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Contrived probate disputes mirror ‘ambulance chasing’ barratry actions
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By Lou Ann Anderson“Ambulance chasing” conjures images of attorneys soliciting vulnerable clients during times of despair setting the stage for actions that evolve into nuisance or frivolous lawsuits. This criminal practice, known as barratry, is the generation of profit for legal services by an attorney who stirs up a dispute and encourages lawsuits in order to file a groundless claim. Texas barratry laws largely apply to personal injury cases, but with disputes increasing over wills, trusts and other estate-related actions, is probate the new barratry growth area?
Involuntary Redistribution of Assets (IRA) actions happen as Texans’ property rights and personal liberty are targeted through probate venues or instruments like wills, trusts, guardianships and powers of attorney. Actions are initiated by some combination of attorneys (sometimes with other “professionals”), disgruntled family members and/or wannabe heirs. Legal industry participation is a near constant thus injecting the barratry element.
Estate planning is big business. Probate plundering is an illicit offshoot. Barratrous lawyers frequent venues rich in prospective targets. Speaking engagements along with community involvement at locales like health care facilities, senior centers, churches and civic organizations help when trolling for estate dispute participants.
Manufactured estate disputes occur in short order due to sudden death or a health downtown or they may be drawn out with action awaiting anticipated circumstances or creation of a particular family dynamic.
Disputes are created by filing a claim against an estate. Actions need not be legitimate or credible – a relative feeling slighted or a family connection sensing entitlement is plenty. The term “frivolous lawsuit” is well recognized because suits without merit are known for their destructive capabilities. Probate is no exception.
Settlement of a lawsuit can functionally extort assets from rightful heirs or beneficiaries seeking to cut losses and avoid further litigation. When those assets are shared with participating attorneys, barratry occurs.
Another tactic brings a withholding of estate assets from legitimate heirs or beneficiaries so as to provoke legal action by those rightfully named. The estate attorney then profits by perpetrating and defending a wrongful action.
Litigation, an eye-opening experience, demonstrates how court victories correspond more to legal gamesmanship and professional posturing than issues of right or wrong. While estate planning is always recommended, these cases expose the legal industry’s overstated position of security allegedly gained through “proper estate planning.”
Guardianship abuse is motivated by varying financial incentives, including barratry. Guardianships provide an appealing avenue for barratrous actions by enabling confiscation of a ward’s property, restriction of their individual liberty or both. Questionable cases continually surface with estate funds paid to attorneys and other guardianship personnel routinely an issue.
Attorneys can incite disputes by initiating guardianships they know will be contested. If a ward has assets, an action filed in a friendly court can yield control of assets which then pay for billable hours generated in the guardianship’s defense. Court-appointed guardianships provide the same opportunity only judges choose the legal industry associate receiving the lucrative assignment.
Steal $250,000 from a bank, it’s a criminal act. The same diverted from an estate sends harmed parties to the “pay-to-play” civil court system which is expensive and, for many, cost prohibitive. Whether seeking to recover rightful assets, to defend against a contrived estate claim or to challenge a guardianship, additional disadvantage comes through dependency on pricey legal practitioners whose welfare depends on maintaining good relations with court personnel and opposing counsel more so than with their own clients. Here, all profit except the IRA target.
The legal industry responds to critics citing families’ instigation of endless litigation to justify the appearance of estate plundering.
Probate-related legal actions don’t just affect the “rich.” Estates of $500,000 to $1 million are appealing targets in offering a worthwhile financial pursuit that cannot be cost effectively defended in a civil court action. Many Texans fall into this category – a point not lost on the legal industry though few private citizens recognize this looming threat.
Lawyers and other unethical parties, sometimes with complicity from probate courts, can separate any of us from our property when certain (not that unusual) circumstances occur. No protection from probate plundering currently exists, but addressing contrived estate disputes as barratry actions could impact one aspect of this growing problem.
Lou Ann Anderson is an advocate working to create awareness regarding the Texas probate system and its surrounding culture. She is the Online Producer at www.EstateofDenial.com and a Policy Advisor with Americans for Prosperity – Texas Foundation. Lou Ann may be contacted at info@EstateofDenial.com
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