What happens if a beneficiary/heir to an estate is unavailable due to being hospitalized?

[Pamela Nation]

Jurisdiction

Oklahoma

I simply do not understand something and I'm hoping someone can help me. My grandmother died a couple months ago and she had a will done legally through her attorney. My grandmother had 3 children, 7 grandchildren, and 18 great-grandchildren. She was only close to 1 child, 2 grandchildren, and 5 great-grandchildren and gave the majority of her estate to those 8 individuals (myself included). Her will also stated that anyone contesting the will will only receive $1. One of her other children is now contesting the will, even though he was listed in the will to receive something, so he stands to lose everything but $1.

We were told by my grandmother's attorney that this will probably end up going to mediation before trial. What is there to mediate exactly? It is my understanding that nobody has the power to "negotiate" on the outcome of the will besides a judge, so who will be going to mediation and who in the mediation party has the authority to negotiate my grandmother's wishes? Also, even if we were able to negotiate the will, wouldn't those participating in the negotiations stand to lose everything but $1 as well? I am so utterly confused about this, and when I asked the attorney these questions they just looked at me strangely. Are these not legitimate questions?

Thank you in advance, and I apologize if I'm not being clear on something. Just let me know and I will reply with an explanation if needed.

***Edited to add: I believe he is contesting based on his opinion that my grandmother was coerced or manipulated into making the decisions she made in her will. He simply does not think it's fair her estate was not evenly divided between the 3 children, or the grandchildren, and thinks she must have been coerced or manipulated to do so.

 

[zddoodah]

Before we start, please provide some basic info:

• When did your grandmother die?
• Has the will been submitted to probate? If not, why not? If so, whom did the court appoint to serve as executor of the estate?
• What is the net value of the estate (i.e., the value of all assets less all debt that will have to be paid from the assets)?

We were told by my grandmother's attorney that this will probably end up going to mediation before trial. What is there to mediate exactly?

I don't know. What is the basis of your uncle's will contest? For example, is he claiming that the one child who is preferred in the will used undue influence to get that preference? Some other legal argument? Do you know what evidence your uncle has to support his claim?

It is my understanding that nobody has the power to "negotiate" on the outcome of the will besides a judge, so who will be going to mediation and who in the mediation party has the authority to negotiate my grandmother's wishes?

I have to wonder where you came by that understanding. The executor and the attorney that the executor hires to represent him/herself* will lead the charge to defend the will. However, any settlement would likely have to be approved by all beneficiaries under the will.

* - You referred to your "grandmother's attorney," and I assume that means the lawyer who wrote the will at her request. That lawyer no longer has any role in the situation unless he is appointed as executor or is hired by the executor.

Also, no one is "negotiat[ing] . . . wishes." Ultimately, it's a matter of whether your uncle has a legally valid basis for contesting the will and evidence to support his legal claim. If he doesn't, then there'd be no real point to a mediation because mediations are only fruitful if both sides feel they have something to lose by not settling. If the executor's attorney advises the executor that the uncle's claim is a clear loser, then the only thing to think about is the cost of going to trial.

Also, even if we were able to negotiate the will, wouldn't those participating in the negotiations stand to lose everything but $1 as well?

No. I obviously haven't read the will, but I assume that only a person or persons who file an unsuccessful will contest run that risk.

 

[Pamela Nation]

When did your grandmother die?

January 19, 2021 (not quite a couple months yet)

Has the will been submitted to probate? If not, why not? If so, whom did the court appoint to serve as executor of the estate?

Yes it was submitted and our first court date was last week. My grandmother named my step-father to be the executor, and I was under the impression that the executor would be confirmed last week but we never even saw the judge as my uncle (who is contesting the will) decided he wanted to meet with my mother and my step-father before deciding to officially contest the will. Nothing really got solved in that meeting and later that day an "OBJECTION TO ENTRY OF LAST WILL & TESTAMENT OF DECEDENT" was filed with the court, so I'm assuming he officially contested.

What is the net value of the estate (i.e., the value of all assets less all debt that will have to be paid from the assets)?

Not sure, but somewhere around $230,000 all assets included.

I don't know. What is the basis of the child's will contest?

He is saying my grandmother was manipulated by my mother (his sister). I cannot think of any evidence he has, as he was not close with my grandmother. I'm afraid he will make up lies to support his position.

I have to wonder where you came by that understanding. The executor and the attorney that the executor hires to represent him/herself* will be leading the charge to defend the will. However, any settlement would likely have to be approved by all beneficiaries under the will.

