Dear Quentin,
Six months ago, a friend died suddenly. He told my husband and me that he had no intention of leaving anything to his sister, his only living relative. He has no spouse or children. Sources familiar with the matter tell us she is contesting the will. She is listed as a “person of interest” in probate documents in the public domain. There is also a personal representative. They are represented by the same attorney. This doesn’t seem right.
What do you think?
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Trying to uphold my friend’s wishes
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In such cases, usually only a person with legal status (such as an executor, heirs, creditor or beneficiary) can file a petition. – MarketWatch Illustration
Dear friend,
Your friend’s sister and the “personal representative” (most likely the executor representing the wishes listed in your friend’s will) share the same attorney, which would only create a conflict of interest for the attorney involved if your sister filed a lawsuit to challenge the will. If that happened, I think the attorney would refuse to take my sister’s case.
In such cases, usually only a person with legal status (such as an executor, heirs, creditor or beneficiary) can file a petition. In most cases, friends of the deceased are not in a position to complain about a conflict of attorneys. Courts expect affected customers (rather than third parties) to raise potential ethical issues.
A conflict of interest only arises if the sister formally contests the will or otherwise directly objects to the estate. The attorney will be required to withdraw from representing one of the parties, or may withdraw entirely. Until then, just sharing reps isn’t inappropriate.
“When an executor or administrator has a personal interest in an estate, such as being a beneficiary, a conflict of interest may arise that makes it difficult for them to act impartially,” says Houston law firm GP Schoemakers. Being an heir and beneficiary does not mean that the executor should be removed from office. However, poor management of an estate or failure to fulfill its responsibilities may be considered problematic.
Wills can generally be contested on the following grounds: lack of testamentary capacity, undue influence from family members, and improper execution. The latter is usually the easiest and most common way to dispute and/or overturn a will. A person will often say that they intend to disinherit a child or sibling, in which case, or, alternatively, leave them a small inheritance, or they may say that anyone who attempts to challenge the will should be automatically barred from inheriting.
statute of limitations
There is a statute of limitations for contesting a will. The sister had to act quickly and hire a trust and estate attorney. In California, for example, experts say, these deadlines are particularly short and strictly enforced. Will disputes must be filed no later than 120 days after the will is admitted to probate or 60 days after notice of a court order recognizing the will is served on the contestant, whichever is later. If the will has not yet been probated, your friend’s sister may object, but once the probate order is entered, the statutory time limits come into effect.
Still, the hard truth is: challenging a will is extremely difficult, and the burden of proof is on your friend’s sister. Sometimes these third parties want to slow down the process and want the estate or legal/legitimate heirs to be settled enough to move forward. I have received many letters with situations that seem more convincing than the one you describe; a reader wrote to say that her millionaire cousin’s nursing home forced her to change her will and sell her house. This seems like a clear breach of ethical and fiduciary duty.
Lack of testamentary capacity is a relatively common reason that may render a will susceptible to challenge, or may render it susceptible to undue influence, coercion or fraud, at least in the eyes of the courts. “Unlike other grounds for challenging a will, competency disputes often involve deeply personal family dynamics, medical testimony and complex legal standards that can determine the outcome of an estate plan,” said Casciano Law Firm, which has offices in San Diego.
Many states also provide the surviving spouse with a minimum “elective” share, the right to share in the deceased spouse’s property. This helps prevent the surviving spouse from being completely disinherited. Some people may try to circumvent a spouse’s elective share rights by transferring property to an irrevocable trust, but they usually must go through a lookback period for this strategy to work. Obviously, this does not apply to your friend since he died without a spouse.
But your friend’s sister has her own work to do and her own legal fees to pay.
Related: The nursing home my elderly cousin was in forced her to change her will and sell her house. She is worth millions. Can they get away with it?
Previous columns by Quentin Fottrell:
“I’m in financial trouble”: My income has been cut in half. Should I sell my $600,000 home and say goodbye to 2.9% mortgage rates?
I found an out of state buyer for my grandmother’s classic car. He asked me to cash the check. Is this financial fraud?
“I’m in California and plan to stay here”: I’m 61 years old, unemployed, and living off a $425,000 IRA. My house has $650,000 in equity. Do I sell?
My son’s credit card company will write off $10,000 of the $25,000 debt. Should he accept it or declare bankruptcy?
