What Does it Take to Revoke a Will?

May 31, 2010 By Leave a Comment

Wills are often referred to as ambulatory documents, meaning that it can usually be changed or revoked at any time before death.  But what does it take to revoke a will?  Sometimes an individual will simply mark through a provision or attempt to modify the will with a few handwritten notes. Will that work?

A recent Ohio case addressed whether or not markings on a will were effective to revoke a will.  The case of Horst v. Horst arose out of a dispute between two siblings, Patricia and William Horst, over the Last Will and Testament of their mother, Mary Horst.

Before Mary’s death, she had marked up one copy of the will but left another copy unaltered.  The markings included drawing an “X” over about 10 lines of a page, then attempting to mark out the “X.”  She also blacked out the words “the amount of Five Hundred Dollars ($500.00)” in one section. At the top of the page she wrote “This Will is correct.”  The will contained multiple signatures by Mary placed between and around typewritten lines in the will. The second page marked out area around the final signature on the will.

Patricia argued that all of these markings show that Mary had revoked her will and that it was no longer valid.  Like most states, Ohio has a statute that defines the ways in which a will can be revoked.  The statute allows revocation in the following ways:

  1. When the testator tears, cancels, obliterates, or destroys the will with the intention of revoking it;
  2. When, at the request of the testator and in the testator’s presence, another person tears, cancels, obliterates, or destroys the will with the intention of revoking it;
  3. When a person tears, cancels, obliterates, or destroys the will at the express written direction of the testator;
  4. By way of another written will or codicil that is properly executed according to statute; or
  5. By another writing that is signed, attested to and subscribed pursuant to statute.

The Court found that Mary’s markings on her will did not qualify as a revocation of her will under the statute. Mary only put an “X” on portions of the first page of the will and crossed out some language in the margins, but she did not destroy, obliterate, tear, or cancel the entire document. Most of the document remained visible, including her signature and the date. She also left another copy of the will completely intact, without any markings at all. Moreover, the fact that Mary wrote at the top of the will “This Will is correct” further evidenced her intent that this document remain as her valid will to be probated upon her death. If anything, the markings showed that Mary intended to make some changes to a few of the provisions in the will. As such, the court upheld the validity of Mary’s will, to be probated as written.

One good lesson the Horst case teaches is that the best way to keep a testator’s intentions clear is to always consult with a probate attorney when seeking to draft, amend, revise, or even revoke a testamentary document such as a will. This avoids confusion as to the testator’s wishes and could save a lot of money in court disputes arising over the validity of will.

Horst v. Horst, No. 22993, 2009 WL 3068261 (Ohio Ct. App. Sept. 25, 2009)

Filed Under: Estate Planning, General Probate Tagged With:

No-Contest Clause May be Included in a Revocable Living Trust

May 24, 2010 By Leave a Comment

“No-contest” clauses are popular features of many wills. A no-contest clause (also called a forfeiture clause) states that if a beneficiary of the will tries to dispute anything in the will, that person will no longer be entitled to inherit under the will. Courts have upheld this type of clause in wills. Can the same type of clause be included in a revocable living trust? According to a recent Virginia case, the answer is yes. This case also examined what constitutes a “dispute” of the trust to trigger a no-contest clause.

In Keener v. Keener, Hollis Keener set up a trust-based estate planning, including a typical “pour over will” that left his property to a revocable living trust. A pour over is a special type of will designed to transfer one’s property into a trust upon the testator’s death. These wills are typically used as a safety-net in estate plans designed to avoid probate.

Hollis was the original trustee of the living trust.  Two of his sons were named as successor trustees. The purpose of the trust was to avoid probate, maintain privacy, and give Hollis more control over the distribution of his assets. Upon Hollis’ death, the trust required the trustee to distribute the trust assets to his 6 children in equal shares.

