A Strong Offense
A Stronger Defense
While a testator’s desires about how property should be divided may be easy, the testamentary schemes that actually effect the disposition of that property can be painfully complex. Aggrieved beneficiaries and plaintiffs’ lawyers often try to exploit the complexities of actually distributing the property rather than attacking the testator’s simple overall desire as to how the property should be divided. In other words, an aggrieved beneficiary may try to claim that the testator should know the specific mechanics of how the property will be divided rather than simply understanding who gets what.
In Cychosz v. Cychosz, the testator, Stella Cychosz, had a relatively simple testamentary scheme that involved moderately complex mechanics regarding the disposition of the property. One of the estate beneficiaries claimed that Stella didn’t have full knowledge of significant portions of her will. The Wisconsin Court of Appeals disagreed.
Stella Cychosz executed a will giving the residue of her estate in equal shares to her sons Leonard, Dennis, John, and Robert. The will included a provision that provided:
It is my wish that this real property be divided after my death only as agreed upon by all of the residuary beneficiaries. To this end, the real property that is included in my estate shall be distributed to such residuary beneficiaries only on the condition that they agree that such real property shall not be partitioned for a period of thirty years after my death without the approval of all persons at any time owning such real property. By accepting an interest in the real property that is part of my estate, each beneficiary shall be deemed to have agreed to this restriction on the partition; any beneficiary who refuses to be bound by this agreement shall be obligated to disclaim his or her interest in such real property, in which case the disclaiming person’s interest shall be distributed proportionately to the other non-disclaiming residuary beneficiaries of my estate . . . .
John and Robert offered Stella’s will for probate. Leonard, as personal representative of Stella’s estate, objected and asked that the court admit a prior will that had no restrictions on the sale or partition of the land. Leonard claimed that the will offered by John and Robert was invalid because it was improperly executed, Stella lacked testamentary capacity, and Stella was unduly influenced.
At trial, Leonard claimed that Stella did not have full knowledge of significant portions of her will. In particular, Leonard argued that Stella never contemplated the provision in her will conditioning the distribution of the real estate upon an agreement by each beneficiary that the property would not be partitioned for 30 years. Leonard also argued that Stella did not understand that any beneficiary who refused to be bound by the agreement was obligated to disclaim his or her interest in the property.
As is often the case, the drafting attorney’s testimony carried significant weight. James Noonan testified that he went through the will with Stella prior to its execution and discussed the provisions of the will. Noonan specifically discussed the provision that would prohibit the beneficiaries from partitioning the property for 30 years. Noonan testified that this restriction was a “simple concept” that Stella clearly understood. Noonan further testified that he did not consider it necessary to discuss with Stella “the way in which that was achieved.”
Leonard had two attorneys testify that Stella should have been made aware of the disclaimer provision in order to have a full understanding of the contents of the will. The court, however, accepted Noonan’s testimony that it was not necessary to discuss “whether or not she had to actually know the mechanics of how her will would be effected.”
Noonan’s testimony was also powerful as it related to the testamentary capacity claims. In addition to Stella’s physician’s testimony, Noonan testified that Stella was “very sharp” when they discussed the terms of her will. Noonan also testified that there was “no question” about Stella’s capacity, and that she gave him a detailed account of her real estate and how she wanted it distributed in kind and not sold.
Noonan’s testimony provides some helpful pointers for estate planning attorneys. First, make sure to carefully go over each provision in a will as well as the general concepts. It probably makes a lot of sense to document this with a memo to file or contemporaneous affidavit.
Second, in every case it is worth walking through potential capacity issues. Satisfy yourself that the testator has sufficient capacity by discussing the testator’s knowledge of all of his or her assets, knowledge of family members, and desired distribution of assets. If the testator wants to cut out a close family member, such as a child, discuss why the testator is making that decision.
Even though the Wisconsin Court of Appeals decided that it was not necessary for Stella to understand the mechanics of her will, it is probably worth going over the mechanics anyway to avoid unnecessary issues down the road.