LEGAL CORNER: Does a parent need a will if they have only one child?

LEGAL CORNER: Does a parent need a will if they have only one child?

Submit your questions to Civil matters only, please.

QUESTION: I am an only child. My mother and I were told we do not need a will because I am an only child. What are the advantages and disadvantages of having a will or not having one? Will it be easier after my mom’s death with or without a will?

ANSWER: Because it creates a sense of certainty and leaves little to chance, a valid will is almost always preferred over not having one at all, even when the testator – the author of the will - has only one child and wants to leave everything to that child. For example, it is theoretically possible that the testator’s child may have an unknown biological half sibling out there that no one knew about who may come crawling out of the woodwork when its time to inherit money. Also, it is almost always advantageous for the testator to name expressly an “Independent Executor” who can easily manage things in case the estate has need of administration. It takes a lot more time, money, and legal work to administer an estate if an in independent executor is not named in the will. Additionally, should the testator change his or her mind and want to leave some or all of his or her property to someone other than his /her children, then a will is certainly needed. Finally, there are other motivations to have a will such as estate planning, debt avoidance, tax planning etc. As always, do not make any final determinations without first speaking with an experienced attorney.

While we are talking it about it, it is always a good idea to have a living will. A living will is effective only when the testator becomes terminally ill or has an irreversible condition. The Living Will provides express, end-of-life medical care / comfort care instructions.

QUESTION: If you are a convicted felon and cannot possess a weapon, would it be a crime to be at a hunting camp where guns are present?

ANSWER: “Possess” is a very subjective term under the law. It has well been established that someone can possess a controlled substance illegally without actually having it on their person. It is known as “constructive possession,” and under this theory, more than one person can possess something. The same theory is used in the illegal possession of a weapon. It does not have to be in a person’s hands or on their person to be considered possession.

However, the case of State v. Scott, 136. So.3d 383 (La.App. 4 Cir 2/26/14), explained some of the elements of constructive possession. The Court stated that in order to prove constructive possession, the State must prove that the felon either had “dominion and control” over the gun, or “an intent to possess, not just mere acquiescence to the fact there was a firearm in his presence.” The court went on to say that awareness that the felon is “around” a firearm is not, by itself, a violation of the statute.

So, unless some of the other elements are present, just being “around” some firearms at a hunting camp is not, by itself, a violation of the statute.

La R.S. 14:95.1 is the controlling statute. It appears below:

1. §95.1. Possession of firearm or carrying concealed weapon by a person convicted of certain felonies

2. A. It is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) which is a felony or simple burglary, burglary of a pharmacy, burglary of an inhabited dwelling, unauthorized entry of an inhabited dwelling, felony illegal use of weapons or dangerous instrumentalities, manufacture or possession of a delayed action incendiary device, manufacture or possession of a bomb, or possession of a firearm while in the possession of or during the sale or distribution of a controlled dangerous substance, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony, or any crime which is defined as a sex offense in R.S. 15:541, or any crime defined as an attempt to commit one of the above-enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be one of the above-enumerated crimes, to possess a firearm or carry a concealed weapon.

3. B. Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than five nor more than twenty years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars. Notwithstanding the provisions of R.S. 14:27, whoever is found guilty of attempting to violate the provisions of this Section shall be imprisoned at hard labor for not more than seven and one-half years and fined not less than five hundred dollars nor more than two thousand five hundred dollars.

4. C. The provisions of this Section prohibiting the possession of firearms and carrying concealed weapons by persons who have been convicted of certain felonies shall not apply to any person who has not been convicted of any felony for a period of ten years from the date of completion of sentence, probation, parole, or suspension of sentence.

5. D. For the purposes of this Section, “firearm” means any pistol, revolver, rifle, shotgun, machine gun, submachine gun, black powder weapon, or assault rifle which is designed to fire or is capable of firing fixed cartridge ammunition or from which a shot or projectile is discharged by an explosive.

QUESTON: I got served with a lawsuit, and the instructions talked about deadlines for filing exceptions? What are exceptions?

ANSWER: Whenever a Petition (lawsuit) is filed, the defendant can either affirm the allegations or deny them, OR the defendant can “except” either to the court or the person bringing the claims BEFORE addressing whether the allegations have merit or not.

One may “except” to the court in which the proceedings are filed. For example, if someone files a domestic matter or a bankruptcy in City Court, an appropriate response would be an “Exception of Jurisdiction,” as City Courts do not have jurisdiction over domestic or bankruptcy matters. It is also common to file with a court that has jurisdiction, but it is not the appropriate venue. For example, an action on a contract is proper (1) where the contract was executed, or (2) where the work was to be performed. If a lawsuit is filed in other than one of those two places, for example, where the parties reside, an “Exception of Venue” can be filed.

Two other common exceptions are “Exception of No Cause” and “Exception of No Right.”

“No Cause” refers to when someone is filing suit but not based on a “legally recognizable action.” In more common language, you cannot sue “for that” in Louisiana.

“No right” is actually the name for two different grounds for exceptions: (1) one refers to the person filing the petition as not being the appropriate person – for example, you may acknowledge that someone has a claim, but that someone is not you. A classic example is sometimes a step child will file suit on behalf of a step parent, and an “Exception of No Right” is filed. The defendant may acknowledge that the step parent is entitled to something, but the step child has no statutory right to sue for it. (2) Another type of “No Right” is when your position is that although you may have the basis to sue someone, that someone is not me. For example, if my child who is above the age of majority incurs a debt, you may not have a claim to recover any of the debt me, as the parent. The parent can file an “Exception of No Right,” claiming that whether the debt is legitimate or not, you cannot recover from me.

Disclaimer: The information furnished in this answer is general and may not apply to some situations. All legal situations are unique. No one should rely to their detriment on these answers. Anyone with a potential legal problem should seek the advice of a licensed attorney before taking any action or inaction. The answers provided are not intended to be specific legal advice and no attorney-client relationship is created between the SWLA Law Center and the viewers of KPLC-TV.

Copyright 2019 KPLC. All rights reserved.