Kemp Klein attorneys Joseph P. Buttiglieri and Edward Nahhat recently won a jury’s verdict affirming a contested Trust Amendment. Shortly before his death, the Decedent amended his Trust – substantially reducing the share of one of his children, who previously was to receive one-third of the Trust assets. The decedent had a difficult relationship with his son, so he decided to favor his two daughters in the amendment, and allocate to them the great bulk of his estate. While he was a seriously ill widower, there was no allegation that the Decedent was mentally incapacitated, only that he had been allegedly “unduly influenced” by the two daughters to change his Trust near the end of his life.

Testimony from various witnesses and documents were presented over a three-day jury trial before seven jurors. After the close of the case and final arguments, the jury determined that the Decedent’s Trust was valid, declining to find undue influence, and sustaining the surviving daughters’ unequal benefit.

The Trust and the amendments were not drafted by Kemp Klein. Unfortunately, when the last Amendment was signed, the scrivener attorney did not ask one of the daughters (who was named as Trustee and beneficiary) to leave the room while the document was reviewed and the Decedent signed it. Also, the lawyer apparently was unable to bring a second witness to the signing appointment in the decedent’s home, so the attorney was the only disinterested live witness to the execution. These signing anomalies were factors in sending the case to jury. One key fact elicited at trial appears to have been the decedent’s decision to visit with a priest the day before he amended his trust for the last time.

Kemp Klein attorneys are always very careful in planning the execution of instruments in such a way to reduce potential challenges to those documents. This not only includes making sure that beneficiaries of the Trust and/or Will are not present at the execution – but that appropriate witnesses are available and, if necessary, that a medical examination of the client is conducted to assure not only their competence, but that the testator is not being unduly influence by anyone. While we try to make sure that our clients do not face litigation, it sometimes happens. Kemp Klein stands ready with an experienced litigation team to successfully represent clients in Trust, Will and all other contested Probate litigation.

 

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