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https://images.mktw.net/im-26819585Dear Quentin,
My stepfather developed inoperable brain cancer and died. He has three daughters from previous marriages and two stepdaughters — my sister and me. He had said my mother should live in the house he owns until she dies, at which point the proceeds would be split between us five daughters and stepdaughters.
I had a falling out with my sister two years prior to our stepfather dying, and she started manipulating my mother to make her the executor of the trust.
One year after my stepfather died, I received legal papers showing that one of my stepsisters had hired an attorney. It appears that my stepfather, on the exact day he died of brain cancer, signed an addendum to his trust leaving everything to my sister, cutting out his three stepdaughters. My sister herself witnessed this document, which wasn’t notarized. My stepsister later halted her lawsuit after realizing how expensive and time-consuming it would be.
I was denied a copy of the family trust. My mother’s attorney said I would have to be a beneficiary. My mother and sister removed me as a beneficiary when, I believe, they forged my stepfather’s signature. Do I have any recourse other than hiring an attorney?
Will karma get them in the end?
Stepsister, Sister and Daughter
“You can typically contest a will or trust on the following grounds: lack of testamentary capacity, undue influence from a family member and improper execution.”
MarketWatch illustration
Dear Stepsister,
If your mother is still alive, you may have to rely on karma, if that’s what you believe is necessary to put right something you believe is wrong. If your mother inherits everything, including the house that your stepfather had earlier said he intended to be split between his three children and two stepchildren, your mother could still divide the estate in accordance with her own wishes.
That said, the timing and circumstances will look bad in any courtroom. You can typically contest a will or trust on the following grounds: lack of testamentary capacity, undue influence from a family member and improper execution. Given the nature of your stepfather’s illness, what happened seems highly inappropriate. In some cases, the trust may also need to be notarized.
Benazeer “Benny” Roshan, partner and chair of the Trust and Probate Litigation Group at Greenberg Glusker, says the facts described here are certainly troubling but unfortunately not uncommon. “Deathbed changes to an estate plan are inherently suspect, especially when they upend a prior estate plan’s dispositive provisions such as beneficiary designations,” she says.
“Most jurisdictions have laws that allow an heir or beneficiary to challenge a subsequent change or amendment [described as an addendum in your letter] that eliminates their beneficial interest in a will or trust,” she adds. “A legal proceeding that formally challenges an estate plan is commonly known as a trust or will ‘contest.’”
Legal action is expensive. “Individuals whose beneficial shares of an estate are wiped out via deathbed changes should consult attorneys and explore the costs versus benefits of taking formal action,” Roshan says. “They should be aware that most jurisdictions have time limitations on bringing an action and, if one is contemplated, time may be of the essence.”
A complex legal issue
Daniel McKenzie, an attorney with the McKenzie Law Firm in Centennial, Colo., says he doesn’t know whether karma will get anyone in the end. Short of that, he says the only way to address your concerns would be by agreement between the relevant parties, which seems unlikely, or a court order. “Can those be done without an attorney?” he says. “Sure, but it would be a terrible idea.”
Law varies by state, and McKenzie’s analysis is based on California law, although most states share similar laws on challenging an estate plan. He also doesn’t address the part of your letter about the lack of notarization, because, he says, there is not always a formal requirement to notarize a trust or trust amendment, although it’s a common best practice that allows for a trust to be recorded.
McKenzie believes you have a case, based on how difficult it would be for someone in the final stage of brain cancer to sign a document, let alone understand what he was doing. But your question was whether you needed a lawyer. “Unfortunately, this is a highly complex matter, requiring sophisticated expert testimony and nuanced legal arguments,” he says.
“Assuming that the mother is also deceased and the assets passed to the sister outside of probate, the writer can likely initiate a civil case, alleging lack of capacity and undue influence,” he adds. “The fact that the dad executed the document so late in his life when he was likely in a very compromised state would be supportive of both claims.”
This reader wrote to me recently with a similar situation: His uncle persuaded his ailing grandmother to cut everyone else out of the family trust. The reader likened it to a bitter Shakespearean tragedy. As his story suggests, such 11th-hour events are not unheard of. People do dramatic and ill-judged things when there is an ailing relative and a lot of money involved.
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