It is probably fair to predict that for every matter which actually results in litigation in the probate courts, there are some multiple of matters over which there is a dispute which, although it may be serious to the parties, does not (fortunately) result in actual litigation.
A new matter came into the office the other day which reminded me of law school, where the law professors try to fit all of the possible legal issues into one fact pattern. This matter had the following facts:
1. The decedent elected to have the most "simple" Will he could get. I am not sure where he got it, but it only consisted of a couple of pages. In it, his stepson was given "all the Widgets I own at the time of my death." There was no list of Widgets either in the Will or set forth otherwise.
2. Of course, the relationship between the stepson and the biological son (who was to get the remainder of the assets) was not good.
3. Like many people do, the decedent made gifts during his lifetime. One of them was a gift of a relatively valuable Widget #1 to his biological son. This was actually shipped by the decedent to the biological son, but no written notation of the gift was made.
4. The decedent also, like many people, talked. All kidding aside, he also promised one reasonably valuable Widget #2 to his grandson (the son of the biological son). Although he talked about it with various people, and referred to the Widget as "grandson's Widget" he never actually delivered it to the grandson. After the decedent's death, biological son shipped this Widget to the grandson. Like the Widget in paragraph 3 above, there was no written notation.
5. The decedent also had charitable intent. Shortly before his death he had his biological son contact a charity which ran a Widget museum. He wanted to donate one valuable and rare Widget #3 to the museum. There was an email exchange on this topic between the museum and the decedent's biological son about three months before the decedent passed away, but no formal contract. After the decedent's death the museum accepted the rare Widget.
6. Last but not least, the decedent of course had a comprehensive set of Widget making and Widget repairing tools and spare parts. He also was in the process of making a couple of Widgets (which would be #4 and #5 --- of course, the guy was a Widget maker, what would one expect?). After the decedent died, the biological son, not being a Widget maker, asked the museum if they would like this esoteric set of personal property, the museum said yes.
Now the biological son learns a few things: the step son basically wants to know why he should not get Widgets 1 through 3, and also that the step son thinks that some of the "materials" were close enough to being completed "Widgets" that they should have gone to hims as "Widgets 4 and 5" under the Will.
What result? Well, at the moment there is no court "litigation" on these claims. Everyone is upset, but how will it work out?
My predictions, which I will expand upon in upcoming posts, are:
Widget #1 stays with biological son. Widget #2 might have to be returned, depending upon whether the executor can enforce the "oral" gift under local law. Widget #3 may well come back into the estate, because charities do not like to get a reputation for holding on to property at the expense of heirs. However, Widget #3 also has a written pledge (the email). Widgets #4 and #5 probably stay with charity, as the executor can conclude that they are not completed Widgets.
This is exactly the sort of disputes which can be avoided if appropriate time is taken in the drafting of estate planning documents in the first place. And this avoidance does depend upon having someone with experience advise you when you draft documents. A good lesson to keep in mind.
Posted by Henry (Hank) J. Moravec, III, a partner at Moravec, Varga and Mooney, A Partnership.
For a free 30 minute consultation (telephonic or in person), you can e-mail Hank Moravec at email@example.com or call him at (626) 793-3210. The firm website is www.moravecslaw.com
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