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. 

If I control my mother's money, am I liable for her debts?

Let’s get this clear. If you become a conservator for your mother, or her guardian, or her agent on a power of attorney, you do not become responsible for your mother’s debts. If you are a guardian or a conservator your activities are closely regulated by the courts and you should consult with your attorney. If your mother has made you her agent by signing a power of attorney, you are entitled to act on behalf of your mother, without becoming personally liable for her debts, as long as you fully disclose that you are acting on her behalf.

If your mother has appointed you her agent by signing a power of attorney, you are now empowered to make purchases for her and enter contracts that bind her. If you hire a mechanic to fix her Camaro and the mechanic doesn’t get paid, the mechanic can sue your mother, but not you. This rule is subject to two conditions. The first is that you fully inform the mechanic that you are acting on behalf of your mother pursuant to the power of attorney. The second is that the work on the Camaro must truly be for your mother. If you hid the fact that it was your mother’s Camaro and that the work was because she had a big race coming up, the mechanic could reasonably believe that you were hiring him, and he could then sue you. Similarly, if you told him the work was for your mother, but your mother couldn’t drive and you were the one with the upcoming race, then the work was not really for her--it was for you. The mechanic can sue you.

The key to being an agent pursuant to a power of attorney is to understand that the money you are handling is not your own and that everything you do must be done for the benefit of the person who signed the power. You can’t take the money for yourself or buy things for yourself. You can’t give it to your Aunt Millie or to the Red Cross. If you buy something or hire somebody, the thing or the service must benefit the person who appointed you and not benefit you. If you follow this rule and let everybody you deal with know that you are acting on behalf of another, you will never end up personally liable for paying the debts of the person who appointed you.

I was meant to be old

(What follows are my personal observations on being old, first published on my Salon Blog)

I am fifty-nine years of age, and I consider that old. I think that I am better at being old than I was at being any other age.

A friend of mine is sixty-eight. She is eagerly anticipating her fifty-year high school reunion. I can't understand it. I don't have anything against high school reunions. I didn't have unpleasant experiences in high school, but to me high school was just one of the many schools I went to on the path to getting old. I don't think much about high school or any of the schools I went to, and I have no great desire to revisit them.

Different people, I think, are better at different developmental stages. I was not good at being a child. I can't remember much of it, but I know there wasn't a lot about it I liked. Children are small, undisciplined, and uneducated. That is not a formula for happiness. I remember the sense of insecurity that came from knowing any adult with the inclination to do so could beat me up. I couldn't drive or vote or smoke. I found other children as helpless and hapless as I was, and adults were only condescendingly interested in what I had to say. On television children are either carefree and happy or victims. I was neither. To the best of my recollection, I was bored and ignored. If there are great pleasures in childhood, I didn't find them.

When I see children today I feel sorry for them. I think it is one of the worst times of a life--so stressful that many children can be driven to sobs several times in a day. When I have a chance to talk to children I assure them that things will get better. They seem to appreciate that.

I was not good at being a teenager either. I was physically larger by then, and eventually I could drive and smoke (not vote), but adults still didn't pay me much mind. As a teen I found my peers interesting, and that was a comfort. I got through my teen years mostly by not attracting undue attention. It was a time of hormone-driven confusion about what one was supposed to do in this thing called life. Some people I know were good a being teenagers. The prom queens, football stars, and class presidents among my friends can remember those years with a clarity and detail that I find somewhat frightening. I gladly exited my teen years and don't give them a lot of thought.

In my twenties I could finally vote and grow a beard, but I wasn't much better at young adulthood than I had been at being a teenager. Those were college days. Some of my friends blossomed; others fell by the wayside. I think athletes and scholars are happiest in this stage of life. I am not an athlete or a scholar. I managed to get through college and then law school. These schools did not seem to me much different from high school. I learned what I had to learn, but I don't remember my teachers' names, and I didn't develop long term friendships. I don't go to those class reunions either.

Middle age is a time for careers, mortgages, raising children, and productivity. I shaved the beard and quit smoking. I competed in the market place, but the house and the kids and the competitiveness that surrounds earning money hung on me like a another man's suit. Some of my friends thrived in middle age. I had bouts of contentment, but they were few and far between. For me middle age was better than what had proceeded it, but not a lot better.

