Showing posts with label simple will. Show all posts
Showing posts with label simple will. Show all posts

Friday, May 9, 2025

Dangers of Incomplete and Last-Minute Estate Planning: A Mississippi Case Study


Estate planning is often delayed until the last possible moment, frequently done on an ad hoc basis- addressing issues as they arise without developing a comprehensive plan. A recent Mississippi case illustrates how such delays can leave seniors vulnerable to manipulation and undue influence, potentially unraveling their true intentions for their legacy. Havoc often ensues in the vacuum created by last-minute or incomplete planning. This article explores a real-life example of a will  invalidated due to the undue influence of a testator’s son, and how individuals and  families can protect themselves from similar risks.

The Case: A Will Invalidated Due to Undue Influence

In the case, In re the Matter of the Estate of Autry, the Mississippi Supreme Court affirmed a ruling setting aside several deeds and invalidating a decedent's will due to lack of authentication, lack of  capacity, and undue influence.  The case is an object lesson regarding the benefits of  comprehensive estate planning.

Effie Mae Autry  and her husband made a will within 2014, but he predeceased her.  She had three sons, two of whom also predeceased her, leaving five grandchildren (three from one sone, two from the other). Effie's 2014 will, stipulated that, if her husband predeceased her, 143 acres of real property would be divided equally:  one-third to her surviving son, Steve; one-third to her grandchildren from one deceased son; and one-third to her grandchildren from the other deceased son. Effie also provided for a $1,000 bequest to her church and specific bequests to Steve and each grandchild.

In early 2019, Marcus, one of Effie’s grandchildren, filed a petition for conservatorship after Effie’s bank notified him that Steve and his wife had accompanied Effie to the bank and tried to remove Marcus’s name from her accounts or close the accounts. Steve lacked a power of attorney to act on Effie’s behalf. Marcus later withdrew the petition because the conservatorship confused and upset Effie. Notably, Marcus' name was on Effie's accounts, suggesting that Effie had not executed a power of attorney; otherwise, Marcus would not have needed to file for conservatorship.  This indicates that Effie and her husband relied solely on wills for estate planning.

Later in 2019, Steve called the family’s longtime attorney who had drafted Effie’s 2014 will, to discuss drafting a new will and deeds. After meeting with Effie and Steve, the attorney refused to prepare new documents, citing a significant decline in Effie’s mental capacity and concerns about Steve's potential undue influence. The attorney even warned other attorneys about the situation.

Undeterred, Steve then engaged another attorney to draft a new will and deeds for Effie. Steve drove Effie to this new attorney's office, where the attorney, unaware of the prior attorney's refusal or 2014 will, discussed a new will with Effie. The attorney testified that Effie appeared competent and clear about her intentions. Several days later, Steve drove Effie, Effie’s "caregiver," and the caregiver’s sister to the attorney's office to execute the new will and deeds. Effie signed a will leaving all of her assets to Steve, providing for the grandchildren only if Steve predeceased her and omitting the church bequest. The caregiver’s sister and the attorney's secretary signed as witnesses but failed to include their addresses in a required affidavit. Effie also executed several warranty deeds conveying all real property to Steve, retaining a life estate for herself.

After Effie’s death in 2021, Marcus contested the validity of the 2019 will and the deeds. The court ruled that the will and deeds were invalid because: (1) improper authentication by the witnesses, (2) Effie lack pf testamentary capacity, and (3) Steve undue influence. The Mississippi Supreme Court affirmed the ruling. The case highlights the risks associated with last-minute estate planning and the vulnerabilities seniors face without a comprehensive plan.

What Happens Next?

The case isn't over.  It now proceeds back to the probate court.  The next step is likely to admit the 2014 will, if that will is signed and authenticated properly. However, even a will drafted by an attorney and executed in an attorney's office, as the 2019 will was, can invalidated for technical errors or contested on other grounds.  If no valid will is admitted, he estate will be  administered as intestate. 

