Introduction
A wealthy man with four adult children, three daughters and a son, left millions to his daughters when he died, but nothing for his son. Was that the father’s intention? The answer came after much acrimonious litigation culminating in a three-week trial. In the end, a jury found that the sisters exercised “undue influence” over their failing father to exclude their brother from his will and trust. Sadly, this, or some version of this scenario, happens too often. While the attorneys were successful in this instance, this type of case is not easy to prove. That’s especially true if attorneys aren’t accustomed or equipped to litigate complex trust and estate disputes.
In this three-part series we discuss — from our perspective as estate litigators:
Part 1: Understanding and identifying undue influence.
Part 2: Confirming undue influence and planning for action.
Part 3: Knowing the difference between planning an estate and litigating a dispute.
Why do estate planners — traditionally non-litigating attorneys — sometimes end up in litigation?
The mindset of an estate planner is about helping people. You work to help clients make and carry out major life decisions, protect their families, and guard their legacies. Done correctly, your guidance is invaluable, and, for that reason, you manage a successful and fulfilling transactional practice. But when disputes or discord start to percolate, planning attorneys find themselves — sometimes too late — in unfamiliar, complicated, expensive, and high-risk situations.
The reasons you might end up litigating a case are certainly understandable. Maybe you think you can handle it. You are, after all, an attorney. So that’s reasonable. Maybe you are trying to avoid the expense of bringing in a litigation team. You have budgeted to perform transactional work, not combative work, so wanting to protect your bottom line is also understandable.
These are understandable motivations, yes, but not necessarily the wisest path for your client or your practice. Before you know it, you’re scrambling down rabbit holes, getting notices of subpoenas and depositions, dealing with burdensome discovery requests, vetting and hiring experts, preparing for trial, and looking for a way to tap out because this is not what you signed up for. While handling litigation yourself may, at first, seem like it will save costs, the very opposite is true.
Why should estate planners, including attorneys, turn to litigators?
Litigation is not for the faint of heart. Rife with obstacles, it involves a tremendous amount of work, much of it highly emotional. And the fact pattern of a case can be a troubling beast. There are no such things as perfect facts — never. If the situation was perfect, you wouldn’t be in court. Cases can drag on for years, challenging your patience, your resources, and even putting your reputation at risk. Even modernization of the courts — including the increased use of electronic portals to manage exhibits, for example — requires staff to have a solid understanding of these tools and processes to avoid getting bogged down. In other words, this high-stakes environment requires a clear head and a deftness that only comes from years of practice.
Because litigation is what we do, we know how to push on the other side to settle or bring them to trial relatively quickly. While clients may initially resist due to cost and time concerns, perseverance often leads to resolution as the opposing side tires and gives up. Trust and estate disputes share common underlying factors, and understanding this helps streamline our approach. By leveraging settlements and our intimate knowledge of the playing field, we often resolve cases in six-to-nine months, sometimes even less. This can be a godsend to your client. Knowing the ropes of estate litigation means we can avoid or untangle what can be an exhausting court battle where everyone loses. We push hard for clients. I like to tell planning attorneys that the longer you know me, the less you will like me. That’s because I am doing the job I promised and applying pressure to advance the case, and that includes satisfying the need for speed that best serves your client.
Your expertise is creating sound estate plans that reflect the wishes of your clients and guiding them and beneficiaries when it comes time to carry out those wishes. Litigating or mitigating the harm disputes can cause is our specialty. Our meticulous attention to detail, our considerable experience, our deep knowledge of the law, and our determination to get results — particularly the wishes of client testators — are behind our impeccable record. When we get involved, our intention is to cut through the process quickly and effectively, get the dispute resolved, then return the matter of the estate back to you to administer.
Undue influence is a complex legal concept that can be difficult to prove. Unfortunately, case law does not always clearly guide attorneys. The American Bar Association says legislatures should modernize their laws, for example, by adopting statutory definitions and providing screening tools to improve the clarity and consistency of undue influence laws. In so doing, the ABA says, “states can better protect vulnerable individuals and ensure fair outcomes in legal cases.” With this in mind, even experienced estate planning attorneys should call on estate litigators at the first signs that someone may be exercising undue influence on a client.
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