Beyond The Will, Client Compass

What exactly is “probate litigation” you ask?  “Probate litigation” are legal disputes arising out of incapacity (young and old), disability, and death.  As a follow-up to my blog a few weeks talking about where to file such lawsuits, this blog will discuss the different types of probate litigation cases that can be filed.

Some probate litigation occurs when a person is still alive.  As my colleague Russell explained in his recent blog, guardianship cases involve the appointment of a fiduciary to make decisions (medical and personal) on behalf of a minor child or an adult who lacks capacity.  Similarly, conservatorship cases involve the appointment of a fiduciary to make financial decisions on behalf of an adult who lacks the capacity to do so.  Other legal challenges include the validity of or competing powers of attorney and health care proxies.  These types of disputes are often time-sensitive because, for instance, urgent medical decisions need to be made and time-sensitive bills need to be paid for the incapacitated person.  Doctors, banks, and other third-parties are put into the middle when presented with two competing powers of attorney or health care proxies, or when two fighting siblings want to make decisions over their aging parent.  The good thing in Massachusetts is that the probate court can appoint a temporary guardian or conservator upon request if, for guardianships, there is a likelihood of “immediate and substantial harm to the health, safety or welfare” to the incapacitated person, and, for conservatorships, there is a likelihood of “substantial harm to the property, income or entitlements” of the incapacitated person.

The most common probate litigation cases arise after someone has died.  These types of cases include disputes involving wills, trusts, gifts, asset disputes, determinations of title, interference with inheritance, breaches of fiduciary duty, and paternity for the purposes of inheritance.  The most well-known type is a will dispute, which even Charles Dickens wrote about in Bleak House.  Will disputes can involve issues surrounding whether the decedent lacked capacity at the time they executed the will, someone unduly influenced the decedent to execute the will, the will omitted any children, or the will was not properly executed.  Relatedly, the appointment of a Personal Representative can be disputed.  Sometimes beneficiaries agree with the will’s dispositive provisions but believe that the nominated Personal Representative is not suitable to serve in that fiduciary capacity, and there is a process in court to object to that appointment.

With trusts, there are even more types of legal disputes:  beneficiaries can challenge the validity of the trust on the grounds of lack of capacity, undue influence, or improper execution; can seek to remove a trustee and perhaps replace a trustee with someone else; can ask the court to terminate or modify a trust; and can assert claims against the trustee for breach of fiduciary duty or to compel a trust accounting.  Trustees can file complaints for instructions asking the court for clarification of an issue, such as whether someone is a beneficiary of the trust or how to interpret a particular term of the trust.

Lastly, there is a broad category of equity-type cases in which beneficiaries or trustees can file a lawsuit asserting various legal claims asking for equitable relief from the court.  This is the avenue to assert claims arising from tortuous interference with inheritance, conversion of assets not belonging to the defendant, determination of the title of an asset, or breach of fiduciary duty (such as against a power of attorney or other fiduciary).  Also, with the increasing use of DNA genetic testing, there has been an uptick in cases involving potential illegitimate children and whether they are or are not beneficiaries of an estate or trust.  A few years ago I was involved in an interesting case involving the exhumation of a body for the purposes of conducting DNA testing to establish paternity for inheritance purposes, which was the first time such an issue was litigated in Massachusetts.

While probate litigation cases often involve family infighting, such as “daddy liked me best” cases, these types of cases regularly involve caretakers, financial advisors, close friends or neighbors, or other non-family members who tried to financially exploit someone during their lifetime.  Many probate litigation cases are focused on protecting loved ones from financial exploitation and from safety or medical concerns.  It is important to consult with a skilled attorney if you face any potential probate litigation, or if you want to plan ahead to protect against probate litigation in the future.