Battle of the Wills:  The Will Contest

Over the years, I have had the distinct (dis)pleasure of trying and settling a number of Will contests.  They are a mixture of pathos and bathos, sorrow and humor.  The cases often mix the charm of a Sunday afternoon mud wrestling contest with the true sorrow of the (sibling/spouse/fill in other relative) gone south (sometimes literally).  Occasionally, the best drafting in the world by very able counsel cannot preclude disappointed folks from bringing all manner of claims.

What follows are slightly masked, genetically altered versions of some of these close encounters.

THE NOT SO JOINT TENANTS (STATUTORY SHARE)

Years ago, I tried my first will contest to Judge Melvin Peterson.  My client was the father of the Will beneficiaries.  His wife had died leaving her Will which expressly excluded him.  They had a long time marriage and had owned a home in the Twin Cities in joint tenancy.  The home was the principal asset in the Estate.  My client had signed a Quit Claim Deed of the homestead to his wife and then moved to Florida.  His claim was that she was to follow him when the house was sold.  The property was in fact listed for sale for a time but never sold and the wife, of course never moved to Florida.  They then lived apart for several years before her death.  As the wonderful Volkswagen ad of several years ago stated, the wife left a Will where she provided hubby, "Nothing, nothing, nothing!"

We claimed that Husband had never intended to sever the joint tenancy but had merely Deeded the house to her with the mistaken belief that she would be able to close the sale of the house without his signature.  (See Minn. Stat. 507.02; 500.19 (4)). Therefore, he should take as the surviving joint tenant.  I suppose we claimed Federal Express and the U.S. Mail had not yet been invented and it was therefore impossible for him to have signed and delivered a Deed for closing.  The Estate argued that the husband and wife had worked out a property settlement without going through a divorce and that Husband was therefore entitled to nothing.

The problem: my client had serious tax difficulties when he scurried south and there existed the aroma of an attempt to prevent those pesky tax problems from becoming a lien on the home.  The former IRS agent and tax adviser to my client who had prepared the Deed sniffed that nothing could be further from the truth; that it was purely prudent planning for that soon to occur sale of the residence.  (Obviously, as a matter of real estate law, the husband's inchoate legal interest could not be effectively conveyed by the Deed to his wife).

The court sorted through our contentions and awarded my client a life estate in the home pursuant to statute.  His life estate was eventually valued and he was cashed out.  The taxing authorities got their pound of flesh.  I think the lesson there was to see a lawyer before you sign the "standard forms" approved by those darn realtors.

THE ONE TRUE CHURCH (WILL CONSTRUCTION)

An elderly spinster (call her Ms. Divine) died leaving a fairly substantial bequest to the Minneapolis church she'd attended for forty some years.  However, the church had changed its name.  I was retained to represent the national organization with which the original church had been affiliated.  The opponent was the church organization presently occupying the building.

We contended that the church had not only changed its name but lost its soul as well.  Everyone knew the location of the building.  No one could agree on the identity of the church.

The pastor whom Ms. Divine had known all her life had retired and, after an internal struggle, been replaced by a new minister.  Virtually the entire membership of the church had turned over.  The new pastor had not been ordained through my client although she professed that she was an adherent of my client's teachings.  What made the case so much fun for the author, an ex-Altar Boy of the Year and professed member of a somewhat older, more staid, religious organization, was sifting through the religious tenets of our opponents to decide whether they measured up as true believers.  When I was finished examining activities which included palm reading, chanting at the moon and séances with the other world, I was thoroughly convinced that the new church was no relation to my client or the intended beneficiary.  Ms. Divine surely didn't intend for those heathens to benefit.  I anticipated having the jury rolling in the aisles with tales of drum beating, crystals and psychic fairs.

We, of course, had problems of our own.  Ms. Divine had never contributed dollar one to our organization which was not based in Minnesota; the churches affiliated with us had only a very loose connection.  If we succeeded in defeating our opponent's claim, did that necessarily mean that we succeeded as beneficiary?  This led into studies of non profit corporate succession rules, a boring exercise by comparison to deposing witnesses who believed in communication through church members with departed loved ones.

Then there was the fact that the case generated the one ethics complaint which I have received in 20 years of practice filed, of course, by opposing counsel.  A former member of the board of the new church who was still an active churchgoer contacted me through a third party to give a statement in opposition to the new church challenging their current adherence to my client's teachings.  This led to the ethics complaint that the author was having improper contact with opposing counsel's client.  Fortunately, both the probate court and the Board of Professional Responsibility dismissed the claim out of hand.  Never, never file an ethics complaint for litigation purposes; it turns a business transaction with your adversary into a holy war.

