Tuesday, December 6, 2011



Your mother, who was suffering from Alzheimer’s disease, leaves all of her money to her male
nurse. Your brother unduly influences your father into changing the title on his brokerage accounts
to joint tenants with right of survivorship with your brother.  Your 90 year old father amended his
Trust one week prior to death and stated that he left you $1 “for reasons best known to my son”. 
What reasons?  What happened between the time you last saw your father and the date he signed
the Trust amendment?    

The common denominator in most Will & Trust contests is the concept of fairness -  it’s not fair
that someone else received a disproportionally larger share (or all) of your parent’s estate.  After
all, didn’t your mother tell you years ago that she was leaving everything to you and your sister? 
Unfairness leads to anger, and anger leads to lawsuits!

Your first reaction is one of hurt: “What did I do to cause my father to cut me out of his Will?”  
Next comes anger  anger at the person who received your parent's money. “How did she deceive
my father into giving her all of his money?”    ”He wouldn’t have done it on his own!”   “What lies
did she tell him about me?”  Finally, revenge: You are not going to let that no good so and so get
away with it!  In our system of justice, we resolve our differences through the courts, i.e.,
litigation.   This is where the litigation lawyer becomes an invaluable tool.  


Now that you have decided to contest a Will or Trust, the next step is to hire an attorney to assist
you.  Contesting a Will or Trust can be extremely complex.  For that reason, consider hiring an
attorney that practices primarily in the area of Will & Trust litigation.  The hourly rate may be
higher than that of a general practitioner, but in the long run, it will be worth it.
How do you find an attorney?  Ask your own attorney or accountant for a referral.  Alternatively,
you can find a lawyer on the internet at sites such as www.lawyers.com or  www.martindale.com
under the categories of Estate Litigation, Wills & Trusts, or Trust & Estates.

Twelve questions to ask an attorney:

1. How long have you been practicing law?

2. What is your Martindale-Hubbell Rating (AV, BV or CV)

3. What percentage of your practice is Will & Trust litigation?

4. Have you handled matters like mine?

5. What are the possible outcomes of my case?

6. What are my alternatives in resolving the matter?

7. Approximately how long will it take to resolve?

8. How will you keep me informed of the progress of the case?

9. What kind of approach will you take to resolve the matter - aggressive and
unyielding, or will you be more inclined to reach a reasonable settlement?

10. Do you charge on an hourly basis, on a contingency fee basis (% of recovery), or a
hybrid (part hourly, part contingency)?  If hourly, what is your hourly rate, what is
your minimum charge per hour, and how often will I receive a bill from you?  If
contingency, what is your % of the gross recovery and who pays the  “costs”
incurred in the litigation (copying, expert witness, faxes, travel, etc.)? 

11. If you charge on an hourly basis, give me a ball park estimate of your attorney’s
fees through trial?

12. Will an associate attorney or paralegal in your office handle some of the
administrative work at a lower hourly rate?


Litigation is not for the weak of heart!  Because of the many unknowns and your inability to
control the case, litigation can be very stressful. The author, Ambrose Bierce, summed it up best: 
“Litigation: A machine which you go into as a pig and come out of as a sausage.”   Litigation is a
very slow and cumbersome process.  Although the trial may last only a day or two, it may take
years to finally get to trial.  As a result, the procedure can be physically and emotionally draining.

As a party to the litigation, you should have a general understanding of the legal issues involved.
Throughout the litigation, you will hear terms like: testamentary capacity, undue influence, breach
of fiduciary duty, fraud, mistake, recission, reformation, and surcharge.   All of these terms have
a very specific legal meaning. 

For example, a person is presumed to have testamentary capacity if at the time he signs his Will,
he understands in a general way: (a) the nature & extent of his assets; (b) the natural objects of his bounty (i.e., his siblings, blood relatives, etc.); and (c) the nature and affect of the Will (the dispositive scheme of distribution).  A person can be demented, drunk, and on drugs, but if he has a lucid moment at the time he signs his Will, he has testamentary capacity.  A person is unduly influenced if there is over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that there is a destruction of his free agency and willpower.  It goes without saying that a person suffering from dementia is more susceptible to undue influence than a person of sound mind.  Take, for example, the situation where the caregiver convinces your 90 year old grandfather who is suffering from Alzheimer’s disease to give her all of his money on the verbal promise that she will give it to you and your siblings upon his death.  The care giver unduly influenced your grandfather into giving her all of his money and should be held accountable for her actions.  


Litigation attorneys are a different breed of lawyer.  They enjoy the excitement of going to court - 
they enjoy arguing, the unknown, the drama.  From the very first moment that you retain your
lawyer, he is preparing for trial.  He is looking for a theme - a common denominator that brings
all of the facts and legal issues together into one cohesive and logical story.  Give your attorney
every document whether you believe it is relevant or not. Tell your attorney everything.  Tell him
the good with the bad; don’t leave anything out.  Let your attorney decide what is relevant and
what is not.  You will learn a lot about what your attorney is doing by reading his monthly bills.  You will see  terms like: legal research, drafting, correspondence, attend deposition, draft interrogatories, trial preparation and the like.  Keep in mind that his bill is merely a summary of his work product.  Each word could easily translate into a twenty minute conversation about the services performed.  Litigation is “behind the scenes” work -  you never see the practice, only the final result. 


Mediation is an informal, process whereby the parties and their attorneys meet with an impartial
third party (a mediator) to try and settle the case before trial.  Mediation is not binding unless the
parties agree to settle the case.  At trial, you have a winner and a loser. The judge or jury decides
your case and there is no way to guarantee the outcome.  Not so with mediation -  all parties can be a winner!  The parties decide how to structure the settlement.  It takes the element of risk out of the equation.  As a result, most cases are settled in mediation. 


Depending on the issues involved, you may have a jury or an non-jury trial.  There is no average
length for a trial.  Your trial could last ten minutes or three weeks.  Again, it depends on the
issues involved.  You should be present throughout the entire trial, so make the necessary
arrangements ahead of  time.  Don’t make the mistake of believing that after you testify, you are
no longer needed.  You don’t want the judge or jury to see an empty chair.  They want to see that
you are involved in your case and that you care about the outcome.  


There is no guarantee that you will be able to recover your attorney’s fees and costs. Additionally,
you may be required to pay the opposing party’s attorney’s fees and costs!  Prior to filing a
Will/Trust contest, think long and hard as to why you want to file a lawsuit.  What is your ultimate
objective?   Is it to correct a wrong no matter what the cost?  Is it to discover why you were
excluded from your father’s Will?  Is it solely for monetary gain?  Make your objectives known
to your attorney from the very beginning. His trial strategy may depend on your objectives. 


The litigation maze is very complex and full of dead ends.  To successfully navigate through the
maze, you must trust your attorney to guide you.  Don’t question your attorney’s motives and
strategy.  Rely on his judgment and instincts while keeping the lines of communication open.  If
you have a question, ask him.  Plan ahead for a lengthy and stressful journey.   Remember, when
you finally reach the end of the maze,  life as you knew it continues anew.

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