Contesting a will:
Will contests remain one of the most commonly recognized practices in probate litigation.
Challenging a will can occur on different bases including a fraudulent document, an incapacitated signature, or a signature obtained under duress.
A will procured by fraud:
This can happen in a variety of ways including, the Testator signing a document they believe to be a deed or power of attorney but is, in fact, a will.
This case is difficult to prove because the Testator cannot be questioned about what they signed, but rather the witnesses present must be asked what they believed the Testator was signing.
If the testimony of the witnesses indicates fraudulent activity, the will can be declared invalid.
A will procured by an incapacitated Testator:
In order for a Testator to exhibit capacity, they must understand the value of their assets, who will inherit the assets, and the legal effects of signing a will.
The Testator was unduly influenced into signing a will:
As people age they become weaker both physically and mentally, making them more susceptible to the influence of others.
Legally, the question becomes, did the alleged influencer exert pressure or threats to force the Testator to lose their free will and succumb to the influencer’s request?
Claims by and against fiduciaries:
Beyond the legitimacy of the will, issues with the executor, known as the fiduciary, may arise.
The role of a fiduciary of an estate or trust carries with it, not only the responsibility to pursue certain claims on behalf of the estate or trust but also the risk of liability to co-fiduciaries, beneficiaries, or third parties.
There are three main claims that may be encountered by fiduciaries: claims between fiduciaries themselves, claims filed by fiduciaries on behalf of the estate or trust, and claims filed against the fiduciary, either in his representative capacity on behalf on the estate or trust or due to his own conduct.
Claims Between Fiduciaries Themselves:
Claims between fiduciaries involve removal of the fiduciaries, recovery of assets from another fiduciary, and disagreements among three or more fiduciaries.
Removal of Fiduciaries:
The court can discharge a fiduciary from office as long as the discharge is not prejudicial to the estate or persons having an interest in the estate.
This can occur with or without the fiduciaries consent if they disobey a court order, become mentally incapacitated, abuse the trust of their office, or embezzle/waste the assets in their care.
Recovery of assets from another fiduciary:
A fiduciary appointed in place of a removed/discharged fiduciary may sue for assets in the possession of the removed fiduciary or against any other person in possession of the assets.
Disagreements among three or more fiduciaries:
When there are three or more fiduciaries qualified to act, a fiduciary who fails to act through absence or disability, or a dissenting fiduciary who joins in carrying out the decision of a majority of the fiduciaries if his dissent is expressed promptly in writing to his co-fiduciaries, will not be liable for the consequences of any majority decision, provided that liability for failure to join administering the trust or to prevent the breach of trust may not thus be avoided.
Claims Filed by Fiduciaries on Behalf of the Estate or Trust:
Fiduciaries can file claims on behalf of the estate/trust including applications for advice and direction in which a fiduciary may seek court instruction when an account is about to be settled, actions to preserve or protect the estate, and actions by a fiduciary for his/her own discharge, relieving them of all further duties of his office, except accounting for an paying over the money and assets with which he is chargeable by virtue of his office.
Claims Filed against the Fiduciary:
Potential issues that require legal counsel include the negligent or dishonest performance of the trustee or personal representative over the estate.
These include failure to render regular accountings, failure to make prudent investments, favoring one beneficiary over another, failure to get fair value upon the sale or liquidation of trust or estate assets, waste of assets through negligent management or maintenance, undisclosed conflicts of interest or self-dealing, or theft or misappropriation of trust or estate funds.
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