Bequest Management and the Sixth Sense

(Originally published on LinkedIn on October 26, 2023)

Savvy and attentive bequest managers develop a radar – the proverbial sixth sense – for red flags that portend trouble in an estate administration.  For those whose intuitive powers are still developing, a recent law journal article presents some interesting statistical information about problem estates.  Remarkably, some of this data might be useful to both estate planning personnel (those that counsel donors) and bequest managers.

The article (bibliographic information below) is based on the examination of hundreds of estate files from the courts of San Francisco.  The goal of the research was to assess features of testamentary instruments that might (or might not) signal a higher-than-normal probability of subsequent litigation.

Three of these caught our attention:

1. Homemade Wills.  These are holographic wills, self-crafted witnessed wills and wills created by filling in the blanks on a form.  This instrument has an above-average correlation with will contest litigation, especially unobserved formalities and/or undue influence.  The form-with-blanks wills were the most likely to foment disputes.  (Testators often confuse these with holographic wills and dispense with witnesses.)
2. Software Wills. These are documents originating in the reputable websites that provide interactive templates and, presumably, some forms of downloadable software. These wills performed comparably to lawyer-drafted instruments and had below-average association with litigation.
3. Drafter As Executor. Although ethics experts and bar associations frown on the drafter acting as executor, the practice is not per se forbidden.  Nonetheless, the wearing of two hats enhances litigation risk, most obviously about the amount of executor fees.  (The article’s authors report that some estate planning attorneys consider document drafting as a loss leader to secure the more lucrative role of executor.)

COMMENTS: For the gift planner, the above information could prove useful in situations where a donor seeks input on methods of estate planning.  For the bequest manager, the presence of a homemade will or an executor/drafter might warrant a bit more vigilance for early warning signs of trouble.

Abovementioned bibliographic information: Horton, D. and Weisbord, R.  “Probate Litigation.” 2022 U. Ill. L. Rev. 1149.