Sycamore Row | Real Issues Raised in John Grisham’s Book – Contesting a Will

In this episode, John Ross and Lisa Shoalmire try to answer: What is the reality of a will contest? What ways can you challenge it? What ways are likely to be successful? And what do you need to know to make sure it doesn’t happen to you?

Episode Transcript
Lisa
Welcome to another edition of Aging Insight. I'm Lisa Shoalmire and I'm here with John Ross, and we're elder law attorneys that practice right here in the Texarkana area in the Ark-La-Tex. We're here so that you can get information about things such as wills, estates, powers of attorney, planning for long-term care, veterans benefits, state debt tax issues, and so we hope that this program that comes to you in your home is helpful to you so that you can better understand the choices and the decisions that you have the ability to make concerning your own life and your own affairs.
John
Well, we've talked about lots of stuff on this program but one thing, Lisa and I both just finished reading a new book, a fictional book, by the author John Grisham. Now, you may know John Grisham, he's written legal thrillers, they've made a lot of different movies about some of his books, A Time To Kill, and others. His newest book is called Sycamore Row. Now if you haven't read it, don't worry, we're not gonna spoil the end.
Lisa
Yeah. And John Grisham, if you're out there, we'll take a few royalties chatting about your book. But we do wanna talk about the book because it impacts some real world issues that we think you'll appreciate.
John
Right. So let me at least set the stage of this book. The book kinda opens with a gentleman who is older, he's got cancer, he's been receiving chemotherapy, he's been struggling with pain and suffering and he decides ultimately to take his own life. Now, shortly after, they discovered that he has left behind a handwritten will and in this handwritten will he has cut out his children and their children, he's cut out all of his descendants and instead left his entire estate to a couple of charities, a church, and his brother, but the bulk of it went to a caregiver, a person that had been seeing to him for the last few years.
John
Well, as you might imagine what the rest of the book is about is a will contest. And what we kinda thought we would do today is talk about in light of this book and some of the things that they talked about in the book, what is the reality of a will contest? What ways can you challenge it? What ways are likely to be successful? And what do you need to know to make sure it doesn't happen to you? Lisa, I guess the first issue with this and I've talked to some folks who have read this book and the first thing they asked me was, "John could I really actually make a handwritten will?"
Lisa
Yeah, that is something that we hear about a lot. And in the book, many of the characters have that same question, "Can I take and write on a simple piece of paper and handwrite a will in my own handwriting?" And the answer to that question in every state that I'm aware of is, yes, you actually can make a valid will by writing a will out in your own handwriting and dating that writing and signing that writing, and that's all it takes to make a valid will. Now, just like in this book, that handwritten will, while it was deemed to be valid, there were still a lot of issues that caused a lot of money to be spent getting that will to be honored by the courts. So while you can handwrite out a valid will, there are some things that that handwritten will may not address and it may cost your estate money down the road.
John
That's right. So a handwritten will is what's called a holographic will. And notice Lisa didn't say anything about witnesses or notaries. I've had folks all the time, they'll say, "Well, I guess I need to get this notarized." Well, a handwritten will, one that's entirely in your own handwriting and signed by you and dated does not have to be witnessed or notarized, but notice the key here, entirely in your handwriting. If you use one of those preprinted forms where you fill in the blanks and it has I blank, hereby leave blank to blank, and you just fill in, that is not entirely in your handwriting. And so the first question when, we occasionally have folks, they come in to the office and they say "John, we're unhappy about this will or we're confused about this will."
John
The first question I'm gonna be looking at is to determine whether or not it meets the requirements of at least being a valid will. And I can tell you, I have had people that have brought them in and I had to be the bearer of bad news to say, "It's not entirely in their handwriting and if it's not in their own handwriting then it has to have two witnesses and this one doesn't." Or "it's in their handwriting, but not signed by them." So, first question is, it has to be a valid will. Once you get past that though, there's oftentimes lots of discussion about whether or not that person had testamentary capacity.
Lisa
Yeah. And testamentary capacity, that is the capacity that you know who you are, you know who your family members are, you know what property you own, and you know what debts you have and you know what it means when you make a will. You know that this instrument is something that's going to pass property to others at your death. So, if you think about that, knowing who your family members are, knowing what property you have, what debts you owe, and that a will is a document that passes property, those are some pretty simple things to understand which... So, a lot of folks... It's hard to challenge testamentary capacity very often. And what was the issue in this book that we talked about was the gentleman who wrote the will in the book, he was receiving cancer treatments and he was receiving and have been prescribed some pretty heavy duty pain killers. So, John, how does that if you're taking prescription medication, can that impact your testamentary capacity?
John
Well, and that's probably one of those big things that lots of people will ask is they'll say, "Well, dad had Alzheimer's when he made this will," or "Dad was receiving a bunch of pain medicine," or "Mom had had a fall and had hit her head and she just wasn't the same as she used to be when she made this will." These are all questions that go to testamentary capacity and you do have to have testamentary capacity in order to make a valid will. The question is how do you prove that? And that's where it gets real tricky. And I think probably the best thing to do is take a little break and then we'll come back and talk about that particular issue.
