Probate Litigation

Unfortunately, there are times that an experienced litigation team is needed to address issues of interpersonal or financial conflict in the planning or administration processes. These can include: issues of mental competency, undue influence, questionable changes to estate planning documents, or the failure of the fiduciary to properly perform their role.

Most of the challenges to invalidate Wills are initiated by potential heirs or beneficiaries who got little or nothing under the Will. The typical objections are:

  1. The Will was not properly drawn, signed or witnessed, according to the state’s formal requirements
  2. The decedent lacked mental capacity at the time the Will was executed
  3. There was fraud, force or undue influence
  4. The Will was a forgery.

If the Will is held invalid, the probate court may invalidate either all provisions or only the challenged portion. If the entire Will is held invalid, generally the proceeds are distributed under the State’s statute for intestate estates.

An individual may successfully object to the appointment of a guardian if (s)he can show that (s)he is capable of making and communicating informed decisions. A guardian will be appointed only if there is clear and convincing evidence that the individual is incapable of making and communicating informed decisions.

An individual may successfully object to the appointment of a conservator if (s)he can show that either (s)he does not have property that needs management, or that (s)he is able to manage property and business affairs effectively.

Probate and Will Contests:

The basic requirements for a valid Will are:

  1. It’s in writing
  2. Signed by the Testator
  3. Signed by two witnesses

The Testator is the person making the Will. The Testator must be of sound mind and at least 18 years old. Citizenship or residency is not required.

A Will should be witnessed by two competent people who do not receive property under the Will.

To have a valid Will, the person making the Will must have mental capacity at the time of signing the Will. This means he or she must:

(a) Know the nature and extent of the property owned

(b) Know the names of the heirs

(c) Know who is getting what under the Will

(d) Know that they are making a Will.

The burden is upon the person questioning the competency of the deceased to establish that incompetency existed at the time the Will was drawn.

Testamentary capacity is judged as of the time of the execution of the instrument, particularly when there is evidence of the testator’s competence on the day the documents were signed.

Most of the challenges to invalidate Wills are initiated by potential heirs or beneficiaries who got little or nothing under the Will. The typical objections are:

(a) The Will was not properly drawn, signed or witnessed, according to the state’s formal requirements

(b) The decedent lacked mental capacity at the time the Will was executed

(c) There was fraud, force, or undue influence

(d) The Will was a forgery.

If the Will is held invalid, the probate court may invalidate all provisions or only the challenged portion. If the entire Will is held invalid, generally the proceeds are distributed under the State’s statute for intestate estates. 

One of the defenses to the admission of a Will is the theory of undue influence. Prevailing on the theory of undue influence can invalidate the admission of the Will.

Generally, to prove undue influence, a person must show that the person that signed the Will (the testator) was subjected to “threats, misrepresentation, undue flattery, fraud, or physical or moral coercion sufficient to overpower volition, destroy free agency and impel” the testator to act against her inclination and free will. “Motive, opportunity, or even ability to control, in the absence of affirmative evidence that it was exercised, are not sufficient.”

Influence alone is not sufficient. The key word is undue. As an example, Michigan law recognizes that a spouse has tremendous influence over another spouse. That alone does not necessarily rise to meet the threshold of undue influence. ”The core legal principle that there must be proof of actual undue influence, which cannot be presumed merely from a marital relationship, evolved over time, resulting in a widely-applied, three-factor test governing a presumption of undue influence.”

The three factor test is as follows. A presumption of undue influence can be created upon the introduction of evidence which would establish (1) the existence of a confidential or fiduciary relationship between the grantor and a fiduciary, (2) the fiduciary or an interest which he represents benefits from a transaction, and (3) the fiduciary had an opportunity to influence the grantor’s decision in that transaction. Establishment of this presumption creates a mandatory inference of undue influence, shifting burden of going forward with contrary evidence onto person contesting claim of undue influence.

Trust Disputes

Generally, the creation of a Trust allows property to avoid probate and to quickly and efficiently pass to the beneficiaries you name, without the time and expense of the probate court’s involvement. When the person who executed a revocable living Trust (called the “Settlor”) dies, there is generally no need to register the Trust with the probate court. This is one of the primary reasons that people execute Trusts–to avoid probate.

Despite the Settlor’s best intention to stay out of court, there are times that the court’s involvement is necessary to resolve Trust disputes. The probate court is the appropriate forum when trust disputes arise. 

Some scenarios in which there may be a need to commence a Trust dispute file to supervise its administration or to compel the Trustee to do something are:

  • The Trust was executed while the person was under undue influence, mental incapacity, duress, fraud, or some other defect
  • The trustee is not giving the Trust beneficiary(s) adequate information
  • The Trustee is not administering the Trust properly
  • There is a dispute about how to divide or distribute the Trust assets
  • Assets were improperly titled at the time of death (joint ownership, pay on death beneficiaries, or not titled in the Trust)
  • Allegations of fraud or self-dealing against the Trustee

Probably the most common Trust dispute is when the Trustee fails to keep the beneficiaries informed of what is going on in the Trust administration. Some Trustees believe that they have a right to keep the Trust affairs private rather than appreciating their fiduciary duty to the beneficiaries.

Trusts are generally designed to avoid probate. However, the probate court is the appropriate forum when disputes arise. It may be necessary to file a probate action to supervise the administration of the trust or to compel a party to do something. Some examples of scenarios that may involve the need to hire The Probate Pro are:

  • The Trust was executed while the person was under undue influence, mental incapacity, duress, fraud, or some other defect
  • As a trust beneficiary, the trustee is not giving you adequate information or not administering the trust properly
  • The Trust beneficiaries are in dispute about how to divide assets
  • Assets were improperly titled at the time of death (joint ownership, pay on death beneficiaries, or not titled in the trust)
  • Allegations of fraud or self-dealing against the Trustee

Wrongful Deaths

Following the resolution of a wrongful death case, the court must determine to whom to distribute the proceeds. After the payment of attorney fees, costs, and liens on the monies, the court will distribute the monies among the available wrongful death claimants. Most of the time, the personal representative, with input from the attorney and the family, is able to agree on how to distribute. Unfortunately, there are times when this is not possible and litigation ensues. 

Each state generally has a statue that provides the method for determining how proceeds are to be distributed and who are wrongful death claimants. The Court or jury may award damages for reasonable compensation for the pain and suffering undergone by the deceased person while he or she was still conscious between the time of the injury and death. Damages may also be awarded for the loss of financial support and the loss of the society and companionship of the deceased.

Generally, the potential wrongful death claimants are the deceased’s spouse, children of the deceased’s spouse, children, descendants, parents, grandparents, brothers and sisters, and persons who are devisees under the Will.

The court must first determine whether the person that died experienced conscious pain and suffering during the period intervening between the time of the injury and death. Obviously, this is not an easy determination. The court will award to the probate estate (and not directly to the wrongful death claimants), that portion of the damages that is determined to be for conscious pain and suffering.

Next, the court must then distribute those damages for the loss of financial support and the loss of the society and companionship of the deceased directly to the wrongful death claimants.

Again, this is also not an easy determination.

Essentially, the wrongful-death claimants must present evidence as to whether they were receiving financial support and the extent of their individual loss of society and companionship.

Go Ahead, Ask Away…

We’re here to help answer your questions. Probate matters can be complicated, let us be your guide. We have experts on hand to answer all of your probate related concerns. We take great pride in using our skills and knowledge to help walk you through all of your concerns. We take great pride in using our expertise for you and look forward to hearing from you.

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