Helping someone plan for the disposition of their worldly assets upon their demise is usually gratifying work for a lawyer, but it can be tricky at times.
This is especially true where someone wants to leave nothing to someone who may feel slighted, insulted, vindictive or angry about being left out of the distribution of assets, be it by a will, a trust, or non-probate transfers.
And, I’ve noticed that those same character traits that may make someone inclined to feel slighted, insulted, vindictive or angry about being cut out of an estate plan tend to be the same types of character traits that cause people to want to leave them out, at times.
These personality traits sometimes go hand in hand.
And, the more worldly assets the client has can increase the challenge, because there is more at stake, more reason for the disinherited individual to feel slighted, and more likelihood of nasty litigation challenging the testamentary disposition, sometimes involving family members of the dearly departed.
But what people need to keep in mind is that, in challenges to wills, trusts, and non-probate transfers of assets upon death, the jury does not decide if the decision of the dearly departed was unfair, capricious or unjustified, or if the person challenging the disposition got screwed out of something they deserved.
Because it is the dearly departed’s assets being disposed of, and, with few exceptions, they can do what they want with their assets upon their death.
One exception is that a married person cannot cut their spouse out of their estate plan completely. A spouse can force a share of the estate, even if they get completely cut out.
The other two exceptions are if the person making the testamentary disposition, the dearly departed, lacked sufficient mental capacity, or was subject to undue influence, when the will, trust, or other testamentary disposition was made.
But claims that the testamentary disposition which leaves someone out is unfair, calloused, or just not right – well, that is not the applicable legal standard. It’s their money. And so long as they have ample mental capacity, aren’t subject to undue influence, and aren’t leaving a spouse completely out, they can do as they wish with it.
In some instances, where someone has provided assistance to someone in their old age, and they are left out of their estate plan, a claim for the value of services can be made as a claim against the estate, or to enforce an agreement with the deceased they would be compensated, but those are murky legal waters.
When I am doing estate planning for an older person, and there is a situation where someone may be unhappy with the outcome of the decisions of the client, I know that I am going to be the first witness in a will contest lawsuit. And so, I plan accordingly.
Sometimes, I interview the person before the witnesses to the will at the time of signing, to establish that they know what they are doing, and why, and that no one has overborne their will, or influenced them, and that they are capable of making the choices that they are making. Then, I do a written memorandum for my file, memorializing what was said, and my impressions of their capacity and their freedom from influence, if that is indeed the case. Sometimes I ask the witnesses to do so, as well.
This can be important evidence if there is a challenge to a will.
Because we owe it to the client to do everything we can to make their decisions on their estate plan stand, whether others may think it is unfair, or not.
Ken Garten is a Blue Springs attorney. Email him at firstname.lastname@example.org.