10 Ways To Lawsuit-Proof Your Estate #8

FORBES Magazine online blog, The Best Revenge – by Ashlea Ebeling, has an excellent article called 10 Ways to Lawsuit Proof Your Estate that covers a lot of the advice that we at Ainer & Fraker, LLP give to our clients.

Please read the entire article by clicking on the following link: 10 Ways to Lawsuit-Proof Your Estate.

Today, we’ll examine Part 8 – Establish you’re of sound mind

One of the most common allegations in estate litigation is that the testator lacked the mental capacity to sign his will. One way to counter this claim, particularly if you’re getting up there in years: Get evaluated by both a treating physician and a geriatric psychiatrist immediately before signing the documents.

~ Ashlea Ebeling, 10 Ways to Lawsuit Proof Your Estate

Ainer & Fraker, LLP Analysis

Unfortunately, the fastest growing area in the field of Estate Planning is Litigation: Litigation between beneficiaries and Trustees; Litigation between Beneficiaries and each other; all manner of Will Contests designed to swing the advantage of the legal process in one’s favor.

While we agree with some of the analysis in this article, we always have clients assess the realistic chances of a dispute over the estate before advising them on capacity declarations.

Obviously, if the family gets along extremely well, or there is little to fight over, then extreme measures to document capacity may be overkill.

However, in our combined two decades of experience with Probate Litigation and Will Contests, we can flatly state – when in doubt, assume there will be a Contest.

We have seen numerous cases where everything appeared straightforward, and family members appeared to be free of disagreements, until Mom and Dad died.

Then, a family member (usually one with financial difficulties of their own) see an advantage to be gained by filing a contest.

If a challenge is likely, then a Capacity Declaration should be sought  immediately before and after the signing of the Documents.  Also, more than one doctor should be sought, often from different medical practices.

We have seen one case where the client had been evaluated by a court-recognized expert on incapacity, only to have the same court choose to believe another physician’s report instead.

The more likely there is to be a contest, the more you should approach it with a “belt and suspenders” approach.