matters because if you inadvertently violate someone else’s trademark, you can get in trouble. Disputes over names can end up being costly and time-consuming if someone sues you over the name and you want to defend your right to use it. But even if you decide to let go of the name, it will cost you time and money to rebrand your digital and physical presence. Worse, you will have lost the brand recognition and goodwill you’ve built up over the years in your community. So choose wisely.
Mistake 5: Not Having Corporate Governance Documents
This is probably the single biggest mistake you can make when you plan to start an LLC with business partners. Many people go into business with friends or family members, and at the start everything is copacetic. Everyone gets along and there are no major disagreements. But many an experienced business attorney will tell you that times change, and that’s when things can get ugly.
Imagine that you’re in a business with two friends and everything is going well at first. Then one friend unexpectedly dies, and you find you’re now in business with their spouse. Or the other friend starts slacking off, working fewer hours but taking the same profits as the hard-working partners. Or you become incapacitated and can no longer work. Or the three of you disagree on how to raise money for the company. What happens to you, your investment, and the business in these situations?
Corporate governance documents are intended to lay out the rules so that when a disagreement or unpleasant situation arises, what happens next is clear. These simple documents can preserve good relations between partners, protect the partners’ investments, and protect the business itself.
Two important documents that any business owner with partners should consider getting during the creation of their business:
An operating agreement. This spells out how the company should be managed, how profits and losses are handled, how much of the company each member owns, what each member’s responsibilities are, and more.
A buy-sell agreement. This document covers what happens to the business when a member dies, becomes incapacitated, stops working, etc. Read more about buy-sell agreements here.
By addressing future scenarios now, you can avoid major problems down the line. Just know that it’s vital to discuss these things before you and your partners start operating your business.
Mistake 6: Not Getting Legal Assistance When You Need It
It’s very easy to go online and get the forms to start an LLC yourself, without the help of an attorney. Is that smart?
In some cases, doing so is fine and poses no future problems, particularly with single-member LLCs that operate within one state and are wholly self-funded. These business owners would likely benefit from speaking with a business attorney, but they may feel pretty confident that they can create their LLC on their own.
But other entrepreneurs should consider speaking with an attorney before and during the creation process of their LLC. This is especially true in any of the following situations:
- You have business partners
- You plan to take on money from outside investors
- You plan to do business in multiple states
The cost is usually the main reason that people don’t want to spend the money on an attorney at this stage, and that’s understandable. Business owners want to make money before they spend it. But the money you spend up front on corporate governance documents or advice from an experienced attorney can save you money and mistakes down the road. (Plus, don’t forget this expense is a business write-off when it comes to tax time.)
Questions About Your LLC? Speak with Business Attorney Gem McDowell
Gem McDowell is a business attorney with over 25 years of experience helping people start and run their businesses. He’s a problem solver who can help you start out right and avoid the many mistakes he’s seen in the past. Contact Gem at his Mt. Pleasant office today to schedule a free consultation by calling (843) 284-1021 or filling out this contact form.
Arguing for Bigamy: When the Court Must Decide Between Competing Public Policy Issues
Should a bigamous marriage be recognized in South Carolina if doing so upholds an important legal doctrine? That was the main issue at the center of a case recently decided by the South Carolina Court of Appeals. (You can read the decision in full here: PDF.)
The Background of the Case
Blondell and Charles Gary were married (exactly when is unclear) and had two children together, one of whom is Angel Gary. They later divorced. Then, in 1982, Charles married Doretha Chisholm. They later divorced as well.
Charles then remarried Blondell in 1999 – two years before his divorce from Doretha was finalized in 2001. Charles and Blondell lived together as man and wife from 1999 until Blondell’s death in 2012 in a traffic accident. She and Charles were passengers in an ambulance operated by Lowcountry Medical Transport when the driver lost control and collided with a tree, killing Blondell.
After Blondell’s death, Angel Gary was appointed personal representative to her mother’s estate. In 2012 she filed suit against Lowcountry Medical Transport for actual and punitive damages for the accident that led to her mother’s death. They settled for $2.25 million in 2015.
Later that year, Angel filed a petition to determine heirship to her mother’s estate. She contended that Charles was already married to another woman when he attempted to marry Blondell, and that the marriage between Charles and Blondell was void. Charles argued that he was a rightful heir, but the Circuit Court disagreed, and ruled that his marriage to Blondell was void and he was not heir to Blondell’s estate.
