Ms. Powell authored this article for the Legal Times newspaper
( Wash. , D.C. Apr. 28, 2003 ). It predicts that Will contests will increase as "baby boomers" parents die, and offers tips to protect attorneys who draft Wills.
Probate practitioners can expect a substantial increase in the number of Will contests as baby boomers, generally defined as those of us born between 1946 and 1962, become heirs. This premise is based on the predictions of demographers and economists that the largest intergenerational wealth transfer in history is just beginning to occur as the parents of baby boomers die and pass their wealth to their children. This article offers tips on how to prepare for the increase in Will contests and avoid being snared in the contest of a Will we've drafted. It is intended for practitioners who draft Wills but whose practices do not focus closely on estate planning.
There are many reasons for the projected increase in Will contests as baby boomers begin inheriting from their parents.
More Wealth
There are several reasons why this largest ever wealth transfer will result in more contests by disgruntled heirs claiming they didn't get "their share." First, some baby boomers', parents are "children of the depression", characterized as having seen hard economic times and become thrifty and content to live well below their means as a result. "Children of the depression", now in their 80s, worked hard, lived modestly, and saved, and saved, and saved. Whether they made steady investments in simple vehicles like U.S. savings bonds or life insurance, whether they now own appreciated real estate, or made long-term investments in the stock market, these parents continued to live modestly as their wealth accumulated; to wit, "the millionaire next door." As these boomers' parents die and pass their large estates to their children, more wealth will translate into more Will contests because Will contests are all about -- and only about -- money. Further, much of this wealth is first-generation wealth, so the owners may not be convinced of the need for sophisticated estate planning for the purpose of discouraging Will contests.
More Elderly Clients
As a result of advances in medical science, the fastest-growing age segment of American society today are those age 85 and older.
Increased longevity will result in more Will contests, first, because medical science has improved the quantity of life more than the quality of life. Even before Alzheimer's and other forms of dementia were as common as they are today, lack of testamentary capacity was one of the most common grounds for Will contests. Guarding against this attack includes knowing that at the moment of execution of the Will, the testator must have sufficient mind and memory to [i] understand the nature of the task of making a Will as shown by the ability to create a rational plan for the use of his property after his death (e.g., "I give my house to my son who has always lived with me and cared for me during my old age, and who has never had any other home; I give my business to my daughter who has never wanted to work anywhere else and has always shown great interest in it and love for it."), [ii] recall generally what property he owns, and [iii] recollect the relative "claims" of persons who would be the natural objects of his bounty or the "duties" he owes to his family members ("claims" and "duties" in the sense of leaving property to legatees in some rational proportion to the amount of love, affection, and attention those legatees showed the testator during his life). "I know he's my son, but, he's never been there for me."
Guarding against claims of lack of testamentary capacity -- a legal vs. a medical term -- requires becoming skilled at assessing mental capacity. Whether the lawyer uses the Mini-Mental Status Examination or some other test of capacity (e.g., asking the client to draw the face of a clock with the time at 10:15 or spell "world" backwards), the lawyer must know [i] when capacity is likely to become an issue (e.g., the client (a) in early stages of Alzheimer's, (b) who is disinheriting "the natural objects of his bounty," or (c) who is making an unusually large bequest to a charity or for a pet), and [ii] the extent of precautionary steps to take -- whether to (a) schedule an expensive battery of neurological tests, (b) videotape the Will execution, or (c) informally administer the Mini-Mental. E.g., estate planners know that videotaping can be a two-edge sword if the drafting attorney is asked under cross-examination how many "takes" were made before securing the final videotape or why taping was felt to be necessary in the first place.
The lawyer's assessment of mental capacity may be complicated by a very educated or sophisticated client deft at camouflage diminishing mental capacity. E.g., a client asked about their age may disguise memory loss by answering "A gentleman never asks a lady her age," or "Why I'm old enough to be your father." This author's experience with elders is that loss of mental capacity is much more frightening than loss of physical capacity, and especially so for elders who were once impressively sharp thinkers. Often, the well-educated, sophisticated elder has seen signs of their diminishing mental capacity and is frightened into self-denial. Once they can no longer deny their diminishment to themselves, they may continue to struggle to hide it from family, friends, and others. The lawyer who suspects that education or sophistication may be covering lack of capacity must never-the-less pursue the assessment even if it's very painful for the client, who should be told that the assessment is necessary to ensure that the client's testamentary wishes are fulfilled. Sometimes several sessions with the client or a follow-up phone call the next day may be necessary to assess long-term memory or consistency in dispository wishes. Sessions with these clients must be patient, rather than rushed or strictly timed.
