Cultural Practices and People’s Intent

As our society continues to become more and more multicultural, the law is learning to respect aspects of many cultures. For example, I have, at various times, had to take into account a Chinese client’s expectations with relations with the police when called in response to a domestic dispute, Hmong clients’ reliance on extended families for child rearing, and Nigerian inheritance practices regarding clan property in Nigeria and its potential availability for distribution in a divorce. I have also read case opinions regarding such issues as whether the courts can order Orthodox Jews to participate in ritual divorce ceremonies as provided in a traditional marriage contract. (Courts differ from state to state on that.)  A recent case in Oregon discusses a situation involving a traditional practice from another culture and how it affected several people.

In this case, a daughter unfortunately caused a conflict between two sets of elderly people, one couple who were definitely innocent victims, and her mother, who also claimed to be an innocent victim. The parents owned property in Portland. When their youngest daughter was 15, they recorded a deed giving her the property. At the time, they were in financial distress.

The parents were Romani. According to Romani custom, the youngest child usually inherits the family home, but is expected to care for the parents if they become infirm. Roma rarely execute wills, and if they transfer property by deed to the youngest child, it is not expected to give the child any benefit while the parents are still alive. Eventually, the father died, and the mother continued to live in the house.

About 20 years after the transfer, the daughter stole property from other elderly people, who then got a judgment against her. They had the mother’s property seized and sold, and the mother objected. The court ordered only the daughter’s interest sold, without determining what that interest was. The plaintiffs bought the daughter’s interest, probably by bidding the full or partial value of their judgment, and received a certificate of sale, which functioned to transfer the interest unless the daughter managed to come up with money to redeem it.

The mother continued to assert that she had the right to live in the house for her lifetime. The plaintiffs sued to evict her. The mother argued that she had only intended the deed to set up an inheritance. The plaintiffs argued that the parents intended to avoid their significant creditors at the time of the transfer. The trial judge ruled that the mother had intended to set up an inheritance.

The Court of Appeals threw out the ruling because it thought the trial judge had not addressed the question of whether the parents might have intended to avoid creditors. If they had, it might undercut the argument that they were preparing for inheritance. It told the trial judge to rule on the question of whether the parents intended to avoid creditors, and whether that might affect the question of their intent regarding inheritance.

If you want to use a deed as a substitute for a will, you should probably document your intent clearly or use an alternate approach. For example, you could put the property in a trust or expressly state that you retain the right to the property for life. This will avoid some disputes. Of course, if you are in financial trouble, it would probably be wise to try to resolve those problems before signing the deed.

More importantly, if you come from a culture that has practices different from American norms, you should be prepared to discuss those practices with a lawyer when planning to act on them, or when they affect any other aspect of your case.

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One Response to Cultural Practices and People’s Intent

  1. thnidu says:

    You may want to correct this post’s title on LiveJournal, where it appears as (typos in curly braces here)

    News blawg post: {CUt}ural Issues and Peo{pe}’s Intent

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