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Will Contest Loses, But Friends Not Charged With Legal Fees

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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.

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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.