Aug 30, 2009

Because You Can't Please All Your Heirs All The Time

The prosecution rested on Aug. 19 in the highly publicized Brooke Astor estate case. Now, it's the defense's turn. Anthony Marshall, the late heiress' son, is accused along with her lawyer of manipulating his mentally incompetent mother into changing her will so that he could improperly drain her estate of millions. Astor signed the change on Jan. 12, 2004-- four years after being diagnosed with Alzheimer's Disease. She died two years ago, at age 105.

As a Florida elder law/estate planning attorney with many years of experience, I have seen people challenge a deceased perso's estate over far less! If you have reason to believe some are going to be likely to challenge your dispositions, are there any measures you and your lawyer can take to minimize the possibility?
Some attorneys videotape the signings they conduct with clients, but this can be off-putting for all involved. Besides, it doesn't solve the problem entirely: a person can have lucid moments that are videotaped, and be incompetent in general. Also, it does not conclusively disprove that the person hasn't been subjected to "undue influence."

Another strategy is to request that the individual's doctor attest to his/her competence. In a recent case I handled involving a client with significant assets and a fractious family, I decided it was prudent to take this proactive strategy to an even more stringent level. It was apparent to me that the client was competent; there had never been any diagnosis of mental impairment. It was also apparent that some family members would be upset by the client's estate plan, and inclined to challenge it. To ward off a possible challenge and ensure my client's wishes would be honored, the client agreed to be evaluated by an independent psychiatrist once, and then again on the day the documents were executed. The psychiatrist certified competency. We also requested that the client's personal physician provide a letter confirming competency.

By the way, just because someone has Alzheimer's Disease or another dementia does not necessarily mean the individual is incompetent to create estate planning or other documents. It really depends on the individual's condition. But, when there is even an iota of concern that someone is going to challenge the estate based on lack of competency, it's wise to take precautionary measures like those above. That Brooke Astor and her attorney did not, makes one wonder: Did they expect that her physicians would state she was incompetent, and is that why they did not take such measures? Or did they not anticipate this kind of legal brouhaha would ensue?

Of course, there are times when clearly a person is not competent. In these cases, no estate planning can be done without court guardianship.

Your estate plan is probably one of the most important documents you will ever create. Certainly once you're gone, you get no do-overs. So do things by the book: It's always wise to entrust your planning to someone who knows the law, namely, a certified elder law/estate planning attorney.

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