Family dynamics can be complex. Much of those dynamics appear when money is distributed after a person’s death, often at the probate stage or when a trust is administered. When the family dynamic is complex, money distribution is also complex.
For instance, a wealthy Northern California man remarries a younger woman with small children. The children are raised in the house of the wealthy man and often have a strong bond with him. The man also has biological children who may be older than his stepchildren and therefore are not around. Those biological children may have been raised primarily by their biological mother with limited contact with their father. As a result, the stepchildren may have a stronger connection to their stepfather than his biological children.
Against this backdrop, the wealthy man drafts a will or creates a trust. The will or trust may likely favor the biological children, despite the stronger bond with the stepchildren. The stepchildren, in such an instance, may feel betrayed.
Similarly, the man may draft a will or create a trust that provides equally for the children and stepchildren or favors the stepchildren. In such an instance, the biological children may feel betrayed and seek to fight for what they believe is their fair share.
The attorney who drafts the will or helps create the trust will often be at the crossroads of these battles. The children or stepchildren will often accuse the attorney of conspiring with one side or another in drafting the will or creating the trust. These situations are clearly sticky and usually can only be resolved when the parties take the case to court. When there is significant money involved, these cases can last for years.
One of these cases occurred in the Bay Area recently in the case of Cortese v. Sherwood. Christina Cortese was the daughter of Franscesca Naify, the wife of Robert Naify. Cortese claimed that Robert, her stepfather, promised her that her mother Francesca would have a large part of his estate when Robert passed. Robert, when he passed, was worth an estimated $2 billion.
Robert, with the help of his attorney John Sherwood, created a trust for Francesca, who passed away in 1997. Cortese alleges that Sherwood told her that through Francesca, Cortese would be a “very wealthy woman.” However, Cortese later alleged that Sherwood conspired with Robert to create a trust that was underfunded and in the end was only worth $16 million.
Cortese sued Sherwood for, among other things, breach of a legal duty to her. The Appellate Court ruled that Sherwood did not breach a duty because, as Robert’s lawyer, Cortese was not his client. Sherwood had a legal duty to Robert, not to a non-client.
This case illustrates how a complex family dynamic can go wrong. When these situations arise, it is best to have strong attorney guidance from the beginning to avoid these situations. When considering drafting a will or creating a trust, speak with the Hayward Trusts and Estates firm of Melanie Tavare.