Unsuccessful Challenge Costs Claimant And His Attorney


Despite the popular notion that it is easy to attack a decedent’s estate plan, successful challenges are actually quite rare. It is seldom possible to mount a challenge just because the decedent’s plan seems unfair, or because the decedent “always wanted” some other distribution. In fact those who challenge estate plans sometimes do so at their own peril.

When Nannie Mae Ross died in Mississippi in 1998, she left three certificates of deposit at a local bank. All three CDs named her son Tony Ross as joint tenant with right of survivorship, so that all her assets transferred to him automatically on her death. The CDs totaled a little less than $100,000 in value.

Mr. Ross was not his mother’s only child. His sister Maxine Morris had died in December, 1997. Ms. Ross had lived with her daughter until the daughter’s death. During the thirty years that mother and daughter lived together, Ms. Ross had named Maxine Morris’ as joint tenant on some or all of the Certificates of Deposit she owned. After her daughter’s death Tony Ross moved in with and helped take care of Ms. Ross, and within a few weeks of his arrival she had made the changes in her bank accounts.

After Ms. Ross’ death Maxine’s son Rodney Foster challenged the joint tenancy accounts. His basic argument: those accounts were originally supposed to go to his mother and the most likely explanation for the change must be that Mr. Ross unduly influenced Ms. Ross to place the accounts in joint tenancy.

Mr. Foster pointed to a well-established legal principle that could have shifted the burden onto his uncle to show that he had not unduly influenced Ms. Ross. If Tony Ross was acting for his mother, including helping her out with her finances, he might have been found to be in a “confidential relationship” with her, and any change in her estate plan would have created a presumption of undue influence. The problem with that argument was simple: both Tony Ross and Rodney Foster testified that Ms. Ross was “fiercely independent” and strong-willed.

After Mr. Foster put on his case the trial judge dismissed his claim. He also charged Mr. Foster $5,086.02 in attorney’s fees to be paid to Mr. Ross for what the judge decided was a frivolous lawsuit. And, just to make the point clear, the judge ordered Mr. Foster’s attorney, Danny Lowrey, to pay the opposing attorney’s fees if Mr. Foster couldn’t do it himself.

Both Mr. Foster and his attorney appealed. The Mississippi Supreme Court, however, agreed with the trial judge. There was no substantial justification for the lawsuit, ruled the Court, and Mr. Foster should have known that before he pursued the litigation. In fact, said the state’s high court justices, any reasonable attorney would have seen that there was no claim to be made and refused to bring the action. Challenging a decedent’s estate plan can be not only difficult, but costly—including the costs incurred by the heirs or distributees. Foster v. Ross, January 10, 2002.

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