Actor Sherman Hemsley from the hit 70’s television show, “The Jeffersons”, passed away on July 24, 2012. However, he was not buried until November 21, 2012 because of a dispute over his estate.

Hemsley created his will a mere 6 weeks before he passed away from lung cancer. In his will, he left his entire estate – $50,000 – to his longtime friend Flora Enchinton Berna. After his death, a man named Richard Thornton came forward, claiming to be Hemsley’s half-brother and challenged the will on the basis of incapacity.

Berna had known Hemsley for years and he never mentioned having a brother. DNA evidence was required to prove that Hemsley and Thornton were related. Berna wanted to bury Hemsley in El Paso, where he lived the last years of his life. Thornton wanted to bury Hemsley in Philadelphia where Hemsley grew up.

After four months of legal wrangling, a Texas judge declared the will valid but it took a one day trial in which the lawyer who prepared the will testified that he believed Hemsley was competent; a nurse said that he had been mentally alert; and a friend testified that Hemsley stated he did not want to return to Philadelphia and thought of Berna as his only family.

Certain family members and beneficiaries under a will have the right to challenge the validity of the deceased’s will. This is true in Texas, as it is here in British Columbia. The four month delay in the Hemsley case was due to the difficulties in obtaining DNA evidence, which only went to prove Thornton’s “standing”, or right to challenge the will (by proving he was in fact a brother).

However, the case itself did not turn on whether or not Thornton was actually Hemsley’s brother, but rather whether Hemsley was capable of making a will. In the end, Hemsley’s will was found to be valid and Berna had the right to make the funeral arrangements.

Unfortunately, even small estates can be the subject of a lawsuit. However, proper estate planning assists in reducing the possibility that it will happen or that a challenge will be successful. The fact that Hemsley made his will while he was ill and so close to his death provided an opening for Thorton’s challenge. This is a reminder that it is best to engage in estate planning while you are healthy and there is less question concerning your mental capacity to make a will.