Most distributions involving Wills, Trusts, Powers of Attorney, or Guardianships are relatively straightforward. However, some cases involve serious issues of dispute that can involve potential litigation. These situations can arise when an individual with substantial assets in a Trust or in an estate dies after having exhibited symptoms of diminished mental faculties, or when a family member or close friend assumed an unusually large role in an individual’s financial affairs. In many cases, the issues can be resolved by a careful review of the Will or Trust and collegial discussions/negotiations among the prospective beneficiaries. However, in other situations, greater challenges can be presented, typically for the following reasons.
First, the Will or Trust may have been an ambiguously drafted document with irreconcilable conflicting terms or inadequate explanations regarding the distribution pattern. This can occur where a document was drafted by the individual himself/herself without the assistance of an attorney; in these cases, these well-intentioned but misinformed efforts very frequently create major problems of interpretation, and often result in significant tax issues and distribution disputes. In other instances, specific assets such as stock, real estate, or personal property which are owned by the individual may not be sufficiently described within the Will or Trust, thus causing questions as to the intent of the individuals to the proper beneficiary. In such one recent case, Dennis McAndrews successfully served as a mediator in a dispute among several charities regarding $40 million of assets to be distributed by the estate of an elderly woman who drafted her own will with many ambiguities and inconsistencies.
Second, the distribution pattern of a Will or Trust may have been changed by an individual who was elderly or infirm, and questions can arise concerning whether the individual had the requisite capacity to participate in legal decisions (i.e., testamentary capacity). There may also be allegations that the individual was subject to undue influence by other persons when the document was prepared, or allegations that the individual who signed the will may have been fraudulently induced to change his distribution plan. Finally, these matters can involve different versions of a dispositive document that are purported to be the true and final Will.
Third, there may be allegations that transfers the individual made while alive were improper. This can be seen in cases where real estate was transferred by the individual, beneficiary designations were changed in a manner significantly different from previous versions, or another person was added as a joint owner of real property or other assets. In these cases, family members or intended beneficiaries may question whether the individual possessed the proper capacity for these transfers, or if the individual was unduly influenced to enter into these transactions.
Fourth, family members of an incapacitated individual may allege that an Agent under a Power of Attorney or Legal Guardian misused his or her authority by transferring funds to himself or other, or modifying the incapacitated individual’s beneficiary designations, or in other ways using the individual’s funds in ways which were not intended. These matters may be alleged while the incapacitated individual is alive, or questions concerning these transactions may not occur until after the individual has passed away.
In circumstances where there are distribution questions regarding resources of a deceased or incapacitated individual, it is important to have the situation reviewed by a competent legal professional. Attorneys in McAndrews Law Offices’ Estates, Trusts & Wealth Transfer Department are well-versed in the all aspects of fiduciary litigation. We will review these matters for a reasonable initial consultation fee, and in some cases the matter may be handled thereafter on a contingency basis, whereby the compensation to counsel is based upon the recovery obtained. Our litigation and estate attorneys are prepared to work toward a lawful and proper distribution of assets of the loved one who has passed away.