Inheritance Wars: A Battle of Wills

Katya Valasek:

We're joined today by Lynette Paczkowski, whose career represents a lesson in keeping your options open. While the focus of your practice area has varied since your first job out of law school, which was at an insurance defense firm, you've consistently been a litigator. We'll talk about your current practice in a bit, but can you first tell me about the common threads that have run between your jobs?

Lynette Paczkowski:

The biggest common thread that I have had is so much of what goes into litigating a case is providing guidance to your client. And I think how I sort of ended up to where I'm at now is finding a practice that allows me to really talk to the individual client one-on-one about the things that affect them the most. You know, it's insurance defense, you might be talking to in-house counsel or to a claims adjuster in addition to the actual insured. Doing construction litigation, you're talking to a small business owner as well as sometimes a claims adjuster. As I've morphed into the family law and probate litigation, it's dealing with individuals one-on-one. But the common theme is always, here's the strengths of your case, here's the weaknesses of your case, and here's how a judge might view all of this and what your potential outcomes are.

Katya Valasek:

So you started doing something very different. Insurance defense is so different from where you sit now on the domestic relations team. Were you purposefully looking for next steps that would get you to a specific type of practice area or were these changes as they happened, were they just lucky breaks along the way?

Lynette Paczkowski:

I don't necessarily call them lucky breaks because I think there is an element of putting yourself in the right environment and sort of making your own luck, so to speak. But I do think I was always open to opportunities to diversify what I was working on and to really feel like I was making a difference at my firm and with my clients. Each lateral move that I made was really based on getting a broader experience and exposure.

And then the internal move that I made at my current firm, from doing general civil litigation to doing family law and probate litigation, really had to do with, at that point in my career, honing in on what I enjoyed the most and where I felt like I was making the most difference.

Katya Valasek:

As you were making these moves to expand your practice, what was it that drew you to the work that you are now doing on the domestic relations team?

Lynette Paczkowski:

I think being able to work with individuals as opposed to companies or insurance adjusters. And that's no knock on businesses and insurance adjusters, but there really is something about family law and probate litigation where you are really in someone's life in a way that is about something more than financially or a contract. This is someone's house. It's someone's children. It's their livelihood. It's their family. It's the things that really matter the most to them. I was a psychology major in undergrad. And I think this is an area where I do get to do some applied psychology, helping them navigate through what's really an emotionally turbulent time for them.

It's not for everyone. Every day that I'm in the office, I am working with the client who is feeling the emotions of their case. And you have to be able to meet those people where they are, as opposed to when you're dealing with a business dispute that is kind of strictly about monetary gains or losses or how to remedy a situation. And there's a little bit of a lack of emotion to it. This is really an area where I feel like I get to take what I enjoyed about psychology and what I enjoy about the law and work with my clients.

Katya Valasek:

And you're not just a member of the domestic relations team at Bowditch & Dewey, which is a firm with 60-ish lawyers and four offices across Massachusetts. The firm has been around a lot longer than the domestic relations team, and you're now a partner. So can you explain how firm stakeholders think through new teams or groups and growing them into the firm?

Lynette Paczkowski:

At the end of the day, law firms are a business, and they do have to operate like a business. And so one of the main factors that will go into developing and growing or adding practice areas is does it make sense from the business perspective? And I think that's really twofold.

One is, can it be a profit center and be profitable for the firm? And two is, does it fit the needs of existing or desired clientele? And for a full-service firm like Bowditch, it makes a lot of sense. We have a lot of clients who end up needing domestic relations or probate litigation work. We also can cross-sell our services. For folks coming out of a divorce, they may need a new estate plan. For people who are going through estate administration issues and will contest, maybe they realize, maybe I should beef up my own estate plan. Oh, by the way, I also have this property that I need to have an issue with, and I need your real estate team. So there is a lot of cross-selling.

And I think when you can find the right mix of lawyers who are going to fit in personality-wise, but also who can service existing or desired clients and be profitable for the firm, that's when the firm is going to take a real hard look at, this is an area that we can add, grow, expand, and fit into the fold.

Katya Valasek:

Was the group always a profit center?

Lynette Paczkowski:

I don't think it ever cost the firm money per se, but there was certainly a period of time where we had one or two attorneys doing it. And that looks a lot different than when you have 11 attorneys who are doing it. In terms of whether you want to call it a profit center, I think there does have to be some scalability and growth before you can really look at it as a strong branch of the firm.

