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Tuesday, August 25, 2009
Ind. Law - "How valid is a will? Recent lawsuits raise questions about final wishes"
The South Bend Tribune yesterday had this long story by Alicia Gallegos. From near the end of the story:
The Jeffers case is far from the only will dispute that has landed in court.A string of recent will battles involving celebrities like Michael Jackson, James Brown and Anna Nicole Smith also have brought the subject of to the forefront.
Locally, there is also the recent case of the late Dr. Philip Gabriele, whose brother-in-law has asked a court to revoke the doctor's will, claiming a depressed Gabriele was being unfairly influenced when he penned the document.
Gabriele and his wife, Marcella, were indicted in federal court for malpractice in June and scheduled to be arraigned the day they were found dead in an apparent murder-suicide.
Gabriele wrote the will just days before he died, giving purported best friend Susan Manuszak 75 percent of his gross estate and his mother 25 percent.
But despite all the publicity, [Alan F. Rothschild, head of the Trust and Estate Division of the American Bar Association] says, contested wills are not typical.
"In my 25 years practicing law, I would say less than one percent of wills are contested," he said.
Local estate expert Richard B. Urda Jr., attorney and president of Urda Professional Corp. in South Bend, agrees. The disputes are "relatively rare," says Urda, who is also a fellow with The American College of Trust and Estate Counsel.
If a will is contested, however, Urda points to three common assertions, including: that proper will procedure was not followed, that the client had decreased mental competency, or that someone exerted "undue influence" during the time of the will.
Childless couples also have a greater risk of having their wills challenged because of the broader mix of possible beneficiaries, Rothschild says.
But both experts detail some ways to prevent a will dispute, and they say it's never too late to implement them.
The tools are used to catch criminals, to provide building safety, and also, in recent times, to ensure will security.
They are videotapes.
Clients have had the ability to have their interactions with attorneys and estate planners recorded for years, Urda says, based on Indiana statute. A person can easily ask to have their will-signing recorded and kept for evidence.
Residents also have the option of a revocable trust, which they can put funds into. Revocable trusts in many states are much more difficult to challenge than a will, according to experts.
As for issues of mental competency, Rothschild believes that attorneys have a certain responsibility to look out for their clients, especially if something doesn't seem right.
"I feel some personal and professional obligation to not proceed to do something if I think the person does not fully understand what I'm doing," Rothschild said.
Asking a client additional questions or speaking further with witnesses might be necessary to be certain a client is cognizant, Rothschild said.
Urda adds that it might be warranted to ask for a family physician's opinion about a client's mental state if concerns arise.
And don't forget to speak up.
If you have plans to give money to a certain charity or to significantly change your will, Rothschild says you need to let family members know.
"I think the risk of (will disputes) increases," says Rothschild. "when it's a surprise to people."
Posted by Marcia Oddi on August 25, 2009 10:14 AM
Posted to Indiana Law