Four Good (?) Reasons to Contest a Will

Maybe it's the season, but I have gotten a lot of calls recently about will contests.  A will contest usually happens when your heirs are surprised by what your will says, or by what you have left when you go to the great beyond.  I have represented both heirs and estates, and in all cases there are some big misunderstandings about the reasons you can challenge a will.  And no, being disappointed is not a legal cause of action.

First, this post is an except from my new book Plan Your Own Estate:  Passing on Your Assets and Your Values Legally and Efficiently (Apress 2013).  Want to know more?  Click the link and 350+ pages of fun (I swear) estate planning knowledge is yours!

Sometimes, the heirs are surprised because something hinky is going on. Mom said all her life she was leaving her assets equally to her kids, yet daughter Donna took Mom to her lawyer and Mom suddenly (6 months before she died) named Donna sole beneficiary.

More ofter, when your heirs are surprised by what your will says, it could be they thought they were getting something, and you intended for them to get nothing.  If that's the case, make sure you are super clear about your intentions.  When you aren't, quite a good deal of money could go to defending your will.

From Plan Your Own Estate:  Passing on Your Assets and Your Values Legally and Efficiently (Apress 2013).

 

Four Reasons to Contest a Will

The good news is that, despite what you see on TV, there are only four limited grounds on which to contest a will:

·         The will wasn’t signed in accordance with state law. All the way back at the beginning of this book, I harped on how important it is to have a will properly executed under state law. If a will fails to meet the very stringent execution standards, then it won’t be deemed to be a will. If it’s not a will, it can’t transfer your property at death. This is one of the biggest areas of concern I have with using an online service or do-it-yourself estate planning—if you don’t get the signature section right, you don’t have a valid estate plan. This has led to many a person believing that they have a perfectly valid estate plan—but instead leaving their heirs in for a very nasty surprise because the will wasn’t executed properly.

·         Lack of testamentary capacity. This invalidates a will on the grounds that the person executing the will was incompetent to do so at the time they did it. You most often see this issue raised regarding an older person who modifies their will and removes some people who were beneficiaries under a prior will. The fact of the matter is that the level of capacity required to execute a will isn’t very high; it’s actually lower than the level of capacity needed to execute a contract. In essence, in order to be competent to execute a will, a person needs to know (1) the nature and value of their assets, (2) who would receive their assets if they didn’t have a will, and (3) the legal effect of signing the will. Someone would have a long road ahead of them to prove you didn’t have the capacity to execute your will. It’s hard to come by historic evidence of lack of capacity.

·         Undue influence. This is the biggie when it comes to will contests. The issue is that if a person is in a confidential relationship with you, then the person might be able to cause you such duress about your will that you lose your independence of thought process. What if you rely on one of your daughters to cook and clean for you, and she hints that unless she gets the house, she won’t be able to continue helping you? Or, what if a hired caregiver threatens to withhold your medication unless you change your will to benefit them? Or, perhaps your nephew helpfully drives you to his attorney to create a new will, which just happens to leave everything to him. When a will has unequal distributions, or distributions to non-family members, a court is reasonably concerned that the will was created out of fear that the favored beneficiary would cease caring for or even harm the person making out the will. Nine months before you died, were you threatened into changing your will to name your caregiver as the primary beneficiary? Or has your caregiver helped you for eight years, you don’t see your relatives, and you just got around to making out your will nine months before you died? This is such a fact-based inquiry that, again, undue influence is very hard to prove.

·         Fraud. You give a person a contract to sign, and it turns out someone slipped a will into the document and the person didn’t know they were signing a will. The will is invalid because it clearly isn’t an expression of the person’s intent. Another fraudulent situation is where somebody slips pages into the middle of the will. This is why I have the person making out a will or revocable trust initial each and every page.

 

 

Holographic Wills and Undue Influence - Watcha talkin about Willis?

Actor Gary Coleman's life and death were tragic in many ways.  Unfortunately, some of circus that engulfed his life followed after death due to confusing estate planning, as an article by Jun Li  at Celebrity Justice highlights (quoting yours truly).  

