The Unintended Consequences of Some Provisions


I have been writing in my blogs about the importance of the words that are written in estate planning documents and how these words have consequences.  Many times attorneys just use the same words over and over again, without ever thinking about the meaning or the consequences in a partically case.  Sometimes, attorneys use a computer based drafting program, agains without really reviewing all of the words and how they fit together.

A recent post on a list serve that I monitor stated “I came across the following that I include in my wills.”If any person or party files a caveat to my will, contests the appointment of my Personal Representative or challenges his administration of my estate, or materially assists in such caveat, contest or challenge, the costs and legal fees, and compensation of my Personal Representative and his or her attorney related to that action shall be deducted from the share of the person bringing the caveat, contest or challenge, to the extent of that person’s share, and thereafter shall be accounted for as a cost and expense of administration under section 8-105(a)(2) of the Estates and Trusts Article of the Annotated Code of Maryland.

There are many reasons why this provision could be a necessary and valuable provision, but it can also have unintended consequences.  Some basic examples of how this provision could penalize a beneficiary who tries to prevent a wrong are as follows:

Appointed Personal Representative steals money from the estate.  Beneficiary sues and proves that the PR is stealing money and not doing his or her job.  The beneficiary has to pay the PR’s legal costs and compensation relating to the PR defending himself from a charge.

A decedent signed a Will, but at the time was incompetent.  A beneficiary challenges the validity of the Will and proves that the decedent did not have the legal capacity to sign a Will.  The beneficiary not only pays his or her legal fees, but the legal fees of the estate, who attempted to probate an invalid Will.

One of my favorite sayings is that any power that can be used for good can be used for evil.  A corollary saying would be that any provision designed to prevent an unwarranted legal action will also prevent a legal action to stop someone from doing something wrong, like stealing money.

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