How to change a will?
August 8, 2008 11:53 AM   Subscribe

Relative C receives power of attorney over Relative A. Relative C wants to change the will. Relative A, on her good days, agrees. Their lawyer won't let this happen, claiming conflict of interest. What to do?

This is for a a dear friend of mine who came to me, and I believe I have all the relevant details and facts. There's a lot of drama, but here's the situation:

1. Relative A and B have been married forever. They have a will that states the estate should be divided equally among two beneficiaries, relatives C and D (sons). At the time the estate is worth maybe $100,000.
2. Another relative leaves entire estate ($2mil) to relative A and B.
3. Relative B dies
4. Relative A cannot take care of herself. Relative C given power of attorney and is executor of the will. Relative A wants a larger percent to go to Relative C. Relative C cannot find an attorney to make the change.

Now, for the details. Relative C is normal, lives a middle class life and nearing retirement. Has a family, mortgage, everything else. Relative D, on the other hand, has a lot of problems. Relative D has never had a job, and has lived most his life homeless. It is of my opinion, from the stories told, that in addition to drug and alcohol problems relative D has some sort of severe mental health problem. Relative D had been kicked out of the family, effectively, for a long time. He was only heard of when him or a friend of his had a sob story about needing money for a variety of things. When relative B was alive he was never seen, money was never given (he was still in the will, for whatever reason, but at the time the money was not the amount it is now). Relative B dies and Relative D shows up to take advantage of Relative A. He has a long history of violence, theft, drug and alcohol offenses, you name it. Relative D breaks in at night and steals from Relative A. He is also abusive and beat up relative A. This went to court and relative A has a restraining order on him and there are charges of elderly abuse. He is out on parole and steals around $10,000 worth of jewelry from relative A. This is recovered and he is back in jail.

Meanwhile Relative C is having to deal with this drama, the court dates and taking care of relative B. This is missed work, stress and most certainly the cause of a minor heart attack that happened earlier in the year. He is also managing the large amount of money, and while he has a banker to do most of this, still is a lot of work. He used to manage relative A's medications, bills, etc.

Recently relative A was putting in a home after the elderly abuse incident. We come to learn that there is much more bullying via the phone and letters than Relative C realized. Relative A had been meaning to change the will since the death of Relative B. Relative C goes to two attorneys who both sympathize with him and tell him that they'd be trying to do the same thing, but that it is unethical to change the will.

I cannot believe this. I argue that at the very least, relative C should be getting compensation for taking care of relative A. I also fail to see how the long history of abuse, recorded abuse that went to court, fails to invalidate the will.

I realize that trusts and wills are complicated beasts, but C has gone to two lawyers that say there is a conflict of interest. My worry is that C is approaching this wrong. Even assuming the will cannot be changed, wouldn't C be able to receive compensation for taking care of A? C is not afraid to go to court, but does not want to run afoul of the law. He does not want to do anything illegal, but still feels that if A wants the will changed it should be changed. It seems silly that once he received power of attorney due to her dementia, the will could never be changed.

So what to do? My feeling is that shopping around for more lawyers might be dangerous as a less than reputable attorney might see the large dollar signs. Should he be leaving the will alone and approaching this from the perspective that he should be paid for all the work he is doing? I am sure there are probably important legalese lacking here, but I'm conveying the facts of the story as best I can. Trying to leave out all the emotion and drama regarding the deadbeat. I would be more apt to believe this is just family drama, were it not for the well-recorded, long rapsheet on this guy. From what it sounds like he is totally unaware of how much money is actually involved and still thinks he is getting around $50,000. In a perfect world, C would be more than happy with giving him that much and be done with it.
posted by anonymous to Law & Government (18 answers total)
i don't think you (or c, if they are different people) should do anything.

it seems to me that the law is working just fine. relative d is breaking the law and the law is punishing them. you/c doesn't then get to play god and assign further punishment by stealing their inheritance.

the conflict of interest stinks. people have a tendency to decide "good days" are those days when the aged relative agrees with them. furthermore, there's no evidence d has changed - seems that he was always "bad", even when the will was written, so presumably a and b decided to be generous before c got b under their control.

and if you/c do get the will changed i bet you/c will lose the cash to lawyers in the subsequent fight (perhaps a monetary argument will persuade you where morals clearly don't).

(incidentally, i it's b that's having good days on your first line, not a)
posted by not sure this is a good idea at 12:12 PM on August 8, 2008

sorry, no, a and b are not swapped.
posted by not sure this is a good idea at 12:14 PM on August 8, 2008

(in which case c now has a under control and i'll shut up)
posted by not sure this is a good idea at 12:15 PM on August 8, 2008

She doesn't need a lawyer to make a will. All the lawyer does is draw up the document for her; she doesn't need the lawyer to make the will valid. If she's of sound mind, she can write or sign any pre-written will that she wants to.

