Friday, October 10, 2014

Strategies that don't work in Oregon will contests

The nice thing about being the lawyer in will contests is that the parties to the contest are arguing about money that fell from the sky. The money belonged to the dead person. Nobody involved in the will contest earned it and nobody involved in the contest is going to leave with any less money than they had when they came to the case. Somebody in the will contest is going to get a bunch of money without having to earn it, and somebody else isn't. In the big scheme of things will contests are not that serious. Lawyers I know have clients who will go prison if the case is lost. If my clients lose, they only lose the opportunity to spend somebody else's money.

On the other hand, an inheritance from family is for most people the largest single lump of unearned, untaxed money most people will ever receive. An inheritance can make a huge change in the life of the one who receives it and I perfectly understand why people are willing to fight tooth and nail to get the security that an inheritance can guarantee. I don't have any inheritances coming, so I get up every morning and go to work. I do it to get money. My wife suggests that I also do it because I love the practice and want to see justice done. She is wrong. I do it for the money. If I had a chance to get some money via an inheritance I would do that too.

In will contests the parties very seldom emphasize how much they want and need the dead person's money. They don't want to seem greedy so they devise other reasons for carrying on the fight. The other reasons tend to put the case on a moral plain, pitting good versus evil. There is an aspect of this to any legal case--that's why they call it "courtroom drama"-- but not everybody does it well. This article is about some of the moralizing in will contests that doesn't work.

The most common of the approaches that does not work is the, "I am pursuing this case solely to make sure that grandma's wishes are honored." If you truly believe that the only way to honor your dead grandma is to fight to the bitter end against your relatives over her money, keep quiet about it. It may be the truth and your motives may be pure--you just want to see grandma's wishes carried out. If, however, your battle to honor grandma also means you get a big pile of grandma's money, nobody is going to believe you. Enjoy your pure motives in silence. Will contests destroy families. No one believes that family-destroying litigation honors grandma  Probate lawyers have heard the "it's what she wanted" chant so often they are immune and simply don't care. The dead person is dead. He or she no longer has any wishes. Everybody involved is going to feel more kindly toward you if you simply say that you are continuing the litigation because you think you have a winnable case.

The next approach that doesn't work comes from the person who says, "Grandma was strong-willed and opinionated so her will could not have been the result of undue influence." This is often the first thing out of the mouth of someone accused of undue influence. I have written about undue influence elsewhere, so read up on it if the concept is new to you, The fact is that among elders, and maybe the population at large, strong-willed and opinionated people are easier to influence for selfish purposes than those who are more reserved and accepting. The laconic grandma who figures to just leave everything to her children--just like everybody else does--because she will be dead anyway is much harder to influence than the angry elder who dashes about changing her estate plan at every slight by a family member.

Elders often have money and need care. Little old ladies complain that elder men are looking for a nurse rather than a wife. A younger woman (in my world that means a woman in her fifties) willing to be a nurse can wrap a gruff and opinionated old man around her little finger in a matter of weeks. An elder is allowed to trade his money for care and, if he wants, he can leave everything to the person who brought him comfort in his last days. That is his right. If, however, the motives of the caregiver are selfish and the reward wildly out of proportion to the value of the care given, the recipient of this largess can expect a will contest. In the case where a distant cousin flies in from out of town--and who never made more than $30,000 a year in her life--suddenly gets a million dollars for the care given in the elder's last year, I think the cousin deserves all the agony that a will contest entails.

One of the tried and true methods of defeating an estate plan is to induce the elder to give away his major assets while still alive. That way the will is still good, but all the property is gone. A lot of my litigation involves unwinding gifts so that if the gift was a result of dementia or undue influence the property goes to the heirs rather than the recipient of the gift. In these cases I always hear, "She forced me to accept those gifts."

The "forced me to accept" approach is similar to the "she is strong-willed and opinionated" tactic. The recipient of the gift--often the elder's house--claims that he tried to refuse the gift but the little old lady would not take no for an answer. (But now that she is dead the recipient is, of course, morally obligated to keep the property.) Probate and elder abuse law is structured in a way that creates, in certain circumstances, an obligation to say no to gifts from old people (unless arranged by the old person's lawyer). If you are not strong enough  to stand up to old men and women and say no, then don't expect to keep the property. If you are too weak to say no and do expect to keep the gift, then you should  get your gift in cash rather than real estate. You will need the cash to pay your lawyer when you are named as the defendant in a financial elder abuse civil suit.

The final unsuccessful approach I want to discuss is the one that can be summed up as, "My opponent is a dirty, rotten, scoundrel." This is approach comes in a variety of flavors and tends to be part of every civil case. Parties like to use this approach. Lawyers put up with it because in the courtroom, as in life, good looking, honest, hardworking, and likeable people do better than ugly, dishonest, lazy and dislikeable people. Judge's have prejudices, and they like to see the benefits of life, including inheritances, go to good people. The problem with this approach is twofold. The first is that inheritance, like sunlight, falls on saints and sinners in equal portion. Parents usually leave their estates to their children no matter how despicable the rest of the world considers those children. Judge's know this and are only willing to let evidence of character, whether good or bad, sway them so much.

The second problem with this approach is that you can only say two bad things about another person without bringing condemnation down upon yourself. If you say three bad things, then you start to look like the scoundrel. Denigrating others is a dangerous tactic that backfires easily. People on God's list of good people spend very little time disparaging other people. If you are spending a lot of your energy doing that, you risk being removed from the list. In the courtroom, if you say three bad things about the person on the other side, the judge is more likely to consider the testimony to be evidence of your poor character than evidence of the other persons. You cannot beat people up and still be the good guy.

Witnesses in will contests are more likely to discredit their own testimony than to have it discredited by others. There are no juries to influence and judges have seen a lot. If the judge senses that a witness is covering up  a simmering cauldron and hate for the other side, the judge may well take over the questioning, uncover that cauldron and by doing so let the witness destroy his own credibility.