JULY 13, 1998 VOLUME 6, NUMBER 2
Anna Elizabeth Guess lived to the age of 83 on her farm in Cabot, Arkansas. She raised seven children, and had been generous to them on many occasions. In 1989, for example, she gave her son Wayne title to ten acres of her farmland in return for a three-year-old Chevy pickup.
In 1991 Ms. Guess accidentally set her own kitchen on fire by forgetting that she had a meal cooking on the stove. Shortly after that fire, Ms. Guess' daughter Alice Going secured a durable power of attorney from Ms. Guess. Later, Ms. Going insisted that the kitchen fire was the primary reason she had gotten her mother to sign the power of attorney, though several of her brothers and sisters insisted that the real motivation was to prevent Ms. Guess from giving away any more of her farm.
In 1994, at the age of 82, Ms. Guess entered into a land sale contract with her granddaughter, Cindy Going Wilson (the daughter of Alice Going). Ms. Wilson and her husband agreed to purchase Ms. Guess' 85-acre farm for $170,000.
Under the agreement, Ms. Guess' granddaughter was not required to make any payment on the farm for nine months. After that time, she was to begin making thirty-six monthly payments of $500 toward a "down payment." During that period, no interest would accrue. After the "down payment" was completed, Ms. Wilson and her husband would begin paying off the $152,000 balance of the purchase price, with payments extended over 28 years.
Ms. Guess died in September, 1995. Her daughter Alice Going asked the Arkansas probate court to appoint her as personal representative of her mother's estate, and she sought to have her mother's will admitted to probate. The court appointed her, over the objections of the rest of Ms. Guess' descendants.
Ms. Guess' other children and grandchildren pointed out that, because of the terms of the agreement, granddaughter Cindy Wilson would not have paid off the loan on the farm until most of them were in their seventies. They argued that Alice Going could not be expected to challenge the fairness of the agreement, since it would mean setting aside a deal that was clearly beneficial to her own daughter.
The Arkansas probate judge disagreed. He ruled that the agreement was valid, and that the family members had no cause to insist that the personal representative attack the land sale. The family members appealed his ruling.
The Arkansas Court of Appeals reversed the probate judge, siding instead with the family members. The court pointed out that, under Arkansas law, a personal representative can be removed when he or she "becomes unsuitable." The judges pointed out that Alice Going had testified that she was aware that all her brothers and sisters wanted her to challenge the agreement, but that she declined to do so in part because it would adversely affect her own daughter. "There can be no more explicit proof of a conflict of interest," wrote the court, "than this testimony." Guess v. Going, Arkansas Court of Appeals, April 29, 1998.
A similar result might be expected under Arizona law. Arizona, like Arkansas, provides for removal of a personal representative for conflicts of interest. In fact, Arizona courts have extended these principles further than the courts of any other state. In Fiduciary Services v. Shano, a 1993 Arizona Court of Appeals case, the court held that a personal representative "has a fiduciary duty to those who succeed to decedent's estate." In fact, reasoned the court, that duty is so strong that even the personal representative's attorney has a duty to the heirs, devisees and creditors of the estate. A personal representative who finds that he or she is unable to discharge those duties, even when it requires proceeding against family members, should expect to be removed upon the request of any interested party.