Can your family members contest the validity of your estate plan based on your capacity at the time the documents were signed? How is your capacity determined, and how can undue influence contribute to the invalidity of your wills and trusts? What options do you have to protect your wills and trusts from future contests?

Join us to learn about some of the reasons why a will or trust might be contested. We will be joined by our guest speaker Attorney Darian Butcher from Butcher Law, LLC of Boston, MA.

In this webinar we will be covering:

– What is undue influence, and how can it affect wills and trusts?

– How is a person’s capacity determined?

– What are some notable will and trust contests?

The opinions expressed in this webinar are the opinions of Attorney Brian Barreira and Attorney Darian Butcher on the law as written as of the date of the webinar recording, May 19, 2022. The information presented in the webinar is for informational purposes only, and is not a substitute for individualized legal advice.

Webinar Transcript

Brian: This is the ‘Contesting Wills and Trusts’ webinar, with me is my friend Darian Butcher. Darian tell us about yourself and what you do.

Darian: Hi Brian, thanks for inviting me. I’m Darian Butcher, I am the founder of Butcher Law which does probate and fiduciary litigation exclusively and I’m glad to be here.

Brian: Okay so you and I have been involved in numerous contests, you know fights of one sort of another on wills and trusts and we’re going to focus on what is it? What does the case look like? When are you wasting your time? What does it cost, you know is there a way to if somebody’s being ridiculous on the other side to make them pay for some of the costs? What are the deadlines? We’ll go through a number of things like that. So, let’s start with defining what a will and a trust contest is.

Darian: Sure, so basically a contest of either of those instruments just means that you’ve seen it and you have some reason to think it’s not valid. So that could be that the person who signed the will, who’s called the testator, or the person who signed the trust, who’s called a settlor, didn’t have capacity at the time that they executed those documents. And by capacity I mean that at the time that they did it they either weren’t old enough to do it, you have to be 18, or they weren’t of sound mind. So that could be one basis to contest. The other is another common basis where you have a party that says the will or the trust instrument is the result of something called undue influence. And so in that case, we’re talking about somebody who is susceptible to being influenced, it can be because they’re elderly, it can be because they’re dependent on a person or a set of people or even a substance, it can be because they’re isolated, there are a wide range of things that can make you susceptible to someone’s influence. But not only are you susceptible, but that somebody has taken advantage of that opportunity and changed your estate plan so that there’s a, what the court calls, an unnatural disposition. So they’ve made some change that’s given a bad actor or someone related to that bad actor something that they wouldn’t have ordinarily gotten. But like I mentioned that’s usually someone who is elderly. And then you have fraud claims, right, so it was signed or executed as a result of fraud. But it’s anytime, a contest is any time that you are contesting the validity of a will or trust.

Brian: A lot of people call here and just don’t like what they see.

Darian: Yeah.

Brian: Is that a valid reason?

Darian: No not on its face, right, I mean a lot of people get surprised for the first time when they see the disposition of the assets and that doesn’t mean that it was the result of undue influence or lack of capacity or anything of that nature it could just be that you learned something new about your relationship with that person. But sometimes, seeing something that surprises you paired with other information you have could be enough, right. So if you had a conversation, let’s say it’s grandma, you talked to grandma every day, you were with her at her kitchen table, you cared for her, you were really close and for years, you know for 25 years grandma says to you, ‘You are going to get this house. We’ve had so many great times in here, I love baking cookies with you, the house is yours,’ and then you see her will and in the will the house is going to the person who painted the house last year that she just met, right. So that would be something that you might say ‘hmm, well what else do I know, what are the other facts surrounding this, what was grandma’s mental capacity like, was she isolated, did this person take advantage of her?’ There are all these ways that you know your first entry into the question can be, it seems weird or you don’t like it, but there have to be some other facts and circumstances that would make a contest viable.

Brian: And you got to start with facts, if you don’t have facts you could get thrown out if you only have suspicion. What do you do if you have suspicion but you don’t have the medical records and you want to get them. You need the medical records to determine whether the person was medicated when they did it.

Darian: You do need the medical records and I would caution you not to go only on suspicion, you have to have some basis in fact, right. So, it can’t and the basis could be your relationship and your conversations or our knowledge of other estate plans, earlier estate plans that could be enough, but you don’t want to just say this isn’t what I was expecting and so I want to contest it, because you will get thrown out immediately. If you don’t have a basis and you certainly don’t want to file frivolous litigation and a court is not going to allow you to do what they call a fishing expedition, looking for facts, if you don’t have a basis to file the claim in the first place.

Brian: Right, but if you know someone was not well and was on different kinds of medications you can’t, usually you don’t know that information, you know specifically.

