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| Mae Creadick |
Many people believe that a Will is a simple document that
can be drafted using a form they found online.
Most people assume that their last wishes will be honored after their
death. This is not always the case. With my client’s permission, here is a
cautionary tale:
James (names changed to protect identities) was a well-loved,
strong-willed man who liked to do things himself. A talented and successful businessman, James’
independence and self-reliance had always served him well. Sadly, James had been diagnosed with pancreatic
cancer. During the long and painful
months that followed his diagnosis, James discussed with Christopher, his partner
of 17 years that he needed to get his affairs in order. James wanted to leave his home that he and
Christopher lived in together for 17 years to Christopher. Christopher encouraged James to hire an
attorney to draft his Will. But in his
final weeks, James decided to make his Will using a pre-printed form he found
on the internet. James filled in the
blanks on the form, printed and signed the Will in the presence of two
witnesses and a notary public. A few
weeks after making his Will, James passed away leaving his partner and brother Zack
as the only surviving family members. Although
James and Christopher held themselves out to their friends and community as
“married,” due to discriminatory laws that prohibit same-sex marriage in North
Carolina, James and Christopher were never lawfully married. Therefore under North Carolina inheritance
law, Christopher would not inherit from James without a valid Will. As most spouses have done, in his Will James
left the majority of his estate and his home to his life partner,
Christopher.
Christopher submitted James’ Will to probate, the court
process necessary to certify a Will as legally valid and distribute the estate
property. A few weeks later, James’
brother Zack, his only living blood relative, filed a “Caveat” lawsuit to
challenge the validity of the Will. The
case was transferred to Superior Court and set for trial before a jury. In the Caveat pleadings, Zack argued that
James lacked necessary mental capacity to make his Will at the time he signed
the Will. Since an attorney had not
prepared James’ Will, there was no expert evidence of James’ capacity on the
day he signed his Will. During the most
painful time in his life having just lost his soul mate, Christopher was now
faced with defending James’ Will in a jury trial, plus tens of thousands of
dollars in attorney fees.
With the help of the Hart Law Group, Christopher was able to
settle the Caveat case out-of-court. But
the case was only resolved after Christopher had invested considerable time and
money. The worst part of the Caveat
experience for Christopher was the emotional distress – the last thing James
would have wanted. After the case
settled, Christopher offered to share his story in the hopes that he might help
prevent this anguish for another family.
One of the most striking aspects of this whole case is the
fact that Zack is also gay. Given their
good family history together, Christopher was completely caught off guard when
Zack filed the Caveat. This case is a
good example of why you cannot trust family members who you believe should
understand the dynamic of your situation.
Caveats against domestic partners are much more common than they should
be, and in Christopher’s case, Zack’s actions came as terrible shock.
So, what can you do to avoid a Will Caveat? First and foremost: hire an attorney experienced with North
Carolina law and wills, estate planning, advance directives and probate cases. Online forms do not always comply with state
law, and do not take into account the circumstances under which the document is
drafted. The Hart Law Group has a
combined 90 years of legal experience in these matters. We take necessary steps to identify any
problems that might give rise to a Will Caveat, and help prevent problems
before they arise. For instance, we can video
tape the signing of a Will and have a client examined by a physician in order
to help prevent a Will challenge due to mental capacity issues. We also interview our clients alone and
outside the presence (and possible influence) of family members to help prevent
a challenge of a Will for undue influence.
In addition, our Real Estate team can assist clients in drafting deeds
to provide joint ownership of property and avoid the Probate process
completely. Only experienced lawyers,
such as those at the Hart Law Group, should draft legally binding documents for
end-of-life planning.
While preparing your Will, the Hart Law Group attorneys can
also assist you with other essential estate planning documents such as a Trust,
Power of Attorney, Health Care Power of Attorney and Living Will. Our Estate Planning team handles both simple
and complex estate planning cases.
Formalizing your wishes in these documents is especially
important for LGBT families, unmarried partners and beneficiaries that would
not normally inherit under North Carolina law.
The Hart Law Group is regularly involved in educating the public
regarding these important estate planning matters. For example, along with the Campaign for
Southern Equality, we are hosting a regional conference on February 28, 2014
titled “LGBT in the South: Advocacy Within and Beyond the Law” where Mary Hart
will present a session on Estate Planning Post-DOMA. Visit www.lgbtinthesouth.com
for more information on this conference and to register by February 7,
2014.