And then I got old. I became old when I turned fifty. The beginning of physical and cognitive decay was a great relief to me. I could finally relax. I pared down the material goods that I had accumulated in middle age. I continued to earn, but ceased to believe that what I did was particularly important or that I had to excel at it. I never felt a close connection with other children, other teens, other young adults, or people in middle age, but I liked other old people. I wonder if I was born old, and had to get through all that other stuff to become who I was meant to be.

I like the accoutrement of being old. I like tweed jackets with leather patches on the elbows, slip-on shoes, all-cotton dress shirts (with medium starch) and silk ties. These things feel more natural than did the denim jeans, the Nikes, and the leather jackets of my younger years. I like my compact home with no yard to mow and no noisy children to quiet. I don't go to school any more or think that I ought to. I don't know how the country should be run and don't argue with people who do. The annoyances of life are less annoying now that I am old. I am seldom busy or in a hurry. I can finally read Proust.  

I don't claim that being old is better than the other stages of human life. That would be a middle-age thing to do. I think that people find their places in the world at different times. It wasn't my turn until I got old.

There are drawbacks to being good at being old. The big one is that you have to wait five decades for your time to shine. Another is that your ability to enjoy it is constantly infringed by a decaying body. My reunion-attending friend protests that we old people are boring, and she never wanted to grow up. Old age may not be the best time to become good at life, but it is better to be good at being old than to be old and be good at something else.

I was sitting on the deck of my mountain cabin a while back talking to my father. He is now in his eighties. He is old-old, as the gerontologists say. I can't say how I will do at that stage of life, if I make it, but I am not afraid of it. My father looked at me and at the cabin and, remembering all the drama in my younger years, he said, "I think this is the best part of your life right now." He was right.  Being old becomes me.

What is an Oregon Income Cap Trust?

An income cap trust is a legal trick that allows people who earn too much to qualify for Medicaid to get Medicaid anyway. The trust solves, somewhat underhandedly, a real problem. A elder needing nursing care cannot have the government pay for that care unless his or her income is less than $2022 per month. Nursing homes charge $6,000 or so a month. We do not, however, abandon our elderly on the side of the road because they earn too much for Medicaid but not enough to pay for a nursing home. The way we take care of these folks is with the income cap trust. It works like this.

An elder who needs long term care makes a Medicaid application. Let’’s say the Medicaid intake worker finds out that the elder has a combined total Social Security and pension income of $3,000. This is more than the $2,022 allowed. The Medicaid worker tells the elder she needs an income cap trust. The elder goes to her Oregon elder law lawyer. The lawyer calls the Medicaid worker to schmooze and then the lawyer then prepares the trust.

Income cap trusts are pretty much standard. You can see an example at the DHS website. The one I use is very similar to that one. A trusted relative usually serves as trustee and opens a bank account in the name of the trust. All of the elders monthly income is put in that account. Once all of the elder’s money has come in for a given month the trustee distributes it according to a schedule at the back of the trust. Because printing out the trust itself with the names changed from the last client is mostly a no-brainer, the work for the lawyer is working out the schedules.

The short version of the schedules is that the elder gets a few bucks, a few bucks may go to health insurance or taxes, and the rest of the elder’s income goes to the care center. The government then pays the difference between what the elder can pay and what the care acutally costs. This way no elders get parked on the street without care, and the government is sure that the elder is paying as much as he can.

It used to be the case the the trust allowed a distribution from the trust to pay the lawyer who made it. That is no longer the case. If an elder has income that is over the Medicaid limit of $2,022 she needs to budget some money for the lawyer. An elder must have less than $2,000 in available money or property before he will be eligible for Medicaid. A good way to get below this limit is to pay the lawyer for the work that will need to be done on the income cap trust.

Some income cap trusts are simple and get approved easily. Others, particularly when the elder going into care is married, can be fairly complicated. The key for the lawyer is having frequent and friendly contact with the Medicaid worker handling the case.

