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A dispute over a decedent’s estate is often a result of a relative, neighbor, or friend of the decedent obtaining the lion’s share of the assets when other relatives believe they should have been left more. Sometimes the decedent’s estate planning is a change in a Will, a Trust, or deeding the house or changing the ownership of the bank accounts into a joint tenancy with rights of survivorship. Such estate planning could occur months, weeks, days, or even hours before the decedent’s passing.

In New Hampshire, it has been my experience that the focus of those challenges are generally either a claim of lack of mental capacity of the decedent when the changes were made in his/her estate planning or that the individual who benefitted from that transfer unduly influenced the decedent. The proof of lack of mental capacity must show much more than that the decedent was not as mentally acute as he was a decade ago. If the decedent knows his siblings and children and generally knows what his assets are and he is not subject to delusional thoughts, it is quite possible the judge will find that individual had the mental capacity to make the changes in his estate plan including transfers of his assets. The question then becomes whether or not if the individual benefitting from the transfer had so much physical, mental, and/or emotional control over the decedent that the decedent was unduly influenced into making these transfers. Such cases are difficult to prove in that you must prove much more than but for that individual’s involvement in the life of the decedent that the transfers would not have been made.

Evidence might reveal that the decedent did not want to be in a nursing home and that the individual who benefitted from the transfers helped him stay out of a nursing home and independent as long as he could. A daughter in California who only saw her dad once a year at Christmas time might be treated differently than the daughter that is local in New Hampshire that saw the decedent two or three times a week, bought groceries for the decedent, and generally assisted him with a variety of matters up until his passing. While the daughter in New Hampshire certainly would have had the ability to influence her dad because of her regular, ongoing support and care of him, the evidence could also reveal that she did not request the transfers or even indirectly suggest an uneven distribution to her. It is also possible, depending on the detailed facts, that the New Hampshire daughter played on her father’s emotions and manipulated him into leaving her the lion’s share of the assets and cared more about his money than about him.

In trying these cases, the evidence from medical records and third parties who do not benefit from any of the transfers such as neighbors, people who played cards with the decedent at the senior center, visiting nurses, physical therapists, and members of his fraternal lodge can be critical in showing to judge what the true relationship was between the decedent and the one who is obtaining the lion’s share of his assets upon his death. It has been my experience that the judges take these cases seriously and understand each case is unique and therefore they thoughtfully consider all the evidence before rendering any decision.

Whether the dispute involves a parent, sibling, uncle, aunt, or other relative, this type of case is usually charged with emotion. If litigation is necessary, once pretrial discovery has occurred, it might be prudent for the parties, through their counsel, to hire a good mediator with strong experience in these matters to help the attorneys and their clients attempt to successfully negotiate a resolution rather than leaving it up to a judge thereby saving additional time, costs, emotion, and also buying certainty in the outcome. I do not recommend any mediation take place without the parties being represented by counsel advocating on their behalf because the mediator, while wanting to be fair, generally will be successful if the parties reach an agreement, irrespective of what that agreement is, and having a legal advocate protecting your interest through that process as well as before in the pretrial litigation leading up to the mediation is crucial.

J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].