Maryland Estate Litigation

Tag: Litigation

“For reasons which are known to them” – Disinheriting a Child

by David A. (Andy) Hall

The decision to disinherit a child is generally not made lightly and neither should be the approach to planning.  Careful consideration as to why a parent wishes to exclude a child from her estate planning is necessary prior to preparing the documents.  There may be ways to arrive at alternative solutions that achieve many of the client’s goals without risk of litigation that disinheriting can bring (which I will cover in part 2 of disinheriting a child).

Some may want to disinherit because they want to create incentives for their children to develop a strong work ethic. This is the approach that Sting intends to take with his children.[1]  A number of celebrities, like Bill Gates and Warren Buffet, have similar ideas to Sting.[2]  Celebrities have also disinherited children for reasons that were (allegedly) known only to the children.[3]  Leona Helmsley famously left $12 million for the care of her dog Trouble while also disinheriting two of her grandchildren “for reasons which are known to them.”[4]

Whatever the reason or reasons for choosing to disinherit, a diligent approach to the estate planning and the documentation of the estate planning is necessary.  It is relatively easy to challenge a will.  In Maryland, a Petition to Caveat a Will (a will contest) is a notice pleading.[5]  The Petition needs to contain “an allegation that the instrument challenged is not a valid will . . . and the grounds for challenging its validity.”[6]  In simpler terms, one challenging a will (the “Caveator”) needs to say that the will is not valid and offer a laundry of reasons that it may not be valid.  The list of reasons does not need to be supported by facts.  Many practitioners describe the grounds for challenging a will as including the “kitchen sink” because due to the six-month statute of limitations it is necessary to plead every single possible cause of action or it will be barred despite further evidence that may be generated.

“For reasons which are known to them” is a common refrain in estate plans that disinherit.  This language, however, does no favors for litigation counsel who ultimately defend the will against a disgruntled heir.  The disgruntled heir inevitably has nary a clue as to what the cryptic language is referring to; indeed, they will describe their relationship with the disinheriting parent in glowing terms.

Litigation counsel will then turn to the drafting attorney’s file and look for clues as to the testator/testatrix’s intent for disinheriting a child or grandchild.  In a will contest, the drafting attorney’s file is no longer privileged upon the death of the testator.[7]  Experience has shown that drafting attorneys do not always have the best habits of taking notes when meeting with their estate planning clients.  Even when they did take copious notes, the estate planning file has a tendency to winnow down through the years where the only remaining documents are usually only the final draft or executed version of a will.  The attrition of an estate planning file can seem suspicious to an outsider, but it also makes sense from a logical perspective.  Successful attorneys have thousands of clients that they represent over the course of a career, which generates reams of paper.  As the files build up, a game of survivor begins to take place.  Documents may be destroyed in accordance with a firm’s file retention policy or those documents may be returned to the client upon the conclusion of the representation or the drafting attorney’s retirement from practice.  Absent explanation in the drafting attorney’s notes, litigation counsel is forced to rely on other contemporaneous documents and the testimony of those that knew the testator/testatrix – namely their children or grandchildren – those who stand to lose out on a portion of their inheritance.

The attorney representing the Caveator can attack the lack of evidence and cryptic words of the testator/testatrix in an attempt to extract a settlement from the estate.  Many times a settlement will make sense because of the risk involved in litigating any case and also the attorney’s fees that will be expended by the estate in defending against the caveat.  A little additional care by the planning attorney in maintaining their file or documenting the reasons for the caveat in the first place can go a long way in protecting the client’s ultimate wishes for the disposition of their assets.

We will discuss some other approaches to estate planning where the client wishes to disinherit a child in our next blog in this series.  Should you wish to discuss your estate plan with an attorney who has not only drafted, but also litigated a will or trust, then do not hesitate to call.

David A. (Andy) Hall, Esq.
King|Hall LLC
5300 Dorsey Hall Drive
Suite 107
Ellicott City, Maryland 21042
410-696-2045

andy@kh.legal

 

[1] http://time.com/money/2922231/sting-disinherit-will-kids-heirs-inheritance/

[2] http://time.com/money/2913542/10-other-celebs-besides-sting-whove-cut-their-kids-out-of-their-wills/

[3] https://www.theguardian.com/film/2008/may/25/biography.film

[4] https://static01.nyt.com/packages/pdf/nyregion/city_room/20070829_helmsleywill.pdf

[5] See Md. Rule 6-431.

[6] Id.

[7] See Benzinger v. Hemler, 134 Md. 581, 107 A. 355 (1919).

A Primer on Guardianships – Part One – Introduction

by David A. (Andy) Hall

Potential clients will often come into our office because their loved one is no longer able to manage their financial affairs or health care decisions due to a disabling event or disease.  One study suggests that nearly two-thirds of Americans do not have incapacity planning documents.  When the disabled person does not have the proper planning documents in place (at minimum, an advance medical directive and financial power of attorney), then their loved ones are unable to make the necessary medical and financial decisions on their behalf.  Often the next step for those clients is to file for guardianship of their loved one.

Many clients are often dismayed that guardianship is not a simple process.  A husband will often believe that they will naturally be appointed as guardianship for his disabled wife without much fuss, but the process may be much more complicated.  First, the court will appoint an attorney for the “alleged disabled person”.  That term of art is important because it underlines why the courts are very particular in how guardianships proceed.  It is up to the “Petitioner”, the one seeking guardianship, to prove that the alleged disabled person (“ADP”) lacks the capacity to make decisions for him or herself.  The court wants to make sure that the ADP indeed lacks the capacity prior to taking away that person’s rights.

The court appointed attorney will meet with her client and ask if they want to contest the guardianship.  The ADP’s answer is critical to how the case unfolds.  Sometimes this answer is driven by the ADP’s underlying medical condition and sometimes they refuse to believe that they cannot handle the decisions for themselves as they have always done.  If they want to contest the guardianship, then it will proceed like a normal civil case where both parties engage in discovery and the process culminates in a trial.  The ADP has a right to a trial by jury or can elect a bench trial (where the judge makes the final decision).

The process may become more complicated if someone else seeks to be appointed guardian as well.  This often arises where two siblings battle over who best would care for mom or dad when they are disabled.  It is possible for the litigation to be fought between three or more litigants with all sides fighting hard.

Having the right guardianship attorney on your side will help you navigate this complex area of law.  It can be maddening to have to fight so hard just to help your loved one, but it’s the unfortunate side of when the proper planning documents are not in place prior to the disabling event or disease.

David A. (Andy) Hall, Esq.
King|Hall LLC
410-696-2045
5300 Dorsey Hall Drive
Suite 107
Ellicott City, Maryland 21042
andy@kh.legal

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