Maryland Bar Bulletin
Publications : Bar Bulletin

Editor: W. Patrick Tandy

April, 2004


Digging Up The Past
~Estate Planning for the Gathering Threat of Litigation~

By 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.

Come Together

As litigation 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.

Go Hollywood

Videotaping the 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.

Videotaped 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 effectiveness.

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.

Can 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 of execution.

Beyond standard 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.

Mr. 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.



Publications : Bar Bulletin: April, 2004

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