The process of contesting a will can be more drawn-out and expensive than many are aware. Attorneys in the estate planning and probate fields may compare will contests to nasty divorces, because family members often become angry, stubborn and, sometimes, irrational.
Before a person can contest a will, they must have standing to do so, which means that they are directly affected by the probate proceedings and believe their rights to the estate have been impacted. For example, if a son believes his mother was suffering from dementia when she signed a will that excluded him from her estate, he would have standing to contest the will. State laws govern who has standing to bring a will contest, so the laws may vary from state to state.
The will is not properly signed – All states have rules governing the proper execution of a will. Many states require that an individual sign his or her will in the presence of two witnesses. All three individuals must be in the same room together when the will is signed. The witnesses must know that the individual is signing his or her will, and the witnesses generally should not be expected to receive any benefit from the estate, i.e., be disinterested witnesses. If an an interested individual believes the signing did not take place within these guidelines, he or she can bring a contest.
The will creator lacked capacity – To sign a will, a person must have mental capacity to understand what assets they hold and who will receive those assets upon death. Often, as people age, they develop Alzheimer’s and/or dementia. These diseases come gradually and the person creating the will may have good days and bad days. Capacity to sign also becomes a problem when someone is suffering from a long-term illness. If the individual is taking a lot of pain medication, it may result in lack of sufficient consciousness to sign important documents. The key is to determine whether, at the exact moment when the will was signed, the individual had capacity to understand what assets he or she has, and who will recieve those assets after he or she passes. Making this determination can require numerous depositions and reports from expert witnesses, which can be very expensive.
There was undue influence - Undue influence means a person has exerted so much control over another individual, that the individual no longer has free will to make decisions for themselves. Similar elements are often present in undue influence cases: generally, the individual is elderly and vulnerable. A relative or caregiver develops a close relationship with the individual, and eventually begins to isolate the individual from other friends and family. The relative or caregiver will contact an attorney to discuss estate planning. The relative or caregiver will tell the attorney what the individual’s will should say (often favoring their own interests). The relative or caregiver will accompany the individual to the meeting. In this situation, the attorney cannot be sure that the individual is actually expressing his or her own wishes, or has had pressure exerted on them to favor the relative or caregiver. Most competent estate planning attorneys will ask the relative or caregiver to leave the room. After meeting privately with the individual, if the attorney is comfortable that they are not under undue pressure, the attorney may proceed with preparing the individual's will.
In terrorem clauses - Many people ask whether they can include a clause that would penalize a beneficiary for contesting a will (known as an in terrorem clause). These provisions generally provide that if a beneficiary contests the will, he or she will lose any inheritance otherwise allocated to them. Most states have laws prohibiting these types of clauses. If a beneficiary cannot object to a will without fear of losing his or her inheritance, the beneficiary is far less likely to object even in a case of undue influence, or lacked capacity to sign.
There are attorneys who specialize in this particular area will and trust litigation. If you are thinking about bringing a will contest, or are concerned that a relative may bring a will contest after your death, consult with an attorney to see what measures can be taken to prevent complications.