American Bar Association Releases "Legal Guide For The Seriously Ill: Seven Key Steps To Get Your Affairs In Order"

Estate, trust and probate litigation often involves allegations that elderly adults' estate planning desires were not carried out after their deaths (either by someone's intentional acts or negligence), or that those elderly adults were taken advantage of and their estate planning desires were thwarted while they were still living (albeit without their knowledge or consent).  With respect to the latter scenario, sometimes the claims are true, and sometimes they aren't.  Issues of (in)competency, illness, undue influence, and fraud are often raised in these types of proceedings.   Each case is different and we have certainly represented those doing the accusing as well as those being accused. 

But one common theme that I have noticed in virtually all of these cases is that no matter how much estate planning that the elderly person actually did, in virtually every situation they probably could have done a bit more.  It might not have ultimately made a difference with respect to whether or not litigation would have resulted, but where more planning is undertaken that can frequently result in a lesser likelihood of later conflict. 

With this in mind, thanks to a tip on the Wills, Trusts & Estates Blog, the American Bar Association has apparently just released the "Legal Guide For The Seriously Ill: Seven Key Steps To Get Your Affairs In Order."  I've given the document an overview and  would heartily recommend it to anyone dealing with such circumstances (or anyone with a loved one who is dealing with this situation).

Arkansas Court Of Appeals Affirms Trial Court's Ruling In Will Contest

Earlier this month the Arkansas Court of Appeals ruled in an appeal from the Crawford County Circuit Court that the trial judge did not err in denying a motion to dismiss and finding that the statutory formalities for execution of a will had been satisfied.  Specifically, in Baxter v. Peters, No. CA 09-594, a dispute arose between the executor of the grandmother's estate and the grandchildren.  The grandmother apparently left nominal gifts of money to the grandchildren and the bulk of her estate to the National Cemetery in Fort Smith, Arkansas.  Presumably the grandchildren were hoping for a larger inheritance if the will in question was not deemed to be valid, and in any event a will contest followed.

At trial the probate court heard conflicting testimony on the issue of whether the will was witnessed with the appropriate number of witnesses (the parties did appear to stipulate that the will in question was in fact signed by the grandmother).  Questions had been raised since the attorney who prepared the will had apparently been in the habit of sometimes not calling in all of the witnesses when the will was being signed (the attorney's own son, for example, evidently testified that he practiced law with his father for a few years and that occasionally witnesses would sign wills outside the presence of the testator).  Ultimately however, the trial court concluded that the signing of the will had been proven according to the statutory formalities. 

While the case is not groundbreaking in the sense that it creates a new rule of law, it is nevertheless instructive because it serves as a careful reminder that testators and their attorneys should be extra careful to ensure that all of the prerequisites for signing a will have been followed (e.g., the will should be in writing, actually signed in front of witnesses, and witnesses should also sign in front of the testator and at their request, etc.).  The fact is that circumstances surrounding the signing of wills and trusts can often be suspect, and those who get sloppy about complying with the statutory requirements are proceeding at their peril as---many years later---estate, trust and probate litigation can ensue long after their deaths. 

Videotaping As Possible Way To Preclude Estate, Trust & Probate Litigation

You may remember a movie from 15 or so years ago called "My Life," starring Michael Keaton and Nicole Kidman, in which a terminally ill man films a video for his unborn child to watch after the man passes away after a fight with cancer.  The father essentially wanted the child to know who the father was and what the father had learned in his own life, since he would not be around when the child was growing up. 

While the movie was not focused upon an estate or trust battle, I was still reminded of "My Life" yesterday when reading the December 7, 2009 post on the Wills, Trusts & Estates Prof Blog, which had an interesting link to a December 3, 2009 Wall Street Journal article written by Kristen McNamara and entitled "Lights, Camera . . . Last Words."  The article discussed videos as a way of allowing the dying to say a few last words and also possibly prevent legal disputes regarding property division after death.  Here is an excerpt from the Blog and the article itself:

"Some individuals have found a way to breathe life into dry estate-planning documents: They're supplementing them with personal messages via video.

With guidance—and caveats—from attorneys and financial advisers, some elderly and terminally ill individuals, and even some young parents, are picking up video cameras or hiring professional videographers to share their life stories, express hopes for younger generations and explain why they're leaving certain assets to certain family members. * * *

[E]xperts say that while videos can head off disputes, if not carefully executed, they also can backfire. * * *

A video may make sense if you are concerned that an heir will claim you weren't competent when you signed estate-planning documents or were pressured to distribute your assets a certain way, estate-planning attorneys say. Videos in which lucid individuals review their wills with their attorneys and answer questions that demonstrate their understanding of the documents and confirm they weren't coerced into any decisions can be useful in rebuffing challenges, they say. Such videos are typically filmed during a will-signing in an attorney's office and are kept by the attorney, along with the estate-planning documents. * * *

Attorneys generally caution against homemade videos, saying they are more likely to cause problems than those produced in consultation with an attorney. A video filmed by a beneficiary, for example, could give rise to conflict-of-interest questions. And, whether filmed professionally or not, a video in which a person looks ill or uneasy could raise questions about his or her cognitive abilities."

