Will and trust contests are frequent in Florida. A good portion of this type litigation results from an elderly individual’s reliance on other people to act as caregivers in the absence of family members. As a senior becomes more reliant on and trusting of a caregiver, the caregiver often becomes the unintended recipient of alleged gifts such as a joint bank account established as a survivorship account for convenience purposes only. Some cases even result from caregivers conditioning their care on being made a beneficiary of the senior’s will or trust. The most egregious cases stem from caregivers initiating the process to change the decedent’s testamentary plan. It behooves family members with elderly parents to closely monitor the situation.
Too often elderly parents fail to discuss their testamentary plan with their heirs. Those types of situations also lead to will and trust contests that drain an estate and cause lasting wounds. Lawyers frequently advise seniors to discuss their plans with their natural heirs. It has been shown that although natural heirs may not like how the will or trust has been designated, they are willing to live with it when it has been discussed with them. On the other hand, when the natural heirs are not made aware of the decedent’s testamentary intent, so many are certain that their “small share” is a result of a decedent’s unsound mind or undue influence or other statutorily recognized ground for a will or trust contest. While many parents prefer not to discuss their testamentary plans with their heirs, their “children” are now adults who have natural expectations. I know I know… every person has a right to create their will and/or trust as they please, but he/she would be prudent to think about a couple things:
1. we live in a litigious society and there exists legal grounds to set aside a will or trust. Experience has shown lawyers that upset heirs will come in and “take no prisoners” when it comes to making sure that if they are getting nothing, neither will anybody else.
2. your children have feelings and hardened relationships or untalked about issues can and often do result in huge legal battles that pay lawyers and no one else.
3. if you are hell bent on not having any discussion with your heirs about your plans, talk with your lawyer openly about how you can protect your will or trust from future contests. While there is no absolute way to do this, there may, in your specific circumstances, be options that could be of some benefit. The downside is that often the precise things we do to protect the will or trust are turned against us later.
This is why we talk about family facilitation at the time a will or trust is made. So many families are too ashamed to actually think about airing their dirty laundry to a neutral. Moreover, so many people are simply unwilling to talk about it with anyone thinking that no one can “fix” the situation if we cannot do it on our own. However, it is often not about fixing and more about being straight, honest and candid with people. People want to be respected and heard. Even if they do not like what they are hearing, they can often deal with their anger and move forward with the help of a skilled professional. We fear the truth and it is only in being truthful that you will ultimately heal relationships and secure your wishes for your will or trust.
Cary and I have worked with families in these situations. We have seen firsthand that discussing your plans with your heirs can and does avoid later legal actions that drain estates. It is not easy and it is not free. But the cost is nothing compared to later legal battles. You are really investing in your relationships. We do not promise a rose garden. We are not miracle workers. We do, however, understand family dynamics because we have experienced our own, we have shared with other families and we have been working with families for so many years. The sense of peace one gets from knowing they have been truthful and loving to family is more meaningful than most people can realize while locked in bad relationships or hurt feelings.