What to Expect When Challenging a Will

By | April 18, 2017

A will is the document by which we carry out final decisions, but what happens if the integrity of that document is in doubt, or if descendants question the mental capacity of the maker of the will? These are tough questions that ultimately can lead to a will contest. A will challenge is the legal process by which a person contends the will is invalid and a previous will (or a state statute of distributions) should control the distribution of property. Not everyone can challenge the validity of a will; in order to bring a will challenge, you must have standing. It is up to the states to determine who has standing, but this usually includes lineal descendants and those who stood to gain from a previous will.

It’s important to note that will contests are exceedingly rare, and can turn ugly quickly. A will contest is often a long and tedious process that will likely require the assistance of estate lawyers. In most states, will challenges take place primarily in probate court, with rulings appealable to a higher court.

The most common grounds for challenging a will is lack of mental capacity or undue influence. An example in this scenario would be a daughter who has been written out of her elderly father’s will, and the father now intends to leave his entire estate to his caretaker or nurse. While the vast majority of elderly caretakers do great job and provide invaluable assistance, some have been unable to avoid the temptation of lining their own pocketbook. In this example, the daughter who has been written out of her father’s will may challenge the will on the grounds of her father’s deteriorated mental condition. She may also argue that the caretaker exerted undue influence over him in making the will. In many cases, beneficiaries may not discover their loved one changed their will until after death, thus necessitating the will contest legal option.

A will challenge for lack of mental capacity must show that the will maker (known as the decedent) did not have sound mind at the time he or she made the will. Forgetfulness, absentmindedness, or even minor senility will not cut it. The bar to keep the contested will in place is fairly low – they simply must show the decedent knew who his or her people were, knew what they were doing in making the will, and knew what they owned.

A will challenge for undue influence or fraud is similarly difficult to prove. It involves taking advantage of a vulnerable person to trick or convince them into leaving their assets to the wrongdoer. Here, the challenger must show that a person close to the decedent manipulated the decedent into making a new will, or exercised undue influence over them in making decisions.

In order for the will challenger to make their case, they will have to call witnesses such as family members, caretakers, lawyers, accountants, friends, etc., who can testify through firsthand knowledge that the decedent lacked capacity due to mental frailty or undue influence from someone in a trusted position. The decedent’s doctors often will also be called as witnesses to give a professional opinion of their mental state.

One potential deterrent to challenging a will is the presence of an in terrorem clause. These clauses eliminate the inheritance of someone who brings a will challenge and loses. They are intended to prevent disputes between relatives and reduce the chances of a will contest, although some states now ban in terrorem clauses.

Exercising undue influence or manipulation is one form of elder abuse. Other forms of elder abuse include financial, mental, physical, and sexual abuse. If you believe a loved one is being abused, use state and national resources to notify the authorities of the abuse as quickly as possible. As the various forms of abuse often go hand-in-hand, know the signs, and keep of a vigilant eye on the condition of your elderly loved one.

While this article has discussed some of the experiences common in a will challenge, many more complex estate law issues are likely to be encountered. If you or a loved one becomes involved in a will contest, contact an experienced estate lawyer to discuss your legal options.

About the Author:

 Morris Lilienthal is a shareholder with the personal injury law firm Martinson & Beason, P.C. He is AV rated by Martindale-Hubbell and has received the Alabama Super Lawyer Rising Star award. In addition to car accidents, he also assists clients with wrongful death, nursing home negligence, and products liability cases.

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