I get a lot of questions about contesting wills. Some people want to know if they can challenge a will made by a relative. Some people want to know if a relative will be able to challenge the their will. In practice, wills are hard to challenge. A will is meant to express the wishes of the person who signed it, and probate judges are dedicated to seeing those wishes carried out.
There are three ways to challenge a will: (1) it was not signed and witnessed as required by law, (2) it has been revoked, and (3) it did not, in reality, express the wishes of the person who signed it.
In this post I will talk about proper signing and revocation. In the next post I will discuss how to challenge a will because it does not express the wishes of the person making it.
Was the will signed and witnessed correctly?
Wills must be signed by the person making the will and the signature must be witnessed by two people. The two witnesses must sign a document stating that they witnessed the signature of the person who made the will. The witnesses must sign that document before the person who made the will dies. The witnesses don't have to sign at the same time as the person making the will, but if they wait until after death it is too late. Lawyers bring witnesses into the will signing and have everybody sign at the same time. They never screw that part up. Non-lawyers who write their own wills or get wills off the Internet often fail to have the will properly witnessed. That makes the will scrap paper.
(Lawyer usually attach to a will something called a "self-proving affidavit." That is a document that makes the will easier to get admitted to probate, but it is not required to make the will valid.)
There are no exceptions to the rule about witnesses. You can't get around it by doing a handwritten will. In addition, changes to a will -- called codicils -- must also be witnessed. That means you can't make additions and deletions on your will unless each change is also witnessed. If you are going to make changes, you should probably just make a new will.
If a will is not signed and witnessed, it is invalid. It is invalid even if you can prove that the will accurately expresses the wishes of the person who wrote it. If the will is invalid, the person who wrote the will is considered to have died without a will. I have written previously about what happens when you die without a will. You might want to look at that post.
Has the will been revoked?
Most wills begin with the line, "This is my last will and I revoke all prior wills made by me." A will is normally revoked by a subsequent will. A will may also be revoked by being burned, torn, canceled, obliterated or destroyed by the person who made it. If a person dies and his will can't be found there is a presumption that it was destroyed.
A will is revoked by a subsequent marriage if the new spouse outlives the person who made the will. If you have a will and get married, you should write a new one.
If you receive a notice from the court that the will of a relative has been admitted to probate, and you believe that it was not signed correctly, or that it had been revoked, you can challenge the will by filing your challenge with the court. This is not a job for amateurs. You will need to retain a probate lawyer to evaluate the challenge and prepare the court filing for you.
Next Post: Challenging a will for lack of capacity or undue influence.
I am now an approved Probate Mediator for Multnomah County probate disputes. I started the process well over a year ago when I took the two-day probate mediation course sponsored by the Multnomah County Probate Department. That summer I took the basic mediation training from Stan Sitnik, professor in the dispute resolution department of Portland State University. Over the past few months I got practical experience in the Multnomah Small Claims Mediation program where experienced mediators held my hand and did what they could to impart to me the lessons they had learned over the years. The process has opened my eyes to new ways to looking at dispute resolution and made me reevaluate my own approach to negotiation and settlement.
I often refer to my probate practice as family law at the other end of life. In traditional family law parents fight over the custody of the kids. In my probate practice the kids fight over the custody of their parents. Emotions run high in my cases. Sometimes the cases are driven by a real legal dispute. In others, however, the law is clear, and the case is driven by sibling rivalries and family resentments that have festered for years. Litigation offers a solution--albeit one imposed on the family by a person in black robes. Mediation offers healing.
I recently spent a morning in a mediation in which six siblings faced the problem of how to care for an aging father. They brought with them decades of hurt feelings, suspicion, and festering resentments. I watched as a skilled mediator helped the group find a solution that worked for all of them and actually brought them together. It was not what a court would have ordered. It was a solution designed by the people who would have to live with it. My bet is that it will work better than any solution a court would have or could have fashioned.