Certainly, now with seven partners and four associates, I think we are a very active and contributing member to the health of the firm.

Katya Valasek:

What was the experience like growing from that small group of three up to 11 lawyers?

Lynette Paczkowski:

A lot of hurdles along the way, in part due to some unforeseen circumstances here, including a dear colleague and partner of mine passing away unexpectedly after a short but courageous health battle to sort of natural issues with transitions. But we were very lucky enough to find a group of lawyers who had worked together for a long time at a previous firm, who were looking for a different opportunity for themselves. And we made their short list of places that they were interested in speaking to.

So we were able to onboard a group of people who functioned very coherently as a team and who had already had a good level of camaraderie with each other. And it was a very natural and seamless, thank goodness, transition into bringing them into the fold here. And so we were in some ways very lucky to get the caliber of lawyers brought in that we did because that really helped expand our team very rapidly and quickly with the right fit.

Katya Valasek:

Did they approach you or was it an ongoing conversation that just eventually led to an understanding that they would be a good fit?

Lynette Paczkowski:

It was a little bit of both. After my partner had passed away, we certainly had a need to figure out where the practice was headed because at that point, we would have been a department of two, which was not what we envisioned. When we were three, we were still planning to grow the department to more than three.

So with the loss of my partner, we certainly had put the feelers out. We're talking to recruiters, we're looking for what the right fit would be. We at that point did not necessarily envision jumping from two to 11.

But when we put the word out, we were approached by people who were looking to make a move and trying to figure out on their end sort of who would be making the move with them. But I think it was the conversation was certainly flowing in two ways in terms of we need help, we need growth. And then what were they looking to bring to us?

Katya Valasek:

It sounds like it's another example of you just being open to an opportunity that's going to provide you room to grow and expand into what the next iteration of your career is going to be. Would you say that that's a theme that you've seen over the course of your professional career?

Lynette Paczkowski:

I have. And I think it's a theme that I've seen work both ways. Obviously, I'm here telling you why I think it works to keep your options open, because I am personally and individually gratified and happy with what I'm doing.

And I also think that that played a role in how this team has come together. I've also seen it work where sort of the fear of change and the fear of trying something new or the fear of leaving the comfort zone has led people to perhaps feel a little bit stuck in a rut where they are.

And sometimes there are reasons not to change. I had a former colleague once say the grass isn't always greener. There's always going to be a challenge or a circumstance that isn't perfect. And I'm at a job where I know what my headaches are and I know how to manage them. If I go somewhere else, I don't know what I'm going to get. And there is something to that. But I think it can also hold some people back from really taking a stab at and believing in themselves and believing that there are opportunities out there that can be better than what you have currently.

Katya Valasek:

So you mentioned earlier that Bowditch is a full-service firm that gives you the opportunity to serve your clients through various needs that they may have. How does this impact the way you work with other attorneys in the firm if you're all working on different matters for the same client?

Lynette Paczkowski:

There is usually someone who we affectionately call sort the relationship partner. Someone came into the firm because they met someone first. But one thing that I sort of really feel grateful about with the firm that I'm at is there is a level of trust and respect within the firm. And so even if I'm the person who brought the client in, if I have handed them off to somebody to handle a real estate matter for them that is way beyond any of my comprehension, I don't feel the need to micromanage and oversee that involvement. I trust that I've handed it off to the right attorney, whether it's a partner or associate.

They can handle the transaction. They're going to deal with the client. And I'll check in with the client, make sure everything's going well, but I'm not sort of overstepping the toes and trying to manage that. And I think that really gives the client confidence in the attorneys who are handling their matters too.

Katya Valasek:

It's impressive to have someone that you can name when they say, hey, this thing just happened and I'm not sure how to handle it. It's impressive to be able to say, well, let me connect you with so and so. I can also see how that would impact the perspective that your clients have when they're coming to you with an issue.

Lynette Paczkowski:

I think it's one of the benefits of a mid-sized firm. When you have a hundred, two hundred, three hundred, a thousand lawyers, I don't care who you are. There's no way that you remember who everyone in these offices are or what they do or what they enjoy working on.

With a firm our size, you can remember who 50 or 60 different attorneys are, who's in what practice group and what they do. And so I think it is one of the benefits to having a mid-sized firm that we do genuinely all know each other and can guide our clients in the right direction.

