If an estate dispute is brewing (but is not yet in litigation), there are several important steps that people can take to maximize their odds of success if the matter proceeds to litigation.
In the vast majority of states, people only have judicial standing to challenge a will or a trust after the person who executed the will or trust (referred to as the “testator” or “settlor,” respectively) has passed away. There are often scenarios where a person believes that the testator/settlor was pressured into making the will/trust; didn’t have adequate testamentary capacity to do so; etc., and the testator/settlor is still alive. In those instances, the person cannot challenge the will/trust, but will need to wait until the death of the testator/settlor to bring a challenge. The following are some practical steps that a person in that situation can take in the meantime.
If you think that your parent or relative was pressured into making a will and/or trust, it’s important that you document as much information as possible about that. For example, write down relevant dates and times that actions occurred, a description of what actions occurred, the names of people who were present at those times, etc. If you believe that your parent or relative did not have the adequate mental capacity (referred to as “testamentary capacity”) to sign a will and/or trust, write down all of your observations about the relative’s condition that day (including changes to the condition from hour to hour), as well as the names of all other people who observed the relative then, plus any statements they made to you about the relative’s condition.
Memories can fade quickly and therefore the more detail that you devote to documenting the series of events, the more facts you will have available to yourself months or years later if the matter proceeds to litigation (and your estate litigation attorney is working to try to reconstruct as many favorable details of the occurrence as possible).
Don’t Post Anything on Social Media
Posting comments on social media platforms such as Facebook, Twitter, or blogs, about anything relating to an estate dispute (which could wind up in litigation) is always a bad idea. The only thing that could come from it is that your opponent in the dispute can potentially view and save your comments and use them against you in a lawsuit. You should refrain from not only posting comments of a factual nature, but also comments that reveal your thoughts or feelings towards what you would like to see occur (such as: “I’m going to sue her for everything she owns”; “he’ll wish he never messed with my dad”).
Cases can be won or lost in large part due to foolish comments on social media accounts. A few years ago, I discovered a Facebook post by a witness to a contested guardianship/conservatorship lawsuit that completely undercut the entire narrative advanced by the opposing party. I showed the post to the opposing counsel. She came begging to settle the case the next day.
Consult with an Attorney Early On
Even if you can’t file a lawsuit challenging a will or trust until the death of the testator/settlor, it is wise to consult with legal counsel as soon as you suspect any impropriety, even if your relative or friend may have years left to live. The attorney can advise you of a wide array of actions that you should and should not take in order to create an evidentiary trail that will help you optimize your odds of success if the matter goes to litigation when the testator/settlor passes away.
Consider Pre-Death Litigation Options
While a will and trust cannot be challenged until the testator/settlor passes away, there are certain circumstances where a person has options to litigate certain issues prior to the testator/settlor’s death. For example, the Uniform Trust Code affords certain trust beneficiaries rights to hold accountable a trustee (even if the settlor has not passed away yet). Additionally, the Uniform Power of Attorney Act affords certain people rights to hold accountable an agent under the power of attorney (even if the principal [the person making the power of attorney] has not passed away yet). There are circumstances where it makes sense to employ these options prior to the death of a testator/settlor, even if it means that another round of litigation will ensure relating to the underlying validity of the will/trust when the testator/settlor passes away.
Published courtesy of the LeClairRyan’s Estate Conflicts Blog 2016.
William W. Sleeth III is a partner with the national law firm of LeClairRyan, and the team leader of the firm’s Estate and Trust Litigation Practice Area Team.