Darian: Yes.

Brian: So, you’ve got to go get it.

Darian: You might not know the medications but you would be able to say you know, ‘between the hours of two and seven pm every day grandma was a little loopy,’ right. So, you got to have a little bit more than just Hail Mary prayers about what happened with the will or the trust.

Brian: Right, so what are the deadlines, let’s go over some of the deadlines that we’ve got. First of all on a will, for contesting a will.

Darian: So, if it’s a formal probate of a will that’s really easy if you’re entitled to notice, right. You’ll get a citation that tells you something that’s the return date, it’s the date by which you need to appear and object to the petition. And so that’s when you would initiate your will contest. I will say that if you don’t receive notice of the probate because you’ve been disinherited in some way, there’s another way to kind of get to that after that citation date has run and that would be a tort that’s called intentional interference, I wanted to put them together. How would that go Brian, interference intentional?

Brian: Potential interference with the right to inherit.

Darian: I say intentional interference with an expected inheritance-

Brian: Okay.

Darian: -is a way to get around that and there was actually a recent case that distinguished that cause of action from a contest and so instead of having that one-year time period that you sometimes have with trusts, you have three years which is the normal tort standard. But if it’s an informal then the way that you would initiate the contest is by filing a formal action which would strip the the personal representative appointed through the informal proceeding of his order powers and you would want to do that within three years of the decedent’s death because if you missed that deadline you’re kind of out of luck, unless you want to do only transfer of real estate and then you have something called late and limited but it is truly limited.

Brian: Okay, so contesting a trust

Darian: Yeah, so if it’s revocable at the settler’s death that just means that up until the time they died that the settler could have revoked it, then the earlier of the one year from their death or 60 days after the trustee notifies you of the existence of the trust and then provides you with their name and their address and they have to also tell you the period in which you need to contest it. So, if you miss either of those you’re kind of out of luck.

Brian: If it’s irrevocable though-

Darian: that’s harder-

Brian: -it’s a different animal.

Darian: -it’s a completely different animal and it’s not controlled by the Massachusetts statute, and I think my gut there is that if you brought any sort of tort claim within three years of discovering the harm that you claim you would be okay, but I think that that is certainly a harder question. I will say that if that trust is irrevocable, if you discover that something is amiss, and you are in a position where you can and the settler is alive it can be modified or terminated with the consent of the settler and the beneficiaries and so that’s one way that you might address informally any dispute that you have about an irrevocable trust.

Brian: Okay, so you were alluded to already the Sacks v. Dissinger case that came out at the end of 2021-

Darian: Yes.

Brian: Where, and this ties into an in terrorem clause which is an anti-contest clause that ties into that issue because in some trusts and wills it says if you can test this and lose, you’re out, you lose everything and some of my provisions I put your children lose too.

Darian: Wow, Brian.

Brian: Well that prevents you. If you wanted to contest it and your children were going to get it you could just get it back from them if you lost, you know, so sometimes I make it a little harsher. But our in terrorem clauses just talk about contesting the will of the trust. Now this Sacks v. Dissinger case said those deadlines on contesting don’t matter because that’s a personal action, you can sue the person who unduly influenced somebody-

Darian: Yeah.

Brian: -and you’ve got three, you have a three-year statute of limitations over there.

Darian: Yeah.

Brian: So, you know, you’re not, and the court specifically said, you’re not actually attacking the instrument so this, the one-year statute of limitations against trust wouldn’t apply.

Darian: But yes. and I would say that generally the court has taken sort of an equitable view of those clauses and so where the claim is like a breach of fiduciary duty claim, right, they don’t then say that triggers the in terrorem clause, right. It’s only if somebody comes and says, the instrument itself is invalid.

Brian: Right, so this is a way to get around the in terrorem clauses, so perhaps we should be changing those clauses to say that you’re out if you sue an individual who inherits here.

Darian: That’s one perspective. You won’t be surprised that I disagree that that’s a good thing because so much of my caseload has to do with these really tricky questions of undue influence and they are often, the undue influencers are often people that would inherit something they’ve just made it so that they inherit more and I think by shilling litigation from people who’ve been disinherited by bad behavior by expanding an interim clause is actually not a good thing. Not a good thing for individuals, not a good thing for families, and it’s not actually in line with, in my opinion, with what most people understand that cause to mean.

Brian: Yeah, there’s no such thing as one size fits all in law. But I think in some cases you know that there’s a child, a relative who’s going to object, you don’t give them the opening, give them something to lose. In some families there is just somebody who’s going to do that-

Darian: Have you ever written an in terrorem clause that was specific to one devisee?