Katya Valasek:

I want to shift now to talk about what your practice is. Currently, you do about 70% family litigation, 20% probate litigation, which is what we're going to dig into, 10% miscellaneous, give or take. In all of these situations, you're involved when something is going wrong. Someone is mad or frustrated or uneasy, and it's risen to a point where an adjudicator needs to step in. On the family law side, what do you help your clients navigate?

Lynette Paczkowski:

In my practice, I help clients navigate everything from full divorces to contempts and modifications to here in Massachusetts, our statute is 209C, which is our parentage statute for unwed parents. So really it's mostly involving child custody, child support in the divorce cases, division of assets and spousal support and alimony. So it's the full range of divorcing yourself from your partner or navigating child related situations.

Katya Valasek:

And your work is litigation heavy, correct?

Lynette Paczkowski:

It is. We also, behind the scenes, can help people navigate through mediation or, you know, alternative forms of dispute resolution. But ultimately, yes, I am getting involved when it's at the point where it's time to file something with the court or get the court to approve what you've already sort of been negotiating behind the scenes.

Katya Valasek:

Because that's litigation, it means that, as you said, there wasn't some other resolution that could be reached and people's emotions are high. These are families, these are finances, these are houses. How long does it take you to feel confident in not only managing the litigation that's going to happen, but also managing the emotions of your client?

Lynette Paczkowski:

In a strange way, it didn't take me as long as I thought that it would. You hear about imposter syndrome all the time. I have probably had less imposter syndrome in my life doing family law and probate litigation than in some other areas.

And whether that's a byproduct of me having sort of 15 years of practice under my belt before I came to this area, or if it is because, again, you are dealing with the practical realities of someone's everyday life in a way that's very concrete and very sort of tangible to people, it was a natural fit for me in a way that I'm very grateful for it to have been.

Katya Valasek:

So you also do a bit of probate litigation. On the show, we've talked to Wills, Trust and Estates lawyers, and that's very transactional. It's about preparing for the future. It's often collaborative. But when you're involved, again, it's because something has gone wrong. So I think we're going to start by defining a few terms so we can adequately explain your role in these disputes.

So let's start with a big one. What is probate?

Lynette Paczkowski:

So probate, in its most natural form, is when someone files a petition with the court for estate administration. So someone has died, and they're looking for the court to either make findings that there wasn't a will, this person has died, as we call it intestate, and we have to make some decisions and determinations around who the heirs are and how the assets are going to be divided. Or on the flip side of that, here is a will, the will is valid, here's what the will calls for, we're going to execute under the will. I think that's sort of the purest form of probate.

There are other related issues that go with that. So the probate and family court can also deal with trust issues, whether it is a trustee who is not necessarily living up to their obligations in the eyes of a beneficiary, whether it is a trust that is no longer serving its purpose, particularly we see that with real estate when there's an issue with that. And the probate and family court can step in and help out and navigate those trust disputes as well. So those are sort of the two biggest buckets of what we do on the probate side of things with a whole host of offshoots related to both of those.

Katya Valasek:

So if someone has a trust issue and they come to you for help, what are you doing to try and modify or terminate the trust?

Lynette Paczkowski:

So I think the first step, and we say this to people all the time, thank you for your description of your problem, now let me see the trust. Because the trust in some respects is like a contract in some ways. It is someone setting forth, here's what I have, here's what my intent is, here's how I would like someone to carry it out.

And so there are oftentimes within a well-drafted trust provisions that explain what is supposed to happen, how it is supposed to happen, who is supposed to be responsible for it happening. And so that's always the first place I start with someone is, okay, I've heard what you think the issue is, let's see if that's actually covered by the trust. Let's make sure you understand what this trust is and isn't for, or how it's supposed to be managed.

And then if there is a problem, let's look at what the recourse is. Do we need a new trustee because this one isn't doing their job? Do we need to terminate the trust because it's no longer serving a purpose We figure out a game plan. And then by and large, one thing that our probate and family court has done pretty well is they do have standard form, what we call petitions, to petition the probate court to ask them for that relief. And so we start working on those forms to fill out, here's what the status is, here's what the issue is, and here's what we're going to ask the court to do as a matter of relief.

Katya Valasek:

Next, I want to work through an example to highlight your role in a situation where someone is contesting a will. So let's say there is a person, Walt, with two heirs, Mickey and Minnie. Mickey expected to get 50% of the estate, but Walt ends up leaving the entire estate to Minnie, except for a small plot of land.