John
Welcome back to Aging Insight. Today, where we've kind of a fun topic in the sense that Lisa and I read the newest book, Sycamore Row, which is written by John Grisham, which is about a will contest. And we thought maybe we'll just use that book as a way of describing the ways people often do attack wills after that person has died. In this particular case, the thing that we were talking about right before the break was that the gentleman had been receiving some very high doses of pain medicine prior to his death, and was on those pain pills at the time he made that will. And this may sound familiar to you, you may know a person who in those later stages of life, maybe they had Alzheimer's, maybe they had Parkinson's or some other dementia causing illness, maybe they had had head injury, maybe they were just on a bunch of medicines, but all of this goes to the question of testamentary capacity. The problem with testamentary capacity or at least the problem with proving that somebody lacks testamentary capacity is that you've gotta look at it at the exact moment that they made that will.
Lisa
Well, John and I think those are two keys. First of all, the law presumes that we all have testamentary capacity. So, I caught just a moment ago where you said, how difficult it is to prove that an individual lacks testamentary capacity, because that is the burden of proof that someone who is challenging a will has to meet. The person's family who died, they don't have to prove they had testamentary capacity, the challenger has to prove that the individual lacked testamentary capacity. And the second key there was what you just said about the capacity, they have to prove that the capacity was lacking at the moment the will and document was executed. And a lot of times, we just don't have very good information about what was going on with that individual at that exact moment that a will was executed, so that presents a challenge to someone who wants to contest that will.
John
Well, and anybody who has maybe been a caregiver for somebody with Alzheimer's, I think about that in particular because that's one of the perfect examples of where, if you've ever been a caregiver for somebody with that disease, you know that when you talk to them one moment, they know who you are, they know who all their family is, they know the nature of their estate and what their assets are, and they asked very pointed questions about, "Did we get that electric bill paid from last week 'cause I know it was past due?" And you're shocked that they're so aware, and an hour later, an hour later, they don't recognize you, they mistake you for other family members, they... And so here's a situation where you've got a disease that has its highs and lows. And so you can understand why, if we're challenging that will, some time after this person has gone, going back in time to the exact moment, where that person has signed that instrument, it's just almost impossible to prove that they lacked testamentary capacity, unless you've got some really, really strong medical evidence.
Lisa
Well, that's right. And as far as taking the pain medication, in the John Grisham book, the character who was deceased, it was proven that he was taking substantial amounts of pain medication due to the pain related to his cancer. But that in and of itself, just the fact that you are taking pain medication, even large amounts of pain medication, even strong pain medication, does not automatically mean that you lack testamentary capacity. And in fact, I know the Texas Court have looked at that exact situation and the law is that taking that type of medication in and of itself has no bearing on whether someone had testamentary capacity.
John
Yeah. So you can understand that proving that can be very difficult. Well, again the characters in this book, the lawyers for the children who had been written out, obviously they did not want this will to go through, so they wanted to find this will invalid in some way, shape, or form. And as any good trial lawyer would do, they throw everything into the pot. They may not know whether or not they can prove that the person lacks testamentary capacity and knowing that that's very difficult, they're gonna throw some other ideas in the pot and one of those was the idea of undue influence. And I tell you, this is also one that we've come across many times in our practice.
Lisa
Yes it is. And the characters in this book, the lady who was to receive the bulk of the estate of the deceased gentleman, and by the way this estate was worth millions and millions of dollars, hence all the interest in it. The lady he left his estate to by his handwritten will was a personal caregiver. And how often do you see someone who is caring for someone that's ill, that's quite elderly, that you're doing a lot of... You're cooking meals, you're bathing them, you are assisting them with their hygiene needs and their bathroom needs, and this is a very personal job and so out of gratitude perhaps an individual might leave that caregiver something. And so what the children might... The person who is left out of a will, who feels wronged, because a caregiver was substituted for them to receive assets under a will, those beneficiaries that have been left out, they are going to claim that that caregiver exerted influence, that was unnatural, over that ill person because they were providing them with food, and bathing them, and doing all those very personal things.
Lisa
And let me tell you, that is a very difficult proposition to prove that an individual changed a will, or left a caregiver a portion of their assets due to some undue influence of that caregiver. John, essentially in Texas, to prove undue influence, you've basically got to show that that caregiver threatened the ill or aged person with perhaps withholding medication or physical violence, and ordering them to change their documents, and to include them as a beneficiary. I mean, that's about how hard it is to prove.
