Friday, March 27, 2015

YOUR HOMEOWNER’S INSURANCE MAY NOT COVER RENTERS

You obtain a new job which requires you to relocate, but in this economy it takes a while to sell your house so you decide to rent it. You think you are doing all the right things by checking the references of the tenant(s), getting a lawyer to draft a proper residential lease, and continuing to pay your homeowner’s insurance on the property so that your coverage will take care of any casualty loss (theft, fire, etc.) or liabilities (personal injury claims) related to the property. Your tenant is injured on the property and sues you. Thereafter you put your homeowner’s insurer on notice and you find it denies coverage. How can they do that? The answer is generally homeowner’s insurance does not provide coverage for parts of the property in which you, as the insured, do not reside or for any portion of the property that is for business.

This was the lesson learned by a homeowner in a New Hampshire federal court case of Young v. The Hartford Insurance Company on March 16, 2012 where the judge granted judgment without trial (called a summary judgment) in favor of The Hartford Insurance Company citing that there was no coverage under the homeowner’s policy because the insured no longer resided there. Young owned a North Hampton, New Hampshire home and moved out that home after purchasing a home in Wisconsin. The homeowners obtained driver’s licenses and voter registrations in that state. They rented out their New Hampshire home to a tenant for all of 2009 and into 2010. The Court found that since the homeowners were no longer residing in the premises, The Hartford Insurance Company had no obligation to provide liability coverage for personal injury to the tenant involving a tree. The net effect is that the Youngs will have to defend the personal injury lawsuit of the tenant and be liable for any damages, if any, awarded against them. Had the Youngs approached their insurance carrier prior to moving to Wisconsin and renting the premises, they could have obtained insurance to cover this risk; albeit at probably a higher premium. Insurers generally offer lower premiums for homeowners under the basic premise that the homeowner will take care of their property more so than a tenant. Likewise, insurers do not anticipate a homeowner’s insurance will cover property no longer occupied by the homeowner because this vacant property can be considered a higher risk than properties occupied by the homeowner.

Therefore, if there is a change in your circumstances where you are no longer living in the premises for an extended period of time, you should speak with your insurance agent to determine what the right insurance is for the property. The homeowner’s savings on a premium for a homeowner’s policy, rather than what should be paid possibly for a vacant property or a rented property, is of little use when you need the coverage only to find out that you do not have it such as the Youngs found in the foregoing case.

J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at dmarr@nashualaw.com.

Thursday, March 26, 2015

WILL DISPUTES REQUIRE DETAILED LEGAL ANALYSIS

There are a number of reasons why the validity of a Will might be challenged. The process can be highly contentious and the outcome depends on the specific facts of the individual challenge. An attorney can be of invaluable assistance to you in assessing the facts of the situation, weighing the alternatives and deciding how best to proceed.

Sometimes a person is disappointed that a decedent, through a Will, has not left that person what he believes was intended for him to receive or believes he deserved. If the disappointed party is successful in rendering the Will invalid, then under New Hampshire law, the Will the decedent signed prior to that invalid Will is controlling, or, if there is no such Will, the decedent’s assets will be distributed intestate, meaning pursuant to the statutory rules of New Hampshire.

Before you consider challenging the validity of a Will, you should speak with an attorney experienced in handling Will contests and other probate court litigation. The attorney will help determine the answers to several important questions. First, if the Will is invalid, Will you receive more because of a prior Will or under the applicable intestacy law? Second, does the current Will you intend to challenge have an incontestability clause, also known as an in terrorem clause, which states that if you challenge the validity of the Will you get nothing?

Wills are also challenged for failure to meet certain technical requirements as to their signing. There can also be a challenge of outright forgery claiming that the decedent did not sign the Will. Many challenges to Wills question whether the decedent was either under the undue influence of another when the Will was signed or was mentally incompetent to enter into the Will. Such analysis is very fact specific and a challenge like that should not be made until after working with an attorney to determine what, if any, potential evidence there is as to undue influence or lack of mental capacity.

If a person generally knows what his assets are, who his natural heirs are, and has a reason why he wants his assets to be distributed as noted in his Will, generally he would be found mentally competent to enter into such a Will.

If an individual has so much control over and a confidential relationship with the person who is to sign a Will to be able to substitute his own judgment for the person who is signing the Will, then undue influence could be proven. However, the mere fact that the decedent has left more to his daughter who regularly took care of him in New Hampshire than his son who lived in Alaska and visited and contacted him infrequently does not show undue influence.

Once again, all of these Will contests are fact driven and a legal analysis by an attorney is appropriate before making a decision to object to the validity of a Will in a probate proceeding and, of course, defending against such an objection. Representing yourself without an attorney in one of these disputes is generally a major mistake and can result in you substantially prejudicing yourself in the proceedings.

J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at dmarr@nashualaw.com.

Wednesday, March 25, 2015

Wednesday, March 18, 2015

Tuesday, March 17, 2015

Inherited Assets Are Subject to Division By the Divorce Court

Under New Hampshire law, all property acquired through and including the date of divorce is part of the marital estate and subject to division. Accordingly, the divorce court has the authority to divide an inheritance received by only one spouse during the marriage. This is true even for assets that are inherited after separation or the filing of a divorce petition. In one such case, the attorneys at Hamblett & Kerrigan successfully advocated for the divorce court to divide an inheritance received by the opposing spouse eight months after the filing of the petition for divorce.

When deciding whether it will divide an inherited assets, the divorce court considers a variety of factors, including but not limited to the age of the parties, the length of the marriage, the overall value of the marital estate, each spouses' contribution during the marriage, each spouses likelihood of acquiring income and assets after the divorce, the health of the parties, etc.

If you have any questions regarding whether an inheritance is subject to division, please contact an attorney at Hamblett & Kerrigan for a consultation.

Kevin P. Rauseo is a director at Hamblett & Kerrigan P.A. He concentrates his practice in the areas of family and divorce law, Collaborative law, child custody and visitation, child support and alimony, personal injury, insurance defense, slip and fall accidents, automobile and truck accidents, motorcycle accidents, premises liability, dog bites and civil litigation. He is a member of the International Academy of Collaborative Professional and serves on the Professional Development Committee and has previously served on the Public Education Advisory Panel of the Academy. He also is a member of the Collaborative Law Alliance of New Hampshire. AV Preeminent Rated by Martindale-Hubbell. Recipient of the 2014 Nationally Ranked Top 10 Attorney Award from the National Academy of Family Law Attorneys (NAFLA). You can reach Attorney Rauseo at krauseo@nashualaw.com.