Some lawyers are embracing mediation. Some are looking for any way possible to avoid it. The bulk of them, however, are supportive but confused. The procedures are new and kinks have to be worked out. We know that disputes in guardianships, conservatorships, and probates must go to mediation before they will be heard by the court. The confusion centers around when mediation notices must go out, what the notices must contain, how to choose the mediator, and how to schedule the mediation. These are not insurmountable issues but we lawyers--having gone to so much college to get to where we are--dislike learning new stuff. We will get over it and in five years mediation will be as accepted in probate as it now is in family law.
So here is mediation in a nutshell. If your lawyer files a paper that creates a dispute-- usually an objection to something another lawyer filed--then the dispute must go to mediation. The party who created the dispute must provide the other side with the names of acceptable mediators. The other side can object to mediation, accept one of the proposed mediators, or propose its own list of acceptable mediators. If the parties cannot agree on a mediator, the court will appoint one. The parties can pick any person they want (with some exceptions), but the court must pick from the list of court-approved mediators. I am on that list.
Once a mediator is selected the parties must mediate for at least three hours. If an agreement is reached the mediator will write it up. The parties then have seven days to repudiate the agreement. If no one repudiates, the agreement is rewritten as a judgment by the lawyers and presented to the court. If the parties do not reach agreement, or if one of them repudiates the agreement, the case goes to court.
My take on it is that if your lawyer says you have been ordered to mediation, celebrate. You have a chance to do something good. Good things do come from the court; just not as often.
In my previous post I explained elder financial abuse and your obligation, at some point, to say no to the elder who wants to give you money and property. After the explanation you asked, “But why would an elder who loved me enough to give me money then turn around and sue me for financial elder abuse?”
The answer is that the parent doesn't sue. The parent becomes disabled with dementia and the parent's conservator or trustee sues. The conservator might sue because the gifts have made the elder unable to pay for long term care or unable to qualify for Medicaid. The conservator might also sue to get the money back so it can go to the elder's heirs when he or she dies. Lets say a grandchild talks demented grandma into giving her a whole bunch of money. The children of grandma get a conservator appointed to handle grandma's financial affairs. The conservator then sues the grandchild to get the money back so that it can go to the children according to the will when she dies.
After an elder has died, the representative of the estate may sue for elder financial abuse those people who received money from the elder while she was still alive. In these cases, the object is to squeeze money from one heir and give it to another. The child who received money is forced to give up her inheritance to get rid of the elder financial abuse case. Disgruntled heirs like this idea and lawyers can make a lot of money doing it.
Let's say your elderly mom gets most of her legal advice from her hairdresser. Let's say further that you are on her bank account so you can help with her bills and she has named you her power of attorney. She comes home from the beauty parlor one day and tells you she will lose all her property to taxes and probate unless she puts your name on the deed to her house right away. She says she wants you to have her house when she dies, tells you to get a deed written, and says not to tell your brothers about it. Ignoring my advice from my last post about accepting gifts from elders, you do what she says.
Mom then dies without a will. The money in the checking goes to you because your name is on the account. The house goes to you because your name is on the deed. And your brothers are furious.
The brothers could challenge the deed to you claiming that you had a confidential relationship with your mother and “unduly influenced” her to give the house to you. This case would be somewhat like challenging a will. A lawyer might, however, try a different strategy. He gets one of your brothers appointed personal representative of your mother's estate and then sues you for elder financial abuse. By claiming elder financial abuse the brother can seek triple damages and attorney fees. In addition, he has the inflammatory claim that you abused your mother. Rather than looking like greedy heirs, the brothers look like knights on white horses coming to the rescue of your poor abused mother.
Cases like the one described above come in all sizes and shapes, but they share one characteristic. In each of them the elder financial abuse claim serves the interest of heirs (or those who take pursuant to a will or trust) who are dissatisfied with their share of the elder's estate. What once would have arisen in a will contest or a suit to set aside a deed is brought to court as elder financial abuse.
There are elder abuse cases in which someone is truly trying to get back from bad people money that those people took from a helpless elder. These cases are not as common as you think because these kinds of bad people are criminals and are not worth suing. They spent all the money on drugs and couldn't pay it back if they wanted to (which they don't). Many elder abuse cases, however, are not like that. They are will contests in disguise, serving the interests of people trying to maximize their inheritance.