Ultimately, cooler heads prevailed and the case was settled by getting biblical with our opponents (in the sense of splitting the baby, of course.)

THE HOUSE OF SOME REPUTE, OR HE PUT THE PEN IN MY HAND, HONEST, OR THEY'RE REALLY NOT HIS KIDS, REALLY; AND EVERYBODY WINS, INCLUDING AND EXCEPT THE LAWYERS! (COMPETENCE/PERSONAL REPRESENTATIVE LEGAL FEES)

I got my first opportunity to try a will contest to a jury in this case, a lawsuit for the ages, at least in my limited, parochial view.  One of my partners tells an old probate joke with this punchline: "They put a fly in his mouth so they could claim there was still life within him".  This case showcased that scenario, and more.  The Legislature cannot be accused of providing too much detail regarding the matter of competence to make a Will.  The statute says, in its entirety:

524.2‑501. Who may make a will

Any person 18 or more years of age who is of sound mind may make a will.

Exhausted?  Read on.  The Legislature has this to say concerning how a Will comes to be signed:

524.2‑502. Execution;  witnessed wills 

Except as provided in sections 524.2‑506 and 524.2‑513, a will must be:

(1) in writing;

(2) signed by the testator or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction;  and

(3) signed by at least two individuals, each of whom signed within a reasonable time after witnessing either the signing of the will as described in clause (2) or the testator's acknowledgment of that signature or acknowledgment of the will.

Note that the Legislature strongly prefers the testator be conscious if someone else signs for him but doesn't specify whether he must be conscious if he signs himself.

Remember how you learned in Civil Procedure that you could plead alternative theories?  In this estate, our opponents claimed my clients were not Mr. Jones' children in the first place, but if they were, he had expressly excluded them by name as his children in the Will.  We could have taken refuge in the Will which named us his children but simultaneously were seeking to block its admission to probate.  Only a very fine lawyer could figure a way through this tangle.  I managed anyway.

Mr. Jones owned an establishment in the metro area which frequently did business on a cash basis and turned over its clientele in two and four hour cycles.  (Let your imagination run wild.)

The Will was drafted by an attorney who I will call the Screwed Scrivener.  You will understand why presently.  Scrivener met the decedent, Mr. Jones, at the hospital where he was then in intensive care.  S. Scrivener testified at trial that Mr. Jones affirmed his intention to leave out his children.  However, when S. Scrivener arrived back at the hospital with the freshly minted Will, he attempted to discuss it with Mr. Jones in the presence of a doctor and nurse.  Unfortunately for S. Scrivener, Mr. Jones denied knowing S. Scrivener and was otherwise generally unintelligible.  Scrivener then turned over the Will to Mr. Jones' brother giving instructions as to the necessary formalities of execution.  Brother Jones rounded up some cousins (one of whom was a notary) and a couple days later held the Will execution in his intensive care unit with the curtains drawn.  Mr. Jones died within another week.

When I deposed the witnesses to the Will, I was informed that these selfless family members gathered in the Intensive Care unit and closed the curtains.  Brother then asked Mr. Jones if he wanted to proceed with the Will signing.  Though he was unable to speak, Mr. Jones allegedly nodded his head affirmatively.  Brother then placed the pen in Mr. Jones' hand and "assisted" him to sign.  I managed to bring three treating physicians and two intensive care nurses over from Hennepin County Medical Center to testify live to the jury (top that!) that Mr. Jones was "obtunded" due to liver failure (one step below comatose) at the time of the execution.  Over objection, the opinion was admitted that Mr. Jones could not understand the conversation or assent to anything.  The Jury returned its Special Verdict concluding that Mr. Jones was not competent at the time the Will was signed.

Regarding the paternity issue,  Mr. Jones and their mother had never married, and there was no formal declaration of paternity.  There was a period where we were forced to consider whether it might be possible to exhume the body to try to obtain usable tissue samples for DNA testing.  Fortunately, that issue was resolved by summary judgment because of statements in the rejected Will, some correspondence, and a lack of any contrary evidence by brother.

Ultimately, lawyers won, and lost.  Though the Jury determined Mr. Jones was incompetent, brother's attorney was rewarded handsomely (and deservedly for some fine lawyering) as the probate code (Minn. Stat. 524.3-720) protects a proponent of a will even though he may be unsuccessful (and have poor penmanship) by permitting payment of his legal fees.  Contrast this rule with most other situations where fees are not available to prevailing parties.

The final bizarre twist occurred when brother sued Mr. Jones' former lawyer, the scrivener of the will, for malpractice for failure to obtain prompt execution of the Will even though it was turned around within a matter of day or two.  The jury in that case came back and gave brother the cash.