Brian: Yes.

Darian: Yeah, that seems like a better fit than expanding the general clause to say you know if you even sue somebody who inherits under this instrument that scares me.

Brian: Well, I mean if you sue them for undue influence or if you sue them under a theory an expectancy of inheritance theory then maybe, maybe it should be expanded.

Darian: Yeah, I think it’s so fact specific, I think it’s so fact specific. Well, that’s an, it’s an interesting idea to kind of address what the court has opened up to say, no you know these intentional interference pieces are separate from contests, which I wasn’t surprised by that holding because that makes sense to me, it’s a completely different animal.

Brian: But it’s essentially attacking the trust too, I mean I think our legislature needs to look a little more closely at that. You know somebody puts an in terrorem clause in there because they don’t want fights, they often expect somebody to be a pain in the neck in the family and the court just kept open a different way for them to attack.

Darian: Well you know why I’m laughing because I feel like any time you and I get on a webinar you’re like, ‘well the legislature needs to do this,’ and I go, ‘no no no no no,’ but you know why I think that is, I think it’s because you come to the work from a planning perspective, right, and you’re trying to shore it up for your clients and give them the sense that their plan will be honored, and I’m trying to you know leave it open for people who are disenfranchised in some way, right. Either because there’s some bad actor or there was a capacity issue or anything because as people get older and this is also a plug for you Brian, like when people get older they want to make those kind of like last-minute changes and it’s like no, no, no, you know, you need to be looking at your estate plan often. Maybe on a yearly basis so that when you hit that point where it’s like you actually can’t execute something new or you have a relationship with a practitioner who knows what the contours of your family are like, what your social relationships are like and they can identify kind of quickly if something has changed drastically. I think if everyone treated their estate plan that way, sort of renewed it in the way that we renew our insurance then I would say oh yeah go crazy with in terrorem clauses but until that it makes me nervous.

Brian: Well, you know sometimes the person who’s a pain in the neck in the family raises the costs for everybody and essentially blackmails everybody to give them a share that they’re not entitled to just because of the cost of the action.

Darian: Yes.

Brian: So, this the smaller the case the more likely I would want to expand that in terrorem clause.

Darian: Yeah, yeah that makes sense.

Brian: Okay-

Darian: -do you want-

Brain: -no, go ahead, we’re going to talk about undue influence we’re kind of, maybe we should do a program just on that. You’re writing a chapter for MCLE.

Darian: Yeah.

Brian: Maybe we do that in the near future and get a psychiatrist a psychologist on too to talk about that. But everybody says undue influence, everybody talks about that they were pushed into it. You know it’s an accusation that’s thrown around lightly. So, what needs to be done to prove undue influence? How much? You know it’s a, ‘I know it when I see it, but how much do you need to get a judge to rule?

Darian: It depends on the facts, right, this is the litigator’s favorite answer. So, I mean the elements of the play make it sound simple, right. So, I went over them at the top of the program but it’s someone who’s susceptible and then another person who takes that opportunity to exert the undue influence that results in an unnatural disposition of the influenced person’s assets in favor of the influencer. But practically, you know it could be as subtle as isolating somebody, right, replacing all their friends and family, having them rely completely on you and sometimes it’s a caretaker right it could be a live-in caretaker and the relationship could be close but it’s a subtle type of course of pressure to change the disposition of one’s assets after death. And any way that you can cobble that together you have a chance of having it work, right. So, I would say the strongest cases are if you have somebody that has some sort of cognitive impairment and they can’t quite remember, a short-term relationship might feel longer and more meaningful to them if they rely on that person to do any sort of daily living tasks that’s a strong case. I think what’s less strong is you know maybe relatives that are living together, there is a caretaking relationship but maybe they’ve lived together for a long time and I think it gets gray if the behavior or the circumstances that lead to the undue influence are in place before the person is susceptible, but once the person becomes susceptible, the nature of that relationship and the pressure in that relationship results in a different disposition of the assets I think that’s a closer case. What do you think Brian? Like what do you think is like a slam dunk versus a near miss?

Brian: I think isolation is always the big one, you know, when one person is isolated, you know they’re completely dependent on somebody and that’s why the burden shifts in some cases when somebody, especially if somebody has a power of attorney and they’re using it.

Darian: Yeah, if the person has a fiduciary capacity the burden shifts automatically.

Brian: Right, but the burden is still preponderance which really means it’s a coin flip, you know, and it’s a matter of who the judge likes and doesn’t like, you know. These are tough cases and it’s unlikely in some of these cases that if they’re close calls that the judge is going to award fees to one side or the other.