Hitting up one's relatives for money is a time honored survival skill in every culture. Most people give up the practice when they reach middle age, but all of us have certain family members who simply can't wean themselves from the parental checking account. In the past we just felt sorry for these family members and let them go about their business. In today's world, with severe legal penalties for elder financial abuse, the ancient practice of finagling money out of elderly relatives can put a person on the wrong end of a very ugly lawsuit.
Here is how it works.
Elder financial abuse means wrongfully taking money or property from a person who is disabled or over sixty-five years old. That covers a lot of people. We can't even retire at sixty-five any more, but we are nevertheless protected by Oregon's elder financial abuse law.
To be elder financial abuse the taking must be “wrongful." So what makes it wrongful? Stealing is wrongful. Embezzlement, extortion, and armed robbery are wrongful. Withholding money that belongs to the elder is wrongful. But those kinds of wrongful taking are not so common, and when they occur we normally call the police. Where the lawyers come swooping in is when money is taken from an elder using what the law calls “undue influence.”
“Undue influence” is a complicated concept that has been imported into the law of elder financial abuse from the world of will contests. In Oregon, a will can be set aside if it was the result of undue influence. Since the passage of Oregon's elder financial abuse law, courts have decided that undue influence is also a good concept for deciding whether taking money from and elder was wrongful. Those court decisions have broadened the protection of elders, made it dangerous to accept gifts from elderly relatives, and given new legal weapons to children dissatisfied with their parent's estate plan.
You take money by use of “undue influence” if you have a “confidential relationship” with an elder and thereafter use that relationship to get money transferred to yourself. A confidential relationship is a slippery legal concept. You might have a confidential relationship because the elder wants you to be on his or her bank account, wants you to be an agent on a power or attorney, or simply takes your advice on financial matters. If you have a confidential relationship with an elder and the elder wants to give you money or property (without having received independent and professional legal or financial advice) you may have a legal obligation to say no. If you fail to say no, you can get sued for three times the amount you received and required to pay the attorney fees incurred in suing you. If you are close to an elder relative and have some influence over his or her financial decisions, taking gifts of money from that person can be risky.
How do you protect yourself? Easy, don't accept gifts from elderly relatives or other disabled people unless the gift is wrapped in Christmas wrap and fits beneath a tree. If the gift doesn't fit that description send the elder to an Oregon elder law lawyer who has never been your lawyer. Then let the lawyer do the work. If you elderly mother thinks you should be on the deed to her house, or really wants you to have a new Mercedes, send her to a lawyer. Failure to do so could end up with you being sued.
You think, “But why would a loving parent who gave a lot of money to their kid, then sue to get it back?” The answer is that the parent doesn't sue. Somebody does it in his or her place. To see how that happens and why lawyers love to do it, check out my next post.
This is part of a series of posts describing the cast of characters that might play a role in your guardianship or conservatorship proceeding. I have talked about lawyers, professional fiduciaries, the courts, the U.S. Department of Veterans Affair, and Social Security. In this post I want to talk about three agencies. I combine the three because in practice the agencies to not show up often in guardianship and conservatorship proceedings, but when they do they play and important role.
The Oregon Department of Veterans Affairs.
The Oregon Department of Veterans Affairs (ODVA) is a state agency that provides a low cost alternative to a professional fiduciary for Oregon veterans. Under the right circumstances the ODVA will serve as a conservator for Oregon veterans. The ODVA is not associated with the U.S. Department of Veteran's Affairs, but the ODVA and the USDVA tend to get along fairly well. Because of this amicable relationship the USDVA is often willing to appoint the ODVA as representative payee for federal veterans disability payments. If a disabled veteran has money being paid to him by the USDVA and also has income subject to state court supervision, one way to put all the assets into the hands of the same fiduciary may be to ask the ODVA to handle both sets of funds.
