Written by: Robert Sewell, attorney
When those we love pass away, every family hopes that the legal and financial aspects of the deceased’s estate will settle easily and without argument. Most of the time the deceased’s estate is resolved without incident. However, there are times when an heir is disappointed in his/her portion of the estate. When this happens, the heir looks for someone to sue. In the law, we call this person the “Disappointed Heir.”
Dealing with a Disappointed Heir can be challenging. After all, the Disappointed Heir expected to receive a certain bequest but it was taken away. Right or wrong, the Disappointed Heir wants vindication for the loss.
There are two classic fact patterns for a Disappointed Heir to obtain “revenge.” The first one is where the Disappointed Heir is a truly rotten son/daughter and the deceased writes him/her out of the estate plan. This Disappointed Heir will say and do just about anything to get back the money, including by bringing a court action. The second classic fact pattern is when the bad son/daughter commits some wrongful act to cause the good son/daughter not to receive a bequest. This often happens through some act of fraud such as changing the deceased’s will, causing an incompetent testator to sign a new will, or taking the money before it can be distributed. However, in either case, a nasty legal battle over the estate is inevitable.
So, how can you avoid or limit your family’s involvement in a legal battle after you die? With a little bit of planning, you can avoid tens of thousands in litigation fees for the beneficiaries by performing a few simple acts when you create your estate plan:
1. Doctors Evaluation: Obtain a doctor’s opinion declaring you competent and declaring that you have the mental capacity to make a will. This declaration should be done with the assistance of an attorney so the declaration addresses legal issues paramount to competency.
2. Hold a Family Meeting: Hold a family meeting, with outside witnesses present, describing why you chose to make certain bequests or did not make certain bequests.
3. Draft a Letter: Draft a letter to family members describing why you chose to make certain bequests or did not make certain bequests.
4. Prepare a Video of Yourself: Prepare a video of yourself reading the will/estate plan and discussing why you decided to make certain bequests. Be sure to explain why you disinherited the heir. Once again, the family meeting, letter, and video needs to address important legal issues so I recommend having the assistance of an attorney.
5. File a Declaratory Lawsuit: You may take the extraordinary step to file a lawsuit against all possible beneficiaries and ask the Court to declare you competent to make the will/estate plan. This final step is most likely “over kill.” However, you may find it necessary to do so under your specific facts.
If you are in a legal battle with a Disappointed Heir or you are the Disappointed Heir, seek good legal help. The litigation process is not easy. The last will and testament is frequently upheld because the burden of proof is on the person challenging the will. However, from a practical stand point, even if the will is in your favor, you must carefully construct a litigation to prove the person was competent to make the will. This process is full of unintended pitfalls if you do not perform it correctly.
The vast majority of people’s estates pass to the beneficiaries without incident. Families and friends recognize the good intentions of the testator and typically follow his or her will. However, when things go wrong, they can go very wrong and painful litigation will ensue. Call Davis Miles today for your Estate Planning and Probate needs 480-733-6800.