Probate lawyers practicing in the Wash. , D.C. metropolitan area are challenged by clients constantly entering and leaving the area to attend school, to take military assignments, to work for the government, etc. As a result of increased mobility in this area especially, a lawyer may be asked to draft a Will for a client whom the lawyer has never seen; "Mom just moved to this area and wants to update her Will." Precautions to protect the Will of a new elderly client from attack include asking (a) the client about family members to ensure that the elder knows "the natural objects of their bounty," and (b) what the elder owns to ensure that they know generally what they have. The lawyer may routinely require a new client's previous Wills in order to obtain rational explanations for drastic changes in bequests or beneficiaries. The lawyer may wish to preserve previous Wills in case a contestant successfully invalidates the last Will because of defects in execution, another common ground for Will contests. As a precaution against this type of attack, Wills should include an attestation clause that brings with it a presumption of due execution (see Slack v. Truitt, 791 A.2d 129 (Md. 2002) presumption left intact where sole surviving witness' memory was not). The lawyer should also have and habitually follow formal execution procedures -- always ask, inter alia, "Is this your Will? Have you read it?" If a newer Will is rejected and the previous Will is intact, the doctrine of dependent relative revocation may apply to unrevoke the previous Will if the newer Will was executed but later found to have defects in execution (Linkins v. Protestant. Epis. Cathed?l Fdn., 87 U.S. App. D.C. 351 (1950); In re: Est. of Burleson, 738 A.2d 1199, n. 13 (D.C. 1999)).
Another aspect of clients' increased mobility that portends an increase in Will contests, is that more adult children now live thousand of miles from their aging parents, who are more likely today than ever before to live alone in the care of or dependent upon non-family members. The combination of adult children unable to stay in constant touch with their parent(s) and more elders with substantial assets being vulnerable to strangers will result in more claims that the elder was the subject of undue influence -- the second of three most common grounds for a Will contest. Here, the allegation is that the Will does not reflect the testator’s wishes because a third party coerced or dominated the testator to subordinate the testator’s depository intent to that of the third party. To guard against a potential Will contest on the grounds of undue influence by an unscrupulous interloper and to ensure that the wishes expressed are the elder’s, the lawyer should always meet alone with the elder when another person makes the appointment or brings the elder into the office. Alternatively, if the elder has sound reasons to disinherit children in favor of a caretaker, close friend, or charity, precautions include interviewing the client thoroughly before drafting and again before execution and documenting your file in detail, having a witness who is neither related to the client nor a beneficiary witness the interview, and signing the same document twice over a several-month or several-year interval.
Elderly clients with substantial wealth who live alone ? even if they have children -- may wish to make rational large bequests to or for their pets, caretakers, or favorite charity -- to anyone who has faithfully befriended them in their children’s absence. When the attorney determines that a client with testamentary capacity wishes to disinherit and/or make an unusual bequest, the drafter’s file should be carefully documented with proof of capacity and justification. Pari ratione, using more than the required number of witnesses -- all younger than the testator -- can further impede contestants and ensure that the elder’s wishes are followed.
All Will contests are not brought by greedy, undeserving children. Some are, indeed, valid and serve the purpose of undoing fraud, forgery, and other criminal schemes, as well as the rare case of short-sighted attorneys who draft Wills for new clients at a third party’s request (see Boyd v. Bowen, 806 A.2d 314 (Md. 2002)) or provide Wills via mail to clients they’ve never seen personally. The goal here is to high-light where the draw the line.
In addition to the tips provided above, other options include advising a revocable living trust rather than a Will in a contentious family situation where privacy of the disposing documents outweighs the additional costs of a trust.
Inter vivos re-titling of assets to make them jointly owned, to create life estates, or to make assets subject to a designated beneficiary may be advisable where the contention is not coming from a spouse (see Knell v. Price, 569 A.2d 636 (Md. 1990) where non-probate assets over which the decedent retained control were made available to the surviving spouse’s elective share). In cases involving spouses, pre- or post-nuptial agreements are urged.
Other "tips" abound, like having the testator send disinherited heirs a check on the same day the Will is executed, to make it difficult for the heirs to claim that the testator had capacity to make a completed gift but not to execute a Will. Some attorneys advise involving children in the elder’s estate plan to avoid surprises later, but this, like videotaping, can be a two-edged sword. This author’s practice is to send a draft of the document for the client to review, make requested changes, uncover questions, etc., and then discuss the final document prior to execution. Use of an in terrorem clause along with a bequest substantial enough to halt the potential contestant may be an option (cf. Md. Annot. Code §4-413 voiding the clause if contestant has probable cause to contest).
This article has listed several precautions lawyers can take to decrease the likelihood of Will contests when helping today’s elderly plan their estates and in view of the substantial increase in the number of Will contests that is likely to occur as baby boomers begin to inherit from their parents. The most important precaution is to be alert to the many pitfalls that await the unwary drafter.
The information presented in this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.
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