Mickey thinks Minnie pulled a fast one and has come to you for help. Let's also assume Mickey and Minnie are not going to come to agreement on this issue. What is the first thing you do with Mickey?

Lynette Paczkowski:

So the first thing we do with Mickey is sit down and again, try to understand what it is they think happened. How did Minnie pull a fast one? What did she do? What were you not allowed to do? What was the relationship between everybody and Walt and why do we think that this is a problem?

And again, we also then need to look at the will and look at procedural things that were done. When was it executed? What was going on in the family at the time that it was executed? What else has Walt done for Mickey or Minnie during the course of his life, right? Sometimes there are reasons why someone leaves everything to Minnie in a will because lo and behold, during Mickey's lifetime, they already handed out the equivalent of what they're leaving Minnie in the will.

So again, it's really sort of taking a deep dive into the circumstances and what was really going on and whether or not there are reasons to think that there was a fast one. You know, was we look at was there any undue influence? That's sort of the big phrase that comes out around will contests. What can we point to to say to a court, this will is not valid either because it wasn't properly executed, because it was done under duress, the person was dying when they didn't have the right cognitive capacities to be able to understand what they were doing and why they were doing it? Or was it just a broader, you know, pattern of undue influence? Or do we not have anything to point to? And as challenging as the situation is, maybe it's not worth fighting in court. And that's not even to mention if the will has a no contest clause in it, which could penalize someone for challenging it in court.

Katya Valasek:

Who else in the situation needs to have legal representation? Does Minnie? Does the estate?

Lynette Paczkowski:

It depends oftentimes under whether the will has a nominated personal representative and who that person is. Typically, you would see someone offering the will to the probate court and saying, we would like to have this will upheld. And at that point in time, the probate court will appoint either a personal representative, or if that is subject to contest in and of itself, may appoint what they call a special personal representative to sort of maintain things while all of this plays out.

The personal representative typically has representation, especially if it's going to be contested between beneficiaries. And then the beneficiaries may themselves have representation. It can get a little muddy and unclear if Minnie, for example, is also the personal representative under the will, because then that person has, there's a potential conflict of interest there between the personal representative who's supposed to be acting on behalf of all beneficiaries who is also a beneficiary who has my own personal interest in the outcome of the case. And that's when things can really get a little bit muddy in terms of who's representing who and in what capacity.

Katya Valasek:

I just recently read the books that Anderson Cooper wrote about the Astors and the Vanderbilts. And there were some messy wills and will contestations in those books. So I want to do what law professors do, and I want to add on to this hypo.

So let's say one of the questions is whether a codicil on the end of the will is valid. So let's start by defining codicil. Can you do that for me?

Lynette Paczkowski:

A codicil is a fancy word for addendum or amendment. And so they are usually added either because there's an additional term that someone wants to add to their will, or they are looking to make a specific change to the will without having to redo the entire thing. So they will do this fancy phrase codicil, which makes everyone sound super important and super official. And they will attach that to the existing will without having to redo the entire will.

Katya Valasek:

Okay, so there's this codicil. It's handwritten in Walt's signature. It's witnessed. But Mickey is saying that based on the date, there's no way Walt had the cognitive capacity to understand what he was adding to this will. What do you do to try and determine whether that's the case?

Lynette Paczkowski:

If you have an open contest where you are able to do discovery, things like depositions where you're taking someone's testimony under oath, depending on whether they're a party to the case or not, it could include requests for production of documents or answering written questions that we call interrogatories. And you also have subpoena power if you have an open piece of litigation.

So one place that we often start is one, talking to the drafting attorney. If we can identify who drafted this codicil for Walt, we might want to take that person's deposition or talk to that attorney. Sometimes, especially if someone is up in age or has some type of cognitive question around them, the drafting attorney may get a letter from a treating provider, a primary care physician, a neurologist, someone to say, this person took a cognitive test or I know from my personal dealings with them that they still have cognitive capabilities. We're going to want to know, did the drafting attorney have a 20-minute conversation and the document got signed within that 20 minutes? Or is this someone who's been representing Walt for a long time, talked to him in advance about what he wanted in the codicil and why, had a follow-up conversation with him about a draft of the codicil, then met with him on yet another occasion to review and sign the codicil. How much was really put into knowing what Walt wanted and why?

