End of life planning is very important, especially if some of those plans involve selectively making gifts to some relatives and not others. Such estate plans often result in will contests or challenges by adversely affected heirs. The recent case of In re Estate of Link, highlights such a result.

Ms. Link was a widow, and had no children. Ms. Link had several siblings, but she was especially close to her younger sister and that sister’s children. In 1989, Ms. Link asked, Mr. Layne, the nephew of her older sister for help drawing up a will as he was an attorney. Layne, said no, but referred his aunt to another attorney who drafted her will. The 1989 will split the estate equally among the four nieces and nephews of her younger sister and Layne.

Time passed, and Ms. Link began relying more and more upon Layne for advice and assistance. In 1996, Ms. Link asked Layne to draw up a general power of attorney granting him authority over Ms. Link’s financial affairs. Again, Layne said no, but referred his aunt to the same attorney to draft it. In 1998, Ms. Link asked Layne to draw up a new will for her, which would give all of her estate to Layne as opposed to splitting it up five ways. Layne again said no, and referred his aunt to the same attorney who drew up the new will as she wanted.

Over the next several years, Ms. Link’s health deteriorated and she relied more and more upon Layne, who used the power of attorney and Ms. Link’s finances to see that his aunt was taken care of properly. Eventually Ms. Link passed away and Layne presented her 1998 will to the probate court. Not surprisingly, the disinherited nieces and nephews challenged the will on several grounds. One such challenge was that Layne unduly influenced his aunt to change her 1989 will and replace it with the 1998 will, which gave everything to Layne.

After several years of litigation, the parties tried the case and the jury concluded that Ms. Link was competent when she drafted the 1998 will and that there was insufficient evidence to suggest that Layne unduly influenced his aunt’s will. In effect, the 1998 will stood and Ms. Link’s estate passed entirely to Layne, which was her apparent wish.

Decisions regarding how one’s estate are to be divided up at death are often difficult to make and presumably, Ms. Link gave great consideration to how she wanted her assets to pass upon her death. If an estate plan treats some people in the same class differently than others (e.g. some nieces as opposed to all nieces), then it is important to communicate the reasons behind this to the drafting attorney so that he or she can fully document the decision as well as give consideration to whether additional steps may be appropriate. Likewise, if someone comes along who may have motives not consistent with the best wishes of an elderly person, but then gains all the assets in a will to the exclusion of other similarly situated people, speaking with an attorney who is familiar with estate litigation is a good idea. As, unfortunately, for every good intentioned Layne out there, there are others who have ulterior motives.

Following the wishes set forth in the last will and testament of a decedent can be troubling for surviving heirs when multiple documents are found after death. This trouble is further compounded when various documents conflict with each other.

In the recent case of In re: Estate of Joan Uhl Pierce, the decedent (the person who died) wrote her will in 2007, which was formally witnessed and executed. In the 2007 will, Ms. Pierce gave all her assets to her children, and if her children didn’t survive her, then to she gave her assets to her grandchildren. In 2010, Ms. Pierce amended her will via a holographic codicil (i.e. a handwritten amendment, signed, but not witnessed). In her 2010 amendment, she noted that all her children except for one had moved out of state and the remaining child, became her caregiver. As such, Ms. Pierce additionally wanted to give her home to her caregiving child. However, the caregiving child died before Ms. Pierce.

In 2013, a mere handful of days before Ms. Pierce passed away, she received and filled out a set of documents from an attorney titled “Confidential Estate Planning Questionnaire”. In the questionnaire, Ms. Pierce made no mention of her grandchildren receiving any of her assets, which was contrary to the 2007 will and 2010 amendment. In other words, if the 2013 estate planning questionnaire was deemed yet another holographic will, then the grandchildren of the deceased caregiving son would not take anything under the 2013 document. However, under the 2007 will and 2010 amendment, the grandchildren would receive their father’s proportionate share of the estate plus the house.

The Court ultimately decided that the 2013 estate planning questionnaire did not evidence Ms. Pierce’s final intent. Among other reasons, the document noted that it was to be followed by a formal meeting with the attorney and that it was merely the beginning of the planning process, not the conclusion. Thus, the 2007 will and 2010 amendment controlled.

A lesson here is that as long as you’re alive, you’re free to change your post-death wishes. However, if you do so, you must follow the legal formalities and your testamentary intent must be clearly evidenced within the documents. In this case, the testimony given at trial showed that Ms. Pierce no longer wanted her one set of grandchildren to inherit her property, however, her failure to formally evidence these wishes defeated her plan and resulted in litigation.