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VOL. 7 | NO. 41 | Saturday, October 4, 2014

Parting Thoughts

Estate planning changing as wills, estates become more contentious

By Bill Dries

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The will of Wade Bolton at the Shelby County Archives. The will, along with Bolton's estate, is a legend in the Memphis legal community.

(Memphis News/Andrew J. Breig)

Wade Bolton had a lot on his mind when he drafted his will in 1868.

Most of it had to do with a violent feud between his family and the Dickins family in which he was ultimately one of the victims of the violence – shot and fatally wounded in Court Square, less than a year after writing the will.

The two families had once been business partners in a slave-trading firm.

The will instructs most of his heirs, who got $5,000 each, to do “all they can to defeat this gigantic swindle of old Tom Dickins, and his tool and ally, Sarah W. Bolton, in the fraud against me.”

In the will, Bolton also refers to Dickins as a “land pirate.”

Sarah Bolton got nothing in the will.

His niece, Josephine Bolton, who married into the Dickins family, got $5 – or as Wade Bolton put it – “one-sixth of what Judas Iscariot got for betraying the Lord. Poor Jo! Her cup of iniquity will be full after awhile.”

The will and the estate is a legend in the Memphis legal community. It remains active to this day because of the board it established for what is now Bolton High School.

Wade Bolton statue on his gravesite at Elmwood Cemetery

(Marjorie Gurley)

Wade Bolton’s anger-fueled instructions in the midst of the feud are rarities these days in estates and trusts.

But attorney Stephen McDaniel, a partner at Wyatt, Tarrant and Combs LLP, says estates have become more contentious and the instructions more detailed.

“What is really touching me on a day-to-day basis is the level of conflict that we are seeing in families when Dad or Mom dies,” he said. “I would submit to you that that level of conflict … is 10 times what it was a decade ago. Families seem to want to fight.”

McDaniel, who is a past president of the Memphis Estate Planning Council and an American College of Trust and Estate Council fellow, teaches estate planning and tax law as an adjunct professor at the University of Memphis Cecil C. Humphreys School of Law.

He is part of the 10-attorney estate and trust practice within Wyatt, Tarrant and Combs.

“I now have a lawyer who virtually his entire practice is estate trust litigation. That’s all he does. There was no such thing a decade ago as an estate trust litigator,” McDaniel added. “The conflict and the controversy and the families going out of their way to fight is to me the biggest change I’ve seen in the estate planning world in the last decade.”

McDaniel works largely as a mediator of such issues these days.

And in many cases, he sees conflicts over “little things” that bring family members to his table.

“Who got daddy’s watch starts the fight over a lot of money,” he said from experience. “Maybe what it is, is an entitlement society. I’m entitled to it and you shouldn’t have it. It’s not that I should have it, I just know you don’t need it and somebody’s got to take it, so I guess it’s me.”

But McDaniel is quick to add that lawyers skilled in using the probate code and the trust code can address such conflict with provisions that punish or discourage those who create conflict.

McDaniel is also seeing the return of “purpose clauses” by parents or grandparents in trusts, although not as severe or pointed as the ones in the Bolton will.

Wade Bolton's will is full of anger-fueled instructions in the midst of a feud. It's a rarity these days in estates and trusts.

(Memphis News/Andrew J. Breig)

“We’re seeing them put language in that explains why they’ve done it and what their purpose is,” he said, recalling a recent trust by a couple, one of whom was recently diagnosed with cancer, to their children and grandchildren.

“They wrote this heart-wrenching clause that explained their philosophy on life and why they felt they had been blessed and very successful and what they expected their children – and more importantly their grandchildren, who might not get to know them – to do … in their lives, and how to use these assets for their benefit, the benefit of their children and good purposes,” McDaniel said.

He views that as a positive development and a good alternative to the “yuck language” frequently used by attorneys.

“All of a sudden there is this living, breathing statement from a parent saying, ‘This is what I expect of you,’” he added.

That includes provisions specifically worded to shelter assets and wealth to last across several generations and avoid creating “trust babies” – “people whose entire existence is to live off the trust and never do anything meaningful in their lives.”

In Bolton’s case, his careful instructions ultimately weren’t followed to the letter.

He wanted his ashes buried at Pleasant Ridge Church near his home in northern Shelby County.

He was instead buried at Elmwood Cemetery with a statue that is one of the most curious and visited monuments in the cemetery. Bolton is depicted with untied shoes, a wrongly button vest, cross-eyed and with one hand behind his back, fingers crossed.

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