To Catch a Thief- How to Prevent Inheritance Theft and Hijacking

One of the most perplexing issues for seniors is to make sure that their wishes expressed in their Last Will and Testament are followed. What can be done to avoid someone intervening when the senior becomes frail and perhaps demented, and perhaps stealing their entire estate? In practice, family members rather than the senior will frequently call a lawyer, telling the lawyer that it's time for their parents or other relatives to update their estate planning documents, and then asking for an appointment. An attorney might unwittingly prepare a Will for someone who is incompetent or assist those family members in exercising undue influence to take the estate for themself. It might be difficult for an attorney to determine a senior's mental capacity or their personal circumstances when they only meet once or twice to prepare the Will. What can be done?

The short answer is that the easiest way to prevent some stranger from emerging and hijacking your estate is to today appoint a primary and successor agent under a Power of Attorney. The first agent may be a spouse or other trusted individual. The successor agent who takes charge if the first agent cannot serve should be someone you also trust, but who is younger than you and likely to outlive you. The agent under your Power of Attorney may protect you against intermeddlers who try to interfere with your estate plan when you become frail. For an example of the problems, read the full article below concerning a recent dispute in Carbon County Pennsylvania. This case illustrates what may happen, and the manner in which courts deal with it.

Stella Fabian lived in Carbon County Pa. She outlived her husband and daughter until she passed on January 31 of 2016. She drafted a Will on December 29, 1988, in which she left her entire estate to her daughter. If her daughter did not survive her, the estate was to be distributed to approximately ten other individuals including relatives, friends, and a small percentage to Sacred Heart Church. Then later, in 2014, she drafted another Last Will and Testament that bequeathed her estate to four nieces and nephews in equal shares. The new Will also appointed two of those persons as her executors. At the time Ms. Fabian drafted the 2014 Will, she was living in the dementia unit of a personal care home called the Maple Shade Meadows. At the trial to determine whether the 2014 Will was valid, Ms. Young, a nurse at the facility who cared for her, said that she did not have the mental capacity to make a Last Will and Testament because she suffered from Alzheimer's disease and/or dementia. Dr. Bosi, the physician at Maple Shade who evaluated Ms. Fabian upon her admission to the facility, testified that she suffered from moderate to severe Alzheimer's disease upon her admission, and was not capable of making her own medical or financial decisions. Furthermore, her condition deteriorated from the date of her admission.

In Pennsylvania, proof that someone suffers from dementia is not alone enough to prevent them from making a Will, but Dr. Bosi provided essential testimony that Ms. Fabian did not have the capacity to make a Will because she did not understand the nature of her assets and the possible objects of her bounty.

On the other hand, the Will was drafted by Attorney Greek, who was a respected member of the Chester County Bar, and who now serves as D.A. for Chester County. He felt she was competent to draft a Will when he met her. However, Attorney Greek also admitted that he had only seen Ms. Fabian twice on June 13 and June 20 of 2014. Courts do realize that "competency to make a Will" is dynamic- a person may be more competent at certain times of the day or depending upon certain medications or other factors.

How should the court decide which Will to honor? What standard does Pennsylvania apply? Does the court believe the evaluation of Attorney Greek or Dr. Bosi, and why? What can you do in your own Last Will and Testament to minimize this kind of problem?

First, since one bequest in the original Will was to a charity- Sacred Heart Church- the Pennsylvania Attorney General had the authority to intervene to protect the interest of the charity. Although there isn't any direct evidence, it seems the attorney general was satisfied in this case that the attorneys representing both sides were adequately litigating the issues involved.

Both the Pennsylvania Superior Court and the Carbon County courts became involved in deciding this case. On appeal, The Superior Court pointed out that normally, the testimony from the scrivener of the Will, Attorney Michael Greek in this case, is given great weight. However, the testimony of the lawyer who drafted the Will is only given great weight if he or she knew the testator for some period of time. That was obviously not the case here where Attorney Greek only met the testator twice. Also, it does not settle the issue of whether the testator might be subject to "undue influence" by others, which is a separate but related issue. The Superior Court sent the case back to Carbon County for an additional hearing.

What steps can someone take to maximize the likelihood their Will is honored? One way might be to have the Will prepared by an attorney and "check-in" every five years or so to review the Will. This way, the attorney can testify about your competency if necessary, and any reasoning behind your revising certain parts of your Will. But not everyone has a close relationship with a lawyer, so another perhaps better alternative, if you feel there may be an issue, is to secure a note from your physician just before you draft your Will that confirms your competency. The opinion cannot just be from anyone who knows you, it should be from your doctor. The court in the Fabian case had a hard time deciding whether Ms. Young, the director of nursing at Maple Shade Meadows, had the qualifications to determine Ms. Fabian's mental condition. However, the court did recognize Dr. Bosi to be an expert. Whenever the competency of a client may be subject to attack, many attorneys frequently suggest, that a prospective client bring a note from their doctor when they meet to discuss their Will, and the lawyer makes that part of the file.

A senior may be competent, but still subject to "undue influence" for a variety of reasons. On the issue of whether someone is exercising "undue influence" over a senior, the presumption is that no such condition exists. Anyone claiming "undue influence" must show that (1) The person making the Will (the testator) has a weakened intellect; (2) the person making the Will (testator) was in a confidential relationship with the person who is claiming the Will is valid; and (3) the person claiming the Will is valid receives a substantial benefit from the Will in question. Once someone establishes some proof of undue influence, the burden shifts to the other side to prove the absence of undue influence by clear and convincing evidence. "Clear and convincing evidence" is a standard between "beyond a reasonable doubt" and "by a preponderance of the evidence. The way most lawyers minimize any claim of "undue influence" is to meet directly as many times as possible with the person making the Will, without anyone else present, and/or have conversations with them alone as often as possible.

However, as said in the very beginning, the easiest way to prevent a stranger from emerging and hijacking your estate is to appoint a primary and successor agent under a Power of Attorney today. The first agent may be a spouse or other trusted individual. The second successor agent who takes over if the first can no longer serve should be someone you also trust, but who is younger than you and likely to outlive you. The agent under your Power of Attorney is in the best position to protect you against intermeddlers who try to interfere with your estate plan when you become frail.

It is very important that readers understand I do not imply that anyone has done anything dishonest in the case explained above. We are not the factfinders, and the case is still in the courts. The court may yet find the second Will is the valid Will. Only the court can determine the credibility of witnesses and other issues that have a bearing on the case. This article is only a guide to minimizing these problems.

We will discuss more on this issue in future posts about other estate planning documents. Make certain you have subscribed.
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tags: legal, competency, court cases