Tuesday, February 26, 2019
R. Kevin Spencer recently published an Article entitled, Good Estate Planning Process: A Panacea for Litigation, 11 Tex. Tech Est. Plan. Com. Prop. L.J. 137-150 (2018). Provided below is the introduction to the Article.
Every estate litigator must contend with an estate planner, but not every estate planner must contend with an estate litigator. Most doctors, if they practice long enough, assume that will sued at some point, i.e., their work product will be questioned or challenged. While estate planner cannot be sued by a beneficiary in Texas for their estate planning work due to lack of privity, most estate planners believe their work product will someday be contested; but it does not have to happen. The job of an estate litigator is to search for evidence proving the invalidity of a Will, based upon lack of testamentary capacity and undue influence. A failure of formalities and solemnities or "forgery or other fraud" are additional grounds for invalidity. Unlike fire inspectors, who must search for the origin pf a fire. estate litigators know a Will originates with the scrivener. This article reveals some of the secrets of estate litigators and suggests the diligence needed for estate planners to avoid them, such as the importance of documenting their work, and preparing to defend their work product. The quality of the process determines the quality of the product; a Will contest necessarily includes attacking the process. Much to the chagrin of estate litigators, this article arms estate planners with information and knowledge to avoid the attack. Some of the information may seem elementary to good estate planners, but, unfortunately, these errors occur time and time again. The development of a quality estate planning process will improve the product for the client and help to avoid scrutiny of the estate planner's work product in a Will contest.