Estate & Trust Litigation
There are certain universal truths. Your life is unique. Yet at the same time, we all share so many basic values: to love and be loved; to work hard, to give back, to be empathetic and to be the best we can be. But we’re only human and we all make mistakes. We all laugh, we all cry, and we all die. But when our time’s up, we hope that we’ll be more than just dust in the wind; that our lives matter, that we left a mark and we’ll be remembered for that which made us special. How will you be remembered? As a kind soul, a dedicated parent and a loving spouse? Perhaps your legacy will be defined by a lifetime of achievements, or maybe your loved ones will reminisce about your infectious laugh or loyal demeanor. Your journey is unique, but at the end of the day, we all hope to leave a meaningful legacy.
But there are certain universal truths. The loss of a loved one typically leaves the survivors in tears. Sometimes family members grieve together and by tearfully sharing in the legacy of the deceased; their mourning is eased. But too often, that’s not the case. Instead, of pulling together, family members scatter like cats on a hot tin roof. They become embroiled in bitterness, fingers are pointed and blame attributed. Lines are drawn and after heated exchanges, there’s silence as the tinder smolders. The survivors now divided, believe they are morally correct in interpreting the intentions of a loved one and they are therefore, posthumously charged to right the obvious wrong. The legacy you hoped to pass on, that which you hoped would be etched in the minds and memories of generations to come, is instead marred by dispute and bitterness, and ultimately decided by a Court of competent jurisdiction with a perceived winner and a perceived loser. But somewhere in the taking of the windmill, amidst the salacious charges and endless delays, has slipped the aura of the body at rest.
Family disputes and contested estates are not unique to your family. Behind every front door are children embarrassed by their troubled youth. The source of such emotions may be a parent’s shortcomings, or their bitter divorce, or a new step-parent who has been thrust upon them. Some feel their childhood existence was overshadowed by their siblings golden status, or ignored as the difficult child demanded their parents’ attention. The resulting effect; emotional wounds and a note to self – “I’ll do better as a parent”.
Thereafter, you start your own family and commit to doing just that. The effort may start by listening to Mozart while the fetus is in utero, and reading each and every Baby Einstein book to your exceptional toddler. It continues by attending every soccer game or back to school night, opening your doors to the neighborhood, and making over the top Bar Mitzvahs, or packing every conceivable item for summer camps. Before you know it, you’re purchasing the safest new vehicle for your teen, and then searching for the perfect university for your young adult child. You wouldn’t be criticized for not trying hard enough, but you may be criticized for trying too hard. But, no amount of effort can change that which was.
A call that your parent suddenly passed – and your world stops. The golden child promptly assumes control, the difficult child objects or the step parent explains what your parent allegedly intended. The raw nerve is exposed and you’re steaming mad. Frustrations rise as questions go unanswered. Old Wills, unsigned Wills, and unclear Wills surface. Assets are missing, assets were gifted, assets were re-titled and questions go unanswered. Ultimately you reach a tipping point, the moment when you know you’ve had enough, your patience has been exhausted and you’re ready to stand up for the last wishes of a decedent. The fuse is lit, lawyers are hired and Complaints are filed.
The details of the family history are publically docketed, yet the wounds are internalized. It’s hard to talk about. The paparazzi may not be at your doorstep and the terms of the disputed Will may not be chronicled in the tabloids or laughed about on TMZ. But the stress and the anxiety of a contested estate will keep you up at night as the acid indigestion burns like a five alarm fire. One last call to the Antagonist in hopes that reason will prevail, but instead your blood pressure boils as you listen to the baseless accusations.
Conversely, the lives of those who’ve attained stardom are exposed for all to see, for all to envy or for all to condemn. Ask about the legacy of Brooke Astor, and you may hear of a 105-year-old beloved philanthropist left to sit in soiled clothes while her son, once respected, planned and plotted his way into her Will. The world would watch as he fell on his own sword while comforted in the arms of his Lady Macbeth. Or ask of the spirit of Jackie Onassis, and you will hear the story of grace, dignity and style. Are the two icons so different? Though unique in their own way, Jackie O. is remembered by who she was, and only few know the details of her estate plan – an aura preserved. In stark contrast, Brooke Astor’s legacy will be overshadowed by her final failing years and the conviction of her over reaching 85-year-old son, Anthony Marshall.
Whether it’s Brooke Astor, Michael Jackson, Jerry Garcia, Leona Helmsley or Anna Nicole Smith, celebrity probate disputes fill both tabloids and court dockets. However such dubious distinctions are not exclusive property of those having achieved stardom. Be assured that back on Oak Street, the future of the family business, the distribution of the family’s wealth and the snuffing out of family relations are the sources of emotionally charged arguments staged at your neighbor’s kitchen table, exaggerated by rumors and innuendo at a wedding reception or exchanged in a long string of harsh and accusatory e-mails, just waiting to be introduced into evidence. We must learn from our own experiences, from with the woes of celebrities, from the movies we watch, from the literature we read and from the lyrics we sing, hoping, that taken together, we can shape our destiny, build our legacy and protect our spirit.
Here’s hoping that yours isn’t debated in a Court of Law, but will be etched in the hearts and minds of those you love. But hoping may not be enough. One day, a loved one will deliver your eulogy. Perhaps it’ll be a tearful and at times funny description of your journey, of your work ethic and your good nature. But those same loved ones, may also believe that the riches left behind are their birthright, and that those who weren’t there, those who caused aggravation, haven’t such a right, or that a spouse seeks only to legally establish such right. These perceptions, right or wrong, are the reality upon which Affidavits are filed and relationships extinguished.
But for those seeking eternal peace, take notice that you must clearly express and document your intentions to ensure that the fruits of your labor, pass to those deserving, to those needing, to those respectful and to those loving, at the correct time and in the correct manner that you believe best forwards the lives of those you love and preserves your legacy. If however you become subject to the acts of the Antagonist and the matchstick has struck the flint, then understanding the nuances of undue influence, fraud, breach of fiduciary and lack of capacity may become the requisite tools for this firefight.
Is the pen mightier than the sword? Can estate litigation be avoided, even in the most dysfunctional of families? Can the legacy of your lifetime survive allegations of incompetence, favoritism or neglect? Yes indeed, but with a caveat. Not every Antagonist can be reasoned with, not every lemon turned into lemonade. Anticipating such a reality allows you to plan accordingly, to plan with specificity and to plan holistically. But know that estate and business succession planning requires effort, resources and persistence. Is such an undertaking worthy of your time and attention? Resting in the balance is your survivor’s peace of mind and your legacy.
Whether you’re a soldier fighting for our great country, or you’ve spent a lifetime stressing in an office hoping to protect your employer and your job, or perhaps you’ve endured the rollercoaster ride of building a family business, or you’re immersed in the most difficult job of all, raising children and tending to a needy family – your legacy is work in progress. You hope that your blood, sweat and tears were not for naught, but served a greater purpose, that your legacy will live on and in some small way, help guide and provide for those you love. But that same legacy if neglected, if ambiguous, or if undermined can quickly vaporize amidst pleadings and plottings.