NOT EVEN THE POPE COULD SAVE HIM (UNDUE INFLUENCE)

This was a case where we alleged undue influence in a new Will.  First, a Will contestant has the burden of proof.  See MSA § 524.3‑407.  The burden of proof is by clear and convincing evidence.  (I once tried to persuade Judge Belois otherwise with a few old cases that used the preponderance standard, but she did not buy it and it is a dead issue.)  In many cases, the evidence of the exertion of influence is purely circumstantial (as it was here), making the burden of proof feel more like a mountain than a foothill.  It is plainly not enough that one party of equal relation receives the lion's share of the Estate.  The contestant has to prove an overcoming and substitution of the beneficiary's desire to that of the testator.

This case was tried to a jury at the insistence of the Will's proponent who determined to represent himself.  He felt that being bright and articulate, and choked up with sentiment would get the job done.  Parent had made a new Will only recently which provided that the three siblings share equally in parent's estate.  Parent authored a handwritten note stating the same intent, and Proponent wrote a letter reiterating that plan.  Shortly before Parent's death, Proponent wrote a new Will for Parent which gave him the majority of the Estate.  He kept the Will secret from his siblings.  Proponent took care of Parent physically a great deal and traveled with parent in parent's last year and a half of life, all at parent's expense, however.  A principal claim of the Will Proponent was that he was being given the majority of the Estate to compensate him for the career he had given up.  I had a minor field day with checks written to Proponent and a credit card billing statement indicating Proponent had lived off Parent entirely during the preceding period.

Proponent handed me wonderful ammunition in a 150 page document claiming a variety of services to his parent inclusive of companion services, medical services, driving services, transportation service and a bill for mileage.  The services were billed at $18 per hour plus overtime and double-time on Sundays and his $230,000 claim for 1 1/2 years of service exceeded the estate's gross value.  The mileage was especially fun when I showed all of his gas, repairs, oil changes and tires were paid for by his use of parent's credit card.  In  reviewing his $230,000 claim, it was also noteworthy that he had zero taxable income in any of the preceding five years.  He wrote his parent's Will and stated that he was being rewarded for having given up his career without compensation.  The only difficulty with this assertion lay in the fact that caring for his parent was obviously the highest paying job he had ever held.

A highlight of the trial was a display by Proponent to the Jury of a photo of Parent, Proponent and Pope John Paul II in Vatican City.  The purpose was to show Proponent's devotion to Parent and Parent's undying gratitude.  Unfortunately for him, the photo was taken six months before Parent wrote the "split the estate equally" Note.  The cross examination made it clear that even though he had taken parent on this wonderful trip, parent still wanted the Estate divided equally.

The trial also contained my first experience in a jury trial with a pro se litigant.  The court was more than fair with him and as a result he was able to make his own Opening Statement, testify during our case in chief on cross and direct examination, testify in his own case, testify during his examination of his siblings (Do you recall our conversation where I said...) and then make closing argument.  Direct examination by a pro se litigant of himself can only be characterized as a bizarre experience.  The court permitted narrative form testimony but required at my insistence that the litigant at least caption his remarks so that I knew where we were headed next and presumably could object.  (This does not work well-inadmissible evidence will come in regardless).

The Jury which he insisted on concluded after brief deliberation that he had unduly influenced the making of the Will.  I was also awarded summary judgment on the validity of the first Will which Proponent of Will 2 had challenged as being unduly influenced.

TWISTED SISTER (UNDUE INFLUENCE)

The scrivener of a will referred me a sweet, elderly lady who was principal beneficiary of sister's will.  She was unjustly accused of employing undue influence in the formation of the Will by Miss Happ which left my client the bulk of her sister's estate to the exclusion of her other siblings.  My client was merely a selfless caretaker of her sister who wouldn't hurt a fly.  She regularly cared for her, ate meals with her, etc.  Unfortunately, Miss Happ's first attorney testified in deposition how the beneficiary did somewhat lead her around; fellow apartment dwellers confirmed a dominant relationship between them, and the coup de grace came when she revealed her less than genteel nature by cussing out her cross examiner during the deposition.  Discretion overcame us and we settled.

CONCLUSION

I always tell probate clients the words I have heard frequently from probate Judges and Referees, that the court and Jury will only give or take away money; it will not make a finding that cousin Emily will spend eternity in Dante's Inferno.  Will contests can be the source of litigation as gut wrenching as any Family Court battle; disputes between shareholders and business partners are often much tamer and easier to resolve.  Probate court can be the site of high drama for the attorneys and litigants.  It's best to bring a strong Will.