DRAFTING WILLS & TRUST DOCUMENTS TO REDUCE RISKS …DRAFTING WILLS & TRUST DOCUMENTS TO REDUCE RISKS OF CHALLENGE First Run Broadcast: January 22, 2020 1:00 p.m. E.T./12:00 p.m. C.T./11:00

DRAFTING WILLS & TRUST DOCUMENTS TO REDUCE RISKS OF CHALLENGE

First Run Broadcast: January 22, 2020

1:00 p.m. E.T./12:00 p.m. C.T./11:00 a.m. M.T./10:00 a.m. P.T. (60 minutes)

A last will and testament is not always the final word of a testator. Wills frequently trigger long-

suppressed family rivalries and resentments. With the testator no longer on the scene, children or

other heirs are freed to express their resentments. These resentments often worsen when the will’s

plan for allocating of money, valuable property or sentimental items is made known, leading to

dispute and litigation. These disputes can be very time-consuming and costly resolve, sharply

diminishing the value of an estate. This program will discuss grounds for will contests and practical

steps lawyers and their clients can take to avoid challenge.

• Spotting red flags in will contests – disinheriting close family members, unequal

treatment of children, unusual behavior of testator & more

• Sources of law in will contests – grounds for challenging wills

• Practical steps to avoid will contests – will ceremonies, videotaped testaments, witness

selection, affidavits

• Use of In Terrorem provisions to prevent will contests

• Issues surrounding holographic wills and other informal wills

Speaker:

Steven B. Malech is partner in the New York City office of Wiggin and Dana, LLP, where he is

chair of the firm’s probate litigation practice group. He is represents beneficiaries, fiduciaries and

creditors in disputes involving alleged violations of the Prudent Investor Act and its predecessors,

alleged breaches of fiduciary duty, disputed accountings, and will contests. He represents clients

in cutting edge probate litigation matters involving trusts and estates with assets in the hundreds

of millions of dollars. Mr. Malech received his B.A., with special honors, from the University of

Texas and his J.D. from the Connecticut School of Law.

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Drafting Wills & Trust Documents to Reduce Risks of Challenge Teleseminar

January 22, 2020 1:00PM – 2:00PM

1.0 MCLE GENERAL CREDITS

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Please note: This form is for your records in the event you are audited Sponsor: Vermont Bar Association Date: January 22, 2020 Seminar Title: Drafting Wills & Trust Documents to Reduce Risks of Challenge Location: Teleseminar - LIVE Credits: 1.0 MCLE General Credit Program Minutes: 60 General Luncheon addresses, business meetings, receptions are not to be included in the computation of credit. This form denotes full attendance. If you arrive late or leave prior to the program ending time, it is your responsibility to adjust CLE hours accordingly.

© 2020 Wiggin and Dana

Will Contests:

Common Grounds for Challenges

and Potential Strategies for

Avoiding and Defeating Them

Steven B. Malech

Wiggin and Dana, LLP – New York

(212) 551-2633 / [email protected]

Michael L. Kenny, Jr.

Wiggin and Dana, LLP – New York

(212) 551-2628 / [email protected]

mailto:[email protected]

mailto:[email protected]

© 2020 Wiggin and Dana2

What is a Will?

▪ Written instrument* to take effect upon death;

▪ Directing disposition, retention of property;

▪ Appointing fiduciary or making other provision or

administration of estate; and

▪ Is revocable during lifetime.

EPTL § 1-2.19

*With narrow exception for oral and handwritten wills


Bases for Challenge

▪ Lack of Capacity;

▪ Undue Influence;

▪ Fraud; and

▪ Lack of Due Execution.


Capacity:

Having a Sound Mind and Memory▪ Proponent: Initial Burden of Proof.

▪ Testator:

• Nature and Consequence of Making a Will;

• Nature and Extent of Assets/Property; and

• Objects of his or her bounty.

▪ Focus: Time Period When Will was Executed.

▪ Standard Lower Than for Other Contracts and Trusts.

4


Relevant Facts and Circumstances

▪ Testator’s Ability to:

• Have Coherent Conversation;

• Respond to Questions;

• Conduct Business Affairs;

• To Live on His/Her Own, Participate in ADL; and

• Understand English (or language of Will).

▪ Testator’s Appearance

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Other Relevant Facts and Circumstances

▪ Testator’s Medical Status

• Frailty (old age, illness, etc.)