The decision was appealed, which brings us to the case in hand.
Issues of the Case
There are two issues here at odds with each other.
- Parties being judicially bound by their pleadings.
What does this mean? It means that parties that have stated something on the record in a court proceeding are bound to those statements unless they are “withdrawn, altered or stricken by amendment or otherwise.” Essentially, a party cannot take a position contradictory to its pleadings in previous cases.
This was a key defense for Charles. He argued that based on the above doctrine, the Estate must be bound by their previous assertion in the Lowcountry Medical Transport suit that he was the “surviving spouse and beneficiary” of Blondell’s estate.
The Court of Appeals has previously stated that “parties are judicially bound by their pleadings” as a matter of course.
- Bigamous Marriage.
South Carolina, like all other states, outlaws bigamy. It also prevents a common law marriage from forming if there was an impediment at the time of marriage, such as one of the intended spouses being married to someone else. Even if the impediment is removed, the union does not automatically become a common law marriage. (Note that Charles did not attempt to argue that he and Blondell had a common law marriage.)
A similar issue occurred in the 1992 Johns v Johns case in which a woman sued her purported common law husband for divorce, child custody, and financial support. The Court found there was no common law marriage and denied her requests because her purported husband was married to another woman for the entirety of their relationship.
A Matter of Public Policy
On this blog we’ve seen the term “public policy” before, when discussing indemnification clauses and covenants not to compete and NDAs. In the context of contract law, public policy may be a reason to find a contact unenforceable, because enforcing it would be detrimental to the public good.
The Court acknowledges that it comes down to weighing competing public policies in this case. In its decision, it writes, “On one side, we have a marriage which contravened public policy […] On the other, the doctrine of binding a party to its pleadings exists to protect the integrity of the court process.”
In this instance, the Court finds that public policy is better served by not recognizing bigamous marriage: “While ordinarily the Estate may be bound to its previous assertions, we find that policy should yield to the overriding policy against bigamous marriages.” In so doing, it affirmed the Circuit Court decision that Charles was not a rightful heir to Blondell’s estate.
The Law Can Be Complex – Call Gem McDowell
We like to cover recent South Carolina cases from the Court of Appeals and Supreme Court on this blog because it’s important to understand that what happens in these cases has a very real effect on how laws are interpreted in our state and on the work we do for our clients.
The fact is, the law is complex and can change. If you’re facing legal issues having to do with estate planning, business, commercial real estate, or tax law, contact Gem and his associatess at Gem McDowell Law Group in Mt. Pleasant, SC. Gem and his associatess help individuals and families plan their estates with foresight and intelligence to avoid problems in the future. Call today to schedule an initial consultation at 843-284-1021.
Would Your Contract Hold Up in Court? Indemnification Clauses and Public Policy.
If you’re in business, you know that contracts are a must to protect yourself. But don’t make the mistake of assuming that simply having a contract is enough. If it’s worded incorrectly, it can cost you.
In previous blogs we’ve discussed what can happen when covenants not to compete and nondisclosure agreements overreach or violate public policy – they become unenforceable.
The same is true with other common clauses in business contracts. Today we’re looking at the indemnification clause, which was the subject in a recent case before the South Carolina Court of Appeals. The Court determined that the clause in question was worded in such a way as to violate state public policy and was therefore unenforceable.
Let’s look at what indemnification is first, then the case, and finally, what you as a business owner can do so you don’t find yourself in the same situation.
What is Indemnification?
In an indemnification clause, the indemnifying party (the indemnifier) agrees to – in standard contract language – “indemnify, hold harmless, and defend” the indemnified party (the indemnitee) against lawsuits and losses resulting from the actions or negligence of the indemnifying party.
In practice, indemnification serves to shift the costs of defending lawsuits and paying resulting damages, if any, from one party (the indemnitee) to the other (the indemnifier). It may also shift the actual defense litigation as well.
For example, say a construction company hires a subcontractor to do some work on a house. The subcontractor indemnifies the construction company against damages arising from lawsuits due to its (the subcontractor’s) work. Let’s say the subcontractor does a shoddy job and the homeowner later sues the construction company for damages. Because it was indemnified, the construction company can expect the subcontractor to cover the fees it spends defending itself and the damages it pays to settle the claim.
A Real-Life Example
This was the general situation in the case at hand, D.R. Horton v. Builders FirstSource v. Jamie Arreguin.
