The looming estate litigation bomb.
The baby boomer generation is retiring, and their parents are leaving us. We are poised to witness the greatest transfer of wealth from one generation to another (and then another) the nation has ever seen. And with it: millions of lawyers' billable hours in estate litigation.
What will be the single largest issue litigated? My money is on "undue influence." Undue influence in making a will - like fraud - invalidates the will completely. When a large beneficiary of an estate occupied a confidential relationship with the testator and takes a portion to the exclusion of his natural heirs, undue influence is almost always an issue.
The one mistake to avoid.
Sometimes, claims of undue influence are inevitable and must be litigated. (It's a rare set of children that simply allow their octogenarian father to leave his entire estate to his twenty-five-year-old wife of three years.) But other cases unfortunately see their day in court because of poor planning from the outset.
In Georgia, “[w]here a person  obtaining a substantial benefit under a will  occupies a confidential relationship toward the maker of the will and  is not a natural object of the maker's bounty, a presumption of undue influence arises if  it is shown that the will was made at the request of such person.” Bryan v. Norton, 245 Ga. 347, 348, 265 S.E.2d 282, 283 (1980).
A presumption of undue influence would be a terrible thing to face in court:
Steps to take.
Undue influence is not a question of competence. But when a non-natural heir takes a large share of an estate, it is nevertheless incumbent upon the drafting lawyer to have some evidence ready that the beneficiary is competent.
1. Demonstrate competence. More than two witnesses present at the signing, a video recording of the testator's wishes, an evaluating physician's opinion as to competence - all these and more can show in court that the testator was acting pursuant to his own free will. More importantly, they can head off a court challenge when presented to a would-be challenger. Such evidence should be kept both on file with the drafting attorney and in a safe place along with the original will.
2. Avoid excessive involvement. Whether the beneficiary of the will pays the attorney, whether the beneficiary was with the testator at the time of the will's drafting, whether the beneficiary drove the testator to the lawyer's office: such are the issues that a judge or jury would weigh in determining undue influence, and it is crucial to keep such involvement to a minimum. The best practice for a non-relative recipient of property under a will is to have little or no involvement in the planning or drafting of the document.
3. Trusts and other instruments. Often, an easy end-run around a challenge to a will on grounds of undue influence is to leave property to the non-heir beneficiary in some way other than by will. An insurance policy made payable to the non-heir or a living trust (which need not be probated and therefore is not disclosed to the other beneficiaries) can greatly mitigate the chances of litigation.
Often, a testator does need help in preparing a will and often he will leave a substantial benefit to the close friend or non-child relation who helped him in his latter years. When this is the case, it is important to know that such dispositions are not illegal in Georgia. Indeed, property can be willed to anyone, even a total stranger. (Ga. Code. Ann. § 53-4-1 (West 2011). But avoidance of a presumption of fraud in the will's making is crucial. As always, consulting with an estate planning attorney will involve some cost on the front end but could save an estate from devastating will contests later on.