Darian: That’s right.

Brian: But in a clear case the probate court or the superior court could award fees.

Darian: It’s true. I mean the other thing I think about when I’m sort of evaluating where we are on the spectrum of slam dunk to near miss is this idea about discrepancies and education level. If the person being influenced is less sophisticated than the person doing the influencing, but it’s subtle right, it’s so subtle and I think that I’m not saying that if you have a less certain sort of case of undue influence that you shouldn’t pursue it, but I think that a person would pursue it with the knowledge that they could lose and they might not get their fees back, right. I mean the good thing though about these cases is in the probate and family court they exercise an equity standard to shift the fees. So, in a contest they’re going to shift the fees as fairness requires and not necessarily because you win, which is not the same in the superior court. But even then, courts are pretty hesitant to fee shift because the automatic rules that everyone pays for their legal counsel. But it done, I would just say you shouldn’t expect to get all of them back, you might get some.

Brian: Right. I think we’ve covered just about everything already we have five minutes left. You know, I look at this to some extent from the standpoint of someone who does the estate planning.

Darian: Yeah.

Brian: So, this is, I had a case in the appeals court last year where the lawyer who did the planning let the under influencer make the appointment come into the room and participate then the lawyer emailed information to the influencer not the client, never communicated with the client again until the documents were ready. The daughter had actually chosen a trust instead of a will because she thought it would be cleaner. He never talked about it with the you know with the client himself about what to do. Never communicated with the neurologist, never found out that the man had Alzheimer’s and then just had him in, got her out of the room and went over the trust for five ten fifteen minutes tops.

Darian: That’s a textbook case, right, that’s a textbook case.

Brian: Yeah, that was an easy case to win because the lawyer had blown it. So, lawyers shouldn’t be letting people into the room. This is why I never let the children into the room for the first meeting. Maybe at the end if there’s some reason but I want to establish the relationship with the client alone.

Darian: Right.

Brian: You know, I mean and undue influence is not something that’s just going to be stripped from the situation just by meeting alone with a client, you know. You got to ask questions, the ethical rules say that in doing planning for someone with diminished capacity that you’re supposed to try to figure-, the client needs a reason for what they’re doing, they have to be able to explain the rationale for what they’re doing. You know, and to just say, ‘oh you want to leave everything to one child,’ that’s not enough. You’re not just a scrivener, you’re not supposed to just listen to what the client says and write it.

Darian: That’s right.

Brian: I mean I’ve got a situation right now where a lawyer was hired for a homebound woman by the caregivers, her employees, they brought her to a lawyer and then later on she went back to the lawyer with a list and wanted to add all her employees into her trust as in to inherit equal shares.

Darian: Yeah, so-

Brian: You know, and the lawyer just met with a client and did it and didn’t you know send her out for an evaluation to determine whether there’s under influence. She was pretty much just a scrivener.

Darian: Well in a different program that’s geared towards practitioners we can run through the best practices but that’s not good, right. You want to be meeting with your client more than once, you want to be meeting with them alone, you want to establish a relationship, you want to take good notes about your impression of their capacity and if there’s an undue influence and you know one question that I think not enough practitioners ask is whether there’s an existing estate plan and if so why they didn’t go back to that attorney to make the revisions? That’s a big one.

Brian: Right. I mean the person who’s selecting the lawyer for you is often figuring out whether that lawyer is going to go along with it. So, we don’t wind up with a lot of undue influence cases because we don’t let them come into the room. So that’s maybe, maybe there’s a lot more of it going on than I realize.

Darian: Yeah, it’s all over here on my docket.

Brian: Okay, well then, we know where to go on the undue influence cases. So, the deadlines are very important for people and the affidavit is important. So, if somebody wants to object, before they go to the lawyer, they should probably make a list of all the facts-

Darian: Yes.

Brian: -you know and not just go in and chat.

Darian: I think that’s right and bring your supporting documents to the extent that you have any and you want to organize your thoughts because that way you’re also getting the most for your money right and your time. If you’re just chatting with me, you’re going to have to collect that stuff later and send it and then I’m going to have to look at it later instead of in the first instance.

Brian: Yeah, but the way to contest a will, just to you know just put a final note in the last minute, is you don’t have to file a full-blown thing, it’s a form that you have to fill out and send into the court initially. It’s a one-pager, that you’re objecting and then you’ve got a month to prepare whatever you need to prepare, an affidavit that goes into details.

Darian: That’s right.

Brian: You know. But all right, well Darian, I think we tell everybody it’s going to be a half hour only and we’re done but thank you.

Darian: Awesome.

Brian: We’ll do this again