Category Archives: Life Care Agreements

A Life Care Agreement Should Have Been Considered in the 2009 Hernon v. Hernon Will Contest Case in Massachusetts

by: Brian E. Barreira, Esq.

In the 2009 case of Hernon v. Hernon, a successful will contest was upheld by the Massachusetts Appeals Court. A nephew had moved in with the decedent, then the decedent had executed a new will 2 months before death that left his estate to the nephew’s children.

The court found that the elements of undue influence were present. A long-time friend of the decedent testified that (1) the will was not consistent with their many conversations; (2) the decedent had believed he had no other choice than to have the nephew move into his home to take care of him; (3) the decedent felt quite dependent on the nephew; (4) the nephew had driven the decedent to many of his appointments, including to the lawyer’s office to execute the will; (5) the nephew refused to put the decedent on the phone when some friends called the house; (6) the decedent had expressed fear of the nephew’s anger, and once had quickly hung up the phone when he heard the nephew approaching him.

What appears to be missing in this case is an analysis of the benefit provided by the nephew to the decedent. Where many elderly persons are living longer and moving in with relatives or having relatives move in with them when home care is needed, this case highlights the need for independent legal representation to explore health care and estate planning options. The decedent in this case may have wanted to benefit the nephew for his help, and there were other alternatives such as a Life Care Agreement, where the nephew would have been directly and appropriately compensated for his services.

What is evident is this case is that the compensation for the nephew was not well thought-out. On one hand, if the decedent had only lived for a short time, having a will that left the home to the nephew would have been far too much compensation for his help. On the other hand, if the nephew had provided care for years, then the decedent spent a long time in a nursing home, the nephew could have received nothing.

How could the nephew have been left with nothing after providing extensive care? The reason is that a will only gives away what you have left after you die, after all debts have first been paid. Most payments made on a person’s behalf by Medicaid or MassHealth are essentially loans that have to be repaid from your probate estate after you die. An eventual MassHealth estate recovery claim against the decedent’s estate always comes first, before inheritance provisions in the will. In this situation, after a lengthy stay in a nursing home, the home would have had to be sold to pay the MassHealth debt, and the nephew could then have been left with little or no compensation.