OTOH: If she's not of sound mind, how the hell can she write a new will and have it be valid?

Scondary: I'm doing some of that stuff now, and I'm unlikely to get a cent because we're virtually certain to spend all my mother's meager resources on assisted-living and, later, skilled care before she's broke enough for Medicaid. So excuse me if I don't cry crocodile tears for someone poised to received in the ballpark of a million bucks as an inheritance. The word for someone who is very insistent on inheriting two million bucks instead of a measley million is "asshole." The other son might make his assholedom pale in comparison, but still. Likewise, the talk of compensation is gross. If she dies soon, and if he's nearing retirement it sounds like it can't be that far off, then he's looking at a cool million bucks. He should just be happy to receive that instead of exactly nothing.

Finally: Let's say he does get the will changed, and the parent dies soon. It would hardly be shocking for the Bad Son to find a lawyer who'll contest the suit for a share of the winnings over the issue of her competence. At which point, all Good Son has succeeded in doing is funneling money to lawyers instead of to himself and his brother.
posted by ROU_Xenophobe at 12:26 PM on August 8, 2008 [2 favorites]

Wow, there is a lot of stuff going on here. My first reaction - yes, C needs a lawyer, a good lawyer. Good lawyers will not take advantage of potentially rich clients, but good lawyers are expensive. Given the size of the potential estate, it's probably worth C spending the money.

Second, not sure this is a good idea's ideas are just that - not good. "Steal their inheritance?" There is no such thing as stealing inheritance while the testator (in this case A) is still alive. A has every right to determine who gets their estate, and if they want to cut B right out, that's not stealing, that's A's right.

C's problem is that C is trying to act in A's place to change A's will to benefit C. This is a clear conflict of interest, and is why the lawyers won't help. The solution? I see two:

(1) Appoint someone besides C as having A's power of attorney. This new person should not be an immediate relative of C (such as their spouse or child). If the case really is as clear cut as you make it out to be, with C as the dutiful child, caring for A, while B wants to do nothing but lie, cheat and steal, then it should not be hard to get a third-party to go along with A's wishes.

(2) Have A issue a new will. There would be no conflict of interest if A, and not C, writes the new will. (In order to avoid even the appearance of impropriety, C would have remove themselves from the picture entirely, and leave the drafting of the new will up to A and her lawyer). You don't provide a lot of detail, but it seems that at least some of the time, A is cognizant of what is occuring. This is enough to establish "testamentary capacity" which is legalise for the minimum amount of cognitive capacity necessary for a person to issue a new, enforceable will. I guess the risk here is that B could challenge A's testamentory capacity, or somehow get to A during a weak moment.

The laws of trusts and estates are complicated, and can vary significantly from state to state. Get a lawyer!

PS> I am a lawyer, but not your lawyer, and this was not legal advice, capice? Excellent.
posted by thewittyname at 12:37 PM on August 8, 2008

relative C should be getting compensation for taking care of relative A.
No, you don't get compensation, other than in karmic points, for taking care of your elderly relatives. That's just not how it works. Also, IANAL, but I think, all morality aside (and I pretty much agree with ROU Xenophobe, morally) that once relative C got that power of attorney, he pretty much proved that relative A has dementia and thus, no matter whether it's a good day or a bad day, she cannot change her will or change or take part in any legal decisions. Think about it - if it was legal to change the wills of dementia patients by simply getting a power of attorney, what's to stop perfect strangers from doing so all the time? Not allowing those changes is for the protection of relative A - and also to protect relative B's original intentions.
posted by mygothlaundry at 12:43 PM on August 8, 2008

I'm not a lawyer and I'm not really sure about this, but I've read (on the Internet!) two things lately:

Wills are often contested but Living Trusts are very hard to contest.

A trust protects a home for the trustees if the trustor needs to apply for medicaid to pay for a nursing home. (Does it also protect other assets for the trustees? I don't know.)

Ask your lawyer if this is true. Relative A may want to get a trust and get rid of the will.
posted by cda at 12:48 PM on August 8, 2008

I think I misunderstood the question until I saw thewittyname's response. The question starts out by saying that C has "power of attorney". Was the initial inquiry based on the notion that C would execute a (new) will on A's behalf? If that's the question being presented to the lawyers, I'm not surprised there's lots of resistance.

The other big issue is how "good" is "A" on her good days? If A is competent enough to have testamentary capacity then there are things a competent trusts and estates lawyer can do to make a solid record of that capacity in the event of future disputes. It really depends on how aware A is...

