When a family member has died, it can add insult to injury to learn that you were cut out of the will. Contesting the will is likely an initial thought. We talked to people who have filed will contests, and came up with the top 5 reasons I regret filing a will contest. The reasons are:
I was not honest about my relationship with the decedent.
A will contest is more stressful than I realized.
I was not realistic about decedent’s mental and physical condition.
I did not have a clear idea of what I was fighting over.
I did not realize how much a will contest would cost.
For a breakdown of each of these five reasons, follow the source below.
Attorney Brett Hebert, with the national law firm, Gordon Rees, recently wrote an article on the firm’s blog regarding the admissibility of certain correspondence in estate litigation cases.
A typical situation we see involves an elderly person who begins to show signs of losing mental capacity. Then an unscrupulous person “enters” the life of the elderly person, begins to take “care” of the elderly person, and begins to “help” the elderly person with their finances and medical care. Then the elderly person’s estate plan (trust, will, power of attorney) “changes” dramatically to the benefit of the unscrupulous person (and to the detriment of former beneficiaries). As a result, the former beneficiaries of the elderly person begin to ask the unscrupulous person about the changes. The unscrupulous person may send correspondence in return. The elderly person may correspond with the former beneficiaries, too.
These communications typically come in the form of emails, texts, and letters. Sometimes, people post on social media about the disputes. There may even be voicemails or handwritten notes. All of these items are potentially relevant to the dispute and subsequent litigation.
If you suspect that a loved one may have been influenced by someone with ulterior motives, retention of any correspondence with that person or with the possible victim could be beneficial to your case.
An Indiana Court of Appeals opinion underscores the importance of accountings in trust administration, but also raises questions about why families place siblings in adversarial positions to begin with.
According to an article posted by the Indianapolis law firm of Faebre Baker Daniels, the original case involved three siblings, Scott, Jeff and Stacey – and arose after Scott and Jeff began to question some of Stacey’s actions as trustee of their respective trusts – specifically, her handling of the trusts’ joint ownership of multiple parcels of real property. Shortly after the siblings executed a mediated settlement agreement and partitioned the properties, Scott sued Stacey, as trustee of his trust, alleging she failed to provide an accounting and had misused trust assets. Scott also alleged misappropriation of $107,000 of trust assets, which were characterized as trust expenses – which were in fact legal fees Stacey had incurred “years before the most recent trust-related litigation,” apparently with other family members.
One of the duties of a trustee (known as fiduciary duties) is to keep trust property separate and to maintain – and make available to trust beneficiaries – adequate records, which Stacey admitted she had failed to do. Unfortunately for Scott, he did not bring his complaint until after the two-year statute of limitations had expired, and the trial court found Stacey did not commit a breach of trust as to the accountings.
Scott also demanded reimbursement for his attorney’s fees for bringing the complaint against Stacey, which after being denied by the trial court was reversed by the Indiana Court of Appeals and Stacey was ordered to pay Scott’s legal fees.
While the crux of the case deals with a trustee’s responsibility to maintain adequate records and provide them to a trust’s beneficiaries, the real story in this case is the human one – that of a family of siblings now divided – at least partly – because one was put into an adversarial position with the others. I wonder if the trustee fee savings was worth it?