This article explores the steps that can be taken on the front end to prevent a will contest after your death.
When people create a will, trust, or other estate planning document, they assume that it will be legally sound. Unfortunately, in many cases, when the estate is opened and a legal document such as a will or trust (either revocable or irrevocable) is presented, either one of these may be disputed by a family member or loved one. If an individual disagrees with one of these estate planning documents, he or she may dispute it in a court of law.
Oftentimes, controversies relating to estate planning arise due to poor planning. At other times, it may be that the estate planning documents prepared by an estate planning attorney were not updated throughout the course of the person's life. As an estate planning attorney, I see three main types of disputes: (1) second marriages, (2) mistrust of the personal representative or trustee of the estate, and (3) coercion or undue influence. With proper estate planning and vigilance on both the part of the client and the estate planning attorney, these disputes can be avoided. However, when clients and estate planning attorneys fail to keep a watchful eye on major life changes, particularly as they relate to the clients' estate planning documents, disputes arise, and litigation follows. Let's take a look at each of these dispute scenarios one at a time.
Your estate planning documents should always be updated whenever you experience a major life change. Obviously, you get busy and the stress of any such major life change prevents you from thinking how those changes affect your will or trust. Hiring a good estate planning law firm, like The Taormina Firm, one which checks with their clients at least once a year, helps keep track of major changes and reminds you of the necessity for additional estate planning.
One of the best examples of a big life change is a second marriage. If a client fails to update his or her will, trust, or other estate planning documents following a second marriage, a dispute may arise after death. This is especially true if children are involved. If your child's future is not financially protected in your estate plan, this can lead to significant conflict. Even if you took care to update your will or trust, parties connected with the will or trust may disagree with your own estate planning decisions. Disagreement, frustration, and hurt feelings often translates into litigation. As I sometimes tell my clients, there is no such thing as a happy family after death.
The best way to prevent an estate planning dispute from happening is to review your will, trust, and other estate planning documents once a year, with particular focus on big changes that happened over the course of that year. Another is to talk with your spouse, ex-spouse, your children, and your spouse's children about your estate plan. This will allow you to explain your wishes. The more people who know about your estate planning decisions the better. Doing this, while not a guarantee, may avoid troublesome and unnecessary litigation after your death.
As an estate planning attorney, I have seen the importance of selecting good people to aid in settling up an estate. In the trust context, this person is known as the trustee. In the will context, this person is known as the personal representative. If you have a revocable living trust with a pour-over will, this person will serve as both trustee and personal representative of your estate. They will manage your estate and carry out your wishes after your death.
Trustees and personal representatives also play important roles in the handling of assets. Oftentimes, individuals who are beneficiaries of the will or trust find fault in the actions of the personal representative or trustee. This leads to a lack of trust between the person handling the estate and those receiving from it. These feelings can lead to disputes amongst heirs of an estate plan and lead to further litigation.
There are scenarios where the trustee or personal representative makes a truly careless or potentially fraudulent decision in the settling up of an estate. These instances are rare, but they do occur. Dishonesty, fraud, and bad faith will often lead to litigation. That is why it is so important that my clients select someone they know and trust to serve as trustee or personal representative. It is not uncommon, however, for a trustee or personal representative to make an honest mistake. With that said, it is more difficult to bring suit against a trustee or personal representative who makes an honest mistake than one who acts in bad faith.
Coercion or undue influence often arises when an unexpected distribution from the decedent's estate happens. The classic example is the decedent leaving most of his estate to his nurse or caretaker. If a will or trust awards the decedent's assets to an unexpected person, interested parties to the estate may feel that their loved one was coerced or unduly influenced into leaving their assets to that person.
In Missouri, a presumption of undue influence arises when there are three different elements present: (1) the existence of a confidential or fiduciary relationship between the decedent and the beneficiary; (2) the beneficiary is given a substantial benefit; and (3) the beneficiary was active in procuring execution of the estate planning document which conferred the benefit. Vancil v. Carpenter, 935 S.W.2d 42, 44 (Mo. App. W.D. 1996). In other words, the unexpected beneficiary must have a close relationship with the decedent and must influence the decedent to give a part of their estate to them via subsequently executed estate planning documents like a will or trust.
These claims can be hard to prove, especially since they oftentimes arise in scenarios where it is possible that the decedent has suffered from some mental decline due to age or disability. Elderly people can be easily manipulated by dishonest and deceptive people into altering their wills or trusts. Because the mental capacity to make a will or trust is relatively low (a person must simply understand the consequences of their actions) it can be relatively easy to manipulate older people into signing away part of their estate to an unexpected beneficiary. Family members who suspect coercion or undue influence, therefore, will usually pursue litigation.
As you can see, there are a number of different ways that a dispute can arise out of your will or trust. Even if you work closely with an estate planning attorney to craft your estate plan, things do change. Keeping a sharp lookout for necessary changes to your will or trust are important, and working with an estate planning attorney, like me, Vince Taormina, who cares about you will help you in making those changes.
If you are worried about a potential will or trust dispute, if you are interested in bringing a will or trust case, or if you want to conduct a review of your existing estate planning documents, please do not hesitate to call The Taormina Firm.