This actually helps me understand, thank you! Since the executor has not officially been named yet, that person has not yet secured their own attorney. And I am glad to know that all beneficiaries would need to be involved in any settlements.

Ultimately, it's a matter of whether your uncle has a legally valid basis for contesting the will and evidence to support his legal claim. If he doesn't, then there'd be no real point to a mediation because mediations are only fruitful if both sides feel they have something to lose by not settling. If the executor's attorney advises the executor that the uncle's claim is a clear loser, then the only thing to think about is the cost of going to trial.

Knowing my grandmother very well, she was 100% coherent and of sound mind up until the day she died, and I am also 100% sure he has no credible and honest evidence. I guess my question is who are the "sides" in this matter, because I was under the impression nobody really has the authority to change my grandmother's will besides a court of law, so who would be the "sides" (but I think you answered that question above when you said all beneficiaries would have to be involved).

Thank you so much for the reply, this really did help!

 

[zddoodah]

He is saying my grandmother was manipulated by my mother (his sister). I cannot think of any evidence he has, as he was not close with my grandmother. I'm afraid he will make up lies to support his position.

Ok...this is probably the most common basis for a will contest, but it's also incredibly difficult to prove. All will contests are difficult because you're trying to undue what appears to be the stated intent of a now-dead person who can't testify. You've told us that your grandmother's will favors one of her three child branches. That's a bummer for the others, but it is not, by itself, sufficient to prove a will contest. I'm not in Oklahoma, so I don't know exactly what's needed, but simply making stuff up isn't going to do the trick.

If your stepfather wants to serve as executor, then he really needs to engage legal counsel because this is not a DIY project. Given that your grandmother's attorney will likely be a witness, he would not be an appropriate person to represent the executor.

 

[Tax Counsel]

What is there to mediate exactly?

Presumably the amount of the estate that the child contesting the will is to receive.

It is my understanding that nobody has the power to "negotiate" on the outcome of the will besides a judge, so who will be going to mediation and who in the mediation party has the authority to negotiate my grandmother's wishes?

Your understanding is not correct. The executor has the obligation to carry out the provisions of the will, assuming the will is valid. When there is uncertainty as to whether the will is valid, the parties (the estate and the person contesting the will) are free to settle that uncertainty just as parties to any other civil dispute are free to do.

Also, even if we were able to negotiate the will, wouldn't those participating in the negotiations stand to lose everything but $1 as well?

No. Only the child that brought the will contest claiming undue influence/coercion/duress is faced with the possibility of forfeiting his share of the estate (except for the $1) based on the no contest clause (also known as an in terrorem provision.

But understand that it is not automatic that he loses his share of the estate if the contest is unsuccessful. Most states do enforce no contest clauses, but with some limitations. The rule used in the majority of states, including Oklahoma, is the probable cause standard. The Supreme Court of Oklahoma explained: "Although there is a split in authority concerning whether a forfeiture clause will be enforced if good cause is shown, the consensus rule is that the forfeiture clause should not be invoked if the contestant has probable cause to challenge the will based on forgery or subsequent revocation by a later will or codicil." Matter of Estate of Westfahl, 1983 OK 119, 674 P.2d 21, 24–25. While the Court did not expressly state what constitutes probable cause, the courts of other states using that standard have. For example, this decision from Colorado:

"Probable cause," in the context of attacks on wills, is defined as "the existence, at the time of the initiation of the proceeding, of evidence which would lead a reasonable person, properly informed and advised, to conclude that there is a substantial likelihood that the contest or attack will be successful." Restatement (Second) of Property, supra, §9.1 comment j; see In re Estate of Campbell, supra (applying Restatement definition). ​

In re Estate of Peppler, 971 P.2d 694, 697 (Colo. App. 1998). The definition the Court relied upon from the Restatement (Second) of Property is also used by other states, including the Kansas decision the Colorado court cited. The Restatements of the Law are often referred to by the courts as a source to what the general state of the law is in the states on a particular matter. I think it likely that the Oklahoma courts would adopt the definition of the Restatement and the definitions used by its neighboring states, too. What this means is that if he brought the suit with probable cause, i.e. that there was reason for him to think that there was a substantial likelihood that he would win, he won't get hit with the no contest clause penalty.

So the ultimate question here is just how strong or weak his claim of undue influence/coercion really is. If it has some teeth to it, the estate may agree to settle the matter to avoid having to pay out even more should the matter go to court and the contestant actually win.

