Will Contest Loses, But Friends Not Charged With Legal Fees

MARCH 8, 1999 VOLUME 6, NUMBER 36

Lavina Kessler was 99 years old when she died in 1996. The Washington State woman left an estate of $2.4 million, including several parcels of valuable real estate. She also left a series of five wills and an expensive will contest proceeding.

Ms. Kessler had known Frances and Thomas Trimm for fifty years. The Trimms, both in their eighties when Ms. Kessler died, had been neighbors and friends, and had helped her take care of her finances for many years. As Ms. Kessler’s eyesight dimmed and her health worsened, she came to rely more heavily on the Trimms. In fact, she signed a durable power of attorney naming Mrs. Trimm as her agent after she broke her hip in a fall in 1993. During a ten-year period, she wrote a series of wills leaving increasing shares of her estate to the Trimms.

When Mrs. Trimm found Ms. Kessler on the floor of her home one day, unable to get up or get help, her care needs became acute. Ms. Kessler refused to even consider moving to a nursing home, but the Trimms were unable to provide the care she needed. At about the same time Ms. Kessler’s doctor called Adult Protective Services, and another friend contacted her great nephew, Brian Davis, who lived in Idaho.

Mr. Davis and his wife Tami arrived in Washington two days after Ms. Kessler’s fall. They immediately began to make arrangements for her care, and to question the Trimms’ handling of her finances. Two days after that, Tami Davis called Ms. Kessler’s long-time attorney Lawrence Warren, telling him that Ms. Kessler was suspicious of the Trimms and wanted to change her power of attorney.

Attorney Warren insisted on talking to Ms. Kessler directly. He met with her that same day and again the next day, but found her to be too confused to sign a new power of attorney or to change her will. After he declined to oversee the signing of the new documents, he was never asked to visit with Ms. Kessler again.

Ten days later Tami Davis contacted Washington attorney John Hertog and asked him to meet with Ms. Kessler. After two meetings, he too concluded that she was too confused to sign new documents.

Over the next two weeks, the Davises initiated proceedings to be appointed as Ms. Kessler’s guardian and conservator. Because of the possibility of a will contest, and allegations by the Davises against the Trimms, a professional, independent fiduciary was appointed.

Almost exactly three months after her initial fall and the arrival of her great-nephew, Ms. Kessler finally signed a new will disinheriting the Trimms altogether, and leaving some of her real property to the Davises. The signing ceremony was videotaped, and revealed that Ms. Kessler was at least somewhat confused. She died two months after signing the new will.

Mr. and Mrs. Trimm contested the new will. After a trial, the judge determined that they had not shown sufficient basis to challenge the validity of the will, and denied their claims. They were ordered to pay costs and attorney’s fees in the total amount of $346,949.89. The Trimms appealed to the Washington Court of Appeals.

After detailing the history of Lavina Kessler’s confusion and the contents of the videotape of her will signing, the Court of Appeals concluded that there was sufficient evidence to uphold the trial judge’s determination that she was competent when she signed the will disinheriting the Trimms. But the appellate judges also decided that there was enough merit to the Trimms’ position that they should not be forced to pay the estate’s fees and costs. The result: while the Trimms’ contest of Ms. Kessler’s will was unsuccessful, they were not required to pay the legal fees for bringing their lawsuit. The bulk of her estate will now go to Brian and Tami Davis. Estate of Kessler, March 1, 1999.

©2017 Fleming & Curti, PLC