We might subpoena Walt's medical records to find out, were there notations by a about concerns about cognitive abilities? Was there an active diagnosis that we need to be concerned about? Was Walt on medication that could impact his ability to know what he was doing? Then you're sort of also still back to the same questions that we had about the will contest in general. Is there undue influence? Why did Walt do this? Was there something untoward about what one of the beneficiaries was doing with Walt to get him to do this codicil? Probate litigation tends to look an awful lot like your general civil litigation, except you are, again, dealing with just a different realm of clients and issues.

Katya Valasek:

And some messy interwoven issues. Do you like that complexity? Do you like the messiness?

Lynette Paczkowski:

I do. I feel like I can help people navigate through that. I think some of the most challenging cases that I have, though, are when there's just a significant amount of distrust between family members that manifests itself in questioning everything that's happening in a probate matter.

Oftentimes I find myself having to say to someone, I know you don't trust what so-and-so is doing, but you're not entitled to all of the information and all of the documents and all of the things that you think you are. So I think some of the messiness that's the most difficult to navigate are the times that I have to tell a client, I hear your concern, but you may not be entitled to it and I may not be able to get that for you. And on some level, you have to put the distrust aside to try to move forward to close out this estate.

Katya Valasek:

Could you do probate litigation full-time if you wanted to?

Lynette Paczkowski:

I think that it depends on the size of your firm and where your work comes from. I think that you could. I think that it is harder to do because it's a little bit fewer and far between. Family law clients, for example, especially if there are children involved, issues pertaining to those kids are going to occur until the children are emancipated. And in Massachusetts, they emancipate typically anywhere between age 18 and age 23. So those clients continue to have issues, continue to have things that they need your consultation on in a way that even as you grow your practice and add new clients, your old clients continue to come to you with questions and needing advice.

In the probate litigation, you're a little bit more reliant on not only someone passing away, but then there being a real question and challenge to what's happening. And so I think it is a little bit fewer and far between. And oftentimes, sometimes the size of the estate is cost prohibitive to really challenging it in a way that people want to. I mean, the cost of litigation is not lost on me. I do it for a living. I know that it can easily cost tens of thousands of dollars, if not more. And at the end of the day, you have to ask yourself not only what the size of the estate is, but what is your best case scenario? And I think those are tough questions that people need to ask themselves, too. But if the lawyer is doing right by them and asking the potential client those questions, it also sometimes puts ourselves out of work.

Katya Valasek:

Bowditch also has a Wills, Trusts, and Estate group. Do you collaborate with them much?

Lynette Paczkowski:

We do, both in terms of picking each other's brains. And that flows both ways. Sometimes I get people who are drafting a will or drafting a trust, and they'll call me and say, can you issue spot this? Do you see any problems down the road? How can we try to mitigate and minimize the risk of a problem in the future? Or if I get a case and someone's calling me with a will contest or a potential trust issue, I'll pick their brains and say, what do you think? Do you think this is a problem or is everything going OK?

And then there are other times where actively during the course of something, we're collaborating. So one of my colleagues may be handling and representing a personal representative who's administering an estate. And then maybe one of the beneficiaries makes a challenge to what they're doing. And then I get the phone call, OK, we need to bring in the litigator to help defend the personal representative. Or they're representing a beneficiary who's got a question, and they're kind of babysitting the estate administration. And they're like, well, we want to make a challenge to what the PR is doing. Let's tap in the litigator to get involved. So we very much collaborate as the case progresses.

Katya Valasek:

Between your practice and management responsibilities, you have a lot on your plate at the office. But you still find a lot of time to work in your local community and the legal community. And we're not just talking about being a member of an organization. You seem to always take on a leadership role. How do you find the time?

Lynette Paczkowski:

You have to find the time, both because you need time for yourself that is not just strictly legal work and helping clients, but that's fulfilling for you. But it's also a form of business development. It's a form of networking. It's a form of being able to be viewed as a leader who can help people solve problems. And particularly for someone like me, who is a career litigator who is out there telling people, I can help you solve your problems. The best way that I can demonstrate that is by being involved in something where the people that I'm getting to know see me as a leader and someone who's helping navigate and manage the organization or the board or whatever the case may be in the issue there.

So I burn the candle at both ends a lot. My stepfather used to always say, I don't let any grass grow under my feet. But that's what I enjoy. And I think it helps keep me level and balanced, not just sitting in my office working twenty-four-seven.