Don’t Let Changes in Your Will Lead the Way to Future Estate Litigation

Just about all of us have been reading about 95 year old Gene Hackman and his 65 year old wife who were recently found dead in their New Mexico home. The current version is that Hackman’s wife Betsy Arakawa succumbed to a pulmonary disorder caused by rodents in their home. Hackman suffered from dementia and seems to have died a week later for want of care.

Hackman survived his younger wife. His 1995 will states that his $80 million estate was to go to her, excluding his three children by former spouse, Faye Maltese. If Arakawa did not survive him by 90 days the estate would go to charities.

The reports are that Hackman was estranged from his kids but that he was starting to resume a relationship with one of them. Needless to say, if you are one of those kids you grew up in an intact family and saw it fall apart after your parents were married for three decades. Your step mother was very close to your own age which has a certain “ick” factor, although the Arakawa marriage itself subsided longer than your mom and dad’s.

But with a potential $26 million dollars a piece in play, this is a classic case where estate litigation can be expected. In one sense, the worst that can happen is that you pay lots of money to the lawyers and lose across the board. Yet, won’t those charities want to “settle” rather than endure litigation time and expense?

The big factor here is the duration of the estate plan. Reports are that both Hackman and Arakawa wrote their wills in 2005, fourteen years after their marriage and twenty years before their deaths. Under just about any estate law, you have the right to revise your will right up to the time of your death. But revisions made just before you pass on are viewed with skepticism. As we age, especially when we reach the 80s and 90s we tend to become more reliant on friends and family to help us manage. And, those helping us sometimes like to help themselves by suggesting that a child or sibling is unworthy of what the estate plan provides and that changes should be made.

The common scenario today is that Mom has three kids, two of whom have moved far away. The original estate plan was divide the estate equally between the three kids. But one child is nearby and having to deal with the day-to-day of mom’s care. She’s not just a little annoyed that her siblings have many opinions about mom’s care but they have not seen mom since Christmas 2023. And did we mention that one of the faraway kids consumed $25,000 of mom’s legacy because she needed drug rehab in 2010? Or did we discuss that the other faraway kid defaulted on her student loans in 2000 and mom was the guarantor of that debt? Another $40,000 down the familial rathole. So, daughter at home is providing mom’s day to day care knowing that the estate is down by $65,000 because of prior bad acts of the faraway siblings. As she is plunging mom’s sink for the fourth time in a year she does wonder what her sisters in Seattle and Santa Fe are doing. This can produce codicils and late day re-writes of the will.

Let’s assume for the moment that mom “gets” the point her one child is advocating and decides that, yes, the rehab and the loan default, not to mention the chronically clogged drain, might merit some changes to the estate. The closer these changes come to mom’s demise the more likely those changes will produce a legal fight over whether mom was coerced or “unduly influenced” to make changes by the stay-at-home child. These battles are both ugly and expensive, especially where mom gave no advance notice that she was making some changes and why.

It’s easy enough to do. “Dear Daughters in Seattle and Santa Fe. I have about $300,000 in savings and the house is paid for while worth another $400,000. Emily is here twice a week and last year she had to take me to 15 medical appointments plus handle the groceries and prescriptions. I love you all equally, but I think it only fair that the two of you split the cash. Emily will get the house but must deal with all the stuff that is in it before it can be sold. I’m going to have a lawyer draft something like that but please call me if you think I am acting foolishly. Love, Mom.”

Assuming mom lacks the energy or guts to put pen to paper, the alternative is to have a video made when she meets with the estate attorney about the changes. Then there can be an actual recording illustrating that mom has her marbles and knows what she wants and why she is making the change. But changes to an estate plan weeks or just a few months before her demise are an invitation to a fight if for no other reason than to prove that “Emily took advantage of Mom while we were away.”

Again, these battles tend to be expensive and stupid. But the more there is on the proverbial estate table, the more likely there is to be a legal “fuss” whether justifiable or not. The goal needs to be to provide evidence that mom knew what she was doing and was not coerced into any changes she might make. We should be clear, Pennsylvania still insists that your estate plan be in writing. The purpose of the video is to show that you know who you are, what you own, who are the “eligible receivers” of your estate and what you are thinking about all of that. If you have a Hackman estate plan that has been around, just make certain that what made sense in 2005 still does today.