The builder D.R. Horton, Inc. (Horton) entered into a contract with Builders FirstSource (BFS) for BFS to do some construction work on a home. Several years after the work was completed, Horton was sued by Patricia Clark for damages related to multiple alleged construction defects in the home. Horton was ordered to pay Clark $150,000 in general damages after arbitration.
Horton then sought to recover those damages and legal fees from BFS under their contract’s indemnification clause. The case went to a circuit court, which sided with BFS. It then went to the South Carolina Court of Appeals, which affirmed the lower court’s decision.
(For more details about this case, read the PDF of the court’s opinion here.)
What happened? BFS and Horton had an indemnification clause in their contract; why was Horton not able to recover under it?
The Indemnification Clause Violated Public Policy
The main reason the Court decided in BFS’s favor was that the contract’s indemnification clause was written in such a way as to violate South Carolina public policy.
The Court of Appeals found that it was allowable under state statute for Horton and BFS to agree that BFS would indemnify Horton for damages caused by BFS. However, the Court also found that it was not allowable for Horton to have BFS indemnify Horton for damages caused by Horton, which is how the clause was worded. That violated Section 32-2-10 of the South Carolina code and went against public policy, making it illegal and therefore unenforceable.
Here is the relevant section of the Code, abridged for clarity:
“Notwithstanding any other provision of law, a promise or agreement in connection with the […] construction […] of a building […] purporting to indemnify the promisee […] against liability for damages […] proximately caused by or resulting from the sole negligence of the promisee […] is against public policy and unenforceable.”
In addition, the circuit court and Court of Appeals found that Horton failed to provide BFS written notice of the Clark matter, as per their contract, which acted as a waiver of Horton’s right to indemnification. Also, Horton and Clark requested that the arbitration award be general, which means there was no way to know what part, if any, of the $150,000 award was related to construction work completed by BFS.
What This Means for You
Time and again, businesses get in trouble when they try to get more than they fairly and lawfully deserve. Here, Horton wanted BFS to pay damages for what may have been Horton’s own negligence, which is not reasonably fair, and is also not legal. In the end, Horton got nothing.
As a business owner, here’s what you can do to avoid a similar situation:
- Be very intentional about the wording in the contracts you create. While you want to protect your company’s interests, if you go overboard, you could end up with a clause or contract that’s unenforceable.
- Be just as careful about the contracts you sign. Do you understand what every clause means, and is it fair?
- Work closely with an attorney who understands contract law. Have your attorney draft new contracts or review existing contracts and discuss them with you to ensure they’re worded correctly and align with your business interests.
Get Help with Your Contracts From the Business Attorneys at Gem McDowell Law Group
Gem McDowell is a problem solver and a business attorney with over 25 years of experience. He can help you with your legal needs including reviewing and drafting contracts. Call them at Gem McDowell Law Group in Mt. Pleasant, South Carolina to discuss your business matter at (843) 284-1021 today.
Should Your Estate Go Through Probate? Why or Why Not?
Last time we cleared up confusion around probate in South Carolina and looked at what probate is and isn’t.
If there’s one thing people do know about probate, it’s that they want to avoid it when the time comes. But is that really the best advice for everyone? Let’s look at the common reasons why people work to avoid probate, and why it may not be worth the effort to avoid probate after all.
Avoiding The Cost Of Probate
By avoiding probate, you avoid the associated costs. In South Carolina, the cost of probate as of 2017 is:
$1,845 for the first $1,000,000
$2,500 for every $1,000,000 thereafter
For an estate worth $2 million, for example, the total cost of probate would be $4,345, while an estate worth $10 million would have a fee of $24,345. Many people choose to avoid probate to skip paying these fees.
What to consider: Keep in mind that it can be costly to set up an estate plan that keeps assets out of probate in the first place. For smaller estates, it may not be worth it.
Maintaining Privacy
When a will is filed with the probate court, it becomes a public document. In contrast, the details of an estate handled through a trust do not become public.
What to consider: Most people do not need to worry about this. Public figures facing curiosity and business owners wanting to keep company financial info private may have a valid reason for concern, but for most people this is a non-issue.
Making Disbursements To The Heirs More Quickly
Making sure heirs get their inheritances more quickly is another reason people choose to avoid probate. Theoretically, the trustee of a living trust can begin disbursements to heirs immediately upon death. In practice, trustees will ensure that the estate’s debts and taxes are paid before disbursing money to heirs. Whether this actually means beneficiaries get their money more quickly depends on the situation.
