Sunday, May 15, 2011

Oregon Will Contests: The intent of the testator

One of the things Oregon elder law lawyers do is litigate will and trust contests. The work consists of challenging a will or a trust on the grounds that the document was executed when the now-dead elder didn't have capacity to make a will or because the will was the result of undue influence. It is nice work for a couple of reasons. The first is that it pays well. Challenging or defending wills and trusts takes a lot of lawyer time, and when you charge by the hour putting in a lot of time means making a lot of money. The second nice thing is that the work is not important. It is about money--no one's life depends about the outcome--and the money that is being argued about never belonged to any of the parties to the litigation. No living person involved in the case actually earned it. In certain respects it is like arguing about who owns a winning lottery ticket. The winner of the argument will be happy and the loser will be sad, but in the end, neither side loses anything.
 
Wills and testamentary trusts are written to express the "intent of the testator." The testator is the dead guy. The will is supposed to express what the dead person wanted to happen to his or her money, and the courts are suppose to examine these documents with the mission of discovering and carrying out the "intent of the testator."

 
A lot can happen on the way to determining and carrying out the intent of the testator. A court could decide that the testator was so incapacitated with dementia that he or she couldn't form an intent. The court could find that the will expressed the intent of the testator very clearly, but that it wasn't properly witnessed, in which case the money will go to the natural heirs or the folks named in a previous will. The court could find that the will was a result of undue influence and thus, it expressed the will of somebody other than the testator.

Lawyers are accustom to this state of ambiguity where a will or a trust expresses the intent of the testator—except when it doesn't. Parties to these case, however, knew the dead person personally, are privy to the family relationships, and often have very strong views as to what the dead person did and did not want to happen. I regularly have highly emotional people in my office incensed that some undeserving relative may get a piece of grandma's estate, that being the last thing in the world grandma would have wanted. These clients tell me they are not challenging the will because they want the money that will come their way when they win, but rather out of loyalty to grandma's wishes. Lawyers and judges hear this often, but have their doubts.

My sense is that in will contests the true intent of the testator  remains forever hidden. The cases degenerate into who is the good person and who is the bad person. Grandma, who in death is now a saint, obtained a vow from each relative that the other relatives should never have a penny of her money. The motive for mud slinging becomes so great that even the lawyers get involved. I do my best to not denigrate another lawyer's client (I don't always succeed), but many attorney's find bad-mouthing the other side to be one of the pleasures in a generally unpleasant profession. I get calls regularly with accusations that my client kills puppies for fun and I should be ashamed of myself for letting him or her in my office. I do my best to turn the other cheek.

Will contests, trust disputes, and elder financial abuse cases are long drawn-out legal affairs involving lots of lawyers. lots of mud slinging and lots of money. Don't consider starting one unless you are ready for it.

I decided to become a probate lawyer after reading Charles Dickens' Bleak House. I've read a lot of Dickens and I think that Bleak House is his best. If you haven't read it, you should. Don't be put off by the title. The novel is not bleak. A probate case called Jarndyce and Jarndyce lies at the center of the plot. The story is a morality tale. Some characters in the book put their lives on hold, waiting for the ruling in Jarndyce and Jardyce to deliver them the inheritance that will let them live the good life. These characters die alone in misery. Other characters pursue a good life without regard to lawyers and lawsuits. These characters find fulfillment and happiness. And in the end, the case of Jardyce and Jarndyce is abandoned because all of the money in the estate has gone to the lawyers. If that isn't a good reason to become a probate lawyer, I don't know what is.

I was in a judicial mediation once and the federal judge who was serving as mediator observed that lawsuits are legal gambling. Clients in will contests often tell me they don't care about the money—the gambling--but are continuing the lawsuit because it is what grandma would have wanted. I think it is about the money and gambling by  litigation neither honors or dishonors the dead. It is gambling, plain and simple, and it is for the living alone. Larwence Durell once wrote that "the dead think of us as dead." I suspect he was right. 

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