In Mississippi, intestate distribution (Miss. Code § 91-1-3 (2024)) mirrors Effie’s 2014 will: one-third to Steve, one-third to the grandchildren of one deceased son (split equally), and one-third to the grandchildren of the other deceased son (split equally). However, certainty is elusive. The grandchildren could argue that Steve’s share be withheld due to his wrongdoing, or Steve might contest Marcus’s share, citing the conservatorship attempt. Other tort claims, such as fraud or breach of fiduciary duty, could arise, though Mississippi does not recognize the tort of intentional interference with an inheritance

Additionally, Medicaid estate recovery could complicate matters if Effie qualified for long-term care after transferring assets, now invalidated. While unlikely, this highlights an overlooked risk: Effie’s family likely did not anticipate the full consequences of their reactive decisions. Discord is common even in well-planned estates, but incomplete planning exacerbates conflict.


A Word On Motivations

In my practice, I focus solely on my client's motivations, assuming the worst from others in order protect the client.  Courts evaluate actions based on legality, not intent.  However, considering motivations can illuminate the consequences of poor planning.

It’s tempting to view Steve as selfishly attempting to seize the estate. Yet, the court noted intriguing details: Steve was married but had no children, and the 2019 will, upon Steve’s death, distributed assets to most grandchildren, excluding Marcus and his sister (possibly due to the conservatorship). The will did not benefit Steve’s wife, suggesting alignment with Effie’s broader intentions. Effie’s severe dementia and need for around-the-clock care, partly provided by the caregiver whose sister witnessed the will, further complicate the narrative.

The deeds, retaining a life estate, likely represented a hasty Medicaid planning attempt to protect assets from nursing home costs. Marcus’s dismissal of the conservatorship may reflect a shared family goal to avoid asset loss, as a finding of incompetency would have invalidated transfers. These dynamics underscore how complicated last-minute planning can be, and how a comprehensive estate plan could have prevented conflict and better served the family.


The Weaknesses of Incomplete and Last-Minute Planning

Last-minute estate planning often occurs when seniors are vulnerable— due to illness, cognitive decline, or emotional distress, making them susceptible to manipulation. In Autry, Steve exploited his mother’s weakened condition to influence the will. Rushed decisions, especially without proper legal guidance, often fail to reflect the testator’s true intentions. Courts scrutinize last-minute changes, particularly those deviating from prior plans or disproportionately benefiting one person.

Vulnerabilities Seniors Face Without a Comprehensive Plan

Without a comprehensive estate plan, seniors are exposed to several risks, including, but not limited to:

Lack of Legal Protections: Without powers of attorney or trusts, no trusted individual is authorized to act if the senior becomes incapacitated.

Increased Risk of Manipulation: Seniors without a plan are more likely to be targeted by those seeking to exploit their assets, as there are fewer legal safeguards in place.

Family Conflict: Ambiguous or incomplete estate plans can lead to disputes among family members, causing emotional and financial turmoil.

In Autry, the absence of a robust plan not only made it made it easier for the son to exert influence, but it allowed conflict that could only be resolved by the court.  

How a Complete Estate Plan Would Have Prevented
 and Resolved the Autrey Case

A revocable living trust offers transparency and protection. Unlike a will, which remains private until probate, a trust’s existence is evident in deeds, bank accounts, insurance policies, and other assets. This visibility deters manipulation, as third parties (e.g., new attorneys) are aware of the existing plan. In Autry, a trust would have prevented Steve from engaging an unaware attorney to draft a new will, and the 2019 will’s invalidity due to authentication errors would have been irrelevant.
 
In the Autrey case, one person exploited the limitations of a will, to obtain legal counsel to make a new will, that counsel being wholly unaware of the prior estate plan, such as it was.  The son might argue today that the grandchildren also exploited the weaknesses of the will by so easily contesting the second will, which was legally invalid even though it was drafted by an attorney, executed in the attorney's office, and a staff member of that attorney served as a witness.  The court did not need to find undue influence because the will was invalid as executed!  The reason I suspect the court considered and resolved the undue influence claim is to solve the problem of technical invalidity- a will can be invalid as a will for technical reasons, but evidence a clear intention to replace a former will.  That circumstance  results in no will, increasing the cost and complexity of the administration.  Your trust protects you from such exploitation.

Powers of attorney, which accompany every revocable trust, help protect you from conservatorship and guardianship by making them unnecessary, and if drafted properly, protect the trust assets from guardian control.  They even disincentivize third-party guardians (those appointed by a court that are not your family) by limiting what a guardian can manage of your entire estate.  Finally, in states that are required to give preference to agents nominated under a power of attorney when appointing a guardian, they help in getting your most  trusted family or advisors  appointed. 

