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Thoughtful Steps Can Spare Families These Emotional Battles

Avoiding Probate Litigation



Talia K. Landry

Talia K. Landry

Many of our parents and grandparents are members of generations that value hard work and family above and beyond possessions. When times were tough, they counted their blessings rather than their money. Members of this generation know the true value of a dollar and often made significant sacrifices, all to provide better futures for their children and grandchildren.

These values and frugality often extend into individuals’ elder years, and many continue to live modest lifestyles so they can leave a legacy for their loved ones. While it is not hard to imagine these generous parents and grandparents, it is hard to imagine being tangled up in a heart-wrenching and protracted legal battle with family, all over grandma’s last wishes.

Probate litigation is emotionally charged and extremely difficult on all parties. These matters involve frustration, pain, and grief, as families are torn apart over money or even the personal possessions of a deceased loved one. These situations can even begin prior to a loved one’s passing, and are just as hard to navigate during life as they are after death.

In 2016, for example, the Massachusetts Appeals Court held in Vitale v. Koen that a deed where an individual gave her daughter a house was indeed valid — despite her own testimony that she lacked capacity and was subject to undue influence on the part of her daughter. While this snapshot is not a full picture of the matter, it does illustrate how emotionally charged this type of litigation can be.

How can you help your family avoid situations like this? While there is no foolproof way to prevent probate litigation, there are some suggested precautions that can ensure both quality of life for your parent or grandparent, and that their final wishes are followed.

First and foremost, take an active role. This is important not only to maintain a meaningful, happy, and loving relationship with your elderly parent or grandparent, but also so that you have regular opportunities to observe how effectively they are managing their affairs, and if it appears that someone may be taking advantage of them.

Maintaining an active role in their lives will also allow you to help them with making necessary arrangements for care or a companion, in the event they need assistance. Where possible, work together with other family members to ensure transparency and harmony for everyone.

Next, encourage your parent or grandparent to be open regarding the arrangements they have made for themselves and the reasons behind them. It is true that many elders tend to be private about their personal and financial matters, but encouraging conversations with family after arrangements are in place makes it clear what the true intentions are.

This may help discourage litigation after the elder’s passing. Additionally, if the matter does progress to the unfortunate point of litigation, past conversations could assist in proving the elder’s true intent. Most importantly, remember that, while you may disagree with the arrangements, it is ultimately the elder’s decision as to how to dispose of their assets. Unless there is reason to believe that an elder has been victimized by undue influence, their decisions should be respected.

Finally, if you are concerned that an elder is being mistreated in any way, do not wait to address the situation. Document your concerns. If you are uncomfortable addressing the issues yourself, contact your local elder-services provider to make a report. Many elders are unaware they are victims. Do not let your loved one suffer in silence or ignorance.

There are, of course, instances where litigation may be necessary, especially in circumstances where a family member or friend may have participated in isolating or influencing the elder. But as a general rule, litigation should always be a last resort. In the event that you are involved in a situation like this, it is crucial to seek advice and representation from qualified counsel. A well-versed probate-litigation attorney will not only assist with navigating legal issues, but can also be a resource to help alleviate the stress and emotional toll of probate litigation.

Attorney Talia K. Landry is an associate attorney with Bacon Wilson, P.C. and is a member of the firm’s litigation department. She assists clients in all areas of litigation, with a specialized focus in probate litigation, including will contests, trust disputes, and other contested estate and probate matters; (413) 781-0560; [email protected]

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