Recently we received several calls about will contests – that is what happens when someone wishes to challenge the beneficiaries of an estate. It is a legal proceeding usually brought by a beneficiary or someone who feels they should have been a beneficiary.
There are generally only a few grounds to challenge a will or trust. (Hint: Simply believing the will is unfair is not a valid reason.)
First, the will has to be legal under state law. States have very specific requirements of how wills must be prepared and signed. Those rules aren’t necessarily complicated but get it wrong and the will or trust document may be worthless.
Some states prohibit you from disinheriting children or spouses. If the person who died didn’t follow the correct procedure, there may be grounds for a successful will contest. State laws also regulate who can witness, how many witnesses are necessary, and whether a beneficiary can be a witness.
While we don’t advocate getting your will done online, services such as LegalZoom are generally are pretty good about explaining the state procedures. Unfortunately, many people copy someone else’s will or just use a document they found on a free website.
Assuming the will complies with state law, there is still the issue of lack of capacity. Was grandpa coherent and competent at the time he signed his new will giving everything to his beloved cat? The standard of proof is pretty low making capacity arguments hard to prove without good evidence. Medical records could become key, especially if the decedent (the person that died) was on heavy painkillers at the time the will was executed.
Unfortunately, these cases occur frequently. A beneficiary surfaces just after the death with a “new” will leaving everything to him or her and nothing to the rest of the family.
The first cousin to lack of capacity (competency) is undue influence. While it is often easy to overturn a will when a non family caregiver is suddenly named in a will, proving undue influence among family members is more difficult. Undue influence requires the person bringing the will contest to prove that the person making the will was unfairly influenced by a third party. Common examples are nursing home employees or home health aides who withhold medication and insist a new will be signed. Another example is the family member that says they will put an elderly or incapacitated person in a nursing home unless they sign a new will.
Finally, there is fraud in all its ugly forms. Does anyone remember the TV show MASH and how Radar or Corporal Klinger would push papers under the nose of the colonel and just ask him to sign without reading the documents? It happens all the time in real life. Although we may be less trusting with strangers, family members will often sign documents without reading them if presented by another family member.
We have also seen cases where someone will simply substitute new pages into an existing will.
A related variation is simply tearing up a will if unhappy with the distribution. If a person dies without a will, state law dictates where the money goes. An only child that finds out that his parents left everything to a local church might be tempted to tear up their wills (assuming they died in a common accident). Why? Because unless the church has a copy of the will, under most state laws, the child would receive everything if no will was found.
Will contests can be won. Finding a good fraud litigator is key. Although there are many excellent probate lawyers, few are litigators with the experience and court skills to fight a full blown will contest.
The time to file a will contest is quite limited in most states. Once a will has been approved by a court, challenging becomes much more difficult. If you believe that someone has improperly denied you the fair share of a will or estate or if you feel a loved one was unduly influenced to give away his or her assets to someone else, give us a call immediately.
The fraud lawyers at Mahany & Ertl specialize in all types of fraud and can help you with a will contest. Let us help you get back what is rightfully yours. For more information, contact attorney Brian Mahany at or by telephone at (direct). All inquiries kept in strict confidence.
Mahany & Ertl – America’s Fraud Lawyers. Offices in Milwaukee, Wisconsin; Detroit, Michigan; Portland, Maine; Minneapolis, Minnesota and San Francisco, California. Services available in many jurisdictions.
Need more information? Check out this post on undue influence or use the search engine located in the upper right corner of our Due Diligence blog.
Posted by Brian Mahany