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Stung by the Slayer Statute

You don’t often see states’ slayer statutes invoked. We encounter them only rarely in our practice, and when we do, it’s in cases that generally go unreported.

You don’t often see states’ slayer statutes invoked. We encounter them only rarely in our practice, and when we do, it’s in cases that generally go unreported. So it comes as a bit of a surprise that two lawyers charged with violating the Georgia slayer statute are about to go to trial. And, in a recent Wisconsin case, stepkids actually tried to use that state’s slayer statute to disinherit their stepmother and stepsister.

Like most states’ laws, Georgia’s slayer statute (O.C.G.A. 53-1-5) prohibits a person who kills another from inheriting any financial assets from the victim.

But this summer, for the first time in the state's history, two lawyers were charged with violating this law.

In September of 2002, Debra Post was charged with murdering her husband, Jerry Post. Attorneys Candace E. Rader and Valerie Cooke, both of Carrollton, Ga., took on Debra’s defense.

Georgia investigators determined that Candace and Valerie both knowingly accepted over $320,000 of assets belonging in Jerry’s estate as payment for Debra’s legal defense fees. Apparently, these assets included life insurance proceeds and real estate, which Debra deeded over to Candace and Valerie.

In September of 2003, six months after using Jerry’s assets to pay Candace and Valerie, Debra pled guilty to felony murder. She is now serving a life sentence without the possibility of parole.

Investigators, having apparently determined that they had enough evidence against Candace and Valerie, arrested the two attorneys and took them to the Douglas County Jail. The attorneys were then indicted on charges related to theft from a murder victim’s estate (specifically, “Theft by Taking” and “Theft by Receiving”).

David McDade, the district attorney of Douglas County, told Trusts & Estates that pre-trial motions will be made in January. The trial should be on the calendar sometime in February or March.

Whatever happens at trial, the moral of this story clearly is: Know where your fees are coming from and consider having them approved by the court from time to time—whenever feasible.

Apparently, Georgia isn’t the only state dusting off its slayer statute. In Wisconsin, some stepkids thought it might help them win in probate court against their stepmother and stepsister.

The District IV appellate court in In re Estate of Schunk, Jr. (No. 2007AP2680, Slip Copy, 2008 WL 4348616, Wis. Ct. App. Sept. 25, 2008) dealt with the novel issue of whether that state’s slayer statute, Wisconsin Statute Section 854.14, applies in the context of assisted suicide.

The appellate court found that the circuit court correctly interpreted the meaning of the phrase “unlawful and intentional killing” in the Wisconsin slayer statute as not encompassing assisting another person in committing suicide.

The holding cleared the way for the decedent’s wife and youngest daughter to inherit the majority of the decedent’s $500,000 estate—pursuant to the terms of his will.

The decedent, Edward J. Schunk, Jr., was terminally ill with non-Hodgkin’s lymphoma. Although he’d been hospitalized, his doctor allowed him to leave the hospital for one day to see his home and dogs one final time.

Edward’s wife, Linda, and their youngest daughter, Megan, brought him home from the hospital.

The decedent was found later that day in a cabin on his property, dead from a self-inflicted gunshot wound.

Five of the decedent’s older children—Linda’s stepchildren who apparently received little or nothing under Edward’s will—objected in the probate administration of the will.

They claimed that Linda and Megan assisted Edward in committing suicide by driving him to his cabin, helping him inside, giving him a loaded shotgun and leaving him alone when they knew that his mental state was fragile.

The five older children argued that Linda and Megan were barred by the Wisconsin slayer statute from inheriting under Edward’s will.

Wisconsin’s law provides in relevant part that the “unlawful and intentional killing of the decedent . . . [r]evokes a provision in a governing instrument that, by reason of the decedent’s death . . . [t]ransfers or appoints property to the killer.” For purposes of its decision (which was a ruling on motions for summary judgment filed by Linda and Megan), the court assumed that Linda and Megan had assisted Edward in committing suicide. The question, therefore, was whether this assistance constituted an “unlawful and intentional killing” of Edward within the meaning of the slayer statute.

In construing the meaning of the phrase “unlawful and intentional killing,” the appellate court determined that the plain meaning of that phrase does not include assisting a decedent in committing suicide. The court noted that the first definition of the verb “to kill” listed in Webster’s Dictionary is “to deprive of life.” Applying this definition, the court concluded, “As the assumed facts in this case illustrate, providing Edward with a loaded shotgun did not deprive him of his life: he deprived himself of life by shooting himself with the shotgun.”

The five stepkids were unsuccessful because assisted suicide does not fit the “unlawful and intentional killing” requirement under Wisconsin’s slayer statute.

But their attempt to extend the statute to assisted suicide certainly was creative.

—Trusts & Estates Associate Editor Carolyn A. Chandler contributed to this article.

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