A will contest is a formal objection raised in court against the validity of a will, based on the contention that the will does not reflect the actual intent of the testator (the party who made the will). Will contests generally focus on the assertion that the testator lacked testamentary capacity, was operating under an insane delusion, or was subject to undue influence or fraud. A will may be challenged in its entirety, or only in part.
Standing to contest a will
Who can contest a will? Typically, standing to contest the validity of a will is limited to two classes of persons: 1) those named in the will (beneficiary) or 2) those who would inherit if the will is invalid.
Grounds for Contesting a Will
Here are the typical grounds for contesting the validity of a will:
Lack of Testamentary Capacity
Just because an individual suffers from a form of mental illness or is impaired by age or illness does not mean that the testator automatically lacks the requisite mental capacity to make a will. Testamentary capacity typically requires that a testator has sufficient mental acuity to understand (a) the amount and nature of his or her property, (b) the family members and loved ones who would ordinarily receive such property, and (c) how his/her will disposes of such property.
Lack of mental capacity or incompetence is typically proven by medical records, irrational conduct of the decedent, and the testimony of those who observed the decedent at the time the will was executed.
An insane delusion is another form of incapacity. Courts have defined it as a “fixed false belief without hypothesis, having no foundation in reality.” Other courts have expanded on this concept by adding that the fixed false belief must be persistently adhered to against all evidence and reason.
Duress involves some threat of physical harm or coercion practiced upon the testator by the perpetrator which caused the execution of the will.
There are four general elements of fraud:
- False representations of material facts to the testator
- Knowledge by the perpetrator that the representations are false
- Intent that the representations be acted upon
- Resulting injury
There are two primary types of fraud: Fraud in the Execution where, for example, the testator is told the will he/she signed was something other than a will, and Fraud in the Inducement where, for example, the testator is intentionally misled by a material fact which caused the testator to make a different devise than he/she would otherwise have made.
Undue influence typically involves a trusted friend, relative or caregiver who “actively procures” a new will. Here’s a list of the types of active procurement that will be considered by courts: (1) presence of the beneficiary at the execution of the will; (2) presence of the beneficiary on those occasions when the testator expressed a desire to make a will; (3) recommendation by the beneficiary of an attorney to draw the will; (4) knowledge of the contents of the will by the beneficiary prior to execution; (5) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will; (6) securing of witnesses to the will by the beneficiary; and (7) safekeeping of the will by the beneficiary subsequent to execution.
If the challenger of a will is able to establish that it was “actively procured,” the burden of proof shifts to the person seeking to uphold the will to establish that the will is not the product of undue influence.
A legal presumption of undue influence may arise when there is a finding of a confidential (or fiduciary) relationship, the active procurement of the will by the beneficiary and a substantial benefit to that beneficiary. However, this is dependent on the circumstances of such a relationship and the burden is initially on the person contesting to show undue influence.
To invalidate a will, undue influence must amount to “over-persuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that there is destruction of the free agency and will power of the one making the will. Mere affection, kindness or attachment of one person for another may not of itself constitute undue influence.
Is a Will Contest Practical?
Courts cannot consider “fairness” during will contests. Just because the provisions of a will may seem “unfair” does not mean that the will is invalid. Therefore, wills cannot be challenged simply because they seem unfair. The decedent has a legal right to dispose of his or her property in any way that is legal.
Will contest cases can be lengthy and can cause enormous stress for family members. Mediation if often the best solution, both from a practical and an emotional standpoint. However because emotions typically run high, it is often difficult to get both sides to negotiate in good faith.