Avoiding The Heartbreak Of Expensive Litigation – Part 1

For the past 35 years a significant portion of my practice has been devoted to representing people involved in Will contests – cases wherein a family member is suing a sister or brother, or even parents or step-parents regarding a loved one’s assets and last wishes. These lawsuits are often complicated, emotionally draining and very expensive as this previously happy and well-balanced family embarks upon a process of rehashing grievances and disagreements that often go back forty or fifty years. Irrespective of just how the Court ultimately rules, or how the case is resolved through a settlement, the fabric of the family is often irreparably damaged – much like Humpty Dumpty – and just cannot be put back together again having been traumatized through countless depositions and Court hearings. This damage often affects future generations who, based upon the ancient feud of their parents and grandparents, come to view their aunts and uncles and their cousins as enemies.

Given my involvement in literally hundreds of these contested matters, I have come to reflect upon the process in which these previously happy and well-balanced family members have come to stumble into this catastrophic cycle of unfulfilled expectations. During this process of reflection, I have formulated some ideas on just how to avoid this trap.

I have concluded that it is irresponsible not to invest the time and energy to visit with a skilled estate practitioner in order to carefully document and express one’s preferences as to how one is to be remembered and as to how one’s assets – accumulated over one’s lifetime – are to be distributed. You owe an absolute duty to your loved ones to leave them with a sense of closure as opposed to a legacy of unfinished business leading to years of emotional turmoil and hundreds of thousands of dollars in litigation costs. It is relatively easy to fix this problem – here in Atlantic County we are blessed with a number of very experienced and competent Estate planning lawyers – all of whom have years of experience in counseling their clients to work through tricky financial and family problems. To put this bluntly, do not put this decision off thinking that you will have the time later – as we all know, no one is promised tomorrow.

When you meet with your Estate planning lawyer – a lawyer of your choosing – make sure you bring with you a complete listing of all assets and a concept for how you intend to distribute those assets – especially if you have a complicated family situation such as children possessing unequal resources and needs or a second spouse.

Thereafter, I would recommend that you carefully and delicately have meaningful and intimate private conversations with your loved ones in an attempt to mutually share your feelings and expectations with the hope of diffusing any rancor in the future. I know and understand that there are occasions in which these types of frank discussions can be harmful and can cause family discord at an early point in time. Nevertheless, it should be your goal to avoid the outbreak of all-out war among your family members in the future. And since it is your money that is being distributed you, alone, are the best person to communicate your feelings and your aspirations to all loved ones.

I have found that while probate litigation often involves such narrow issues as to whether the decedent signed a Will under undue influence or lacked capacity, the real and underlying cause of this litigation is often unreasonable expectations and unresolved family disputes – many of which can be addressed and eliminated during one’s lifetime. It is up to you – not some future set of lawyers or a judge (who never met you) to take responsibility now for eliminating any cause of rancor in the future.

Date Published: March 1, 2017

Written by: Cooper Levenson, P.A.

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