What to consider: Estates passing outside probate are subject to creditors’ claims for three years compared to just eight months given to creditors through the probate process. This increases the chance that a creditor will make a claim after disbursements have been paid out from the trust, which can lead to lawsuits against the trustee and/or beneficiaries. The shortened time creditors have to make a claim is an advantage of going through probate.
Is Your Estate Set Up To Pass Through Probate or Avoid Probate?
Estate planning is complex. Laws change and family situations change, making old estate plans obsolete or imprudent. It’s difficult to know the long-reaching consequences of estate planning unless you speak with an experienced estate planning attorney like Gem McDowell of Gem McDowell Law Group. He don’t just provide wills and trusts, but the insight and advice from years of experience on the real-world consequences of estate plans. Call Gem today at their Mount Pleasant office at (843) 284-1021 or use this contact form to set up a consultation.
Clearing Up Confusion About Probate in South Carolina
Updated 11/27/2022
For some people, “probate” is a dirty word. Much of this attitude comes from not understanding the process, so let’s clear up the confusion.
What Probate Is and What Probate Isn’t
There are some myths out there about probate, so here’s what it’s not: Probate is not a way for the government to take the estate of someone who dies without a will. Probate is not a way to avoid any applicable estate taxes. Probate does not take many years (except in rare cases).
Probate is simply a process, overseen by the court, in which a person’s estate is settled. It’s a way for ownership of assets to be transferred from the decedent to other people and for final taxes and debts to be paid.
For an estate to go through probate, no estate planning is required. A person’s estate can pass through probate whether they died without a will or with one, as long as it has assets that are subject to the process.
For an estate to avoid probate, the deceased must own no assets subject to probate at the time of death. A common way to do this is to put all those assets in a living trust (an inter vivos trust), which stays in someone’s name and control during their lifetime and immediately passes to the named successor trustee upon death. The assets owned by the trust are not subject to probate.
What’s subject to probate and what’s not?
Assets subject to probate in SC include:
- Real estate held as a tenant in common
- Property owned solely in the deceased’s name
- Interest in a partnership, corporation, or LLC
Assets not subject to probate in SC include:
- Real estate held as a joint tenancy with right of surviorship
- Retirement accounts with named beneficiary
- Insurance accounts with named beneficiary
- Pension plan distributions
- Assets held in a trust
- Assets that are payable-on-death or transfer-on-death
Now that we know what probate is and isn’t, let’s look at the process.
The Probate Process in South Carolina
The probate process consists of a series of steps:
1. Deliver the will at death. Someone in possession of the deceased’s will must deliver it within 30 days to the judge of the probate court, or to the personal representative named in the will, who will then deliver it to the judge.
2. Personal representative is appointed. This person is typically named in the will and is officially appointed by the court.
3. Notice to intestate heirs is sent. Heirs can contest if they aren’t named or are treated differently.
4. Inventory and appraisement of the estate. This must be filed within 90 days of the opening of the estate. Professional appraisers may be needed to provide the values at the date of death for assets like homes, art, and jewelry.
5. Final accounting. This involves paying applicable taxes, outstanding debts, and ongoing expenses while settling the estate, such as legal and accounting fees. If there’s not enough money in the estate to pay all debts owed, creditors will be paid in order of priority according to South Carolina code (as described in Section 62-3-805).
6. Disbursements. If there’s money left over after debts and taxes are paid, distributions may finally be made to the heirs according to the will, or, if there is no will, according to the state.
7. Close the estate. The personal representative files a number of documents with the court after the above steps have been completed, and the estate is finally closed when the court issues a Certificate of Discharge.
