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The Triad Lawyer

~ Just a personal side of the law– opinions, ideas and thoughts.

The Triad Lawyer

Monthly Archives: November 2013

Will challenges based on testamentary capacity

21 Thursday Nov 2013

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Thinking of challenging a will based on the person’s capacity at the time the will was created? In North Carolina, there is a presumption that every person has the requisite capacity to make a will. Anyone who challenges the will bear the burden of proving that such capacity was lacking.

A person’s capacity to create a will is called testamentary capacity. A person has testamentary capacity if the will suggests that the person (1) generally knows what property they own, (2) who would naturally be expected to receive their property after their death, (3) they are making a will, and (4) the effect the will has on their estate. For example, if the person leaves their property to an unrelated person and does not acknowledge their own children who would normally inherit, the will may be open to a challenge based on testamentary capacity.

A person challenging the will (a “caveator”) only needs to show that one of the essential elements of testamentary capacity is lacking. However, a caveator must present more than general evidence about the testator’s deteriorating physical health and mental confusion in the months preceding the execution of the will upon which the caveator based their opinion of the testator’s mental capacity.

A caveator needs to present specific evidence that the testator did not understand their property, the persons to whom they wished to give it, and the effect of their act of making a will at that time.

In a recent will challenge, the court noted that almost all of the caveators’ evidence on testamentary capacity were general allegations of confusion and deteriorating health. In re the Will of McNeil, the caveators claimed that Mrs. McNeil lacked the capacity to write a new will two week prior to her death. However, the caveators could not identify any specific instance in which the Mrs. McNeil was unable to recall the name of a family member or understand what was going on around her. The caveators produced no medical records or affidavits from treating professionals that showed Mrs. NcNeil suffered from any mental infirmity. Getting in evidence of capacity of the testator/will drafter is a major issue in a will caveat.

If you are a person who has an interest in a decedent’s estate and feels that the testator of the will may have lacked sufficient capacity to write the will in question, please contact Sanders Law Firm, PLLC. 336-724-4707

Sanders Law Firm PLLC also handles business matters, collections, personal injury, and wrongful death cases.

W. Kirk Sanders, Attorney

Sanders Law Firm, PLLC

326 N. Spring Street

Winston-Salem, NC 27101

Telephone: (336)724-4707

Facsimile: (336)724-2077

www.kirksanderslaw.com

Candy Wars – Hershey Company opposes Mars’ trademark application for cross-section of Snickers bar

20 Wednesday Nov 2013

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Tags

: trademark attorney winston-salem, Sanders Law Firm NC

Candy Wars – Hershey Company opposes Mars’ trademark application for cross-section of Snickers bar

Mars Inc. is attempting to trademark a cross-section of their Snickers bar for use on in-store displays. The Hershey Company has filed an opposition to the trademark application claiming that the design mark is not distinctive, is functional and generic.

In their application, Mars claims that they have exclusively used “a cross-section of a candy bar showing layers within the candy, namely, a middle light brown layer containing tan-colored peanut shapes and a bottom tan layer, all surrounded by a brown layer.” Hershey points out that several companies manufacture similar candy bars and use a cross-section of the bar on their packaging. Therefore, Mars’ claim to exclusive use of such a cross-section is a misrepresentation.

Hershey also notes that many candy bars consist of nougat topped with a mixture of caramel and peanuts enrobed in a layer of milk chocolate, including Hershey’s TAKE FIVE® and ZERO® bars and Nestlé’s OH HENRY! and BABY RUTH candy bars. Therefore, the image is merely descriptive of such candy bars.

Because of the common use of these ingredients by Hershey and others, Hershey alleges that the cross-sectional image is not readily perceived by consumers as an indication of that Mars Inc. is the source of that candy bar. In other words, the image has not acquired a secondary meaning such that consumers only recognize and associate that image as a Snickers bar. Hershey takes it one step further and alleges that the image is a generic candy bar configuration that is incapable of functioning as a mark.

Hershey makes good arguments on all fronts. Unlike the clearly recognizable Snickers bar packaging, the cross-sectional image of the candy bar is not distinctively recognizable as a Snickers bar. The Trademark Trial and Appeal Board will take up the matter soon.

Call Sanders Law Firm PLLC 336-724-4707 for your Trademark legal assistance

Bike Share in Downtown Winston-Salem

07 Thursday Nov 2013

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New Bike Share in Downtown Winston-Salem:

Linville Team Real Estate Partners, LLC (http://www.linvilleteam.com/) have donated bikes and they are all around downtown.

There for downtown patrons to use and share. I have used them on a number of occasions to go to lunch or make a courthouse run.

Password for the lock is “PLAY”

The City of Winston-Salem has installed bike racks throughout downtown.

Hardwood Flooring-Edwards Hardwoods

05 Tuesday Nov 2013

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Recently, we had the old carpet in our basement and lower level bedroom removed & replaced with engineered hardwood.

We used engineered hardwood because the contractor had to lay it on concrete.

After meeting with several Hardwood installers, we felt the most comfortable with

Edwards Hardwood Flooring Co. (9011 Mibeck Road, Belews Creek, NC 27009)

(336) 595-3506

Mr. Edwards installed hardwoods for a very satisfied family member.

He was informative and professional. He installs hardwoods for Residential Contractors too.

He’s my recommendation if you’re looking to install or refinish hardwoods.

The picture above is not a picture of the floor Mr. Edwards installed.

For legal needs, go to www.kirksanderslaw.com

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