Challenges to Trusts Based on Capacity in Kansas

Trusts are an excellent estate planning tool that can accomplish many purposes. For example, the late Pat Bowlen, former owner of the Denver Broncos, established a trust twenty years ago in the hope that one of his seven children would someday take over ownership of the team. In 2009, Bowlen revised his trust and estate plan to give a board of trustees the power and authority to select the next controlling owner of the team. The trustees have been running the team since 2014 when Bowlen stepped down from that role.

Early in 2018, Beth Bowlen Wallace, one of Bowlen’s daughters, announced her intention to become the controlling owner of the Broncos franchise. After that announcement, the trustees told Wallace that she was not qualified and not capable of running the team. Later that same year, one of Bowlen’s other daughters, Brittany, announced that she would like to become the controlling owner of the organization. The trustees created a management position that Brittany will take on this coming November as a first step towards becoming the team’s controlling owner.

Beth Bowlen Wallace, along with her sister Amie Bowlen Klemmer have filed a lawsuit challenging the validity of the 2009 revision to their father’s trust, the document from which the trustees derive their decision-making power and authority. Wallace and Klemmer challenge the validity of the trust on two grounds, asserting both that their father lacked the capacity to update his trust in 2009 and that Pat Bowlen was subject to undue influence when he revised his trust in 2009. Each of these reasons for contesting the trust is worth discussing because many will and trust contests rest upon similar claims. In this article, we will examine the challenge to Bowlen’s trust on the grounds that he lacked the capacity to update it when he did. In a subsequent article, we will explore challenges to trusts based on undue influence.

Bowlen’s two daughters who are challenging the validity of the 2009 trust documents claim that he was incapable of making changes to his estate plan at that time because he lacked the capacity to do so. Capacity in estate planning is an individual’s ability to create valid estate planning documents. It involves understanding what their property and assets are along with what they are doing in disposing of that property through creating the estate planning documents. Since Wallace and Klemmer are challenging the trust, they, along with their attorney, are tasked with the burden of providing clear, satisfactory, and convincing evidence that Bowlen lacked testamentary capacity when he updated his estate plan in 2009.

Pat Bowlen fought Alzheimer’s for many years before his death earlier this year. Many adults live with Alzheimer’s for years after they begin to experience its debilitating effects.  The decline in functioning due to Alzheimer’s is gradual and often occurs over an extended time. This poses a significant challenge to people like Bowlen’s daughters, who are challenging estate planning documents based on capacity because it is tough to determine with certainty the point at which a person transitioned from having testamentary capacity to lacking it.

If you have any estate planning questions or concerns, schedule a consultation with Weber Law Office, P.A., by calling us. You can also connect with us online. Our Wichita office is open on weekdays, from 8 a.m. to 5 p.m.