Libby Jenkins executed a Will leaving substantial separate property she had inherited to her siblings, leaving only her community property to her husband and children. Thereafter, Mrs. Jenkins suffered a stroke. Over the 14 years since her stroke, her husband and children persuaded her to execute 18 estate planning documents, including Wills, Codicils, Trust Agreements and modifications to the Trusts. Mr. Jenkins and the children were the prime beneficiaries in all these Wills, Codicils and Trust Agreements with varying distribution schemes.
Mrs. Jenkins’ siblings challenged the documents Mr. Jenkins entered for probate, and proffered the Will executed prior to the stroke. They insisted that the Will executed prior to her stroke embodied Mrs. Jenkins’ intention to right an injustice that had given to her all their mother’s riches rather than being divided among her and siblings. The husband and children are certain they will prevail on at least one of the 18 documents. Are they justified in so believing?
It would seem difficult for the siblings to prevail over so many documents. The problem is not that Mrs. Jenkins has created so many estate planning documents. Individuals should review their estate plans every year and make changes whenever warranted. There are circumstances in which numerous changes would be warranted. These may consist of deaths, births, changes in the family relationships, changes in the law and other significant factors.
Obviously, no one would dispute that Mrs. Jenkins’ husband and children qualify as natural objects of her bounty. However, no one can predict what a jury will do in a will contest. A jury in a similar case in which the issue was mental capacity found that the maker of the documents was never quite right following a stroke and was not competent to execute the multiple estate planning documents created after the stroke.
The facts in this hypothetical illustrates the importance of the maker’s capacity to make valid estate planning decisions at the time a Will, Codicil or Trust Agreement is created. Reliance on a trained legal professional to create the Will, Codicil or Trust Agreement can help assure that the person making decisions has the capacity to do so and decrease the chances of an expensive legal contest that capacity was missing.
Sandra W. Reed is an attorney with Katten & Benson, an Elder Law firm in Fort Worth. She lives in beautiful Somervell County, near Chalk Mountain.