Most solo practitioners will never have a client with an estate as big and complex as that of Huguette Clark. Ms. Clark, who recently passed away at the age of 104, was a copper heiress whose apartment alone may be worth $100 million. However, the facts surrounding Ms. Clark’s estate planning—and the likelihood of a protracted fight over the contents of her will—can impart some lessons to all estate planning attorneys about how to handle similar situations with their clients.1
As an initial matter, estate planners need to be aware of the types of clients whose documents are most likely to be challenged. In my experience, these types of clients are those who:
(1) are not married (whether never married, divorced, or widowed); and
(2) are not leaving their property in a “typical” way. By “typical,” I mean either that the client’s closest relatives are not named as beneficiaries at all, or that relatives of the same type (like children or siblings) are not treated the same way. A couple of examples might be the widow who wants to leave all of her property to her caregiver (thereby disinheriting her two children), or the bachelor who wishes to give two-thirds of his estate to one brother and the remaining one-third to his other brother.
Ms. Clark’s situation certainly raises some red flags, in both respects. She never married (and never had children). Additionally, instead of leaving her property to her relatives, she left it to charity, her longtime nurse, her goddaughter, and others.
I’m not suggesting that, when estate planning attorneys encounter the above types of clients, their reaction should be to question the client’s wishes. Rather, the estate planner should simply be prepared to take additional steps to ensure that the client’s wishes are indeed being followed, and to minimize the possibility of future litigation. That is especially the case when an attorney encounters one of the following four warning signs:
1. Evidence of Potential Incapacity
Most attorneys are aware that lack of capacity on the part of a testator can invalidate the testator’s will. The problem is that we are lawyers, not doctors. But I think most of us can tell if clients seem confused about the basics of their property or family relationships. If we notice this confusion, we can then ask the client questions about his or her medical history, and about whether there are any reasons why a person might question the client’s ability to make a will.
In Ms. Clark’s case, there is conflicting evidence regarding capacity. On the one hand, Ms. Clark chose to live in hospitals for the past 20+ years, even when she was well, and is often described as “eccentric.” On the other hand, when relatives went to court last year in an attempt to have a guardian appointed for Ms. Clark, their petition was rejected.
If after questioning the attorney still feels uncomfortable with a client’s capacity to execute a will, it may be appropriate to bring in the medical professionals. The client might schedule a doctor’s appointment—hopefully with his or her longtime physician—in the morning, and use that opportunity to obtain a written opinion from the physician regarding capacity. The attorney could then meet the client in the afternoon (or as soon after the doctor’s appointment as possible) to have the documents executed, retaining a copy of the doctor’s opinion for the file.
2. Strained (or No) Relationship With Closest Relatives
As part of the estate planning process, it’s helpful to ask clients for information about their family tree. After all, this information can save a lot of time if a probate is needed and heirs must be located in the future. But this information is also helpful so that the attorney can understand whether the client’s closest relatives will be beneficiaries of his or her estate.
In Ms. Clark’s case, it appears that her relationship with her relatives ended around 2005. (The reason for the end of the relationship may be in dispute. According to some of Ms. Clark’s relatives, her attorney was responsible for cutting off contact at that time.) To my mind, Ms. Clark not leaving property to her relatives is much less of a warning sign than usual. That’s because these relatives were only distantly related to her; the relatives are mostly half-great-nieces and half-great-nephews from her father’s first marriage. The decision to disinherit a child or sibling seems much more problematic from an estate planning and litigation-avoidance perspective.
In my practice, I attempt to deal with this issue by discussing the client’s relationships with his or her closest relatives and, even more importantly, the history that colors these relationships. For instance, leaving two-thirds of your estate to one sibling and only one-third to the other sibling might seem odd until you learn that one brother lives next door to the client and visits daily, while the other brother lives in another country entirely and rarely visits. In some cases, we might even discover another reason for a disinheritance—perhaps that the client’s child is wealthy and doesn’t need the inheritance—and can then reflect this reason in the will.
3. The Procuring Beneficiary
This warning sign is fairly easy to spot, and most estate planners have encountered it. The telephone call or email comes in: “Can you prepare a will for my mother (or father or grandmother or grandfather)?” In many cases, this is a perfectly innocent request. Perhaps mom or dad simply asked their son or daughter to find an attorney for the sake of convenience. But the procuring beneficiary can be especially problematic when the new estate planning documents cut out a close relative.
Ms. Clark’s situation presents a fairly egregious example of the procuring beneficiary, as a beneficiary who is to receive $500,000 under the will apparently drafted the document. (That this beneficiary/draftsman was also Ms. Clark’s attorney raises other issues as well, although they are beyond the scope of this article.)
The solution here is equally simple. When someone (let’s call him the “Procurer”) contacts me regarding the preparation of a will for a third party, I inform the Procurer that I will need to meet with the third party alone, in order to discern the third party’s wishes. Sometimes the Procurer becomes offended at this point, but I try to explain that I merely want to protect against accusations of undue influence, accusations that could result in the will being found invalid.
4. The Fiduciary as Beneficiary
A problem similar to the procuring beneficiary involves a beneficiary who already has some sort of fiduciary relationship with the client. Indeed, sometimes the procuring comes as part of this fiduciary relationship.
As noted above, Ms. Clark’s attorney being both a fiduciary and a beneficiary presents a problem. Other people in a position of trust with Ms. Clark—her longtime nurse and her doctor—are also named as beneficiaries in her will.
Cases where a fiduciary is also a beneficiary can be handled by again focusing on relationships—in this case, the relationship between the client and the fiduciary. The attorney can delve into this issue via questioning, making sure to note the client’s rationale for leaving a gift to the fiduciary, and also confirming that the gift is based on something other than the beneficiary acting as fiduciary.
Focusing on the above issues during the drafting process may not prevent a will contest, but doing so should make it difficult (if not impossible) for such a contest to be successful.
1. I am deeply indebted to Bill Dedman, whose wonderful msnbc.com articles on Ms. Clark I consulted for many of the facts contained herein. In particular I relied upon this article.