• Mental Condition/Disorder (Alzheimer’s, Dementia)

• Use of Prescription Medication or Other Drugs

• Treating v. Non-Treating Medical Experts

▪ Timing of Execution

• Deathbed Instruments – Heightened Scrutiny

▪ Observations of Attesting Witnesses/Draftsperson


Practice Tips▪ Inquire:

• Family and Close Friendships

• Nature and Extent of Assets

• Medication Use

• Medical Conditions

• Current Events/Hobbies/Interests

▪ Observe:

• Appearance

• Speech

• Awareness

▪ Listen:

• Testator’s Understanding of Key Provisions


Undue Influence:

Motive, Opportunity and Actual ExerciseThe Standard:

1. Existence and Exercise of Undue Influence; and

2. Effective Operation of Undue Influence so as to Subvert the

Mind of the Testator at the Time of Execution; and

3. Execution of a Will that, but for Undue Influence, Would Not

Have Been Signed.

Burden of Proof: On Objectant:

Must Show by Preponderance of Evidence,

Unless Confidential Relationship with Testator

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Factors▪ Isolation of Testator from Natural Objects of Her Bounty.

▪ Involvement of Beneficiary, Person of Trust, or Proponent:

• Selection of Attorney Draftsman;

• Instructions to Attorney Draftsman;

• Meetings with Attorney Draftsman; and

• Execution Ceremony.

▪ Physical and Mental Condition of Testator.

▪ Similarity to Prior Testamentary Plan(s).

▪ Threat or Existence of Physical Harm (Duress).


Practice Tips▪ Inquire:

• Reason(s) for Appointment of Fiduciary

• Reason(s) for Bequest(s)

• Reason(s) for Other Instructions

• Reason(s) for Selecting Attorney Draftsman

▪ Observe:

• Physical and Mental Condition of Testator

• Presence of Others

• Role of Person(s) in Position of Trust

▪ Listen:

• Who Provides Instruction(s) or Response(s)

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Fraud

▪ Elements:

• False Statement

• Inducing Testator to Execute a Will

• Disposing of Property Differently

▪ Burden of Proof:

• Objectant

• Clear and Convincing Proof


Factors▪ Fraud in the Execution:

• Intentional Misrepresentation

• Character or Contents of Executed Document

• Does Not Reflect True Intent

▪ Fraud in the Inducement

• Misrepresentation Causing:

◦ Execution or Revocation of Will

◦ Restraint from Executing or Revoking a Will

◦ Inclusion of Term(s) Favoring the Wrongdoer

Wills, Trusts & Estates, Dukeminier & Sitkoff at 317

12


Practice Tips

▪ Inquire:

• Reason(s) for Disposition of Property

• Reason(s) for Other Instructions

• Need(s) of Recipient

• Independent Corroboration

▪ Observe:

• Role of Person(s) in Position of Trust

• Source of Damaging Information

▪ Listen:

• Does the story add up?

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Due Execution:

Compliance with Statutory Requirements

▪ Testator Must:

• Appear Before at Least 2 Witnesses

• Sign Will at End

• Acknowledge Signature

• “Publish” or Declare: Document as Last Will

• Witnesses Must:

• “Attest” to Testator’s Signature

• Sign Will at Testator’s Request

• May Be Up To 30 days, if Not Concurrently

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Practice Tips

▪ Attestation Clause

▪ Self-Proving Affidavit

▪ Avoid Short Cuts

▪ Keep Good Records

▪ Consistency in Practice

15


Benefits of Good Practice Tips

▪ Burden of Proof: Proponent

• Preponderance of Evidence

▪ Presumption of Due Execution if:

• Attestation Clause

• Self-Proving Affidavit

• Attorney Supervision of Signing Ceremony

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Interference With:

Expectation of Inheritance

▪ “One who by fraud, duress or other tortuous

means, intentionally prevents another from

receiving from a third person an inheritance or

gift that he would otherwise have received is

subject to liability to the other for the loss of

the inheritance or gift.”

• Vechiola v. Fasanella, No. CV10-5029378-S

J.D. of Fairfield at Bridgeport


▪ Not Recognized in Many Jurisdictions

▪ Traditional Probate v. Civil Litigation

▪ Controversial:

Abandonment of T&E Law & Remedies?

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Storm Clouds on the Horizon:

Potential Indicators of Trouble

▪ New Client Leaving Prior Counsel

▪ Referral Source with an Interest in Estate

▪ Isolation/Separation from Family

▪ Bequests to Caregivers and Non-Family Members

▪ Presence of Interested Person(s) at

Planning Meetings and/or Execution of Will

▪ Weakened Mental or Physical Condition


Questions?

Comments?


Contact Information

Steven B. Malech

212.551.2633

[email protected]

Michael L. Kenny, Jr.

212.551.2628

[email protected]


This presentation is a summary of legal

principles. Nothing in this presentation

constitutes legal advice, which can only be

obtained as a result of a personal consultation

with an attorney. The information published

here is believed accurate at the time of

publication, but is subject to change and does

not purport to be a complete statement of all

relevant issues.