Can My Family Fight the Gift of My Estate to Caregiver?
Family fights over an estate after someone dies is not uncommon, says nj.com’s recent article entitled “I’m leaving my estate to my caregiver. Can my family fight it?”
In general, the answer to this question in Louisiana is “yes”, but practically speaking (outside of forced heirship), the question is much more difficult to answer.
In Louisiana, although a family member may be able to contest a will leaving everything to a caregiver, the burden of proof for a cause of action is great. One is “lack of capacity”. Another is “undue influence”. Generally, these lawsuits are very difficult to win. With respect to “lack of capacity”, the family member(s) have the burden of proving in court that you did not generally understand what you were doing, and/or that you generally did not understand the extent of your holdings. When it comes to “undue influence” the family member has the burden of proving that your decision making power was effectively overwhelmed by the caregiver.
Another avenue of approach by a family member is claiming status as a Louisiana forced heir. Despite what many people think, forced heirship has not been repealed in Louisiana, although its reach has become much more limited.
A family fight could commence if a family member could contest a power of attorney or living will on the same grounds. That is, that the principal (the person who appointed an attorney-in-fact or agent) lacked capacity or was unduly influenced when the document was signed.
Outside of lack of capacity, undue influence, and forced heirship, a family member could contest a power of attorney on the grounds that the agent abused his or her authority or violated his or her fiduciary duty.
Lastly, a will, a power of attorney and living will can be challenged by the family against the caregiver on the grounds that the documents were not executed properly.
The power may be limited to a particular activity, like closing the sale of your home. It may also be general in its application. In some cases, it can be so broad that it allowed the agent to do anything that you can do. This authority can be temporary or permanent authority to act on your behalf.
Louisiana allows you to express your wishes as to medical treatment in terminal illness or injury situations, and to designate an individual to communicate for you, if you cannot communicate for yourself. Depending on the document, they can be drafted as “living wills,” “medical directives,” “health care proxies,” or “advance health care directives.”
Reasons for contesting an estate planning document include the fact that the document may not have been witnessed by the correct number of witnesses, was not notarized, did not have a proper “attestation clause”, or alternatively was not exclusively in the testator’s handwriting, and/or now signed or dated.
You should work with an experienced estate planning attorney to try to limit the success of any challenges.
Estate planning is a process involving legal counsel familiar with your goals and concerns, your assets and how they are owned, along with your family structure.
Estate planning covers the transfer of property at death, as well as a variety of other personal matters and may involve planning for taxes, business succession and legacy planning.
If you want to avoid a family fight and you are thinking of leaving your assets to someone other than your family members, especially a caregiver, the risk of litigation goes up substantially, even if the chances of the family member winning the lawsuit may be small. If you would like to discuss how to discourage litigation in your estate planning, feel free to BOOK A CALL with me to discuss more.
Reference: nj.com (May 7, 2021) “I’m leaving my estate to my caregiver. Can my family fight it?”