Coleman prepared a Will in 2007 using an attorney, leaving everything to ex-girlfriend Anna Grey..  In 2007 he  purportedly hand wrote out a new will (a "holographic will') that left his estate to his then wife, Shannon Price.  He and Price divorced in 2008 but Price claims that had a common-law marriage after that point.  And you thought his exploits during life were confusing.

In some states, such as Utah (where Coleman died) and New Jersey holographic wills are legal, so long as they adhere to certain requirements (all in the person's own handwriting, witnessed by 2 persons being common requirements).  

An issue that often arises with holographic wills, especially those made when someone is ill, is undue influence.  There are very limited grounds to overturn a person's Last Will and Testament.  One of those grounds in undue influence, which is to say that a person had undue authority over another when they were making out their will which may have lead a person to name them as a beneficiary our of fear instead of desire.  This issue can arise frequently when a senior has made a handwritten will disproportionately favoring a caregiver child during a period of illness.  

For those who do wish to make a disproportionate distribution to a caregiver child, be aware that a holographic will may not stand up under scrutiny.  This may be an instance where an attorney should be involved to make sure that your wishes are fully enforced after you are gone.

Undue Influence in a Will Contest or Estate Administration

I received a call yesterday similar to many others I have received over the years.  Essentially, Dad died and the client just found out that shortly before his death he named one child beneficiary of lots of accounts, leaving essentially nothing passing under the Will, which had divided everything equally between 3 children.

Lou Ann Anderson, the Bell County Legal News Examiner has an article today about celebrity cases of undue influence.  The stories are similar - shortly before death a new Will is executed or other property transfers done that undo a lifetime of the decedent's intent. These cases include Brooke Astor (her son and attorney were sent to jail for trying to defraud hundreds of millions from charity), Melvin Simon of Simon Shopping Malls fame (his Will months before he died was changed to leave all to his wife, and take out $150 million in bequests to charities), John "Buck" Jones, owner of the Carolina Panthers (his Will was changed a month before his death to leave control of Company to his wife instead of 3 employees as had been his long standing plan).

While these celebrity cases are titillating because of the names and dollar amounts involved, the same situation involves New Jersey families all the time.

There are competing concerns.  First, a person is free to leave their money to whomever they please (other than 1/3 to a spouse) - children do not have a right of inheritance.  Second, a person is not required to leave money equally among a group - many times one child gets more in the Will than others because the parent perceives that child's need or reward to be greater.  

However, it is the person making the gift who is allowed to make these decisions - not the person getting the gift.  The problem of undue influence arises when somebody essentially takes advantage of a person's reduced physical or mental state, or a situation of fear or dependency, and influences them to make an action they would not have otherwise takes.

The issue for a person who is claiming undue influence cases is one of proof.  How do you prove a person was influenced to make a change to their estate plan and it was not an independent decision?  There need to be witnesses and documents.  Do you have to prove the undue influence, or does the person who got the money have to defend the gift?  Kenneth A. Vercammen, Esq. has an excellent summary of the issues in Undue Influence As Defense To Will Or Power Of Attorney (New Jersey).

Generally, the person claiming undue influence (ie, the person getting less) has the burden of proof to show a court there was undue influence.  See Conners v. Murphy, 134 A. 681, 682 (N.J.Err. & App. 1926); Pascale v. Pascale, 549 A.2d 782, 786 (N.J.1988). However, if the the person who benefited from a gift is in a confidential relationship with the person who made the gift (an attorney in fact under a POA, a person who the person who made the gift is dependent upon), then the burden of proof shifts to the person who got the gift to prove that the person making the gift had independent counsel in making the gift.  See Haynes v. First National State Bank of New Jersey, 432 A.2d 890 (N.J. 1981); Pascale v. Pascale.

The presumption of undue influence is easier to raise with lifetime transfer then with transfers in a Will.   Some lessons from this are that  if you think that you were harmed by undue influence, gathering facts and acting quickly is key.  If you plan to disproportionately benefit your heirs, you should seek legal counsel to act to protect that gift from a claim of undue influence.

Image: Simon Howden / FreeDigitalPhotos.net