Siblings accuse lawyer of malpractice in drafting deceased mother’s will
A recent story published in the Santa Fe, New Mexican online reports of an estate dispute where siblings have alleged malpractice by the lawyer drafting their deceased mother’s will. The siblings have also come after their stepfather contesting the will. The estate in question is the estate of the late artist Margarete Bagshaw (November 11, 1964 – March 19, 2015). She had a stroke in early 2015 before being diagnosed with brain cancer. She was 50 years old when she passed away. Ms. Bagshaw is related to several Native American artists, including her mother, Helen Hardin and her grandmother, painter Pablita Velarde. Ms. Bagshaw is survived by her children, Helen and Forrest Tindel.
Her children are alleging that her second husband, Dan McGuinness, had Ms. Bagshaw sign a new will some time before she died. An earlier will signed in 2006 left her entire estate to her children. The 2006 will was signed after she separated from her first husband. Her estate included all of her paintings and jewellery, her intellectual property rights, and the intellectual property rights of her mother and grandmother. Allegations are being made that after Ms. Bagshaw had her stroke in 2015, she declined mentally and lost most of her cognitive function. Ms. Bagshaw is said to have lost her mental capacity to such an extent that she did not know why she was at the hospital after her stroke, she did not know that she had cancer, and she could not recognize her daughter at different times.
The children are alleging that a new will was drafted by attorney W. Anthony Sawtell some time shortly before Ms. Bagshaw passed away granting the majority of her estate to Mr. McGuinness. The complaint states that Mr. Sawtell did not inquire about the previous will and also failed to determine if Ms. Bagshaw had the mental capacity to execute a new will. The new will was allegedly prepared mostly through email correspondence and in a very short period of time.
None of the allegations have been proven in Court and the will has not passed probate.
It will be interesting to follow this dispute and to see what happens with the will challenge and the drafting lawyer. If a lawyer preparing a will suspects the testator may have impaired cognitive function, steps must be taken to ascertain if the testator has capacity to prepare a will. The drafting lawyer should ensure that instructions are given by the client and not by a family member, especially if that family member is a potential future beneficiary under the new will. A will challenge is almost guaranteed when the estate has many assets, when beneficiaries under a previous a will are excluded, and when the new will is executed under suspicious circumstances.
More updates on this dispute here.