The ODVA takes cases based upon its funding and criteria set within the agency. It won't take every case it is offered. However, if your disabled elder is receiving disability income from the USDVA, you should always check to see whether the ODVA would be a good choice as a fiduciary. The services provided by the ODVA are as good as any private fiduciary in the state and cost far less. If your disabled Oregon veteran is not receiving federal benefits, but there is no appropriate family member or the case presents particular problems, the ODVA may still be the solution you need.
Being a state agency, the ODVA is subject to the budget fluctuations of state government. It's ability to take on further cases at any one time may depend on politics and the current budget.
The Public Guardian
Multnomah County has a public guardian. The public guardian serves as a fiduciary for a certain number of elder and disabled when there is little money and no appropriate family member. The ODVA serves veterans. The public guardian serves those who are profoundly mentally incapacitated, unable to care for themselves, and currently at high risk due to abuse, exploitation or extreme self-neglect. The public guardian has its own criteria for which cases it will accept, and like the ODVA is subject to budget constraints.
Seniors and People With Disabilities (SPD)
Seniors and People with Disabilities (SPD) is an arm of the Oregon Department of Human Services. SPD takes reports of elder abuse or of elders in dangerous living conditions. It investigates abuse and neglect. It reports severe cases of elder abuse to law enforcement for prosecution. Prosecuting criminals, however, only benefits disabled elders in the deterrence effect prosecution has on other would-be criminals. SPD does not normally initiate guardianship or conservatorship proceedings, does not obtain restraining orders to stop further elder abuse, and does not pursue civil remedies against those who have taken advantage of the disabled or elderly. Recent changes in the law have made it easier for DHS to instigate guardianships or conservatorships, but it is still rare for the agency to do so.
Most care and protection of the elderly is done in the private and charitable sector of our communities. Churches provide far more support for and monitoring of the elderly than does government. Long term care centers are privately run. The elder law bar is made up of private practice attorneys. SPD does not work effectively with any of these private sector communities.
Although SPD is a player in the elder law world, it is seldom effective except in the most severe cases. Next time you suspect elder abuse, spend an hour or so trying to find the correct number and then call it in. You will see what I mean. In the average guardianship or conservatorship, SPD is nowhere to be seen.
This is the third post on the role of government agencies in guardianships and conservatorships. The first was about the Oregon court system. The second was about the U.S. Department of Veterans Affairs. This one is about Social Security.
Social Security provides retirement income for nearly all Americans over the age of sixty-five and provides disability income for millions of disabled people no matter what their age. Thus, Social Security provides at least some income to most elders or disabled persons who become subject to a guardianship or conservatorship.
When an elder or disabled person cannot manage his or her money, Social Security uses a “representative payee” system that allows a responsible relative or a professional to receive and spend Social Security income for the disabled person. A relative applies to Social Security to be appointed “rep payee” for a disabled person, and if the facts support the need for a fiduciary, Social Security will send the money to the representative. The paperwork is minimal and the annual accounting requirements are fairly simple.
While the U.S Department of Veterans Affairs does not play well with the state court system, the Social Security Administration does. If a state court appoints a conservator to handle of the money of a disabled person, Social Security will generally honor the state court decision and, upon application, make the conservator the representative payee of social security benefits. The U. S. Department of Veteran's, as I noted in my last post, is seldom so cooperative.
You need to keep these relationships in mind when you are determining what kind of fiduciary your disabled elder needs. We know that a guardian makes medical and placement decisions, while a conservator takes control of money. If the elder's money all comes from the federal sources--Social Security or veterans disability--there is probably no need for a conservatorship. The existing federal systems already provide the mechanisms to protect the money. If you establish a conservatorship to handle non-federal assets, Social Security will honor the conservatorship by naming the conservator as rep payee for Social Security income. This puts all the money in one set of hands. The veterans administration, on the other hand, will probably not cooperate in this way and may ignore the state court proceeding.
The rule is that you do not need a conservatorship if the only income of the disabled person is federal money—whether that be social security, veteran's disability, or both. If the elder has assets other than from federal money--let's say a big investment account and some real estate—then a conservatorship may be necessary to manage those assets. Once the conservatorship is established the conservator can take charge of the Social Security money, but will not get control of veterans benefits (without making his or her case directly to the U.S. Department of Veteran's Affairs).