Ad hoc solutions, like adding Marcus to Effie’s accounts, create uncertainty and risk. Banks rarely document the context of such changes (e.g., whether the account holder was advised or accompanied). Adding a co-owner can inadvertently make the account vulnerable to the co-owner’s creditors, a risk banks may not explain, as they are not legal advisors. Seniors often first learn the consequence of adding a child to an account when they are advised of a garnishment against a child as creditors seek to  remove assets from their account. 
      
If Medicaid planning motivated the deeds, a trust would have been superior. Modern Medicaid rules in many states, including Mississippi, scrutinize life estates, potentially valuing them as assets. A trust not only allows, but encourages crisis Medicaid planning without relying on the grantor’s competence, enabling an agent or trustee to create an irrevocable planning trust that preserves the original distribution plan. This would have avoided the need for questionable transfers and protected Effie’s estate.

Keep in mind that the real world result of the Autrey case is that Steve may ultimately receive nothing.  If he was acting in what he thought was the best interest of his mother and family, this result is tragic.  Comprehensive estate planning might have prevented such a result. 

An Actionable Plan to Protect Your Legacy

To prevent a situation like this from becoming your family’s reality, it’s essential to take proactive steps well before any health crises or vulnerabilities arise. Here’s an actionable list to help safeguard your estate and ensure your wishes are honored:

Create a Trust: A trust allows you to manage your assets during your lifetime and ensures they are distributed according to your wishes after your death. It can also provide protection against undue influence by clearly outlining your intentions in a legally binding document. It can assist in aging in place, reduce the risk of guardianship, and protect assets from third-party guardians.  Additionally, a trust can help avoid probate, reducing the likelihood of costly public disputes.

Establish General Durable Powers of Attorney (GDPOA): A GDPOA allows you to appoint trusted individuals to make financial and medical decisions on your behalf if you become incapacitated. This prevents someone from stepping in and taking control without your consent. Be sure to choose someone you trust implicitly, as this role carries significant responsibility.

Nominate a Guardian: Nominate someone in advance, usually in your GDPOA. This ensures that if a guardian is required, it’s more likely to be someone you’ve chosen, not someone appointed by the court who may not have your best interests at heart.

Incorporate Aging in Place Planning: Aging in place planning involves making arrangements for your care and living situation as you age, ensuring you can stay in your home or a suitable environment. This can include modifications to your home, arrangements for in-home care, or plans for assisted living if needed.

Include Guardianship Protections in Your Trust: Your trust should include provisions that prevent a guardian from easily accessing or altering the trust assets. This adds an extra layer of protection, ensuring that even if a guardian is appointed, your estate remains secure and distributed according to your wishes.

These steps should be taken well in advance, while you are still of sound mind and not under any undue influence. Waiting until the last minute can leave you vulnerable to manipulation, as seen in the Autry case.

The Emotional and Financial Toll of Undue Influence

Cases like this don’t just result in legal battles—they can tear families apart. The emotional toll of fighting over a loved one’s estate, combined with the financial costs of litigation, can be devastating. By taking proactive steps now, you can help protect your family from this kind of heartbreak and ensure your legacy is preserved as you intended.

Conclusion: Don’t Wait—Plan Today

The Autry case serves as a powerful reminder of the dangers of last-minute estate planning and the vulnerabilities seniors face without a comprehensive plan. By creating a trust, establishing powers of attorney, nominating a guardian, and incorporating aging in place and guardianship protections, you can safeguard your estate and ensure your wishes are honored.

If you haven’t already, now is the time to take action. Consult with an experienced elder law attorney to create a plan that protects you and your loved ones from the risks of undue influence and ensures your legacy is secure.




Sunday, October 13, 2024

Violence as a Consequence of an Estate Plan- Can Planning/Drafting Help? A Simple Provision in a Deceased Mother's Will Sparks a Son's Shotgun Rampage Causing the Death of Four

You can press play on the video, but if you would rather watch the video in a separate tab/window (recommended) click the link below:

In this video I discuss violence, threats of violence, and retaliation as a consequence of estate planning choices, and whether planning and drafting can avoid or protect a family from such a tragic consequence.

