What Could Possibly Go Wrong? Distributing Assets with Cox Law Office

An elderly lady tried to distribute her assets among her loved ones after her death as a show of affection. Unfortunately, this resulted in neither love nor affection among her family.

The decedent in this story, whom we will call ” Mary,” experienced a turbulent few years at the end of a long life. Mary had no children and no spouse. She had a sister, whom we will call “Martha.” Martha had always assumed that Mary would leave her estate to Martha upon Mary’s death. In fact, a last will written by Mary some twenty years before her death apparently made such provision. During the last three years of her life, Mary was a resident of a rehabilitation facility after suffering a series of falls, which caused a head injury. At approximately the same time Mary began experiencing falls, she advised one of her great nephews, whose wife was a lawyer, that she wished to write a new Will. She stated that she wanted to leave all of her assets to her nephew and his wife.

Although the nephew’s wife was an attorney, she did not customarily draft wills, create trusts, or perform other elder planning work. One of the lawyers in her office prepared a Will, which was provided to Mary and which Mary signed. The Will contained witness signatures and a notary’s attestation, making it enforceable under the law. Mary died approximately three to four years after the new Will was written. Mary’s sister, Martha, died at about the same time. Martha’s son opened an estate for his mother and, on behalf of his mother’s estate, made a claim to the assets of Mary’s estate, which, according to Mary’s earlier Will, would have passed to Martha or, if Martha were not living, to Martha’s estate. When Mary’s  Will was filed in court for probate, Martha’s estate challenged the Will. Five years later, the matter is still in litigation.

Martha’s estate challenged the Will on various legal theories. First, Martha’s estate said that Mary’s great-nephew’s wife was in a conflict of interest position because, as a beneficiary of the estate, she should not have advised Mary in the preparation of the Will and should not have provided legal services in drafting the Will from which she and her husband would directly benefit. Second, Martha’s estate said that at the time that the Will was being discussed, drafted, and signed, Mary was in a health decline so significant following the head injury that she had moved into a residential rehabilitation facility. Under those circumstances, Martha’s estate argued that Mary lacked the mental capacity to make such an important legal decision. Third, Martha’s estate argued that Mary was the victim of undue influence. Martha’s estate argued that, in her compromised state of health and her displacement from her home and relocation to the care facility, Mary was no longer able to be independent and was physically dependent on her great-nephew and his wife, who had become her caregivers and who exercised extraordinary control over her. In other words, Mary’s execution of the new Will was the result of undue influence by the great-nephew and his wife.

A two-week trial over the enforceability of the Will took place. More than two dozen witnesses testified. Numerous voicemail messages between Mary and her great-nephew’s wife, the lawyer, during the time that the Will was being prepared, were played. The trial judge made several rulings; before those rulings took effect, the case was appealed. The entire case was reviewed by the appeals court. That court then sent the case back to the court in which the probate case had been filed, and the trial had been conducted, with instructions for further hearings. It is unknown whether Martha’s estate will inherit all or any part of it. It is likewise unknown whether the great-nephew and his wife will inherit all or any part. More appeals could be on the horizon. How could this contested situation have been avoided?

First, we recommend that Mary participate in an evaluation by a neurologist or by a physician whose other credentials verify the physician’s ability to confirm that the patient has the mental capacity to make decisions of her own free will and with an appropriate level of understanding. Establishing our client’s basic mental capacity at the time the documents were executed refutes future challenges that she was the victim of undue influence from another person or lacked sufficient capacity to understand what she was doing when she executed her documents. This resolves the vast majority of challenges that could later be raised.

Second, we would use a trust to collect our client’s assets and distribute them without the necessity of a court proceeding, which, in effect, invites challenges to our client’s estate plan from unhappy family members. Challenging a properly constructed trust is a very difficult process. It requires much more effort on the part of the unhappy family member. Third, we would prepare witness affidavits from one or two people who knew Mary over the years and could attest that she acted of her own free will in creating this estate plan. Mary did not think strategically when she was deciding how to distribute her assets. We wish we had been called upon to help her.