There was some acrimony in the family.  Deborah (Hollis’s daughter) found the will and trust documents and made copies of them.  A few weeks later, Hollis added language to the trust, stating that if any person objects or contests any provision of the trust at his death, then his or her portion of the trust shall be forfeited. This is a typical no-contest clause, which would normally appear in a will. But since Hollis was using a revocable living trust, the trust was the primary dispositive instrument.  This no-contest clause was added to the trust only; it was not added to the pour-over will.

Upon Hollis’ death, the trustee (his son) did not offer the will into probate believing it was unnecessary since everything poured into the trust, from which distribution to the trust beneficiaries was to be made.   As with most trust-based estate plans, there was no need to probate the will since all assets were owned by the trust and distributed in accordance with the trust.

When Deborah went to the local courthouse to determine if her father’s will had been entered into probate, she found that it hadn’t.  She tried to enter the copy of the will she had made years before, but the court rejected it because it was not an original.  Two of her siblings then told her there wasn’t a will.  So Deborah applied to have her father’s estate administered, claiming he died intestate (meaning, without a will).  She was named administratrix of her father’s estate.

While Deborah was pressing to open her father’s estate, the trustee of the revocable living trust issued 6 checks distributing the assets of the trust to his siblings. But when he learned that Deborah was seeking to open his father’s estate, he stopped payment on her check and claimed she violated the trust’s no-contest clause.

The first issue before the court in this case was whether or not a no-contest clause, such as those found commonly found in wills, could be upheld when included in a trust. A no-contest clause is a way for a testator to ensure that his heirs don’t object to his wishes as to the distribution of his property. While these clauses are typically used in wills, the same rationale applies to trusts. The court found no reason to invalidate no-contest clauses in trusts, especially since they also deal with the distribution of one’s assets according to his wishes. The court held that the no-contest clause in the revocable living trust was valid.

This did not resolve the case, however. Once the no-contest clause in the trust was found to be valid, the next question the court had to answer was whether Deborah’s conduct triggered this clause. The no-contest clause specifically stated that it would be triggered as a result of objections or contesting of the provisions of the trust. The pour over will did not also include this type of clause. Deborah simply sought to open her father’s estate as a result of her claim he died without a will.

The court found that her conduct did not specifically contest to any provisions of the trust itself. As such, the no-contest clause of the trust had not been triggered. Had the will itself had a similar clause, the answer may have been different.

This case shows the importance of having a properly-drafted estate plan.  If you are potentially involved in a will or trust dispute, it is a good idea to consult with a probate attorney before committing any acts that may result in forfeiting your inheritance or trust distribution rights.

Keener v. Keener, 682 S.E.2d 545 (Va. 2009).

Filed Under: Estate Planning, General Probate Tagged With: ,

No Automatic Presumption of Undue Influence Between Spouses

May 17, 2010 By 1 Comment

Does the automatic presumption of undue influence apply to transfers between spouses?  According to the Mississippi Court of Appeals decision in In the Matter of the Estate of Patricia McDaniel Langston, the answer is no.

Patricia and Mansfield Langston were married for 11 years. During this time, Patricia transferred the marital home to Mansfield after she purchased a new home. She later executed a will leaving her entire estate to her three adult children from a previous marriage and to one of her sisters. She named her husband as executor of her estate. Her will stated that her husband was left out of the will because he had his own estate.

A few months after signing the will, the Langston’s attorney prepared three deeds. One transferred Patricia’s new home (which had become the marital home) from her name only to both her and Mansfield’s names as joint tenants with right of survivorship. Another deed transferred the original home from Mansfield to Patricia’s mother. The third deed transferred property to a third party in a sale.

A month after transferring the property, Patricia executed another will which changed the executor of her will from her husband to her mother. A few months later, Patricia and Mansfield purchased a CD in the amount of $200,000 in both their names as joint tenants with the right of survivorship. Just under two years later, Patricia died.

