My friend, who had no children or wife, died suddenly. His sister is contesting his will. Will she succeed?
Dear Quentin,
Six months ago a friend of mine died suddenly. He told my wife and me that he did not intend to leave anything to his sister, his only living relative. He has no wife or children. Someone closer to the situation told us he was contesting the will. He is listed as a “person of interest” in the probate file, which is in the public domain. There is also a personal representative. They are represented by the same lawyer. This doesn’t seem right.
What are you thinking?
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Only someone with legal status (e.g., executor, heir, creditor, or beneficiary) can usually petition in this type of case. – MarketWatch image
Dear Friend,
Sharing the same attorney between your friend’s sister and the “personal representative”—presumably the executor of the will who represents your friend’s wishes as stated in his will—will only present a conflict of interest for that attorney if the sister files to contest the will. I assume the lawyer would have refused to take the sister’s case if that had happened.
Only someone with legal status (e.g., executor, heir, creditor, or beneficiary) can usually petition in this type of case. In most cases, a friend of the deceased has no right to complain about attorney disputes. Courts expect the affected client, not a third party, to raise potential ethical issues.
A conflict of interest may only arise if the sister formally objects to the will or otherwise directly opposes the inheritance. The lawyer will need to withdraw from representing one of the parties, or possibly withdraw altogether. Until this happens, joint representation per se is not inappropriate.
“If an executor or administrator has a personal interest in having a beneficial interest in the estate, this can create a conflict of interest that can make it difficult for them to act impartially,” he says. GP SchoemakersA law firm based in Houston. Being an heir and beneficiary alone does not mean that the executor should be removed. However, mismanagement of inheritance or failure to fulfill duties can be considered problematic.
A will can usually be challenged on the following grounds: lack of testamentary capacity, undue influence by a family member, and improper execution. The latter is often the easiest and most common way to contest and/or overturn a will. A person may often say that they plan to disinherit a child or sibling in this situation, or alternatively that they plan to leave them a small amount, or that any person who tries to contest the will should be automatically barred from inheriting.
timeout
There are statutes of limitations for objecting to wills. Your sister will need to act quickly and hire a trust and estate attorney. In California, for example, these deadlines are particularly short and, according to experts, strictly enforced. A will contest must be held within 120 days after the will is accepted for probate or within 60 days after the contestant is notified of the court order accepting the will. If the will has not yet been accepted for probate, your friend’s sister may appeal, but legal time limits come into effect once the probate order is entered.
All that said, here’s the hard truth: It is extremely difficult to contest a will, and the burden of proof falls on your friend’s sister. Sometimes these third parties hope to slow down the process and compromise the estate or legal heir to move on. I have received many letters in which the situation seems stronger than you describe; A reader wrote that his millionaire cousin was in a nursing home forced him to change his will and sells his house. This seemed like a clear breach of ethics and fiduciary duty.
Lack of testamentary capacity is a relatively common reason that can make a will vulnerable to challenge and also open, at least in the eyes of the court, to undue influence, duress or fraud. “Unlike other grounds for contesting a will, capacity disputes often involve deeply personal family dynamics, medical testimony, and complex legal standards that can determine the outcome of an estate plan,” he says Casiano Law FirmA company with offices in San Diego.
Many states also provide the surviving spouse with a minimum “elective” share, the right to receive a share of the deceased spouse’s assets. This serves to prevent the surviving spouse from being completely disinherited. Some people may attempt to circumvent a spouse’s elective share rights by transferring property to an irrevocable trust, but they generally must survive a period of looking back for such a maneuver to work. Obviously this does not apply to your friend because he died without a spouse.
But your friend’s sister has work to do and pay her own attorney fees.
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