May and Zawideh obtain $2.6 million settlement in probate matter.
Alan A. May and Robert S. Zawideh represented the daughters of a man whose last estate plan effectively disinherited them in his alleged final Trust. His previous plan provided that his children would receive half of the assets of his substantial trust on his death, with the other half going to their stepmother and her children. However, in the summer of 2008, half of his trust was transferred to his wife’s separate revocable trust, and the decedent’s trust was re-written shortly thereafter at a time when the father was arguably incapacitated and subject to undue influence. The end result was a trust that was depleted by half, and which left everything to the stepmother with all of the children as contingent beneficiaries, but leaving the stepmother with the ability to empty the trust prior to her death.
There were several keys to this settlement. The first was a recording made by the decedent over thirteen years before the last alleged estate plan in which the decedent instructed his daughter how he wanted the trust divided, and warned her about her stepmother. The second key was a secret memo drafted by the decedent where he repeats his intentions and warns that he is getting weaker and that his wife knows that, and that there will come a time when he will sign whatever she puts in front of him because he will be too weak to resist her. Thereafter, discovery revealed a paper trail showing (1) the stepmother admitting that her husband could be “pressured to sign things”, (2) that the stepmother and her children – along with the lawyers that she hired for both her and her husband – the decedent’s competence, and how to defend against claims of undue influence after the trust was re-written. One option that was discussed between the decedent’s alleged attorneys was having the stepmother sue the decedent (their own client) for divorce so she could obtain half of the assets in his trust. Further discovery revealed additional irregularities. Documents subpoenaed by counsel for the stepmother were produced without bates numbers on the documents, despite the fact that the source of the documents indeed used bates numbering on the documents. An examination of the two sets of documents revealed missing pages, and that the missing pages were in fact significant.
Following four full days of facilitation, the children agreed to accept $2.6 million – an amount representing roughly ½ the value of their father’s trust, consistent with his wishes set forth in his prior trust. Nonetheless, contentious proceedings continued with the Decedent’s daughters petitioning to enforce the settlement agreement, and their Stepmother denying that an agreement was reached.
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