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ASK THE JUDGE

Brain Tumor Raises Issue of Mental Competence

May 13, 1989|JUDGE B. TAM NOMOTO | B. Tam Nomoto is an Orange County Municipal Court judge

Q My husband of 20 months became exceedingly irrational and one day he served me with divorce papers. While waiting for a hearing date on a marital settlement, he died of brain cancer--only 3 months from the date of divorce.

We had no community property, but I was to inherit 60% of his estate as his wife according to our prenuptial agreement. Meantime, he hid and redrafted his will to disinherit me in favor of his two children from a prior marriage.

I hear that a brain tumor can constitute temporary insanity in a criminal case. Can it also allow me to challenge his redrafted will in court?

E.H.,

Santa Ana

A A person must be mentally competent to execute a valid will. The law provides that a person is not mentally competent if he has insufficient capacity to understand that he is making a will, understand the nature of his property or understand the persons who are normally the object of his affections and would therefore ordinarily inherit. A person is also mentally incompetent if he suffers from any "mental disorder with symptoms including delusions or hallucinations" which prevent him from making a proper testamentary disposition.

You should consult the attorney who assisted you in drafting the prenuptial agreement as well as seek legal advice regarding any action you may wish to take to dispute the will.

Q A group of five people own undivided interest in an 80-acre parcel of property. We have no rules or club because we are all friends. Recently we received an offer of $1 million for the property. One person, who owns a one-eighth interest, refuses to sell. The others, comprising the remaining seven-eighths interest, would like to sell because we've had it for 21 years and are all in our 70s. We would like to enjoy the profits before it is too late.

We know the court will sell the property if we ask for it, but we would like to take advantage of this offer rather than let the court auction it off. Can we petition the court to approve this sale and force the dissident to sell? Can we sue to recover our costs as well as attorney fees?

R.I.,

Fullerton

A As you correctly stated, you may petition the court to sell the property. The court has the power to decide whether the sale should be public or private. The court's decision will be based on which type of sale would be "more beneficial to the parties."

Since the property appears to be extremely valuable, you will want to ensure that your interests are safeguarded by an attorney.

Your question regarding reimbursement of your attorney fees and costs is a good one. Reasonable costs and attorney fees, if the court determines that they were incurred for "the common benefit," are normally apportioned among the owners according to their interests in the property. The court, however, can order any payment arrangement which it believes is fair.

Q I work at a medical corporation specializing in auto injuries. Lately, our boss made out a new employee workbook of rules and regulations. I do not disagree with the rules and regulations but it also states that in case of suspicion, an employee is subject to search of desk, auto, and self. When I objected, I was told I could be fired. Don't employers need a search warrant to go through your things? Is it legal to intimidate employees to sign the workbook? What about my constitutional rights and my right to privacy?

A.C.,

Santa Ana

A Unfortunately, there is no uniform law which directly addresses your problem. There are, however, some guidelines.

Many courts have decided that private employers are not restricted by the federal Constitution unless they are directly assisting the police in an investigation. This means that companies do have the right to investigate potential misconduct related to the employee's performance of his duties or other work-related misconduct, such as theft. Employers may not, however, gather evidence of crimes unrelated to the performance of the employee's assigned duties.

Some administrative hearing cases have determined that the employers must respect the "private realm" of the employee. In these cases, items such as employee's lunch boxes, lockers and purses were considered private. This was especially important when such a search resulted in termination of employment.

It is difficult to answer your question about signing the workbook. The answer could depend on whether you have an employment contract and its terms. If there is no contract, employers could probably terminate employees for virtually any reason. Similarly, for new employees, it is possible that they may have to sign as a condition of employment.

I'm sorry I cannot give you specific advice on how to handle this problem. If you are a member of a union, I would suggest discussing it with your representative or union attorney. You may also wish to contact an attorney who specializes in labor law for more exact information.

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