It’s not uncommon for a family member’s last will and testament to go challenged in court, but it’s very uncommon for the challenge to be successful. Often, unhappy heirs or disinherited children will threaten to contest, but once they do even the quickest internet search and realize that the odds are stacked against them, they never bother phoning their attorney. It’s hard to get an exact statistic, but most estate planning attorneys estimate that less than 1 in 20 cases of a will being contested is successful. And in most instances, success means the state throws out the will and acts as if the person died without one. If you would qualify as a statutory heir if the will were tossed out, you have standing to challenge it. But what are the reasons that really matter?
States have specific laws for how and when a will can be signed, and the most common reason for contesting a will is that it was completed improperly. A will that was typed needs to be dated and signed in the presence of two witnesses, and in most states, these witnesses cannot be named as beneficiaries. You can challenge on the grounds that a witness inherited money or goods from the will, but usually that will just invalidate or forfeit the witness’ gift, not the entire document. Around 25 states recognize “holographic wills,” which are entirely handwritten and signed without witnesses. You can challenge a holographic will by arguing it was either not in the deceased’s handwriting or not intended to be a will, but that’s also very difficult.
Undue Influence and Fraud
This is where you get into movie of the week territory. If you believe someone was threatening, blackmailing, or coercing your elderly parent or relative into changing their will, you may have grounds to challenge. Even extreme pressure or financial gifts intended to persuade them to change the will can be the basis for a case, but it’s very hard to prove because the deceased can’t testify as to why they included certain provisions. The court may rely on the testimony of witnesses, who will give their opinion as to the deceased’s motivation and testify to their experience. If the witnesses prove invalid, the will gets thrown out because of improper signing procedure anyway, but most of the time their testimony will not necessarily help your case.
Severe Mental Incapacity
If a parent with serious Alzheimer’s was coerced to sign a will, the court may look at their mental state as well as the undue influence. But proving that an elderly person was not of sound mind when their will was finalized is hard because the court’s standards are very low. They simply have to know what a will is, what it does, and whom the family members are that they’re providing for. Memory loss, temporary inability to recognize people, and other symptoms of dementia don’t necessarily add up to mental incapacity by themselves. Again, the courts rely on the testimony of witnesses unless the deceased was evaluated by a doctor within days of the will’s signing.
There’s a New Will
It’s actually not uncommon for people to make more than one will in their lifetime because they got divorced, had more children, or acquired more wealth. The common practice is to destroy the old wills, but if you happen to find more than one, the most recent will almost always supersedes the others. Usually, a will contains a statement revoking all previous wills. You can argue that the most recent will is invalid and revert to the older one, or you can argue that one will is more recent than another – at any rate, the existence of multiple documents can create a valid lawsuit.
As you can see, it’s hard to convince a judge that a will is invalid except in the most extreme and unusual cases. Before you make the phone call to your attorney, you should decide whether something major is wrong with how your family member’s estate was handled or whether you’ll just be wasting time and money. Sometimes it can be tough to know for sure.
Mary Harmon blogs for several legal document sites that offer help with personal matters, such as www.lastwillandtestament.us.