Upon her death, Patricia’s mother opened her estate and attempted to set aside the joint tenancies that had been established in the marital home and the CD and bring them into probate for distribution under the terms of Patricia’s will.  The estate claimed that these joint tenancies were the result of undue influence exercised by Mansfield during a time that Patricia suffered from chronic illness.

The lower court relied on the confidential relationship between Mansfield and Patricia to apply the presumption of undue influence. On appeal, the appellate court noted that most marriages inherently involve a close confidential relationship, and therefore, the presumption of undue influence may not always apply.

In the typical undue influence case, the giver and the recipient are in a relationship that gives the recipient the opportunity to wrongfully cause the giver to turn over his or her property. This is known as a confidential relationship.  (For more on undue influence, see What is Undue Influence?).  But in this case, Patricia and Mansfield had been married 11 years. The very nature of a long-term marriage implies a confidential relationship.  This made it easy for the estate to meet the factor test for confidential relationships.

In recognition of this situation, the Court of Appeals declined to apply the automatic presumption of undue influence in the marital context. Instead, the Court held that undue influence must be established by showing that the grantee spouse used “undue methods for the purpose of overcoming the free will” of the grantor spouse such that the grantee controlled her acts and prevented her from acting of her own mind.

In the Langston case, there was overwhelming evidence that Patricia was a very strong-willed person and that she continued to be so during all of the transfers in question. She may have been physically ill, but she attended all meetings and did the majority of talking. It was clear that the transfers were made of her own free will and not as the result of Mansfield exercising his dominance over her. As such, the lower court’s finding of undue influence was reversed.

In the Matter of the Estate of Patricia McDaniel Langston, 2008-CA-01090-COA (Miss. Ct. App. 2010).

Filed Under: Estate Planning, Mississippi Probate Tagged With:

What is Undue Influence?

May 17, 2010 By 3 Comments

Undue influence is a common ground for will contests.  The issue usually arises when someone – usually a caregiver – receives a gift from a person who is arguably weak and dependent upon the recipient.  Someone will then object on the grounds of undue influence, arguing that the recipient had so much control over the giver that the gift would not have occurred without the “undue influence” of the recipient.  It is essentially a claim that a greedy caretaker, family member, or other individual used his or her position of influence to take advantage of a weak-minded individual by causing that individual to make a gift to the caretaker.  Undue influence claims can arise for gifts made during life (inter vivos) and at death (by a will).

While the law of undue influence will differ from state to state, the concept is generally the same.  In the typical undue influence case, the giver and the recipient are in a relationship that gives the recipient the opportunity to wrongfully cause the giver to turn over his or her property.  This is known as a confidential relationship.

A confidential relationship, sometimes known as a fiduciary relationship, is one in which one of the people in the relationship is in a position to influence the other person because of some created dependency. The dependency can arise from physical or mental disability, being in a position of power or authority over the other person, or if one person creates an environment of trust. Any of these scenarios could be characterized as a fiduciary or confidential relationship.

As a practical matter, undue influence cases often turn on the existence of a confidential relationship.  The factors necessary to establish a confidential relationship may vary depending on what state is involved.  In Mississippi, the existence of a confidential relationship depends on the following:

  1. Whether the recipient needs to be taken care of by someone;
  2. Whether a close relationship exists between the two individuals;
  3. Whether the giver has her transportation and medical care needs provided for by the recipient;
  4. Whether the parties maintain joint accounts;
  5. Whether the giver is physically or mentally weak;
  6. Whether the giver is of poor health or advanced age; and
  7. Whether there is a power of attorney between the two parties.

If all of these factors exist, then a confidential relationship will be found.  This means that the recipient is in a position to “exercise a dominant influence” over the giver due to the giver’s dependence on the recipient.  And that is half the battle.  The confidential relationship usually raises a presumption that undue influence caused the challenged transfer. The burden is then on the recipient to prove that there was no undue influence.

Filed Under: Alabama Probate, Estate Planning, General Probate, Mississippi Probate Tagged With: