"It feels like we have to get ready for a mixed-martial arts fight every time he comes home…" That was not what I expected to hear from my clients; he's newly retired and she can't quite bear to separate from the kids she teaches, so she's always planning to retire "next year." It will happen one of these years, so we met to talk about their estate plan.
When I asked about their family, they both lit up and chattered for a few minutes about how well their kids were doing; it was obvious they were proud of them and, of course, they loved talking about their grandkids.
Then the tone changed and almost in unison, their shoulders slumped; they had one more child who, unfortunately, had never really felt or been part of the family. She was aloof with them and rarely engaged with anyone else in the family; she had a bit of a troubled past and was the only one in the family with that type of history, so it was pretty easy to see why she and the rest of the family were not always comfortable around each other.
No matter how many times we have talked about that type of family dynamic with our clients, it is still painful to see how personally all parents take such problems. The feelings are always raw no matter how long the angst has lasted, and it is obvious how much they would like to change all of it or even a small part of it.
So it was with these clients that I then had to ask the worst question in these settings: "Do you want her to be part of your estate plan?"
In this case, the answer was "yes, but we want to limit what she gets, and we want to make certain she can't fight us or her siblings for more."
The answer is just as often "No, we don't;" and every once in a while, it is "yes, and we'll keep trying…"
There is no right or wrong answer, and there is certainly no place for anyone on the outside to pass judgment on the answer, whatever it is.
However, we always reassure our clients that what they decide to do with their estate is their choice. So long as the appropriate formalities are followed and the laws are honored that govern how estate documents are prepared and signed, those documents will survive a legal challenge. Often clients will ask about a "No Contest" clause and how such a clause will affect their estate plan.
A No Contest clause is mostly what it sounds like; it is a paragraph that can be included in a Last Will and Testament or a trust which basically states that anyone who challenges the validity of the document or the way it distributes or manages the assets of the estate will receive less than what the document would have otherwise allowed.
A will or trust is still valid and binding without a No Contest provision, but the existence of such a clause can be and, in fact, is intended to be, a deterrent for those who think that they are entitled to more of the estate than they received or will receive according to the estate documents.
So, in the case of our middle-aged clients who ended up far more knowledgeable about mixed martial arts than I could have imagined, we prepared their estate documents with a specific distribution plan. It addressed their unique situation and included a No Contest clause in each of their wills, in hopes that the clause would encourage everyone in the family to leave things as the parents intended.
In our next column, we'll talk more about No Contest provisions and how the courts interpret them; we'll also discuss how we encourage our clients to use them to manage more effectively the transition of their wealth to their heirs.
We discuss these and other estate planning matters in our no-cost seminars. Our next seminar is at 3 p.m. Aug. 21 Seating is limited to eight, so we can focus on specific questions. If you are interested in attending, or if you have any questions about this article or topics you would like us to address in future columns, send an e-mail to admin@GJlawyer.com or call 970-270-1213.
Brad Wright's business and estate planning practice includes transactional and litigation matters with a special focus on business succession. His brother, Steve Wright, has a similar law practice in Idaho Falls, Idaho, and, together, they assist businesses of all sizes and types with a wide variety of legal issues.
© 2019 Brad R Wright, Steven J Wright