What guarantees do you have that your wishes will be followed after your death? Put another way—what prevents surviving family members from simply destroying a will or trust they do not like? The practical reality is that it is often difficult to ensure that your wishes will be followed, and fraudulent acts by family members are surely more common than anyone knows. Once in a while, though, a decedent’s wishes can overcome misbehavior by his or her survivors—even though it may take years to accomplish.

Mamie Nahibowitz died in 1998 in Connecticut. Her nephew Anton Faford filed a 1973 will with the local probate court, assuring the court that it was her last one. That will left her farmland to Mr. Faford and other nephews and nieces, with no restrictions on how they could use the property. The probate was concluded in the usual course, and a little more than a year later the probate court confirmed ownership of the property in the nieces and nephews.

Three years later the Connecticut Commissioner of Agriculture asked the probate court to set aside its earlier proceedings. According to the Commissioner, Ms. Nahibowitz had signed a new will in 1993. In that will she left the farmland to the same nieces and nephews, but specifically limited its future use to farming. The Commissioner asserted that Mr. Faford knew of that will, but had failed to produce it because it would reduce the value of his inheritance if the property could not be developed.

The best evidence that Mr. Faford had hidden the 1993 will came from a long-time friend of Ms. Nahibowitz, who swore that she remembered Mr. Faford taking his aunt to her safe deposit box to get the 1993 will so that her lawyer could fix a typographical error. Furthermore, said the friend, Mr. Faford knew that Ms. Nahibowitz had given her will to her sister, Mr. Faford’s mother, so that she could keep it in a safe deposit box jointly owned by the sisters. As she also began to slip mentally, he had taken control of her finances and the contents of her safe deposit box.

There is a bias favoring finality in legal proceedings, but the Connecticut Court of Appeals ruled that the State’s challenge of Mr. Faford’s behavior was strong enough to reopen the probate proceedings and set aside the earlier distribution. The probate judge had doubted Mr. Faford’s veracity when his denials could not be squared with the testimony of his aunt’s friend, and the appellate court agreed that there was sufficient evidence to admit a copy of Ms. Nahibowitz’ 1993 will to probate. As an interesting aside, the story told by Ms. Nahibowitz’ friend was admitted through an affidavit she had signed before herself becoming too feeble to testify. Ferris v. Faford, February 14, 2006.

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