 

[Pamela Nation]

So the ultimate question here is just how strong or weak his claim of undue influence/coercion really is. If it has some teeth to it, the estate may agree to settle the matter to avoid having to pay out even more should the matter go to court and the contestant actually win.

I appreciate your response so much and thank you both for correcting me. I have learned a lot from your replies. I do think I'm still confused as to who the "estate" is exactly (obviously other than my grandmother who has passed) when you say "the estate may agree to settle the matter...". So if my step-father is named as the executor, would he then be considered the "estate" and he will be able to agree to settle? And if so, does he get to decide what is appropriate to settle on?

 

[adjusterjack]

So if my step-father is named as the executor, would he then be considered the "estate" and he will be able to agree to settle? And if so, does he get to decide what is appropriate to settle on?

He would not be the estate he would be the representative of the estate. As such he has a duty to protect the estate. It would be up to him to decide whether to settle and for how much. To do that he would have to weigh the strength of the allegations and the potential cost of litigation against the cost of settling.

While he could make that decision on his own, he would be wise to consult with an attorney and the other heirs.

 

[zddoodah]

I do think I'm still confused as to who the "estate" is exactly (obviously other than my grandmother who has passed) when you say "the estate may agree to settle the matter...".

"The Estate" is a quasi-entity that exists for the sole purpose of using the deceased's assets to pay the deceased's debts and then distribute anything that's left to the heirs. The estate acts through the executor appointed by the court.

So if my step-father is named as the executor, would he then be considered the "estate" and he will be able to agree to settle?

It's sort of like if you created a corporation of which you were the sole shareholder, director, officer and employee. You are not the corporation, and the corporation isn't you, but the corporation cannot act other than through you.

And if so, does he get to decide what is appropriate to settle on?

Generally, the executor has the authority to settle claims made against the estate. However, in these circumstances, the executor would probably need the court's approval of a settlement, and that would give the heirs the opportunity to voice any objection.

 

[Pamela Nation]

My uncle who was planning on contesting the will of my grandmother's estate is now hospitalized in a mental institution and will be for the foreseeable future. What happens to probate now? Can he still contest the will while being hospitalized? He's making crazy demands, saying he is going to be the executor now, and HE will be getting this and that, etc... I'm honestly not even sure his attorney wants to keep him on as a client, but that's not my concern. I'm just wondering how long this could potentially be in probate for. He has completely gone off the deep end and I honestly don't see him "snapping out of it". He has been saying things like he is God's chosen one, saying he's got his shotguns loaded and ready for if we don't change the will to his liking, etc. Such a mess!!!

 

[Zigner]

My uncle who was planning on contesting the will of my grandmother's estate is now hospitalized in a mental institution and will be for the foreseeable future. What happens to probate now? Can he still contest the will while being hospitalized? He's making crazy demands, saying he is going to be the executor now, and HE will be getting this and that, etc... I'm honestly not even sure his attorney wants to keep him on as a client, but that's not my concern. I'm just wondering how long this could potentially be in probate for. He has completely gone off the deep end and I honestly don't see him "snapping out of it". He has been saying things like he is God's chosen one, saying he's got his shotguns loaded and ready for if we don't change the will to his liking, etc. Such a mess!!!

Has he already filed some sort of contests in probate court?

 

[Pamela Nation]

Has he already filed some sort of contests in probate court?

Not officially yet, from what I understand from the estate's attorney. However, when I look up the court record it says "OBJECTION TO ENTRY OF LAST WILL & TESTAMENT OF DECEDENT". Not sure what that means but I thought it meant a contest was filed. I honestly have no idea yet.

 

[Zigner]

Not officially yet, from what I understand from the estate's attorney. However, when I look up the court record it says "OBJECTION TO ENTRY OF LAST WILL & TESTAMENT OF DECEDENT". Not sure what that means but I thought it meant a contest was filed. I honestly have no idea yet.

Are you the administrator of the estate? If not, then try reaching out to the administrator to find out what's going on.

 

[adjusterjack]

Please don't open any more new threads. This is the same topic as:

Can you help me understand mediation and/or negotiation when it comes to someone contesting a will?

You should have just added to it. Had you done so, Zigner would not have had to ask if you are the administrator of the estate because, in the old thread, you wrote that your step-father is the executor.

At this point, however, you should be asking your step-father what can happen and he should be getting the answers from the estate's attorney.