Trigger warning: the subject matter considers heartbreaking examples of violence including death. This video reports a recent tragedy in which a simple provision in a deceased mother's will sparked a son's shotgun rampage, causing the death of four, and discusses estate planning and administration considerations to prevent similar violence and harm.

The case example discussed is from a report in the Daily Mail, "Simple request in Long Island woman's will sparked her son's devastating shotgun rampage on siblings." (last retrieved 10/10/2024). The Daily Mail article was brought to my attention by Professor Gerry W. Beyer's article, similarly titled.

The video discusses, among others, the following considerations and strategies in an effort to reduce or eliminate the threat of tragic outcomes:
  • Drafting Considerations;
  • Considerations Regarding Communications with Family;
  • Securing Documents;
  • Physical Security;
  • Identifying/Reporting Threats/Troubling Behaviors, Mental Illness & Grief;
  • Logistics of the After-death Family Meeting including Timing and Location.
The video highlights the importance of worst-case scenario planning, and keeping a continuing relationship with a trusted advisor with whom such topics can be discussed and considered openly and thoroughly.

Additional Resources:


Thursday, June 8, 2023

"Do It Yourself" Estate Plans Mean Risk

Attorney Virginia Hammerle has penned an excellent article, entitled, "Assuming Risk of DIY Estate Planning," for the Dallas Morning News, published online at WealthAdvisor. She writes: 

You can build an airplane all by yourself. Buy a kit or go online and download the instructions. A mere 1,400 work hours later, you should have a flying machine ready to carry you and your family into the wild blue yonder.

Aside from crashing and burning, what could possibly go wrong?

You can also do your own estate planning. Buy a set of forms or go online, download the documents, fill in the blanks and sign as indicated. A mere three work hours later, you should have documents ready to carry you through personal emergencies, sickness, dementia and death.

Aside from fiduciary theft, exploitation, guardianship, contested probate proceedings and having your wishes completely disregarded, what could possibly go wrong? [emphasis added]

We will find out. The Texas Supreme Court has just created do-it-yourself will forms.

More specifically, the court has approved four forms, categorized by type of personal situation: single with children, single without children, married with children and married without children. These are fill-in-the-blank documents. They come complete with definitions and instructions.  

The forms apply to only the most straightforward of situations. For example, the form for “single with children” presumes that you are currently single, have children and that, except for specified gifts, want to leave everything to your children in equal shares. If you want an estate plan that is more complicated, then this form is not for you.

The instructions are equally straightforward. If you make a mistake while filling in the will form, then you are instructed to rip it up and start all over again. You are instructed to fill in the information blanks either on the computer or by hand using the same pen to fill in the full form. There are several places in the form where you are directed not to “add, change or delete any words in Section …” with the explanation that the section is “needed for legal reasons.”

The legal reasons, unfortunately, are not explained in the document. You are left to do your own research.

The form contains only basic provisions, and there is no place to add anything else. Still, they are an improvement over what you usually find online, because the court’s forms contain Texas-required language to appoint an independent executor, self-prove your will and leave your entire probate estate to your named beneficiaries.

Fill it out accurately, follow the instructions and you should end up with a valid will, one that contains the bare minimum of language, and probably adequate if you have little or no estate and no family complications.

The forms can be found on the Texas Supreme Court’s website under Administrative Orders, Rules Advisories, 2023, Order 23-9022. The order was released on May 5, 2023.

If you are looking for other DIY planning forms, then visit Texaslawhelp.org. There you will find basic information on common legal issues and bare-bones forms for such things as powers of attorney and directive to physicians.

While you are researching and looking at forms, heed the warnings. The online documents are not a substitute for legal advice. They are suitable for only the simplest of estates and family situations.

You probably would never attempt to build your own plane. Even if you had the time, you likely lack the skill and knowledge. The price of failure is too high. Drafting your own estate planning documents is the same. You don’t want to crash and burn.

Of course, a bar association endorsing DIY planning begs the question, "Why?"  Aside from altruism in the form of a real desire to assist those who are able to help themselves but lack means to seek legal assistance (despite the availability of pro bono and legal aid services) there is self-interest:  busy lawyers are relieved from the burdens of turning away prospective clients unable to pay, and of taking on basic low return matters in favor of more lucrative representation, such as representing families and family members in cleaning up the spectacular mess that results when estate plans "crash and burn."  