Probate Fees in South Carolina
An estate going through probate is subject to probate fees as laid out in South Carolina Code Section 8-21-770. Fees are based on the gross value of the decedent’s probate estate and are set/calculated as follows:
| Gross Value of Probate Estate | Fees |
| Less than $5,000 | $25.00 |
| $5,000-$20,000 | $45.00 |
| $20,000.00-$60,000 | $67.50 |
| $60,000.00-$100,000.00 | $95.00 |
| $100,000.00-$600,000.00 | $95.00 plus 0.15% of the property valuation between $100,000 and $600,000 |
| $600,000 or higher | $95.00 plus 0.15% of the property valuation between $100,000 and $600,000 plus ¼ of 1% (0.25%) of property valuation above $600,000
= $845 plus ¼ of 1% (0.25%) of property valuation above $600,000 |
Here’s a table with sample probate fees calculated based on the value of the estate:
| Gross Value of Probate Estate | Fees |
| $150,000 | $170.00
$95.00+(0.0015*($150,000-$100,000)) = $95.00+$75.00 = $170.00 |
| $300,000 | $395.00
$95.00+(0.0015*($300,000-$100,000)) = $95.00+$300.00 = $395.00 |
| $500,000 | $695.00
$95.00+(0.0015*($500,000-$100,000)) = $95.00+$600.00 = $695.00 |
| $750,000 | $1,220.00
$845+(0.0025*($750,000-$600,000)) = $845+$375 = $1,220 |
| $1,000,000.00 | $1,845.00
$845+(0.0025*($1,000,000-$600,000)) = $845+$1,000 = $1,845 |
| $3,000,000 | $6,845.00
$845+(0.0025*($3,000,000-$600,000)) = $845+$6,000 = $6,845 |
| $10,000,000 | $24,345.00
$845+(0.0025*($10,000,000-$600,000)) = $845+$23,500 = $24,345 |
How Long Does Probate Take in South Carolina?
How long it takes an estate to go through the probate process depends on a number of things, including:
- Whether the deceased had a valid will or not
- How large and complex the estate is
- Whether the will is contested
- Whether lawsuits are filed
- How efficient the personal representative is
Under good conditions, a relatively simple estate can take approximately a year from open to close. More complex cases will take longer.
(Note that “small estates,” which contain no real property and total less than $25,000 in value, may qualify for a summary administrative procedure, a quicker and cheaper process than the regular probate process. A small estate can be settled in a matter of a few days or weeks.)
Is It a Good Idea to Avoid Probate?
Now that you know more about probate in South Carolina, you may be wondering whether it’s smart to approach estate planning with the intent of avoiding probate altogether. There are many things to consider, so that’s the subject of the next blog.
For help with your estate plan, contact Gem McDowell Law Group in Mount Pleasant. Contact Gem today at (843) 284-1021 to set up a consultation.
The Statute of Elizabeth: What You Need to Know About Transferring Assets
What if you owed someone a lot of money, but you didn’t want to pay them back? You might try to put your assets somewhere they couldn’t be touched; for example, you might gift them to a person you trust, or transfer them to an LLC.
Fortunately for your creditor, and unfortunately for you, you won’t get away with this scheme if your intention is to avoid paying your debts.
Moving assets in the way described above is referred to as “fraudulent conveyance,” after the Fraudulent Conveyances Act of 1571, aka the Statute of 13 Elizabeth.
The Statute of Elizabeth
The Fraudulent Conveyances Act, as it’s properly known, was an English act of 16th Century Parliament that many U.S. states adopted early on. Most states have since adopted the Uniform Fraudulent Conveyances Act (UFCA) or, more commonly, the Uniform Fraudulent Transfer Act (UFTA).
The purpose of the Statute of Elizabeth is to provide a way for creditors to “undo” asset transfers of their debtors when the transfers were done so fraudulently. According to South Carolina Code, “every gift, grant alienation, bargain, transfer, and conveyance of lands… for any intent or purpose to delay, hinder, or defraud creditors and others of their just and lawful actions, suits, debts, accounts, damages, penalties, and forfeitures must be deemed and taken… to be clearly and utterly void…”
How does the court know whether the transfer was, indeed, done fraudulently? If the transferor denies fraud (as you’d expect), the court can look for these “badges of fraud”:
- Insolvency or indebtedness of transferor
- A lack of consideration for the conveyance
- A relationship between the transferor and transferee
- Pending litigation or threat of litigation
- Secrecy or concealment
- Departure from usual method of business
- Transfer of debtor’s entire estate
- Reservation of benefit to the transferor
- Retention by the debtor of possession of the property
The court will look for a number of badges of fraud; one alone does not create a presumption of fraud.
If the court does find that the conveyance was fraudulent, it can be “undone,” giving the creditor recourse for collecting on its debt.
A recent South Carolina case on the Statute of Elizabeth
The South Carolina Court of Appeals heard a case on this very subject and decided in the case in February. Here’s what happened.
Kenneth Clifton borrowed $3.873 million from First Citizens Bank
Kenneth Clifton was a successful real estate developer who frequently bought land as investment properties and transferred them to LLCs. He purchased one property with Linda Whiteman in 1995, a piece of land in Laurens County, SC of approximately 370 acres, which they said was for retirement.
