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Unsuccessful Challenge Costs Claimant And His Attorney

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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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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.