Massachusetts Case of Contested Will of Alice R. Sharis Shows Why Estate Planning Attorneys Need to Meet Alone with Their Clients
The contested will in the 2013 Massachusetts case of In the Matter of the Estate of Alice R. Sharis shows why lawyers need to meet alone with their clients. When undue influence is alleged in an attempt to contest a will, the drafting lawyer’s actions can be on trial. In my estate planning practice, I always insist on meeting alone with my elderly and disabled clients for at least part (and often all) of the initial conference, and if the lawyers involved in preparing the will of Alice R. Sharis had done so, it is possible that this will contest would not have been succcessful.
In this case, the grandson Richard had lived with his grandmother Alice and her husband Peter for over 9 years before their deaths. At some point, the mental capacity of Alice and Peter began to decline, and Richard began to take over their finances, first by signing their checks without apparent legal authority, then later through use of a durable power of attorney that he prepared himself. Richard later had a meeting with a lawyer and asked him to prepare Alice’s will. The lawyer and his associate appear to have treated Richard as the client, where they communicated mostly with him, never met Alice, and merely had two brief telephone conversations with her; Richard even took care of the process of getting Alice’s will executed.
After Peter and Alice had both died, one of Alice’s children objected to her will, and there was a trial where the burden of proof was on Richard under Massachusetts law because he had a fiduciary relationship with Alice at the time the will was executed. The Probate Court judge hearing this will contest case made a finding that Alice lacked the advice of independent counsel. That was a significant finding, as the lawyers who prepared the will could have helped shield the will from legal attack. Since Richard had been too involved in getting the will prepared and executed, the Court turned its attention to other evidence proving that Alice’s actions were subject to the undue influence of Richard, and ruled against him.
On appeal, the Massachusetts Appeals Court pointed out that “the burden to prove the transaction was fair is generally met if the fiduciary shows that the principal made the request … with the advice of independent legal counsel.” The Court also wrote: ”One of the functions of independent counsel is to provide documentation that the making and execution of a will is voluntary and knowing, thus lending transparency and credibility to the bequest.”
The point to take away from this case is: Too much involvement in somebody else’s financial affairs can sometimes lead to your gift or inheritance being contested, so if a lawyer insists on meeting alone with a relative or friend of yours who is doing estate planning (including a will, trust or deed) and keeps you out of the room during the meeting, you may not like it but that lawyer might actually be doing you a favor.