It is important to make a last will and testament before your declining health renders you incapable of doing so. In a deteriorating physical or mental state, you may be subject to the undue influence of others who may wish to take control of your property for their own benefit. And while the law in California and other states will not recognize a will signed as the result of undue influence, settling this may require long and often costly litigation which can deplete your estate and deprive your chosen beneficiaries of the fruits of your labors.
Green v. McClintock
Here is a recent example from another state. This involved the estate of Kenneth Green, who died of cancer in 2010. Green and his brother, Albert, had fought for years over the disposition of their mother’s estate. She died in 1995 without leaving a will. She did, however, leave a substantial farm in Allegany County, Maryland, and other cash assets. Neither brother bothered to open an estate for their mother until 2002, when Kenneth Green decided to take action.
The mineral rights under the Allegany farm belonged to a corporation. The president of the corporation advised Kenneth Green to obtain sole title to the farm. He also advised Green to make a will of his own, which the company’s lawyer did for him in 2003.
Albert Green claimed 50% ownership of the Allegany farm. This led to litigation with Kenneth Green, who claimed the entire farm for himself. The brothers settled in 2004. Kenneth Green kept the farm while his brother retained other assets from their mother’s estate.
Meanwhile, Kenneth Green’s 2003 will excluded his brother and his family entirely. Kenneth Green wished to leave his entire estate to Betty McClintock, a longtime friend and co-worker. The 2003 will reflected as much.
By 2009, Kenneth Green was dying of cancer. In August of that year, Albert Green and his son, Andrew, took Kenneth Green from his hospital in Maryland to their farm in Kentucky. Andrew Green had his uncle sign a power of attorney and a new will, both naming him (Andrew) as agent and excluding McClintock. Shortly thereafter, Andrew Green used the power of attorney to transfer the Allegany farm and Kenneth Green’s other assets to Albert Green.
After Kenneth Green’s death, McClintock and Andrew Green each tried to probate the 2003 and 2009 wills, respectively. A Maryland circuit court eventually ruled for McClintock. It found Andrew Green committed fraud and exercised undue influence over his uncle. A Maryland appeals court upheld that decision in an opinion issued August 1 of this year, nearly four years after Green’s death.
Preventing Family Disputes
It is notable this family feud began not with Kenneth Green’s death, but with his mother’s. Her failure to make a will led to litigation between her sons, which continued with the probate of Kenneth Green’s estate. The lesson for the rest of us is to always make a will and make sure all family members are aware of your express intentions. If you need the assistance of an experienced California estate planning attorney, contact the Law Office of Scott C. Soady today.