Editor: W. Patrick Tandy
Digging Up The Past
Planning for the Gathering Threat of Litigation~
Donald C. Wright
The Last Will and
Testament is not always the last word.
In Maryland, and
across the country, families are increasingly digging up the past,
battling it out in courtrooms to stake claims to their lost relatives’
property. With the influx of estate litigation, helping clients create an
estate plan now more than ever requires an approach that contemplates this
gathering postmortem threat.
increases, estate planners and estate litigators best serve their clients
by appreciating the nuances in each other’s role in the process. A
collaborative approach helps to avoid costly and divisive litigation while
fostering success when litigation does arise.
The most important
aspect of the estate-planning process remains choosing an experienced
estate lawyer to prepare the documents. Although many general
practitioners will prepare a will if called upon to do so, clients will
benefit most from charging an experienced estate planner with the
important task of planning for their families’ future. Learning the
lessons of litigation is a powerful tool with which these practitioners
can craft a defensible estate plan.
execution of a will or trust is an increasingly popular tool among estate
planners. A videotape showing a coherent testator confirming her wishes
and acknowledging the terms of her will is one of the most useful pieces
of evidence when litigation is brought or threatened. A lucid and
compelling performance by the maker can preempt (or effectively defend) a
contention that he or she lacked the necessary testamentary capacity to
make the will or that the maker was the victim of fraud.
executions can be risky in some situations, however, and they should not
be a routine practice procedure. Some frail and elderly yet competent
clients will not present well on videotape, and their performance could
actually create vulnerability in the instrument. Videotapes are not
particularly effective in undue influence cases. An argument that the tape
only shows a brief glimpse into the overall process usually blunts its
A client who has
better days than others is an ideal candidate for a videotaped execution.
Mildly impaired, elderly, bi-polar or schizophrenic clients benefit most
from this added protection. Remember, testamentary capacity is only
relevant at the moment of execution of the instrument. Videotape offers
the court a clear view of the maker’s testamentary capacity when it
matters the most.
I Get a Witness?
Deciding who should
witness a will is one of the most underappreciated aspects of the estate
planning process. Ordinarily, witness selection is given little more
thought beyond who happens to be nearby (and is able to scribble on the
magic line). Such a cavalier approach to witness selection can be fatal to
a challenged instrument. Witnesses will be called to testify to the
testamentary capacity of the maker at the time of execution. Preferably, a
witness will have some legal or medical training which will enable them to
offer persuasive testimony on the validity of the instrument at a caveat
proceeding. If a will is executed in a hospital or nursing home, an ideal
witness is a social worker, nurse, doctor or other facility personnel who
is familiar with the cognitive condition of the maker of the will.
Although it is not
prohibited, potential beneficiaries are discouraged from witnessing wills.
If there is no dispute over the instrument, a will witnessed by a
beneficiary is valid and will be accepted for probate. However, in the
event of a will contest a beneficiary-witnessed instrument will be met
with skepticism. A skillful probate litigator will portray the
beneficiary’s signature as evidence of undue influence. Proceed with
caution, only using witnesses who have no stake in the estate proceeds,
regardless of how remote the potential for litigation appears at the time
will contests, lawsuits against trustees and personal representatives for
breach of their fiduciary duties have also increased. These claims usually
involve allegations of poor investments or other mismanagement of the
trust or estate assets. As the landscape of estate litigation expands,
estate litigators, planners and administrators can better serve their
clients by drawing on each other’s expertise in battling the growing
threat of litigation.
Wright is a senior associate with Kramer & Connolly, where he chairs the
firm’s probate litigation practice, focusing on trustee and fiduciary
litigation and caveat proceedings.