The problem: How much do you trust your loved ones to care for a special-needs beneficiary of a will? Probably not this much:
A client recently retained me about a will in which almost all of the estate was left to the testatrix' daughter-in-law (we'll call her Tina). The will itself contained no instructions as to how Tina was to use the money, but she had assured the testatrix (whom we'll call Alice) she would use it to care for her (Alice's) handicapped son, Ben.
My client is Ben's cousin. She came to me with the question, "what can we do to make sure Tina uses this money on Ben's behalf?"
The answer: we have to be very, very creative. And we'll likely go to court over the question.
The reason: no amount of oral instructions or even writings outside your will can bind a recipient of property under that will as to how she (in this case, Tina) can use that property. As any law student can tell you: "the law does not countenance a gratuitous promise." In other words, promises are not legal contracts. Contracts only form when both sides of the bargain get something.
"But wait a minute," you might be saying. "Tina does get something here. She's getting a large inheritance when she wasn't even the testatrix' child."
And, unfortunately, that's wrong. Presuming Tina did promise to use the money on Ben's behalf, she's not getting anything other than the honor of being his trustee. (Leave aside for a moment the question of trustee's fees.) She was simply making a gratuitous promise. It wasn't "give me some money, and I'll take care of Ben." Rather, it was "put some money aside, and I'll give it all to Ben."
The lesson: As always, estate planning should not be done without the advice of a seasoned estate planner. Using Tanner Pittman, LLC's estate planning methods, the above problem would never have formed.
On March 7, the Supreme Court handed down the case of Norman v. Gober, in which it was held that a grandson had no standing to challenge the will of his grandmother, despite claims that the decedent was the victim of undue influence and that one of the co-executors was unfit to serve as a fiduciary.
The reason? The grandson "lacked standing." Standing to challenge a will, the Court noted, is determined on a case-by-case basis, the general rule being an "interested person" in the estate may challenge, but a "stranger" may not.
How is a grandson not "interested" in an estate that could eventually pass to him (after his parent's death)? The Court decided the real party who would benefit from the challenge was not the grandson, but his mother. Contrariwise, the Court found that the grandson would actually be harmed by a successful challenge. Stretching the common law rule on point slightly, it therefore decided the grandson lacked standing.
Careful reading between the lines in this case reveals that the whole affair probably didn't pass the high court's "smell test." The challenger of the will, the grandson, was actually assisted in the suit by his father. One read of this case would be to assume the mother and father of the challenger were estranged, divorced, or separated, and that the father saw more support to his son in a benefit to the mother. Another might be that the mother didn't want to challenge the will because of its in terrorem clause, disinheriting any contesting beneficiaries.
A safe bet is that the challenging grandson's lawyers were pretty surprised he didn't have standing to contest the will, as he seemed to meet the common law definition of an "interested party" and not that of a "stranger." But the case does serve the laudable role of closing off to some would-be will challengers a way to conduct an end-run around ad terrorem clauses. This is not surprising: too-clever-by-half legal strategies tend to fail, and perhaps they should. My take-away is that I'm glad Georgia wills (particularly in terrorem clauses) can't be defeated by the clever device of "well, then we'll just get our son to sue."
Tanner Pittman, LLC is a West Georgia law firm that specializes in estate services, civil litigation, and legal transactions.
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