A recent blog titled The Rising Tide of Trust and Estate Litigation asks — Are trust and estate disputes on the rise? I don’t know the answer to that question. But, the author provides excellent commentary on the factors which (in his opinion) may be leading to an increasing number of cases.
Before I discuss the post, let me say — I am not an Estate planning lawyer. I don’t write Wills or Trusts. I don’t handle routine probate matters. My practice focuses on trial work. That’s all. That’s where I enter this discussion. I have been hired on multiple occasions to make and prepare claims for trial. Most often, a Trust or Estate lawyer hires me to pursue claims for his/her injured clients. I am typically representing the heir or beneficiary who had their inheritance stolen by someone who took advantage of an elderly relative. We fight to recover the taken (or stolen) proceeds for the rightful heirs.
For me, this is a good time to consider these issues. I just settled an Alabama Will contest lawsuit set for trial next week. Since the case settled so close to trial, we had already prepared. The case involved claims a man unduly influenced his elderly relative with dementia to sign a new Will eliminating other relatives from any inheritance.
The story was tragic — The elderly gentleman had been a well-respected business and civic leader in Decatur prior to his retirement. When he developed dementia, a relative completely took advantage of him. It’s important we respect and honor the lifetime work and plans of our friends, neighbors and family. Thankfully, we were able to help recover the Estate proceeds stolen by the bad actor.
The blog author identifies six factors creating the rising tide of cases. For a full discussion, take a look at his post. Four of the factors listed by that author were issues in recent cases I prepared for trial. Those four factors are:
- Aging Population More Prone to Dementia. We recently completed two different cases where an elderly person began suffering increasing levels of dementia over time. As the dementia progressed, another relative began to exert dominant influence. In one case, the dominant relative drove his elderly mother to several financial institutions and had her withdraw funds she held in Trust for her other stepchildren. In the second case, doctors warned the dominant relative multiple times that his elderly father suffered severe dementia and could not function independently. And, local police had even detained his father for wandering around town at night confused and lost. Yet, the dominant relative took his elderly father to a lawyer friend who re-wrote his Will to exclude all other relatives from any inheritance. The case settled before I could enjoy the cross-examination of that lawyer.
- Blended Families. Parents in blended families often have special concerns that their own children receive an inheritance. To accomplish these special concerns, parents in blended families may write provisions in their Wills or create Trusts for their own children. Questions can arise later over the ownership of assets. Also, as the final surviving spouse eventually ages and becomes infirm, some children may take advantage of the situation.
- Geographically Dispersed Families. Modern society is mobile. Relatives often move far away for jobs. Problems can arise when a parent or other relative ages. The aging parent begins to rely on a local relative or friend for greater help. We see cases where the local person uses the situation to wrongly influence the elderly person.
- Estate Planning Templates. Several years ago, a local attorney asked us to help pursue Breach of Trust claims for his client. We reviewed the Trust document and it was a very poor generic template. We began to investigate. We discovered someone in another state (with no legal or financial background) had created a boilerplate Trust template and marketed it to retired military spouses in the Huntsville area. This person was renting a local meeting room and sending elderly spouses correspondence scaring them into believing the government would take their assets upon their death. While that case was unusual, it is not unusual for some attorneys to use templates without personalizing them for individual clients. That is also wrong. Estate planning documents should be personalized to the specific client and his/her specific Estate goals. Otherwise, many problems can occur.
While the bulk of my cases are personal injury claims, I have prepared and tried Alabama Will / Trust contests. Like personal injury claims involving a traumatic head injury, Will / Trust contests with issues of diminished capacity present special concerns. It is always eye-opening to see how family members interact with a relative suffering from diminished capacity. Most family members are deeply concerned with their relative’s condition. Most close family members want to help if possible. Yet, one bad relative who takes advantage of the situation can leave long-lasting scars on an entire family.
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At the Blackwell Law Firm we help people across Alabama who have suffered serious injury or damage. From our office in Huntsville, we handle cases in counties across the state.
