by Christopher L. Carns
As the likelihood of litigation around estate planning continues to grow, prudent practitioners must be able to identify factors that lead to such contests and must know how to eliminate or reduce the likelihood of success of a will or trust contest. There are several factors practitioners should look for, including but not limited to blended families, late in life marriages, substantial separate property of one or both spouses, large charitable gifts, and what would appear to be an unnatural disposition of the estate.
Of the factors listed, blended families, an unnatural disposition of the estate, and late in life marriages are very often the bases that lead to a will or trust contest. Moreover, the combination of two or more of the factors, such as a blended family arising from a late in life marriage that minimizes the inheritance of children of the decedent, very frequently results in a contest of the decedent’s estate planning.
To eliminate or reduce the likelihood of success of a Will or Trust contest on the grounds of incapacity or undue influence, the two most common grounds, the following precautionary measures should be taken:
· The client should visit his primary care physician or a neurologist prior to and close in time to the signing of the will or trust.
· The practitioner should assist the client and his physician by providing a form letter stating the legal elements of capacity to enter into a will or trust that seeks the physician’s signed affirmation of such capacity.
· The client should be advised to come to the practitioner’s office alone, if possible, and if not, the party bringing him should not be a beneficiary under the estate planning documents.
· Prior to and for a reasonable time thereafter, the practitioner should avoid any verbal, written, or electronic communication with any beneficiary under the estate planning documents related or incident to the client as oftentimes these parties assist with transportation and logistics for the elderly or disabled client.
· The practitioner should only represent the client and not the spouse or other beneficiaries or she should consider securing written waivers to the extent that they would be adequate under the circumstances.
· If a likely contestant has been identified during or prior to the estate planning, the client should be advised to give the likely contestant a sizeable gift near the day of executing the estate planning documents because acceptance of that gift is evidence of that party’s belief that the client had capacity to make a gift, which is very similar to the capacity needed to execute a will or trust.
· The client, by and through the practitioner, should consider notifying the potentially disgruntled beneficiaries under the estate plan of its existence, along with a general description of its contents, in a letter enclosing the gift referenced above in order to immediately begin the running of the statute of limitations for a contest.
· The practitioner should not be a witness or the notary for the documents, and his or her staff should follow the same procedures and “script” in all estate planning executions to ensure the manner of execution can be clearly and effectively communicated in the event the documents are the subject of a subsequent challenge.
· At least one staff member should be present in all meetings with the client to observe the client’s rationale and mannerisms memorialized in a written memo to the file immediately following the meeting.
As estate planning practitioners, our primary objective and duty is to provide a plan that will ensure that our client’s wishes and intent are ultimately honored. Therefore, prudent practitioners must consider, recognize, and properly plan for a potential contest that could undermine, in whole or in part, the client’s intent and estate plan. Not only will a failure to properly plan for a contest result in a detriment to the client, but it will inevitably lead to countless hours spent by the practitioner and her staff in subsequent litigation, which may include a contest of the estate planning documents or a malpractice action against the practitioner.
Christopher L. Carns is a senior associate at Dismuke & Waters, P.C. He can be reached at firstname.lastname@example.org.