Oregon Will, Trust, and Estate Planning Forms

I have a new line of business in my office. It started by accident when I helped a couple I will call the Smiths. The Smiths wanted me to simplify an estate planning trust they had gotten from another lawyer because they couldn’t understand it. I stripped out everything that I skip over when I read trusts and put the rest of it in plain English. I sent a draft of my work out to be reviewed by the clients and it came back with numerous changes written in red ink. When I met with the couple about the changes the wife said to me. “You are the third lawyer to write us an estate plan. This is the first one I ever read.” They were able to make changes--make it their own--because they were able to understand what it said.

I had an moment of clarity about what we lawyers are doing to our clients.

A couple weeks later another couple came in. They handed me a paper brick of legalese and said, “The Smiths said you could get rid of this.” I took the brick and a few days later gave them an estate plan that was six pages of simple English. They paid a lot of money for those six pages, but getting rid of the brick was worth it to them. Since then there has been a steady stream of clients hiring me to replace their page-after-page of incomprehensible legalese with something short, plain, and understandable. I am pleased to do it and, as a result of my experience with the Smiths, have completely changed the templates I use for estate planning. My estate planning forms are now short and written in plain English.

How Lawyers Use Forms

I love forms. All lawyers love forms. We buy them, we trade them, and we steal them from each other. The forms we buy, steal, and trade are written for lawyers, not for regular people. When I first started practicing in probate I used the estate planning forms written by Valerie Vollmar, a professor at Willamette University. Lots of Oregon lawyers use her forms. Later in my practice, I switched to a national provider. At the time, I thought that my clients wanted more paper for their money and the national providers give you lots of pages. During those days, I created the kinds of paper bricks I now get paid to get rid of. Later I discovered that people didn’t really want all that paper and went back to Valerie’s forms. I used them until I met the Smiths. Now I have my own forms.

Once a lawyer is satisfied with his forms, he changes the names to accommodate the new client and writes just enough to personalize the plan for the client’s special needs. In the old days we bought the forms on paper and copied them. Today, it is all done by computers. I use OpenOffice and the data base program that comes with it. I fill in all the names and hit a button. The documents come up on the screen with the names filled in, and I tweek the document with my word processor to address the client’s individual needs. Some lawyers use Hot Docs to do this. Some lawyers go whole hog and use expensive national document production systems like Wealth Counsel or Interactive Legal. The big document production programs produce big documents. If your lawyer gave you a thirty page revocable trust printed on thick paper, it probably came from one of these folks.

Forms Sold Directly to Consumers

Some form providers market their wares directly to consumers. LegalZoom and Suze Orman’s online will and trust creator are probably the most advertised. These folks let you fill in the blanks yourself. I have never paid to look at their forms (Why would I? I have my own.) My sense is that they work okay if you follow the directions carefully and have the documents properly witnessed. I have seen wills made online that were perfectly good, and I have seen wills made online that were perfectly horrible. The drawback to an online lawyer is that you get the form, but you don’t get the lecture about how probate and estate planning works in your town. Law is local. I don’t get paid the big bucks because I know the general concepts I learned in law school or because I can fill out a form made by a company in Florida. I get clients because I know the attitude of the judges in Portland and can call the local probate coordinators by name.

Oddly enough, the forms sold directly to consumers are often more incomprehensible than the ones sold to lawyers. The forms sold to consumers by national providers need to meet the requirements of all fifty states. It is tough to write an understandable document that does that. Stevens-Ness forms are specific to Oregon, but read like they were written by an English barrister from a Dickens novel. I have no idea why.

Conclusion

If you are doing an estate plan, one way or another, you are going to be involved with forms. If you come to my office, I will be tinkering with the forms. If you buy your own forms, you will be doing it yourself. Doing it yourself is cheaper. At least at the beginning. Repairing the damage from bad estate planning documents is one of the most lucrative parts of my practice. Having a lawyer do it is more expensive, but safer. The choice is yours and depends upon the amount of risk you are comfortable taking.

How to challenge a will - undue influence

All the action, when it comes to challenging wills these days comes under the label “undue influence.” Undue influence is hard to write about because it is hard to understand. All wills are the result of influence. We influence people by being mean to them, or being nice to them, or by simply being related to them. But some influence is “undue.” And undue influence can undo grandma’s will.  

In this section, I will talk about undue influence in Oregon. I won’t truly explain it  because the concept of undue influence confuses even the lawyers who practice in this area. It probably can’t be explained. It can, however, be talked about.

