CONTESTING A WILL - GREED VS. FAIRNESS, AND LESSONS LEARNED

Say not you know another entirely till you have divided an inheritance with him. Johann Kaspar Lavater

Ten members of my large and very close family just returned from Fresno where we were attempting to contest the will of an 85 year-old sister/aunt. In a nutshell, the case was this:

My sister married into an also large family. Since she and her husband were childless their estate was to be divided 50%-50%, half going to her husband’s side of the family and half to ours upon their deaths. My sister had been very open about her half for years. She had decided in 2004 to change her will so that the bulk of her estate went to three foundations and her nieces and nephews. Her siblings were to get token amounts since they were all older and not in great financial need.

Unfortunately she began to decline physically and mentally, ending her last two years in an Alzheimer facility. Upon her death two of us (sisters) flew down for the funeral and met many members of her husband’s family who were previously unknown to us. They treated us with caring and friendship and staged a lovely memorial that was very well attended since my sister was known by many in the area.

Upon her death we were shocked to find that she and her husband, who was also in that facility, had changed their wills in July, 2006 to a 95%-5% distribution, with each of her siblings getting only 1%, and all foundations, nieces and nephews removed! In other words, 95% of the entire estate would go to three of her husband’s nephews! The unfairness and inequity of it fairly took our breath away. Knowing how she felt about her family members and her foundations, many felt something needed to be done. Adding to our concern was information gleaned by two of us who had visited in the weeks before the will change.

My husband and I had gone to see her in February of that year and saw immediately that she was not herself. We were there at her request to find a retirement-assisted living facility for her husband, and possibly also for her. The night we arrived we made arrangements to pick them up the next morning to tour various care possibilities. Upon our arrival, to our disbelief, she had forgotten all about it. Things went from bad to worse after that. My other sister observed other disquieting signs of her mental impairment.

But, let's get back to the will. Because of a no-contest clause in California, the siblings could not challenge it. However that was not the case for the now disinherited nieces and nephews, and they decided to sue for a return to the 2004 amendment. The process dragged on for over a year, involving information-gathering, the taking of depositions in Seattle, the failed attempt at a settlement, and finally the realization that there would be a lawsuit in Fresno. This would involve a lot of people having to leave their jobs, homes, and families to try to right the wrong done by greedy individuals or human/attorney error. Feelings were running high and leaning towards the greed angle. The words "undue influence" were bandied about.

The proceedings were to start on a Tuesday morning, but only a few judges were available. One had been called to jury duty. We would try again the next day while lawyers on both sides continued settlement discussions.

That evening found the entire group on the terrace of Fresno’s Macaroni Grill along with one of the attorneys who presented a settlement offer of 33% to us. Because we had hoped for a 50%-50% split there were many feelings expressed - anger, sadness, resignation but also relief. Continuing on with the lawsuit would have meant another $50,000 in legal expenses. All present voted to accept the offer.

Early the next morning everyone on both sides entered the courtroom, were introduced, and the settlement was entered into the record. A lawsuit was avoided and people were free to leave. If the will was not fully broken, at least there was a severe dent.

Was justice served? I think my deceased sister would be only slightly mollified by the outcome. I also think she would have been truly horrified to see her family and foundations placed into such an expensive predicament. But wills are almost impossible to break. In the case of our sister/aunt we would have had to prove something approaching a diagnosis of insanity.

As the family later rehashed the events of our several days we knew three things for sure:

1. We proudly believed that if the situation had been reversed we would have recognized the inequity and made sure that the estate was returned to a 50%-50% split. It's the way we are. Integrity is important.

2. We vowed to tell others to make sure their wills were written in such a way, with representation on both sides, that the document could not be broken if those making the will/trust became emotionally fragile.

3. We had grown closer as a family.

· A grandson was happy to have had what he called the first real conversation ever with his grandmother.

· Two adult male cousins found out how much they had in common and had a lot of unexpected and fun experiences.

· Several sisters spent quality time in the pool talking, laughing and growing closer.

· A mother and daughter had two wonderful days exploring the area and found pleasure in little things they did together

· A nephew learned a lot of family lore from his aunt, some of which surprised and amused him.

· Six aunts, sisters and nieces discovered they loved thrift shopping and spent several hours doing just that, finding treasures in the process.

. Everyone learned a lot about this kind of legal action, and were thrilled with their legal representation. They considered their lawyers and staff as top of the line!

· All ten found the experience memorable, poignant, heart-wrenching and eye-opening.

As you know, I attempt to find something I can tie to education in every blog. My connection this week has to do with careers in the legal field. Good lawyers make a LOT of money. The suit, even without going to court will end up costing more than $l00,000. Legal assistants, paralegals, legal secretaries, court reporters, and judges all take a piece of the fee. Was it worth it? In our case enough was at stake so that the petitioners will each receive a little money, though far less than my sister would have wanted. The bigger victory had to do with principle. In the words of D.H. Lawrence, "Ethics and equity and principles of justice do not change with the calendar." Nor, in my opinion, should they change because of bending a situation to meet one's own wants and needs.

SPECIAL P.S.

If you are looking for law firms in the Fresno area, here are two recommendations:

Dowling, Aaron, Keeler (DAK Law)
William Keeler
8080 North Palm Avenue, Third Floor
Fresno, California 93711
559-432-4500

Wright & Johnson (Janet Wright)
7110 N. Fresno St., Suite 420
Fresno, California 93720
559-435-9300