Conservatorships are expensive and messy. Before you wander down that path be sure what assets you want to conserve and whether the protection offered by a conservatorship is worth the cost of the legal proceedings. When making the calculation, don't include federal money—Social Security and veteran's benefits—because that income is conserved through the federal system. Once you have removed the federal component take a look at the costs of the state court proceeding. If the cost of the conservatorship exceeds ten percent of the the amount of money to be protected, look for another way.
More on other ways later.
I just wrote about the role of the Oregon courts in guardianships and conservatorships. I now want to write about a government agency that is completely and utterly indifferent to anything that happens in state court. It is the U.S. Department of Veterans Affairs.
The U.S. Department of Veterans affairs—the USDVA—is a federal agency that provides medical care and a lot of other benefits for veterans. Some veterans receive disability payments due to service-related disabilities and are incapable of handling the money on their own. For these veterans the USDVA has a payee system under which it nominates a family member or a professional fiduciary to hold and administer the disability money for the veteran.
Some times the professional fiduciary selected by the USDVA will not need all of the veteran's disability money for his needs and the funds will start to accumulate in the account controlled by the fiduciary. The USDVA might then ask the fiduciary go to state court to establish a conservatorship. In other cases, family members go to state court asking for a guardianship or a conservatorship because the veteran has other funds that need to be protected, and they want the USDVA disability benefits controlled by the same conservator. In both of these situations the Oregon State court system and the USDVA collide. The results are seldom pretty.
In an earlier post I mentioned the state court judge who considers her court the last line of protection for elders and the disabled. Well the USDVA has a different view about how much protection state courts offer. To the USDVA the state court system is one in which over-paid professional fiduciaries and lawyers empty the coffers of the disabled without providing much of anything in return. Those closely aligned with the state courts don't think much of the USDVA system either. Fiduciaries used to working in the state court system think the USDVA fiduciaries are under-trained, inexperienced, and overworked. Professional fiduciaries who are well respected in the state court system may be despised by the USDVA, and fiduciaries who are believed to walk on water by the USDVA may be looked upon as common criminals in the state court system. The key for you is to recognize the dispute without getting involved in it.
The important thing to remember is that the USDVA is allowed under federal law to ignore anything and everything that state courts do. You cannot subpoena USDVA records or personnel. State court orders can be completely ignored by the USDVA and routinely are. Therefore, if the bulk of the money going to a disabled person is USDVA money, you and your lawyer cannot go to state court to get control of it.
Let me say this again in capitals. YOU CANNOT USE THE STATE COURTS TO GET CONTROL OF USDVA MONEY.
I repeatedly see family members and their lawyers going into state court saying that they want honest old Uncle Henry to be conservator for disabled cousin Darrell so that Henry can control and administer the money coming every month from the USDVA. It ain't going to happen. The USDVA will decide who is in charge of that money, including accumulations of it in bank accounts, and there is nothing your local judge can do about it.
Not only will the USDVA not allow state courts to interfere with the administration of veteran's disability payments, it seldom allows its employees to appear in state court proceedings at all. Thus, if your proof that grandpa has Alzheimer's depends upon testimony from his medical providers at the USDVA hospital, you may lose your case. The only way I have gotten USDVA providers into court has been by begging and pleading with the USDVA lawyers, and when they finally agreed, the witnesses were accompanied by a USDVA lawyer to make sure he or she didn't say anything that wasn't in the agreement I made with them. That was a couple years ago, and rumor has it that since then the USDVA has become even more reticent about allowing its employees into state court.
So here are the guidelines
- Don't get involved in the friction that exists between the state court system and the USDVA
- If there is a conflict between a state court and the USDVA, the feds win—every time.
- Don't expect to ever win a case in state court using evidence provided by the USDVA.
- Money that comes from the USDVA stays in its control forever and there is nothing you can do about it.
After I explain all this to clients they ask, “I hate the person appointed by the USDVA to handle my father's disability money. What can I do?” The answer is political. Complain a lot and write your congressman. As an Oregon elder law lawyer who hangs around state courts, there is nothing I can do for you.
