Avoiding a Will Contest - the Impossible Dream?

• Publication year: 2022
• Citation: Vol. 34

34 Creighton L. Rev. 7. AVOIDING A WILL CONTEST - THE IMPOSSIBLE DREAM?

Creighton Law Review

Vol. 34

DENNIS W. COLLINS(fn*)

I. INTRODUCTION

Let's talk of graves, of worms, and epitaphs;

Make dust our paper, and with rainy eyes;

Write sorrow on the bosom of the earth;

Let's choose executors and talk of wills.(fn**)

It has been said, and I think accurately, that a will is more apt to be the subject of litigation than any other legal instrument . . . . Usually, it is the most important document executed in a person's lifetime. This immediately suggests that a will representing the true wishes of a testator of sound mind should be so prepared and executed as to be invulnerable, if possible, to an improper attack.(fn1)

The estate planning lawyer faces many difficult tasks when attempting to draw a will. Usually, the client has a very definite plan in mind, and you are supposed to get it right on paper. Some of these plans may involve many complex goals, often to allow the client to control everybody from the grave.

In addition, the lawyer is watching to be sure the technical requirements for the execution of wills are met. There may be minor children or handicapped devisees. And, of course, there is always the worry that Uncle Sam is going to take more than his fair share - which most clients would agree is nothing:

Collecting more taxes than is absolutely necessary is legalized robbery.(fn***)

Now add another worry - a possible will contest. While more and more people are apparently avoiding the use of a will to transfer their property at death,(fn2) including the advent of revocable "living" trustsand easier transfer-on-death methods, will contests are still a major problem for the estate planner. One study suggests that one out of every one-hundred wills are contested, and this makes a will fight "rare,"(fn3) but a well-recognized expert in the area finds this disturbing, noting "[b]ecause . . . there are millions of probates per year, one-in-a-hundred litigation patterns are very serious."(fn4)

In asking other lawyers if they see more estate disputes now, the usual answer is that fighting at death is much more common today. In addition, the fighting might not be over undue influence or testamentary capacity, but over related issues, such as interpretations of certain will or trust clauses, how and when the transfers are to take place, who is to be in charge, how the assets are to be distributed, and how the taxes are to be paid.

This paper primarily attempts to discuss will contests and ways to avoid them, but many of the questions addressed relate to other contested areas of estate administration, including transfers at death outside of the probate court.

II. THE PROBLEM

Will contests are a subtle form of malpractice action in which disappointed relatives attempt to destroy a lawyer's handiwork because the lawyer drew a will for someone who did not meet the test for competency. Probate practitioners are victimized by gnawing fears that some overaggressive trial specialist will sabotage the well-laid testamentary plans of one of his or her solid and sensible clients by persuading a jury that the will was the result of undue influence or duress.(fn5)

A. THE STATISTICS

Most will contests occur because of undue influence or lack of testamentary capacity claims, although they may obviously involve lack of proper execution, forgery, altered documents, revocation, mistake, fraud, duress and insane delusion.(fn6) Nebraska's experience includes undue influence and testamentary capacity, as well as improper execution of the will. However, it is difficult to successfully defeat a will according to the statistics. In a 1986 study, of the forty-two Nebraska (citing Allison Dunham, The Method, Process and Frequency of Wealth Transmission at Death, 30 U. CHI. L. REV. 241 (1963).Supreme Court cases reviewed, only nine decisions held that the contested will or deed was invalid.(fn7)

B. SPOTTING THE PROBLEM IN THE FIRST PLACE - SOME WARNING SIGNS

1. Size of the Estate?

You might think that if you have a small claims court practice like mine, you will not have any will contests, because there is not enough to fight over. Conversely, if the clients you are drawing the wills for are rich, you need to be more careful about a possible contest. However, the data says "smaller estates generate at least as much, if not more, controversy than larger estates."(fn8) As an old lawyer who had handled many large estates once told me, "[t]he biggest estate fight I ever had was over a haystack."

2. Second Marriage?

With everybody living longer, and wanting to remarry when the first spouse dies or leaves, it is much more common to encounter a husband and wife with children from a prior marriage - a situation made for a fight. You should be able to determine right away what lies in store by asking what the new spouse thinks of the other's children (which may also get somebody a good divorce, depending on the answer given). If the answer shows a good, close relationship with those children, the odds for a fight are much less than if they have not been home for the holidays in years.

Therefore, not only does the second marriage show the need for a marital agreement between the spouses, but perhaps shows the need to get prepared for a fight at death. Many times, this fight may be over the least valuable items - such as household furniture. You may need to pay special attention to where such items are to go at death, and specifically describe them. Pictures, lamps or china normally going to a surviving spouse, may need special attention so the children from the prior marriage will get what the deceased intended.

3. Who are the "Heirs"?

One of the obvious important questions to ask is, who are a person's spouse or children? However, in today's world this may not havea straight-forward answer. Several spouses is common; many parents would like to forget they had certain kids; and there may be an illegitimate grandchild nobody talks about. Many people will not tell you about these things unless you ask, but unless you ask, you will not see the contest coming.

In certain cases, to protect yourself - and the future will - you may want to prepare a statement signed and acknowledged by the testator, listing the heirs.(fn9)

4. Is the Will "Unnatural"?

"A will leaving nothing or only nominal gifts to close family members, such as a spouse of many years or children, is ripe for a contest, especially if the beneficiaries are distant relatives, friends, or charities."(fn10) Nebraska courts specifically prefer "natural" distributions. In one case the court stated that "[u]njust, unreasonable, or unnatural provisions of a will are matters for consideration by jury as evidence tending to throw light on testamentary capacity."(fn11)

However, the courts do recognize the right of a testator to make his own decisions noting that "[i]t is not for courts, juries, relatives, or friends to say how property should be passed by will, or to rewrite a will for a testator because they do not believe he made a wise or fair distribution of his property."(fn12) Either way, you should expect a possible fight in such a situation. When you lose your parent, that is one thing, but when you lose your parents' money, that is another. What did they think you went to all those lousy Thanksgiving dinners for - love?

A man can take with equanimity the loss of his father, but the loss of his inheritance will drive him to despair.(fn*)

5. Are There "Non-family" Devises?

Today's lifestyles make for possible contests. People are living to older ages and striking up friendships and relationships in senior citizen centers and retirement homes. Living together without marriage does not have the moral significance it used to have.

[B]ecause of the temptation to immorality, each man should have his own wife and each woman her own husband.(fn**)

In addition to age, divorces are much more common, as are childless marriages. All of these factors increase the probability of devises to persons other than family members. Such an estate plan should be an alert that you are in for a fight down the road.

6. Are Children Treated Unequally?

The argument that all children should be treated equally may be persuasive to a jury, so if you are treating children in different ways, a fight may be brewing. Having said that, there are many obvious reasons to treat siblings unequally:

a. You may have a child who is active in the family farm or business, and must receive more than others in order to continue the operation;

b. One child may have done much more for a parent than another, and the parent wishes to recognize that;

c. One child may have special needs, such as a handicapped offspring or a child who has not yet received the education the other children received;

d. One child may be on government assistance, and the devise will simply go to fund Uncle Sam; or

e. One child may be a spendthrift or have other problems in keeping or spending money.

While this is similar to the "unnatural" dispositions discussed above, the Court does allow a testator to choose amongst his children:

Judges may regret that a parent makes unequal disposition of his property among the natural objects of his bounty, but it is not always given to judges to

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