 

[Zigner]

Missed that - thanks for pointing it out adjusterjack

 

[Pamela Nation]

Please don't open any more new threads. This is the same topic as:

Can you help me understand mediation and/or negotiation when it comes to someone contesting a will?

You should have just added to it. Had you done so, Zigner would not have had to ask if you are the administrator of the estate because, in the old thread, you wrote that your step-father is the executor.

At this point, however, you should be asking your step-father what can happen and he should be getting the answers from the estate's attorney.

Nobody has been named executor/administrator yet. The initial court hearing to do so got railroaded by the same uncle as last time. I apologize for opening a new thread, I didn't know it would cause any issues because this was a separate issue/question.

Also, the estate's attorney is not being very forthcoming with answers so that's why I'm here asking, hoping that someone with experience might provide some insight or possible outcomes. If I need to not ask anything further, I will just not do so.

 

[adjusterjack]

Nobody has been named executor/administrator yet.

Here's why what you are telling us doesn't make any sense.

When a person dies, the person nominated in the will takes the death certificate and the will to the probate court, opens probate, and gets court papers acknowledging the he/she is executor/representative of the estate.

Then, if necessary, the executor hires an attorney to handle the probate process.

Then, if somebody files a will contest, a hearing can be requested by the estate's attorney or the person contesting the will.

How does the estate have an attorney and how did hearings get scheduled if nobody has been named executor/administrator yet?

I honestly have no idea yet.

That's the problem. You don't know and you're giving us 2d or 3d hand information.

Here's a suggestion. Go visit the probate courthouse. Ask for the probate case file. Buy copies of every scrap of paper in the file. Then come back and read it to us.

 

[Pamela Nation]

Here's why what you are telling us doesn't make any sense.

When a person dies, the person nominated in the will takes the death certificate and the will to the probate court, opens probate, and gets court papers acknowledging the he/she is executor/representative of the estate.

Then, if necessary, the executor hires an attorney to handle the probate process.

Then, if somebody files a will contest, a hearing can be requested by the estate's attorney or the person contesting the will.

How does the estate have an attorney and how did hearings get scheduled if nobody has been named executor/administrator yet?



That's the problem. You don't know and you're giving us 2d or 3d hand information.

Here's a suggestion. Go visit the probate courthouse. Ask for the probate case file. Buy copies of every scrap of paper in the file. Then come back and read it to us.

My stepfather was named the executor in the will, but that has not yet been approved or confirmed by the probate court. He took the papers to the court and when our initial court hearing took place, the judge never even stepped foot inside the court room because my uncle wanted to have a meeting with his attorney and the estate's attorney to discuss changing the will. It all got railroaded and nothing got accomplished that day. Since that day, all hell has broke loose with my uncle (as I mentioned before) and he is now involuntarily committed into a mental hospital for who knows how long.

The estate has an attorney because it's the attorney who drew up the will for my grandmother. That attorney told us she was representing the estate unless she has to be a witness for trial, and in that case she will recuse herself.

 

[army judge]

The estate has an attorney because it's the attorney who drew up the will for my grandmother. That attorney told us she was representing the estate unless she has to be a witness for trial, and in that case she will recuse herself.

There is no way that strangers (hundreds, maybe thousands of miles away from where the estate is to be probated) would know enough about the probate case to comment intelligently on it.

That said, if an attorney is working for the estate on the probate case, that is the person you might wish to contact.

An even easier and cheaper solution would be simply to wait patiently as details and events unfold.

I once read about a probate case where one of the proposed beneficiaries arranged to have another relative (not named in the will) committed to a mental hospital to short circuit things and avoid divvying up the potential prize pool.

The perpetrator actually represented several other beneficiaries and many were charged criminally (later convicted) for several felonies.

Last time I heard, they all were rotting away (penniless) in a state penitentiary.

Their victim was eventually released from the mental hospital, prevailed in his challenge to the will, and became a millionaire, land owner.

 

[adjusterjack]

The estate has an attorney because it's the attorney who drew up the will for my grandmother.

Then she's the one you should be talking to.

 

[Pamela Nation]

I once read about a probate case where one of the proposed beneficiaries arranged to have another relative (not named in the will) committed to a mental hospital to short circuit things and avoid divvying up the potential prize pool.

The perpetrator actually represented several other beneficiaries and many were charged criminally (later convicted) for several felonies.

Last time I heard, they all were rotting away (penniless) in a state penitentiary.

Their victim was eventually released from the mental hospital, prevailed in his challenge to the will, and became a millionaire, land owner.

That's interesting, but definitely not what is happening in this case.