For a real life example of how simple Wills can create problems, consider my prior blog article, "Simple Will- Complex Problems: Will Drafter Does Not Help In Case of Undue Influence."

I noted as I read the article online that there appeared an add for an online DIY Will form:

No doubt the Google Ad algorithm did not discern that the content was a warning against employing such strategies.  

For a more humorous take on the same subject, click here.

             

Tuesday, July 5, 2016

Simple Will- Complex Problems: Will Drafter Does Not Help In Case of Undue Influence

The problem with a Simple Will is that it is simple.  Simple means quick, easy, and, of course, inexpensive.  But, as with all professional services, one gets what one pays for.

Attorneys typically spend little time crafting or supporting simple and inexpensive documents, meaning that the documents are often not worth the paper that they are written on.  Consider the following case, too, when using self-help document creation like on-line services such as legalzoom, where there may be no attorney involved in preparing and executing a legal document.

A New York trial court recently determined that an incapacitated woman was unduly influenced by her agent under a power of attorney, disregarding the testimony of the attorney who drafted a Will for the woman, because the attorney spent little time with the woman and failed to even determine her knowledge of her estate. Matter of Mitchell (N.Y. Sup. Ct., No. 100163/14, June 3, 2016).

Mary Mitchell appointed Gary Shadoian as her attorney-in-fact under a general power of attorney, and health care proxy.   Mary Mitchell, a municipal employee, was entitled to free legal services under a Legal Plan provided by her employer.   Mary Mitchell may have initiated the process of preparing a Will, but after poor follow-up,  Mr. Shadoian contacted the attorney on Ms. Mitchell's behalf to complete the Will. The attorney had one conversation with Ms. Mitchell over the phone and met her once in person. The attorney allowed Mr. Shadoian to be present when Ms. Mitchell executed her will even though Mr. Shadoian was a beneficiary of the will.

After Ms. Mitchell was repeatedly hospitalized, the court appointed guardians for her. The guardians filed suit against Mr. Shadoian, arguing that he unduly influenced Ms. Mitchell. At the trial, the attorney who drafted the will for Ms. Mitchell testified on behalf of Mr. Shadoian that he did not know Ms. Mitchell was incapacitated, but the attorney admitted that he had not made even simple inquiries about her knowledge of her estate.

Mr. Shadoian testified that he and Ms. Mitchell were not romantic, and not social friends, but as a co-worker, he had over time become her caregiver.  Ms. Mitchell was not close to her sisters or other family members, as they admitted, although they testified against Mr. Shadoian that Ms. Mitchell had never given gifts to anyone, never contributed to or been a member of any social organizations, and was a spendthrift unlikely to give anyone gifts or leave her estate to anyone.  

Mr. Shadoian testified that he would drive to Ms. Mitchell's apartment after work nearly every night, and telephone records reflecting scores of telephone conversations between the two were introduced into evidence. For example, between February 17, 2011 and March 16, 2011, more than 60 telephone calls between the IP and George Shadoian were reflected in cell phone records  He testified regarding the actions and efforts he made on Ms. Mitchell's behalf.  By all accounts, Mr. Shadoian was her most intimate and longest existing contact. Those testifying against Mr. Shadoian suggested that his efforts to involve himself in her life were equally successful in discouraging or preventing others from taking an active interest in her care.

The attorney was Mr. Shadoian's only other witness.

The New York Supreme Court ruled that Mr. Shadoian exercised undue influence over Ms. Mitchell. The court determined that Mr. Shadoian's testimony was not credible, and that the testimony of the attorney that prepared Ms. Mitchell's Will "was too threadbare to carry much weight." The court was critical that the attorney "failed to make even elementary inquiries as to the actual size of the estate, her medical condition, her social and familial history. Contrary to usual practice, he allowed an unrelated person, designated as beneficiary, to orchestrate the completion and execution of the will."

The testimony of the person who should have been able to testify competently and independently regarding Ms. Mills wishes and competency was dismissed.  The free Simple Will was unforceable.  Simple.

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