- Estate planning, introduction
- Estate planning, reasons and timing
- Estate planning, brief overview
- Check up for your will
- Last will and testament
- Contract of succession (aka contract to will) and inheritance renunciation contracts
- Business succession plan
- Funeral directive
- Organizational arrangements: leave everything orderly
- Estate administration, probate services, partition
- Inheritance litigation and inheritance dispute
- Revision of the inheritance law, part 1
INHERITANCE LITIGATION AND INHERITANCE DISPUTE
Are you heir to an estate but feel overlooked? Ignored? Did someone keep your inheritance for themselves? Or part of it? Did someone appear, claiming to be the testator’s previously undivulged child or sibling? Is the family member in charge being forthright about how assets are assessed, monetized, and distributed? Are you entitled to a statutory compulsory share that is not reflected in the Will? Do you suspect foul play?
Bitterly Disappointed Heirs
Heirs who have been passed over and disappointed should seek advice on whether they will receive what is due to them. Estate Litigation encompasses any legal dispute arising in connection with a decedent’s Will, property, missing property, executor, heirs, and debts.
Inheritance law is complex and emotional. Suspicions run high – often, for good reason. Accusations of preferential treatment are as predictable as a Golden Age Hollywood movie, especially when the executor is a family member. The testator may appear overly generous to one heir, overly parsimonious to another. Someone close to the testator or his belongings may make off with assets, such as hanging valuable paintings, before they can be inventoried and thus divided. Others may swear the decedent made gifts on his deathbed – a work of art, a watch collection, expensive jewelry and furs. Where there is money, there is abuse.
A preference implies a disadvantage. Too generous testators or too greedy heirs lead to disputes, at the utmost to legal proceedings.
Inheritance litigation is foreseeable when:
- The executor is unresponsive to inquiries from family members or otherwise incompetent
- Siblings are treated unequally
- Family members are not on good terms
- A second, later-in-life spouse, markedly younger than the decedent, is given undue preference to children from the first marriage
- A late-in-life caregiver becomes the primary beneficiary of the estate
Do you suspect a legacy hunter? Did a caregiver fawn excessively over your father or mother during their final months? Did the caregiver prevent you from seeing them, or hinder private conversation? Do you feel squeezed out?
Action for Invalidity
When was the Last Will executed? Are you confident the testator had sufficient mental capacity when he signed? Probably yes, if the testator was bright, managed his own finances and took care of himself independently. A gravely ill patient, one who depends on 24/7 care, can be conned. Alternatively, the testator may have lacked mental capacity when drafting his will. Were there signs of dementia? In addition, the Will may have formal defects. Unless you bring an action for invalidity, the Will will remain valid.
Action for Reduction, Action in Abatement
Similarly, a testator may have wittingly or unwittingly contravened the law, violating your compulsory share. Without filing a suit, his testamentary instructions are valid. Your compulsory share will be deemed waived.
Action for Partition
Not every asset in your estate is divisible. Your residence and other holdings may be illiquid – not easily monetized or divided. If your heirs cannot agree on their division, their last resort is to file an action for partition. Although negotiation and mediation are less adversarial and cheaper, many heirs wind up in court because mutual agreement eludes them.
Another cause for litigation is malfeasance. The estate owes you a distribution but declines to make it. This can occur for pernicious reasons (an unscrupulous heir) or benign ones – e.g., the testator bequeathed CHF 500,000 to a charity but the value of the estate, including the mortgaged property, is half that. A legatee can attempt to enforce a bequest by filing a legacy lawsuit.
Action for the Recovery of Inheritance
If a property is possessed by a person and you believe you have a better claim to it, you may bring an action for the recovery of inheritance. Once the claim is upheld, the possessor is obliged to relinquish the estate or the part thereof to the claimant.
Offense or Defense: Never Fight a Losing Battle
Offense or defense, I can assist with either. However, I do not over-promise. I will make a candid, up-front assessment of your potential causes of action. Not all fights are worth picking. But I will furnish sufficient insight for you to make an informed decision about proceeding.
Contact me for a personal consultation. I would be happy to advise you, give a second opinion, or represent you in court.