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Probate Trust Litigation

As one former Palm Beach County judge quipped, probate and trust litigation is “family law without the sex.” I don’t practice family law but if the judge meant that the litigation is acrimonious, I totally agree. When family members are fighting over the assets of a deceased’s family member’s estate, the conflicts are often more than about the money. A brother or a sister who has been omitted from a parent’s will or trust, or who has received a lesser share of a parent’s estate, might feel slighted or “less loved” than his or her siblings who receive a greater share. Ignoring the real reasons why Mom or Dad omitted the child from the will or trust (e.g., the son or daughter never called, wrote or visited, or, they were estranged for more personal reasons) this disgruntled sibling oftentimes will hire a lawyer to contest the will or trust on grounds that another sibling exercised “undue influence” over committed “fraud” in getting Mom or Dad to execute a will or trust (and sometimes both documents) naming other siblings as sole heir or primary beneficiaries.
When the terrorists struck on 9/11 I was taking the deposition of my client’s sister in a case where she and her sister were fighting over their mother’s estate. My client had been named in their mother’s will as the sole beneficiary and personal representative (i.e., executor) of their mother’s estate and the sister was challenging the will on grounds of “fraud” and “undue influence.” The sister tried to downplay the facts that she had borrowed a large sum of money from her mother years earlier and had not paid it back and had not visited her mother in Florida during a health crisis in the months before her mother’s death. Because the sister had no grounds for the lawsuit we were able to effect a “nuisance value” settlement of her case shortly after the deposition.
Notwithstanding the above case, there are unfortunately many cases when a sibling or other third person (e.g., caretaker, health aide) commits fraud or undue influence over one’s parent resulting in the parent signing a will or trust or durable power of attorney that they would not have signed but for the fraud or undue influence. Fraud comes in many forms but one of the most common is when the rogue sibling or caretaker obtains check-writing privileges via a durable power of attorney for the parent and sets about writing checks to themselves. A presumption of “undue influence” arises when the sibling or other third person is a substantial beneficiary under a will or trust; occupies a confidential relationship with the parent who signs the will or trust, and, is active in procuring the contested will or trust such as by bringing the parent to a lawyer’s office.