Death Can Bring Out the Worst

• Publication year: 2017
• Pages: 19

Death Can Bring Out the Worst Vol. 86 J. Kan. Bar Assn 3, 19 (2017) Kansas Bar Journal March, 2017

The Evolving Landscape of Will Contest Litigation in Kansas

Jeffery L. Carmichael Will B. Wohlford Sarah G. Briley and Grant A. Brazill

In 1995, the Kansas Bar Journal published an article entitled "Will Contests in Kansas," co-authored by Dennis Feeney, a great friend and an even better law partner, who has since passed away^[1] Since then, the law and reported decisions relating to will contest matters reflect the continued conflict that death can bring. In 1988, the elderly population of the United States of America numbered 30,000,000.^[2] In 2011, the number reached 40,000,000, and it is predicted to reach 50,000,000 by 2019-^[3] With the baby boom generation's slide into retirement and inevitable passing, significant assets will be transferred to their heirs and others. These transfers are rife with opportunities for disputes over wills and estate plans. Kansas attorneys should expect to be contacted by the disinherited and disenfranchised parties from those estate plans, and asked to evaluate the potential success of a challenge to the deceased's will or estate plan.

This article will discuss investigating claims concerning a will contest, evaluate the risks of pursuing one, and review the substantive and procedural aspects of these actions. We will examine potential claims that may be raised in a will contest, including undue influence, lack of testamentary capacity, constructive fraud, and the ancillary tort claim of tortious interference with inheritance. Finally, this article will provide practical tips for advising clients preparing estate planning documents on how to avoid probate disputes.

I. Considering a Will Contest: Investigation

The focus of any action to contest a will from the initial consultation to the court's final decision is on the testator's intent.^[4] A variety of factual circumstances may engender a will contest dispute. At-risk circumstances include:

i. Blended families;

ii. Changes in an estate plan close to the death of the testator;

iii. Omissions of family members from an estate plan;

iv. Unequal treatment of children within an estate plan for any reason;

v. Significant non family devises;

vi. Change in attorney and a corresponding change in an estate plan late in life;

vii. The attorney's services paid for by a beneficiary in the estate;

viii. An elderly or disabled testator;

ix. Change in an estate plan to favor a late in life caregiver;

x. Unrealistic entitlement expectations.

While the circumstances that may give rise to the will contest dispute are endless, this list contains common and recurring issues which provide fertile ground for the seeds of discontent.

A. Preliminary Investigation

Consider what documents comprise the decedent's final declaration of intent. Once the documents that comprise the last statement of the decedent's disposition of their estate are assembled, the documents must be evaluated for expressions of the intent of the testator at the time of execution. The key inquiry in any will contest dispute is the determination of the intent of the decedent at the time the document or documents were signed. A preliminary list of important documents might include previous wills, drafts of wills, codicils, worksheets, decedents' letters, communications with counsel or other professionals, and correspondence with family members.

Once all documents are assembled, the attorney should assess whether those documents appropriately express the intent of the decedent. Unfortunately, the testator, the one person who could easily answer this question, will no longer be available to assist in the process. Instead, the decedent's intent must be determined by inquiring of those who know, or think they know, what the decedent wanted to do with his or her estate. Useful witnesses might include family members, friends, ministers, executors, the drafter of the will under scrutiny or of prior wills if they have differing dispositions of assets. Other potential witnesses include those present during the preparation or signing of the estate documents, accountants, tax planners, attorneys, health care providers, care providers, or anyone with a reason to know about the estate plans of the decedent. From this universe of possible witnesses, the attorney can begin to sketch a picture of the individual's intent a nd compare it to the most recently executed documents.

Of course, before filing either written defenses or a separate petition, counsel should undertake an evaluation that is more substantive than procedural-analyze the potential effect of successfully challenging the validity of the will on the distribution of the decedent's estate. A will that is invalidated due to the decedent's lack of testamentary capacity is void in its entirety^[5] In contrast, even if an undue influence challenge succeeds, the parts of the will unaffected by the undue influence may be valid.^[6] Kansas courts have recognized the partial invalidity doctrine,^[7] and have held that parts of a will may still be valid if those clauses found to be the result of undue influence are severable.^[8] The will must remain intelligible after the invalid portions are removed.^[9] But if the will is found to be wholly invalid, counsel must evaluate the potential effect of a prior will being revived or the heirs taking the estate by intestate succession.

Once the attorney has reached a conclusion about the prospects for a successful will challenge, they should be prepared to discuss the advisability of proceeding with claims, risks, and the potential costs and benefits of proceeding. As it should, trying to set aside a signed document purporting to be the declaration of the decedent's intent presents significant factual and legal challenges. To meet and overcome a written document's presumed validity, the challenger must present evidence of sufficient weight to convince a court that the written documents do not represent the decedent's true, final intent.

B. Formal Discovery: Potential Documents and Witnesses

If the attorney believes that a basis exists for a dispute in an estate plan or is asked to defend the latest form of that plan, filing written defenses to the admission of the will to probate or filing a separate petition to contest the will is necessary^[10] Then formal discovery can proceed. Using either formal or informal discovery methods, the attorney will want to request the production of or subpoena those documents which comprise the estate plan at issue, including the notes and files of the attorney who prepared the estate plan, any documents regarding prior estate plans, revisions or additions to that estate plan after it was prepared, and any documents that relate to any other attorneys involved in proposed estate plans for the individual. In addition, the attorney should seek correspondence from the testator and the beneficiaries, family members or any other party that might shed light on the testator's intent or discuss or describe a proposed estate plan. Any other letters, notes, cards, or other items bearing on the testator and his or her relationship with the beneficiaries or intent regarding the disposition of the estate may help to explain what the testator intended and whether the will in question reflects that intent.

Another set of important documents to discover are those relating to the decedent's health, finances, and other relationships. The attorney might discover medical records from health care providers and hospitals, nursing home records, including nursing records; banking records; accounting records; investment account records; and any records regarding the relationship between the testator and the proposed beneficiaries or family members. In addition, evidence of how the testator disposed of assets not passing under the will or trust is important to provide context for the testator's intentions concerning the disposition of other assets.

Once the documents are gathered and a list of potential witnesses is prepared, prepare a deposition plan. Which witnesses should be deposed and about what? The focus points here are the time period during which the estate planning documents were signed, and whose testimony could assist in determining the intent of the decedent. Focus on the events at the signing of the documents at issue, and whether at the time of their preparation and signing, those documents reflected what the testator wanted to accomplish. While evidence of what the testator's intentions may have been in the weeks or months before or after signing may be important, a court should focus on the decedent's intentions at the time contemporaneous with preparing and signing the will and whether the documents reflect that intent as of that time.

Persons with credible information about the decedent's intent are key fact witnesses. If possible, start with the attorney who prepared the estate planning documents. He or she should have met with the decedent and discussed both the extent of the assets and what the decedent intended to do with them. Determine which parties the deceased wanted to include in the estate plan and why. Conversely, if the drafting attorney lacks some or all of this type of information, finding out why is also a critical area of inquiry.

Observing the discovery rules requires that you make an early decision about the need to employ expert witnesses. Useful medical expert opinions may relate to whether the decedent was sick or infirm and the potential impact those conditions had on the decision-making ability of the deceased. In addition to the testator's medical condition, a psychiatrist who works with elderly patients may be helpful on issues of susceptibility to undue influence, cognitive limitations or deficits, and in explaining how certain health events such as strokes, dementia, or...