Clifton also regularly borrowed money to finance his purchases. He took out three loans from First Citizens Bank to finance three separate investments, totaling an initial loan amount of $3.873 million, and renewed them several times.
Around the time that the housing bubble burst, Clifton requested extensions on the loans, which the bank granted after he provided a personal financial statement demonstrating his ability to pay them back. His personal financial statement put the value of the assets he held at around $50 million, including a 50% stake in the Laurens County property valued at $1.57 million.
Clifton transferred away his interest as the bank came for its money
Before receiving an extension on the third loan, Clifton didn’t tell the bank that both he and Whiteman transferred their interests in the Laurens County property to Park at Durbin Creek (PDC), an LLC that Clifton had an interest in.
When the bank asked Clifton to come current with interest payments and provide more collateral before extending the loans again, he didn’t, and the bank began foreclosing proceedings, getting a deficiency judgment of $745,317.86 plus interest.
Meanwhile, Clifton disassociated himself from PDC and transferred his membership in it to Streamline, a company that did not yet exist and was comprised of his two daughters and ex-wife.
When the bank tried to collect on the judgment, it couldn’t, as all the assets listed in Clifton’s personal financial statement had been foreclosed on, transferred away to cover other debts, or otherwise disposed of. The bank filed suit against Clifton, citing the Statute of Elizabeth.
Fraudulent or not?
After a one-day, nonjury trial, the Circuit Court issued an order to set aside the conveyance of the Laurens County property to PDC; the conveyance of his 50% interest in the property was null and void, pursuant to Statute of Elizabeth. (The Court found many other issues with the transfer of interests to Streamline, as well.)
Clifton denied having transferred the land fraudulently, but the Court found that sufficient badges of fraud existed – six out of the nine listed above, to be exact.
The Court of Appeals affirmed the Circuit Court’s findings.
Asset protection the right way
Let’s look again at the badges of fraud:
- *Insolvency or indebtedness of transferor
- A lack of consideration for the conveyance
- A relationship between the transferor and transferee
- *Pending litigation or threat of litigation
- Secrecy or concealment
- Departure from usual method of business
- Transfer of debtor’s entire estate
- Reservation of benefit to the transferor
- Retention by the debtor of possession of the property
The two marked with an * are key. If someone knows they owe money they must pay back soon but can’t, or even if they don’t owe any money but could reasonably expect a lawsuit coming their way, then transferring away assets can look suspicious.
However, asset protection is important, and there are ways to do it correctly. This is when it’s vital to talk to an attorney with experience in estate planning. Gem McDowell of the Law Offices of Gem McDowell is a corporate, tax, and estate planning lawyer with 25 years of experience helping people grow and protect their assets. Call him at their Mount Pleasant office at (843) 284-1021 or by filling out this contact form online.
Law Is Not A DIY Field: When Not To Represent Yourself
Individuals have the right to represent themselves and “act as their own attorney,” but do businesses? Not necessarily. Try to DIY, and you may discover you’ve overstepped the bounds.
That’s what happened to Community Management Group, LLC, which manages HOAs and condo associations in the Charleston tri-county area, in a recent case. Beyond the typical duties of property management companies, such as property upkeep and enforcement of association rules, CMG also engaged in the practice of law without the help of an attorney. Specifically, CMG “prepared and recorded a notice of lien and related documents; brought an action in magistrate’s court to collect the debt; and after obtaining a judgment in magistrate’s court, filed the judgment in circuit court,” and advertised the fact that they did these things, according to the South Carolina Supreme Court decision.
The Supreme Court in South Carolina has the power to regulate the practice of law, and has made some allowances for non-lawyers to act in place of a lawyer in certain instances. In its decision, the Court clarifies instances where it’s not appropriate for non-lawyers to practice, including the things that CMG did.
Hire an attorney to look out for your interests instead
There’s a reason the South Carolina Bar gives out licenses to practice law. Despite the proliferation of information available on legal issues on the web, it doesn’t mean it’s a good idea – or even legal – to take legal matters into your own hands. Instead, work with an experienced attorney who can help with your business and estate planning needs, like Gem McDowell of Gem McDowell Law Group in Mt. Pleasant, SC. Gem has 25 years of experience in business law, tax law, commercial real estate, and estate planning. You can reach him by calling (843) 284-1021 or by filling out this contact form online.