TINLA and IANYL, either.
posted by QuantumMeruit at 12:52 PM on August 8, 2008

It seems like there's definitely a conflict of interest here. If Relative A was aware of all of these details of Relative D's feloniousness and worthlessness at the time the original will was made, it looks much more like this is a matter of Relative C having a grudge or some other resentment against Relative D rather than a genuine change in Relative A's feelings.

So, to convince anyone otherwise, I would think that at least you'd want to avoid Relative C being the one to list off all of these details about Relative D as justification for why D deserves reduced terms in the will. The reasoning and rationale to change the will would need to come entirely from Relative A and not be a matter of her simply agreeing with a scheme that Relative C cooked up to redistribute the inheritance. IANAL.
posted by XMLicious at 1:58 PM on August 8, 2008

Also, IANAL, but I think, all morality aside ... that once relative C got that power of attorney, he pretty much proved that relative A has dementia

Nope. You can assign anyone you bloody well please as your attorney-in-fact, even if you are not merely of sound mind but actively hyperintelligent and wiser than Solomon and sing well too.
posted by ROU_Xenophobe at 2:23 PM on August 8, 2008

I am not a lawyer. This means I cannot be your lawyer and I can't give you legal advice.

OK so here's a thing - well, a few things - I urge you seriously to consider.

- People do not get paid to take care of their parents, in the same way parents do not get paid to take care of their children. Some children do a better and more responsible job of this than others, just like some parents do a better job than the ones who are rather dismal at it.

- For a parent to split a will unequally between two children is devastating. It's devastating. When the will and the money are all that is left of someone, dividing the money that way says "Yes, I did love one of you more than the other. Please go forth and enjoy the remainder of your days with this knowledge. And no, we can't talk about it, because I'm dead."

- Arguably, the child with the mental health and alcoholism problems has the greater need. The child with the mortgage, family and retirement plan is in a much better place.

- $2 million dollars seems like a lot of money, I know. However, let's say that for the sake of argument, we're looking at paying one child 1.5 mil and the other, .5 mil. If .5 mil kid contests the will, believe me when I tell you that you can easily spend a big chunk of that .5 mil difference simply defending.

If the parents jointly decided to split their estate between children when it was $100,000 and there was no issue, the fact that there is an issue now that it's $2 million isn't about anything but greed. Don't enable this. It's wrong.
posted by DarlingBri at 4:36 PM on August 8, 2008 [1 favorite]

Step away from this far and fast.

Two lawyers have told C there's a conflict of interest. Unless C has a reason to believe that they are incompetent, C should take their advice. Look, they are turning down C's business and money, rather than getting involved in what appears to them to be a mess. Suppose C does find a lawyer to draft an 'alternate' will. This all will end up in court in a very messy will contest, and much of that $2 mil will go to pay the lawyers.

A guess here . . . At least in certain states, married couples can make joint arrangements using wills and trusts that become largely unmodifiable when the first dies. Thus, even if C rushes A into the lawyer's office on a "good day," there may be little the lawyer can do. Of course, no one on the green (not even the estate attorneys) can answer that question, because we haven't seen the existing estate docs.

Remember that inheritance has nothing to do with deserving something. If I want to leave my $100,000,000 fortune to the biggest asshole in California (as determined by a blue-ribbon panel of my pals from the auto club) the law generally won't interfere.
posted by ferdydurke at 4:54 PM on August 8, 2008

A lawyer who is asked to draw up a will (or a trust) has an obligation to ensure that the testator/settlor is of sound mind before proceeding. The mention of that fact that A has "good days" suggests to me that the lawyers who have been contacted also perceive a problem with capacity.

A client who wants to modify her distribution plan in favor of C and thus to limit the distribution in favor of D has the right to do so, if she is competent, but no lawyer worth his salt will make that modification when C brings A to his office to ask that the change be made, at least without extensive investigation and documentation.

If D is not able to handle money himself, the most reasonable recommendation for a lawyer to make to C or her relative is to set up a trust arrangement for the money that would otherwise go to D directly. If C is competent.

