Masonry Magazine February 1986 Page. 40
ESTATE PLANNING UNDER ATTACK!
From time to time some well known person's will-such as that of Howard Hughes-is contested and given broad coverage in the press. But what is little known outside the legal community is that literally thousands of wills are contested each year. Generally this is done indirectly, by suing one of the deceased person's estate-planning advisors-attorney, accountant, insurance agent, banker, consultant for malpractice. If successful, not only is the will undermined, but the disgruntled heir (or claimant) collects damages from the estate-planning practitioner. And, according to the professor of law who authored an article in the November, 1985 issue of Taxes, "Estate planners (are) uniquely vulnerable to claims of malpractice."
The author-Gerald P. Johnston, professor of law at Washington University, St. Louis, points out where and why estate-planning people are vulnerable to such suits and shows the weak points in all estate planning. Every business owner should have a will, and most of them do. And some also have trusts, buy-sell agreements, and other arrangements, often of substantial complexity. But if such planning can be shot down by an heir, then the business owner's desires and intentions are at risk. If a business owner knows how wills are successfully contested, he can safeguard his planning.
Johnston lists 22 points upon which wills have been set aside. Some of them are:
1. Estate planning is incredibly complex, including many legal, insurance, and financial planning aspects, and estate-planning practitioners (usually the attorney involved) have been shown less than expert at any one aspect. Thus all their work becomes suspect and the will, trusts, and other documents which they prepared collapse because of lack of expertise.
2. Attorneys often undercharge for estate planning, expecting "that the fees that they will subsequently earn probating... estates will more than compensate them for their earlier efforts in preparing wills and trusts." But "a substantial fee for probate work in the future does not seem to provide sufficient incentive (for) the amount of time and effort that is required to do a thorough job of estate planning," Johnston says. Estates have been attacked by proving the fees paid for the planning showed superficial work.
3. Wills are vulnerable to anybody-inside or outside the family. Anybody can claim that promises had been made which did not appear in the will and bring suit.
4. Generally, a business owner discusses his will with his attorney, who draws up the papers. Without written instructions from the client, some lawsuits have claimed that the lawyer misunderstood the client's desires.
5. Without an annual review of the documents in the light of tax-law changes, the attorney can be proved negligent.
6. Business owners' estates change; they buy and sell; invest, change their minds, and invest elsewhere. If the will does not accurately portray the client's holdings at his death, the attorney can be proven negligent.
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