 The theory is that if a will, or a trust, or even a gift is the result of undue influence, then the will or trust or gift, is not the true wishes of the elder, but instead reflects the wishes of the person exerting the influence. Grandma appeared to want to give her estate to cousin Harry, but in truth it was only because cousin Harry used underhanded means to convince her that she should do it.

In undue influence case, the focus is not on the mental state of the elder -- as it is in capacity cases -- but rather on the behavior and the intent of the person who received the benefit. If cousin Harry was visiting grandma every day because he loved her, he is entitled to the inheritance set out in the will. If he was visiting her every day to get money out of her, the will could be declared the result of undue influence and therefore void.

The problem is that nobody knows what happened during all those visits between grandma and cousin Harry. Harry is never going to say the visits were anything but expressions of love. This was unacceptable to the courts so so they developed the concept of a “confidential relationship.” The label, “confidential relationship” is no more clear than “undue influence.” In general it means that the elder put special confidence in the person who received the gift. The person might have been the agent under a power of attorney. The person might have been the primary caregiver, or someone who helped the elder with finances. We lawyers have to figure that anyone who was close to and trusted by the elder had a confidential relationship.

The rule was established that if there was a confidential relationship and certain other “suspicious circumstances,” then the person who received the gift--cousin Harry in our case--has to prove that he did not exert undue influence. Unless he proves he didn’t do it, the will fails. That is a tough thing for Harry to prove.

There are seven suspicious circumstances. Here is the list as it relates to cousin Harry.

• Procurement: Did Harry drive grandma to the lawyers office?
• Lack of Independent Advice: Was grandma’s lawyer Harry’s lawyer before he met grandma?
• Secrecy and Haste: Was grandma’s last will done just before she went to the hospital and then hidden from other family members?
• Change of Attitude: Had grandma’s stopped communicating with her children after Harry started to visit every day?
• Change in estate plan: Had grandma’s previous wills all given significant amounts to the church or her children?
• Unusual gifts: Was the gift to a cousin like Harry not what you expect most people to do?
• Susceptibility to influence: Was grandma weak and dependent upon Harry when she wrote the will?

A person claiming that a gift was the result of undue influence, doesn’t have to show all the suspicious circumstances, and nobody really knows how many have to be there. If the person can show a confidential relationship--that cousin Harry had some influence over grandma--and that a couple of the suspicious circumstances existed, then Harry has to prove that he didn’t unduly influence grandma.

The attitude of probate litigators is currently that the undue influence rules let the judge pick the good guys and bad guys. The legal concepts are so muddy that a lawyer is best off simply attacking the character of the person on the other side. The children of grandma will portray Harry as a money grubbing relative showing up in the last months of grandma’s life looking for a payday. Harry will show that grandma’s children had abused her so badly during her life--finally abandoning her when she required care--that she would rather have flushed her money down the toilet than leave it to them. It is a legal free for all.

How do you avoid having a will, trust or gift set aside on the ground of undue influence? There are a few things that can be done. Make sure grandma always has her own lawyer -- one who is chosen by her and is not also the lawyer for other family members. Don’t accept large gifts from old people. Don’t go to Office Depot and buy documents for old relatives to sign. Don’t be a joint signer on the accounts of old people and don’t manage their finances for them unless everything you do is supervised by an independent professional. For most families, those things are impractical.

What can I say? Undue influence, as a way of setting aside transfers by the elderly, is a gold mine for lawyers. The concepts are so vague that when the cases come to court, anything goes. One probate practitioner commented that personal injury cases worth over a hundred thousand dollars are reasonably rare, but middle class estates worth more than that are filed every day. With something as flexible as undue influence to work with, his caseload was always full.

The Oregon Elder Law Blog in book form

The posts to the Oregon Elder Law blog from its inception to the end of 2010 are now available in book form. If you read this blog, there is no reason to buy the book, but if you want a paper version or have acquaintances who are not comfortable with computers, Oregon Elder Law, the book can be ordered from Amazon here. The book is a lightly edited version of what has appeared in this forum. If ordering from Amazon makes you uncomfortable, you can also buy a copy by calling my office.