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Hi, this is Stewart Albertson with Albertson & Davidson and I want to talk to you just briefly about three important sets of documents that we need to get quickly in any type of trust or will contest.  So this happens when a client has already shown up and hired a lawyer.  They’ve already filed their trust contest or their will contest and now the question is what documents do we need to begin the case?  To begin our discovery, to begin strategizing how we’re going to overturn the trust or the will that is a product of undue influence or lack of capacity.

And these come down to three subpoenas and they should go out quickly.  You want to get these documents quickly, to make sure you get the full set of documents, and then you want to have the right people review them once you have them so they can help shape your case going forward, help shape your discovery and, hopefully, shape a successful outcome in invalidating a trust or a will that is the product of undue influence or lack of capacity.

The first set of documents that we want to subpoena right away are from the estate planning attorney.  So the estate planning attorney who drafted the trust or the will or both, we want to get a letter to them immediately telling them to safeguard their file and they can be accept – expecting a subpoena.  Once they receive that subpoena, they have a short time to respond and most estate planning attorneys will send us their files so that we can review them to see what were the circumstances around the creation of the trust or the will.

Sometimes, these attorneys though, they decide they don’t want to send the file and that’s not a problem.  Because then we can file a motion to compel, is what we call it, file that in court and we’ll get a judge to order them to give us the documents.  In many cases, once we file this motion to compel, the estate planning attorney will agree and send over the files.  So that’s the first set of documents you must get in a trust and will contest – and the sooner, the better!

The second set of documents will be the medical records and these are rich – especially if the decedent had multiple providers.  So you want to subpoena out to every single medical provider that you are aware of.  Once you have the first set of medical records, there’ll be other doctors, other hospitals, other medical providers that you’ll in those medical records.  In many cases, neurologists and those are really good medical records to get – so you’ll want to send out subsequent subpoenas for those documents as well.  Most big medical providers are very good at responding to subpoenas and in short order, if you give them a subpoena that’s well drafted and it details exactly what you’re looking for, you will have medical records that you can review to look for things such as dementia, Alzheimer’s and other mental/cognitive deficits that may have impacted the decedent at the time that the will or trust was created that you’re alleging was the product of undue influence of lack of capacity.

Finally, the last set of records are the financial records, and they’re also rich.  Especially if there’s a wrongdoer who did exercise undue influence over your mom or dad before they passed away.  This person generally can’t wait to get their hands on the money until the person dies, so they get their hands on the money during lifetime and they start taking a lot of cash withdrawals from the ATM, they’ll write checks to themselves calling them cash.  They may even sign them for the decedent, your mom or your father, and take this money and start spending it, using it for whatever it is they want to use it for.

So once you file the trust or will contest, you want to jump quickly on these three sets of documents.  Once you have them, they’re going to go a long way in getting you to a good settlement, or you’re going to be able to prove at the time of trial that, in fact, undue influence or lack of capacity did take  place in the creation of the will and the trust.

I recently read Rita Rubin’s article “Risky pelvic mesh highlights worries about FDA process.” Ms. Rubin’s article brings light to an issue that has been putting women at risk throughout the United States. I represent one of these women; here’s a snapshot of her story regarding severe complications to vaginal mesh, which has ruined her life.

My client, whom I’ll call Jane, had vaginal mesh surgically placed in her body in March 2008, to treat female urinary incontinence. Jane was in her mid forties at the time. Soon after the mesh placement, Jane began experiencing pain in her vaginal area. She continued to see her physicians, but the pain got worse over time. Her physician repeatedly told her that she had to give it time to heal. But one year after her surgery the physician attempted to remove the mesh from her body. But the mesh had eroded into her vaginal area, bladder and pelvic region. Jane has undergone four major surgeries to date to have the fragmented mesh picked out of her body bit by bit. She still needs future surgeries to continue going after the left over mesh inside her body.

As a result of her injuries, Jane is in constant pain. She had to quit her job because she was (and is) no longer able to work. Jane was a nurse, earning around $80,000 per year before the mesh was placed in her body. All of her friends and family say she was a hard worker and enjoyed her work. In addition, Jane’s mobility has been severally compromised. She feels pain if she stands, sits or lies down.

Jane has been frustrated during the past few years because there did not seem to be anyone paying attention to the danger of vaginal mesh. She has also been frustrated because modern medicine has not figured out a way to get all the eroded mesh out of her body. Finally, she’s frustrated because the manufacturer of the mesh has, to date, declined to take responsibility for her injuries.

Since 2008 the FDA has issued at least two Public Health Notifications—one in October 2008 and the most recent in July 2011. It appears the public spotlight is finally on the serious complications associated with surgical mesh. (The surgical mesh is commonly referred to as pelvic or vaginal mesh and bladder slings, which are manufactured by at least four different companies.)

Currently, Jane’s trial against the manufacturer of the vaginal mesh is set for January 2012. It is my hope a jury of Jane’s peers will hold the manufacturer responsible for her injuries—something the manufacturer is unwilling to take responsibility for at this time.