By: Michael Yopp
Partner, Waller Lansden Dortch & Davis LLP
Guiding the Client through the Process of Challenging a Will
One of the attorney’s primary roles in this process is to get the client to understand that his view of justice and the world’s view of justice do not necessarily coincide. There are certain things that the law provides, and there is simply nothing that can be done about it. For example, if the law says that if someone dies intestate, the property belongs to a son or daughter who has been estranged from the family for thirty years, there is nothing that can change that. Litigation is futile.
One of the best services a lawyer can provide his or her client is an objective evaluation of the situation. Estate litigation is always highly emotionally charged. And often a client will want to pursue a matter that, if viewed objectively, should not be pursued. I try to walk my clients through the process from beginning to end so they will know exactly what to expect. When a family member brings a dispute to us, there are generally four choices:
- Accept the situation as is because there is little chance of success.
- Discuss and compromise without litigation.
- Try to obtain mediation or arbitration.
- If none of the above is appropriate, institute litigation.
Discussion will often resolve matters when the parties are operating under either a factual or legal misunderstanding. The most common situations leading to an inheritance dispute involve second spouses, two or more children fighting over a family business, or someone who insinuates himself into the will in bad faith through the abuse of a confidential relationship. Almost always, an attorney preparing an estate plan and will has been advised by the client if there is likely to be a challenge. The attorney can anticipate that and generally avoid litigation by the way the will is executed.
- Estate dispute is a specialized area of litigation that, in smaller communities, such as Nashville, is virtually impossible to practice in it solely. It is necessary to do it in conjunction with estate planning and conservatorships to have an adequate volume of practice.
- I always advise my clients who are devising wills to sit down with their children and explain to them exactly what they are planning to do in their wills. This way, their children are not blindsided when they pass and will know what to expect.
- Although many parents are afraid to discuss their wills with their children because doing so will likely upset one or more of them, by not having the discussion, they are setting a time bomb that may destroy their children’s relationship with each other.
- When clients are considering settlements before litigation, I have to make sure they understand what the litigation will cost-sometimes it is not worth the fight.
- When executing and witnessing a will, do so in the same manner every time. That way, if someone contests the will in the future, you can state that you go through an identical process with every will that cannot be questioned.
- If a will is likely to be challenged, either videotape the execution or prepare a contemporaneous affidavit from the witnesses outlining the questions asked and the responses received.
This article is an excerpt from Managing Disputes Over Wills and Inheritance Chapter 5, 2014 ed. This excerpt was provided by Aspatore Law Books, part of Thomson Reuters. Aspatore books were originally created for a legal professional audience, but have since become popular with non-attorneys thanks to easy-to-understand writing and smart, real-world insights. You can find the entire book available for purchase on the Thomson Reuters Legal Solutions website by clicking the book title linked above.