Few things are uglier than the spectacle of children or other relatives arguing about an inheritance. The law respects the right of individuals to decide who should inherit their property. Parents may decide to leave property to some children but not to others. They may decide to give more property to one child than to another. They may favor their grandchildren rather than their children. They may decide to leave all their money to the Humane Society. The power to make those choices is usually absolute.
Given the law’s respect for the right of individuals to determine how their assets will be distributed after death, it is not easy to challenge a will. Still, some circumstances allow courts to decide that a will should not govern the probate of an estate. That is most likely to happen when a will has been recently made or revised by an older person.
Seniors can guard against will challenges. That process begins by understanding why a challenge might succeed.
Grounds for Will Challenges
The laws governing will challenges are determined by the courts and legislatures of each state. State laws differ in some respects, although the standards that govern challenges to a properly executed will tend to be similar.
Each state has adopted rules that govern the formality with which a will must be executed. “Uncle Harry told me he was leaving me the Rembrandt” is not usually accepted as proof of inheritance. Most states require wills to be in writing and executed in the presence of witnesses who watch the maker and each other sign the will.
A few states recognize oral wills when circumstances make it difficult or impossible to make a written will. A few states allow nuncupative wills, also known as “deathbed wills,” if sufficient witnesses attest to the maker’s statements, although the ability to make nuncupative wills is often limited to members of the military who are on active duty. Oral wills are generally disfavored in the states that permit them and are never allowed to supplant a properly executed written will.
Some will challenges are based on evidence of forgery. Those challenges typically arise when an alleged beneficiary produces a will that supposedly revokes an earlier will. If the former will was kept in a safe deposit box and the new will was allegedly found in a shoe box, there may be reason to suspect its authenticity. Lawyers for the beneficiaries of the earlier will may need to interview the alleged witnesses to the new will and to retain a handwriting expert to determine whether the new will is authentic.
The lesson to learn is that wills should be drafted by estate planning attorneys and kept in a secure location. Safe deposit boxes are usually the best choice. The personal representative (sometimes known as the executor) should be told where the will is kept. If that will is revoked and replaced with a new will, the personal representative should be told that an updated will has been made. While it isn’t necessary to explain the terms of the will to the personal representative, updating that person about the existence and location of a will can discourage relatives from producing forged wills.
Testamentary Capacity and Undue Influence
Some will challenges are based on a claim that the maker of the will lacked testamentary capacity. Most people are familiar with the phrase “being of sound mind” that traditionally introduces wills. That phrase reflects the legal principle that the maker of a will must have the mental capacity to understand the nature of the property that he or she owns, the nature of the maker’s relationships with children and others who might ordinarily inherit property, and the terms of the will that the maker is executing. The maker must also have the ability to create a coherent plan to dispose of his or her property.
Testamentary capacity may decline when a will maker suffers from dementia or some other disease that impairs memory or rational thought. A will maker who does not remember that she has children and who leaves her property to a charity in the belief that she is alone in the world probably lacks testamentary capacity to execute a valid will. Under those circumstances, a probate court might revive a previous will if one exists or might distribute property in the manner required by state law when people die without a will.
A lack of testamentary capacity is often proved with medical evidence. When the terms of a will make no obvious sense and when medical evidence establishes that the will’s maker suffered from a substantial loss of memory, a will challenge might be successful. However, even people who suffer from dementia might have lucid moments during which they have the capacity to make a will. The witnesses who were present when the will was made can often provide critical evidence about the maker’s awareness, alertness, and presence in the moment when the will was made.
Other will challenges are based on a claim of undue influence. The challengers argue that the beneficiary of a will improperly persuaded the person who made the will to leave them property. While there is nothing wrong with asking to inherit a particular item of property (or even all of a person’s property), undue influence occurs when the request is coercive or takes advantage of the will maker’s mental condition.
Undue influence claims depend on evidence that the person who made the will did not make a free and independent decision to make a particular bequest. The facts surrounding an undue influence claim are often disputed. For example, if a grandparent leaves all of her property to a grandchild who consistently visited her, the other grandchildren might claim that those visits were used to influence the grandparent to change her will. The reality might be that the grandparent simply felt more love for the grandchild who spent time with her and considered that grandchild to be more deserving of an inheritance.
Guarding Against Will Challenges
Making a will while in good physical and mental health is the best safeguard against a will challenge. Having the will witnessed by individuals who are not beneficiaries and who have no stake in a will contest assures that independent witnesses can establish that the person making the will was of sound mind and was not (at least when the will was signed) being influenced by anyone.
Unfortunately, people sometimes put off making a will until they reach their senior years. Events (such as a child’s irresponsible behavior) might also persuade seniors to change their wills. There is nothing inherent in old age that makes an individual less capable of making a will. Since wills made by older people are more likely to be challenged, however, it makes sense for older people to take additional precautions to avoid a will challenge.
The process should begin by retaining an estate planning lawyer who has experience working with seniors. A lawyer will make sure the will is prepared properly and executed in a way that satisfies state law. The lawyer can also assure that neutral witnesses are present when the will is signed.
When there is a risk of a will challenge, a lawyer may want to take additional steps. A lawyer might advise the individual making the will to obtain a mental status examination shortly before executing the will. Proof that dementia has not impaired the ability to make rational decisions can help foreclose challenges to the person’s capacity to make a will.
A lawyer might also want to make a video recording of the will signing. On video, the lawyer may explain each clause of the video in simple language and ask questions to make clear that the person signing the will understands its terms. The lawyer might ask if the will is being made voluntarily, if anyone has attempted to influence the maker’s decision, and if anyone has threatened or coerced the maker. If the will is unusual in some way (for example, if a relative who was a beneficiary in an earlier will is disinherited in the new version), the lawyer might ask the maker to explain why the maker made that decision.
A no-contest clause might also discourage will challenges. A no-contest clause states that any beneficiary who challenges the will cannot inherit (or will only inherit one dollar) if the challenge is unsuccessful. Since not all states enforce no-contest clauses, the lawyer who makes the will can help the maker understand whether a no-contest clause is advisable.
Making gifts or creating trusts during the maker’s lifetime might be another way to preempt a will contest. Disposing of assets before death avoids probate and might prevent quarrels about who should inherit valuable property. Estate planning lawyers can help seniors understand how to make estate plans that minimize the importance of wills.