Further comments:

1. Pay no attention to what cda said. As he/she said, not a lawyer, and has demonstrated it. A settlor of a trust must be competent to create the trust, and the comment above about lawyers would apply equally to trusts as to wills.
2. The fact that a relative is acting under a power of attorney does not prove that the principal is not competent to handle her affairs. But it may provide some evidence, depending on the circumstances.
3. An agent under a power of attorney may not execute a new will on behalf of the principal in most if not all states. That is one of the things that cannot be delegated. (Another is voting.)
posted by yclipse at 5:42 PM on August 8, 2008 [1 favorite]

C can take comfort in being the "better" child but cannot have the will changed to reflect this. The parents (both of them!) when in sound mind made the decision to split the estate equally. C might believe that he/she deservers more and maybe that even A might agree. However look at it from A's point - A could be afraid NOT to agree with C because C is the child taking care of her, if A upsets C, A is in danger of losing the support. This could be very sad or scarry for A. C is taking advantage of his/her position. C is greedy. I am pleased that more than one laywer could see C's greed.
posted by saradarlin at 5:57 PM on August 8, 2008

If two different, competant lawyers tell C there's a conflict of interest... there's most likely a conflict of interest.

Step back a moment. Forget all the bad things D has done. You have someone who has power of attorney arguing they ought to be allowed to change Dad's will to leave everything to C. Does that sound like something that is going to get past any competant lawyer?

The two lawyers C has spoken to aren't interested in helping change the will because what they see in C's future is D hiring a half-competant lawyer and successfully suing to have the new will overturned.

once relative C got that power of attorney, he pretty much proved that relative A has dementia

This is nonsense. I gave my wife a power of attorney when I spent 3 months working overseas while she was back home, so that she could deal with anything that came up without me having to come back to the country. Powers of attorney are useful in many situations.

I am not a lawyer, but I do understand that when several lawyers who work in a potentially messy (and lucrative) area of the law tell you what you want to do is a dumb idea and won't help you do it, it's a good idea to listen to them.
posted by rodgerd at 6:05 PM on August 8, 2008

My grandmother left my father and his three siblings an inheritance of upwards of $3 million. That money is GONE because of 7 years of legal battles that aged my father terribly and, from what I can tell, utterly broke his faith in any of his siblings. None of them talk any more. My father's side of the family has all but disappeared to me.

I'm not lawyer either, but I know what the personal price of contesting these things is. Don't change the will, do not do not do not. Do not. Your friend will regret it for the rest of his life if he tries this.
posted by saysthis at 6:46 PM on August 8, 2008

Assuming this is in the US, your friend should try to get his relative, on a good day, to a trust attorney, and establish a family trust for these assets. Even if there are no changes made to who inherits how much, the savings in taxes owed by both inheritors will be considerable in a trust transfer as opposed to a standard inheritance. That may, at this point, be the best that can be done to alter the situation.
posted by Scram at 8:14 AM on August 9, 2008

I am a lawyer and I am not your lawyer and this ain't close to legal advice, but in my general practice, I have drafted wills, drafted trusts, and litigated will and trust contests. I agree with those that say that if A changes her/his will at this stage, A will be tempting a will contest, which could deplete the estate and cause undue heartache and aggravation ("don't worry about us, mom, your beloved children will just be in a pitched, costly battle with each other for years after you die"). Trusts can be contested just as wills can. Powers of attorney establish an agency relationship, nothing more. Generally, you cannot change a person's testamentary document (or dispositive provision in a trust) with a POA. In fact, you can welcome in allegations of undue influence if someone acting under a POA* ends up with a disproportionate share of the pie due to a late-stage change by the principal of the POA, especially if the new will changes a long-standing distribution scheme or if the person acting under the POA* "procures" the change: drives the testator/testatrix to a lawyer, the lawyer had no prior relationship with the testator/testatrix, etc. Also, generally,
- always have a lawyer draft your will. There are formalities in execution that if not followed can invalidate the will, and there are provisions that if sloppily written can have the opposite effect then what was intended. Don't cheap out on this document: it speaks for you when you can no longer speak.
- trusts are good under several circumstances but generally NOT to avoid contests, probate, or added expenses of administration. Not at all. A garden-variety trust will not shield assets unless very specific provisions are drafted for that purpose. (In Florida homestead laws protect a homestead from creditor's claims (including a priority claim from medicaid), but for a short time (now clarified) transferring a homestead into a trust in Fl. meant that the homestead might have LOST its protection.)
*a person acting under X's POA is not the "Power of Attorney" for X. "Power of Attorney" is the instrument's name; "attorney-in-fact" is the agent's name. Even lawyers screw up this nomenclature.

I would speak with an attorney about the situation. Don't go to counsel with a solution ("we need a will change"), but go to a lawyer with your entire situation to discuss options and possible solutions. For instance, (NOT LEGAL ADVICE) if A made inter vivos gifts to C now while A is alive, those gifts may still be challenged, but years after, when A passes, may be harder to un-do or even establish. (In florida, parents tend to give gifts to local kid that helps them out at the end.)
Good luck.
posted by Jezebella at 11:12 AM on August 9, 2008

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