Dear Quentin,
A friend died suddenly six months ago. He had told my husband and I that he had no intention of leaving anything to his sister, his only living relative. He has no wife or children. Someone close to the situation told us they are contesting the will. In the probate file, which is in the public domain, she is listed as an “interested person.” There is also a personal representative. They are represented by the same lawyer. That doesn’t seem right.
what do you think
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I try to keep my friend’s wishes
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Only someone with legal standing—an executor, heir, creditor, or beneficiary, for example—can usually file a petition in a case like this. – MarketWatch illustration
dear friend,
Your friend’s sister and the “personal representative”—perhaps the executor who represents your friend’s wishes as set forth in his will—sharing the same attorney would amount to a conflict of interest for that attorney only if the sister files a lawsuit to challenge the will. If that were to happen, I suppose the lawyer would refuse to take the sister’s case.
Only someone with legal standing—an executor, heir, creditor, or beneficiary, for example—can usually file a petition in a case like this. A friend of the deceased, in most cases, has no right to complain about conflicts between lawyers. Courts expect the customer who is affected, not a third party, to raise potential ethical issues.
A conflict of interest would only arise if the sister formally challenges the will or otherwise takes a direct stand against the estate. The lawyer would be obliged to withdraw from representing one of the parties, or possibly withdraw altogether. Until this happens, the shared representation itself is not improper.
“When an executor or administrator has a personal interest in the estate, such as being a beneficiary, it can create a conflict of interest that can make it difficult for them to act impartially,” says GP Schoemakers, a Houston-based law firm. Being an heir and beneficiary does not mean only that an executor should be removed. However, mismanagement of the estate or failure to fulfill duties could be considered problematic.
A will can generally be contested on these grounds: lack of testamentary capacity, undue influence by a family member, and improper execution. The latter is often the easiest and most common way in which a will is challenged and/or overturned. A person will often state that they intend to disinherit a child or sibling, in this case, or alternatively leave them a small sum, or they might say that anyone trying to challenge the will should be automatically barred from inheriting.
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There are statutes of limitations for contesting a will. Sister will need to act fast and hire a trust and estates attorney. In California, for example, those terms are particularly short and, experts say, rigorously enforced. The challenge to the will must be filed no later than 120 days after the admission of the will or 60 days after the competitor is notified of the court decision admitting the will. If the will has not yet been admitted to probate, your friend’s sister can raise objections, but once the probate order is entered, the statutory time limits come into effect.
All that said, here’s the hard truth: It’s extremely difficult to challenge a will, and the burden of proof is on your friend’s sister. Sometimes these third parties hope to slow down the process and hope that the estate or legal/legal heir will settle down to move forward. I have received many letters in which the case seems stronger than the one you describe; a reader wrote in saying her millionaire cousin’s nursing home forced her to change her will and sell her house. This appeared to be a clear breach of ethics and fiduciary duty.
Lack of testamentary capacity is a relatively common ground that could make a will vulnerable to challenge and could also leave it open to undue influence, coercion or fraud, at least in the eyes of the court. “Unlike other grounds for challenging a will, capacity disputes often involve deeply personal family dynamics, medical testimony and complex legal standards that can determine the outcome of an estate plan,” says Casiano Law Firm, which has offices in San Diego.
Many states also give the surviving spouse an “elective” minimum share—that is, the right to take a portion of the deceased spouse’s estate. This serves to avoid complete disinheritance of a surviving spouse. Some people might try to circumvent spousal elective action rights by transferring property to an irrevocable trust, but generally there must survive a lookback period for such a maneuver to work. Obviously, this does not apply to your friend because he died without a spouse.
But your friend’s sister has her work cut out for her—and her own attorney fee.
Related: My elderly cousin’s nursing home forced her to change her will—and sell her house. She was worth millions. Can I get away with this?
Previous columns by Quentin Fottrell:
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I found an out-of-state buyer for my grandmother’s classic car. He wants me to cash a check. Is this a financial scam?
“I’m in California and plan to stay here”: I’m 61, lost my job, and live off my $425,000 IRA. My home has $650,000 in equity. sell?
My son’s credit card company will write off $10,000 of a $25,000 debt. Should he accept or declare bankruptcy?