My personal view on this is that---overall---technology is a good thing and if it can be used to help rather than hinder in the course of estate planning, then it should be considered as part of the process.  After all, there is little doubt in the criminal context that many a disputed traffic stop, questioned search and seizure, and controversial police station interrogation could be averted if such proceedings were videotaped to ward off the "he said, she said" nature of these events.  Likewise, it seems that if an individual had a video camera and (vis-a-vis an objective, detached cameraman) proceeded to film a will or trust signing ceremony, held up each page of the document to the camera, interviewed or showed the witnesses and other participants, videotaped the actual signatures and notarizations, and otherwise allowed the individual to talk at length during the proceeding, that this could conceivably preclude many a disputed proceeding involving fraud, undue influence, and the like. 

New Book And Television Series Coming Out About Estate, Trust & Probate Battles

The estate, trust, and probate disputes and lawsuits that one reads about in the newspapers and which we commonly see in our law practice can seem like a television or movie drama.  Common threads running through these battles frequently include prominent characters in the community, tales of large sums of money flying around, allegations of complex conspiracies, questions regarding how a person died, disputes about the execution of certain documents, and claims of fraud and other wrongdoing.  In fact, these are probably the same human elements and reasons why I tend to find this area of law so interesting.  Perhaps it is also the reason why a new book and television series are coming out relating to these estate, trust and probate battles. 

Specifically, two Michigan lawyers, Andrew and Danielle Mayoras (who also author the Probate Lawyer Blog) have written Trial & Heirs:  Famous Fortune Fights which is described as a book containing "juicy details on famous cases."  While giving the reader "a front row seat in the courtroom," the authors also seek to "replay the scenarios and point out what went wrong, the winners and losers, and what you can learn from it."  The book is available for purchase at the above link.   

Also, the December 2, 2009 entry on the Wills, Trusts & Estates Prof Blog reports that a Canadian-based TV production company is shooting a new documentary series entitled "The Will," which will apparently reveal "the true life stories of complex and surprising disputes that have arisen surrounding a will, estate or trust."  The link summarizes how to participate in the series or submit a case that you think they should profile, and states that "they are looking for dramatic, unusual stories with numerous twists and turns, secrets and real emotion."  Most estate, trust and probate battles that we have handled seem to meet that criteria, but apparently one condition for being profiled in the TV series is that the cases must have reached a final decision or settlement in order to be considered.

Avoiding Estate, Trust & Probate Litigation

Since one of my areas of practice is estate, trust & probate litigation, it is obviously not in my economic self-interest to counsel against getting involved in this type of litigation in the first place.  However, first and foremost is a lawyer's duty to his or her client, which while sometimes involves filing or defending a lawsuit can also mean trying to avoid that lawsuit altogether.  After all, Abraham Lincoln once advised:  "Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser---in fees, expenses and waste of time."  That is still generally solid advice, although sometimes the fight just cannot be avoided.

That said, U.S. News published a good little article over the Thanksgiving holiday entitled "8 Tips To Avoid Nasty Estate Surprises" which provides some good pointers for avoiding estate, trust & probate litigation.  In summary:

1.  Pick aa reputable, experienced lawyer who has not performed any work for any of the other beneficiaries.  Basically, you want an attorney who knows what they are doing in this area, who does not have a conflict of interest, and who will be representing your interests (only). 

2.  Pick an administrator who can get along with the family, maybe even a professional fiduciary (like a bank trust department) if no one else could practically fill this role.  This is a biggie---oftentimes when one beneficiary is chosen to act as executor or trustee it can cause consternation with respect to the other beneficiaries. 

3.  Talk about your intentions with family members before any will or trust is drafted, in order to preclude surprises and fights after death and making everyone aware of your plans and desires.  Open, honest communication can go a long way toward heading off battles over the family fortune. 

4.  Consider your state's laws and create trusts if necessary to bypass probate if it is particularly burdensome under applicable state law.  Again, our law firm engages in estate, trust & probate litigation---not estate planning---however we can refer you to some reputable attorneys in this area if needed.

5.  Update the will or trust often so that challenges are less likely.  One of the best ways to avoid litigation is to occasionally update your documents---under facts and circumstances (lots of objective, detached witnesses, etc.) demonstrating the absence of fraud and undue influence from others---so that it can be demonstrated you were polishing your estate and trust objectives up until the end your life.

6.  Be sure to title your assets properly so that the assets pass through or outside of probate as you originally intended.  Too many folks spend a lot of money creating fancy trusts and then never do the relatively simple work of actually transferring assets into the trust. 

7.  Think about including a no-contest clause tied to testamentary gifts of a degree sufficient to discourage legal disputes.  To help avoid post-death disputes it is worth possibly including a penalty clause that essentially poses a risk of losing their piece of the pie for any beneficiary who challenges the instrument  in question after your death. 

8.  Consider allowing some discretion with respect to distribution of assets so that beneficiaries can agree to a distribution that best meets their own needs and desires.  There is no one-size-fits-all strategy and of course none of us have a crystal ball, so sometimes providing for some flexibility is often a good practical solution. 

While not a fool-proof plan to avoid estate, trust & probate litigation, the foregoing reflects some good first steps to staying out of the courts with respect to the family fortune.  As we are in the heart of the Thanksgiving and Christmas seasons, I extend my best wishes to you with hopes for a fuss-free next few weeks.