Aug 21, 2013

Football coach's heirs cry foul

Deceased college coach Jim Carlen's three children are in court, claiming their father fumbled his last will. Or to put a finer point on the metaphor, that he was tackled by his second wife.

A highly regarded football coach at the University of South Carolina from 1975 to 1981, Carlen enjoyed a lucrative post-football career in banking and real estate. He died in 2012 at age 79 after several years of cognitive decline that first manifested itself in 2009, when he gave up driving. His estate is estimated at about $10 million.

Carlen's first marriage to wife Sharon produced three children. In 1983 he remarried and had a child with his second wife, Meredith. According to an August 1, 2013 article in the newspaper The State, the children from his first marriage allege that their father lacked the mental capacity to know what he was doing when he revised his will in 2010. That will, filed with the  probate court after his death, differed from all his prior wills in that it left nothing to his children and everything to Meredith. The children are petitioning the court to replace Carlen's 2010 will with his 2007 will. They claim that the later version is the product of undue influence over someone with diminished mental capacity, and that the 2007 will reflects their father's true wishes. The State article quotes from their court petition:

"In late 2010 Carlen was driven from Columbia to the law office of an attorney in Hilton Head Island...While in Hilton Head, Coach Carlen was apparently presented with a document entitled Last Will and Testament … which he purportedly signed...Unlike the 2007 will which provided for both Coach Carlen’s children and his wife, Meredith, the 2010 will left all of his property to his wife Meredith and left nothing whatsoever to his children or grandchildren: not money; not personal property; not a photograph; (nor) memorabilia from any point in Coach Carlen’s career or a token for them to remember him by...Carlen was made to execute a new power of attorney in favor of Meredith, empowering her to assume full control over all aspects of his financial affairs...After she assumed control over Carlen’s finances, she stopped making annual tax-free gifts to the three children – gifts that Carlen customarily made.Meredith led the Carlen children to believe that she may have lacked the financial resources to provide for Coach Carlen’s basic needs. Clearly this was not the case..."

Among the assets in Carlen's estate are gold coins valued at $538,000; close to $2 million in Coca Cola stock; interest in several pieces of property totaling about $300,000; and a half interest in an umbrella company that oversaw some of Carlen's business interests, worth about $3 million. 

In the fullness of time, the matter will be decided in the courts, at great expense to all concerned in time, trouble and legal fees.For now, here's my takeaway from the Carlen estate planning fiasco: If you are the testator (person creating a will), you should take steps to lessen the possibility of your estate being challenged, particularly if you anticipate that there may be disgruntled heirs out there who will challenge it. Steps to take include:
  • Make sure your will, trust, power of attorney or other documents have every legal "i" dotted and "t" crossed and are drafted and executed in conformity to Florida law if you are a Florida resident, or in conformity with the state in which you are domiciled. 
  • Consult with a qualified, experienced estate planning/elder law attorney. He/she should take the time to discuss the ins and outs of your family and financial situation, not just quote you a fixed price and grind out documents through a boilerplate process. Beware of do-it-yourself forms and office supply forms.
  • If  there are potential concerns about your mental capacity, your lawyer may advise you to see your physician, psychologist or psychiatrist to obtain documentation of your competency. Note that declining capacity does not necessarily mean you are incapable of understanding and executing an estate plan. Even if someone is "slipping," he/she may be perfectly lucid at times and capable of doing so. Each individual's situation is different and must be assessed individually. Your attorney will know what questions to ask and how to handle the situation for your and your family's protection.
  • Do not have beneficiaries present at your consultation with your attorney. A competent and skilled estate planning lawyer will, rightfully, exclude such an individual from your consultation, at least in the beginning stages, and even if you and the other person insist that it's fine with both of you. This is how your attorney protects you, as well as your beneficiary, from possible future claims of undue influence or fraud.
  • You should select your estate planning attorney. Your beneficiary should not. If you use an attorney selected by the beneficiary, you open the door to allegations of undue influence, as the Carlen case illustrates.
  • Your attorney may suggest that you use a trust, rather than a will, as the centerpiece of your estate plan. Because a trust is not public record, it provides additional insulation against possible attack.
On the other side of the coin, if you believe that you have been improperly "cut out" of a loved one's estate plan because of undue influence or fraud, or because the testator did not have the mental capacity to know what he/she was doing., be prepared: This type of litigation is usually a long and expensive process, with no guarantee of success. 

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