John
Well, it is. It is very difficult to prove. And part of the reason that it's so difficult to prove is because we're a country of freedoms, and one of those freedoms is to do whatever you wanna do, and that includes how you leave your estate when you die. In every state of the union except for Louisiana, you can leave your stuff to whoever you want. You do not have to leave assets to children, or things like that, you can cut those people out, you can leave your stuff to whoever you want. And that's a personal right, it's a personal freedom that we all share and the courts respect that. And so before they say that somebody exerted so much influence over me that I changed my will, it's gotta be proven that that influence was really, really powerful.
John
Obviously, if they held a gun to my head and said, "John, sign this or I'm gonna pull the trigger." Sure, that's undue influence. But what if they were just always around and they're just a great caregiver and maybe they even suggest it, maybe they even asked for, "Hey, you know what, I'm doing all this caregiver, why don't you leave me all of your estate?" And I do and I change my will. Is that undue influence? No. The fact is as long as I can still understand what I'm doing and as long as I can make those decisions, that's my right. So once again, proving undue influence kind of like proving a lack of testamentary capacity can be an uphill battle.
Lisa
That's right. So we're gonna take our final break. And when we come back, we're gonna talk about no contest clauses and cutting beneficiaries out if they challenge your will and some of the other issues that came up in this book by John Grisham, Sycamore Row. We'll be right back.
Lisa
Welcome back to Aging Insight. I'm Lisa Shoalmire and I'm here with John Ross. And today, we're taking a little inspiration from author, John Grisham, and his new book, Sycamore Row, which in the legal thriller business it's not about the mob, it's not about a murder, it's about a will contest. And so we're talking about some of the issues that this book brought up. And John, I guess the biggest overriding plot point in this book has to do with the fact that not only did this gentleman... The main character write a new will right before his death that left everything to a caregiver but the book follows all the other players as they engage in the court system in a will contest. So, can you talk about the impact that a will contest is gonna have on people?
John
Well, here's the biggest thing about this. The reality of it is is that when everybody realized that this guy had died, that he has left this disaster behind of this handwritten will made right on his death bed under all of these strange circumstances, the one thing about it was the lawyers. Frankly, the ones that are portrayed in the book are salivating at the idea of being able to milk this estate for attorney's fees and costs and the sky is the limit because as long as people are willing to fight, these lawyers are willing to to bill them. And you know what? That's not far off in many cases. There's a lot of attorneys out there and many of them will fight those sort of battles but it's not cheap. We see people all the time that will come in and maybe they are upset about some issue related to the will but they don't realize what the cost is of cleaning up these poor planned situations. And when we say cost, in some of these cases, you're talking tens of thousands of dollars, even hundreds of thousands of dollars, depending on the size and complexity of the estate.
Lisa
Yeah. That's right. When we've had these situations, someone has died, there's a strange will, didn't do what the family thought it was going to do, or it's not right, and people are ready to fight. They come in, they're all mad, they're willing... I've had people tell me, "Look, I don't care if we spend every last dime that's in the estate, on this lawsuit, just as long as my brother doesn't get the money." And if that's how you want to spend the legacy of that loved one, I guess, more power to you. But it is an expensive proposition, and it's not a quick proposition. Depending on the size of the estate, it will take certainly more than a year, sometimes many years to finally resolve.
John
Yeah. And I think that's a good point as well because I read this book in a couple of days, it was pretty exciting, pretty good book. And I can just assure you that a will contest does not start and finish within a couple of days. Lisa's point, it takes months. The court process is very slow. And if you've watched this show before, you've heard Lisa and I say, in our practice, as Elder Law attorneys, in our practice, if you're at the courthouse, it's because something went wrong. We like to hopefully plan everything to avoid those sort of things. And there are things that can be done.
John
Again, paying attention to who you're putting in charge. We talked the other day about planning ahead, before you become infirm, before you start having these issues. The longer that estate plan has been in place, the harder it becomes to challenge, because that's clearly what you intended for a long, long time. Likewise, if it's not what you intend, change it, but change it as soon as you can, so that you can start running that. Things like no contest clauses, not great, but there's a way that you can say, here's the consequences of challenging this will. So there's lots of things that you can do. But planning ahead and planning appropriately. When you do things yourself... If you did surgery on yourself...
Lisa
It might not turn out too well. [laughter]
John
It might not turn out too well. And the same thing applies to the legal field. When you do it yourself, chances are you're gonna make mistakes. And those mistakes can cost a lot of time and a lot of money.
Lisa
So, if you just wanna take a little fictional romp and check out what Mr. John Grisham, who's a big time legal thriller author, what his take is on a will contest, Sycamore Row is the book that inspired our discussion today here on Aging Insight. Don't forget to catch us on the radio, on Saturdays, live from noon to one, on 107.1. And you can also follow us, check us out on facebook.com/AgingInsight. And John, you have a Twitter.
John
Yeah. You can follow me on Twitter. If you're on Twitter, it's TXKElderLaw. And I post all kinds of stuff on there about aging. So stick with us next time on Aging Insight.
Lisa
Good-bye.

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